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GIBBONS, Appellant, v. OGDEN, Respondent.

The acts of the Legislature of the State of New York, granting to

Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the coastitution of the United States, wbicb authorizes Congress to regulate commerce, so far as the said acts prohibit vessels licensed, according to the laws of the United States, for car. rying on the coasting trade, from navigating the said waters by means of fire or steam.

APPEAL from the Court for the Trial of Impeachments and Correction of Errors of the State of New-York. Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton, the

Voi. IX

1824.

Gibbons

Ogden.

exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years which has not yet expired; and authorizing the Chancellor to award an injunction, restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places, in New Jersey, and the city of New-York; and that Gibbons, the defeodant below, was in possession of two steam boats, called the Stoudinger and the Bellona, which were actually employed in running between New-York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New-York. The injunction having been awarded, the answer of Gibbons was filed; in which he stated, that the boats employed by him were duly enrolled and licensed, to be employed in carrying on the coasting trade, under the act of Congress, passed the 18th of February, 1793, c. 8, entitled, “An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.” And the defendant insisted on his right, in virtue of such licenses, to navigate the water between Elizabethtown and the city of New-York, the said acts of the Legislature of the

1824. in

gentle

State of New-York to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the opinion, that the said acts were not repugnant to the constitution and laws of the United States, and were valid.. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors, which is the highest Court of law and equity in the State, before which the cause could be carried, and it was thereupon brought to this Court by appeal.

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Mr. Webster, for the appellant, admitted, that Feb. 4th, 6th,

and sth. there was a very respectable weight of authority in favour of the decision, which was sought to be reversed. The laws in question, he knew, had been deliberately re-enacted by the Legislature of. New-York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference. The disposition of the Court-would be, undoubtedly, to support, if it could, laws so passed and so sanctioned. He admitted, there. fore, that it was justly expected of him that he should make out a clear case; and unless he did so, he did not hope for a' reversal. It should be remembered, however, that the whole of this branch of power, as exercised by this Court, was a power of revision. The question must be decided by the State Courts, and deoided in a particular manper, before it could be brought here at all. Such decisions alone gave the Court jurisdiction; and therefore, while they are to be re

1824. spected as the judgments of learned Judges, they

are yet in the condition of all decisions froin Gibbons

which the law allows an appeal. Ogden.

It would not be a waste of time to advert to the existing state of the facts connected with the subject of this litigation. The use of steam boats, on the coasts, and in the bays and rivers of the country, had become very general. The intercourse of its different parts essentially depended upon this mode of conveyance and transportation. Rivers and bays, in many cases, form the divisions between States ; and thence it was obvious, that if the States should make regulations for the navigation of these waters, and such regulations should be repugnant and hostile, embarrassment would necessarily happen to the general intercourse of the community. Such events had actually occurred, and had created the existing state of things.

By the law of New-York, no one can navigate the bay of New-York, the North River, the Sound, the lakes, or any of the waters of that State, by steam vessels, without a license from the grantees of New York, under penalty of forfeiture of the vessel.

By the law of the neighbouring State of Congecticut, no one can enter her waters with a steam vessel having such license.

By the law of New-Jersey, if any citizen of that State shall be restrained, under the NewYork law, from using steam boats between the ancient shores of New-Jersey and New-York, he shall be entitled to an action for damages, in 1824.

Gibbons

v.

New-Jersey, with treble costs against the party who thus restrains or impedes him under the law of Nero-York! This act of New Jersey is called an act of retortion against the illegal and oppressive legislation of New-York; and seems to be defended on those grounds of public law which justify reprisals between independent States.

It would hardly be contended, that all these acts were consistent with the laws and constitution of the United States. If there were no power in the general government, to control this extreme belligerent legislation of the States, the powers of the government were essentially deficient, in a most important and interesting particular. The present controversy respected the earliest of these State laws, those of New York. On those, this Court was now to pronounce; and if they should be declared to be valid and operative, he hoped somebody would point out where the State right stopped, and on what grounds the acts of other States were to be held inoperative and void.

It would be necessary to advert.more particularly to the laws of New York, as they were stated in the record. The first was passed March 19th, 1787. By this act, a sole and exclusive right was giarted to John Fitch, of making and using every kind of boat or vessel impelled by steam, in all creeks, rivers, bays, and waters, within the territory and jurisdiction of New York, for fourteen years.

On the 27th of March, 1798, an act was passed, on the suggestion that Fitch was dead, or had withdrawn from the State, without having made

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