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same prohibition as to its rivers and lakes; and if the act here should be an excess or abuse of legislation, would not its responsibility be exclusively to the people of the State?

The State of New-York, from motives not examinable here, made a contract, which is the foundation of our right; it could only do so by a law. The State had a right to contract, and, so far, it stands on the same footing as if one individual contracted, for a valuable consideration, with another, to receive his supplies of any article from him only. In the case of individuals, could a man, having a patented improvement of the same article, insist on annulling that contract, as interfering with his exclusive right and patent? If not, why should not a State, capable of contracting, have the same right to make that bargain, and, consequently, exclude the use of the patented article in its jurisdiction and domain, as an individual has in his own house and farm? The waters of the State are the domain and property of the State, subject only to the commercial regulations of Congress. Why should not the contract of a State, in regard to its domain and property, be as sacred as that of an individual? Such a contract was in this, and may in many cases, be very useful and advantageous. Who is to judge of that but the State Legislatures? Could Congress have made this contract, or acquired this benefit for the State? Certainly not. If the State cannot, what power or authority can? And is it come to this, that a contract, such as every individual in the land may wisely and law

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fully make, for his own benefit, and to be enforced 1824. in his own premises, no State, and no authority for any State, can make for its benefit, and to be enforced in its jurisdiction?

There are circumstances connected with those laws, sufficient to make any tribunal require the strongest arguments before it adjudged them invalid. The State of New-York, by a patient and forbearing patronage of ten years, to Livingston and Fulton, by the tempting inducement of its proferred reward, and by the subsequent liberality of its contract, has called into existence the noblest and most useful improvement of the present day. Genius had contended with its inherent difficulties, for generations before; and if some had nearly reached, or some even touched, the goal, they sunk exhausted, and the result of their efforts perished in reality, and almost in name. Such would, probably, have been the end of Fulton's labours; and, neither the wealth and talents of his associate, nor the resources of his own great mind, would have saved him from the fate of others, if he had not been sustained, for years, by the wise and considerate encouragement of the State of New-York. She has brought into noonday splendour, an invaluable improvement to the intercourse and consequent happiness of man, which, without her aid, would, perhaps, have scarcely dawned upon our grandchildren. She has not only rendered this service to her own citizens, but the benefits of her policy have spread themselves over the whole Union. Where cạn you turn your eyes, and where can you travel,

Ogden.

without having your eyes delighted, and some part of the fatigues of your journey relieved, by the presence of a steam boat? The Ohio and Mississippi, she has converted into rapid channels for communicating wealth, comforts and enjoyments, from their mouths to their head waters. And the happy and reflecting inhabitants of the States they wash, may well ask themselves, whether, next to the constitutions under which they live, there be a single blessing they enjoy from the art and labour of man, greater than what they have deriv:1 from the patronage of the State of New-York to Robert Fulton! But the mighty benefits that have resulted from those laws, are not circumscribed, even by the vast extent of our Union. New-York may raise her head, she may proudly raise her head, and cast her eyes over the whole civilized world; she there may see its countless waters bearing on their surface countless offsprings of her munificence and wisdom. She may fondly calculate on their speedy extension in every direction and through every region, from Archangel to Calcutta; and justly arrogating to herself the labours of the man she cherished, and, conscious of the value of her own good works, she may turn the mournful exclamation of Æneas into an expression of triumph, and exultingly ask,

Quæ regio in terris, nostri non plena laboris?

And it is, after all those advantages have beer acquired and realized to the world—after nume: rous individuals have embarked their fortunes, or

the faith of those grants, and a ten years acquiescence in the decision by which they were sanctioned-after the property they have created has been diffused among a multitude of possessorsafter it has become the sole support of the widow and the orphan-after it has received and exhausted the accumulated savings of the laborious and industrious heads of families, that a decision is required, which cannot, indeed, undo the lasting benefits already procured to the world, but would, assuredly, undo many of those who have confided their wealth and means to the stability and observance of those laws!

The Attorney-General, for the appellant, in reply, insisted, that the laws of New-York were unconstitutional and void:

1. Because they are in conflict with powers exclusively vested in Congress, which powers Congress has fully exercised, by laws now subsisting and in full force.

2. Because, if the powers be concurrent, the legislation of the State is in conflict with that of Congress, and is, therefore, void.

He stated, that the powers with which the laws of New-York conflict, are the power "to promote the progress of science and the useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and inventions," and the power "to regulate commerce with foreign nations, and among the several States." If these powers were exclusive in Congress, and it had exercised them by

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1824. subsisting laws; and if the laws of New-York interfere with the laws of Congress, by obstructing, impeding, retarding, burdening, or in any other manner controlling their operation, the laws of New-York are void, and the judgment of the State Court, founded on the assumption of their validity, must be reversed.

In discussing this question, the general principles assumed, as postulates, on the other side, might be, for the most part, admitted. Thus, it might be admitted, that by force of the declaration of independence, each State became sovereign; that they were, then, independent of each other, and foreign to each other; that by virtue of their separate sovereignty, they had, each, full power to levy war, to make peace, to establish and regulate commerce, to encourage the arts, and generally to perform all other acts of sovereignty. It was also conceded, that the government of the United States is one of delegated powers; and the counsel for the respondent added, that it is one of enumerated powers. Yet they admitted that there were implied powers, and had given a different rule for the construction of the two classes of powers, which was, that "the express powers are to be construed strictly, the implied powers liberally." But the implied powers, he presumed, were only those which are necessary and proper to carry the powers, expressly given, into effect-the means to an end. This clause had not been generally regarded as, in fact, giving any new powers. Congress would have had them without the express declaration.