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1824. power itself; by the terms used, as connected
with the nature of the power; by the subsequent Gibbons
understanding and practice, both of Congress and Ogden.
the States; by the grant of exclusive admiralty jurisdiction to the federal government; by the manifest danger of the opposite doctrine, and the ruinous consequences to which it directly leads.
It required little now to be said, to prove that this exclusive grant is a law regulating commerce : although, in some of the discussions elsewhere, it had been called a law of police. If it be not a regulation of commerce, then it follows, against the constant admission on the other side, that Congress, even by an express act, could not annul or control it. For if it be not a regulation of commerce, Congress has no concern with it. But the granting of monopolies of this kind is always referred to the power over commerce. It was as arviter of commerce that the King formerly granted such monopolies. This is a law regulating commerce, inasmuch as it imposes new conditions and terms on the coasting trade, on foreign trade generally, and on foreign trade as regulated by treaties ; and inasmuch as it interferes with the free navigation of navigable waters.
If, then, the power of commercial regulation, potsessed by Congress, be, in regard to the great branches of it, exclusive; and if this grant of NewYork be a commercial regulation, affecting commerce, in respect to these great branches, then
the grant is void, whether any case of actual col. 1824. lision had happened or not.
Gibbons But, he contended, in the second place, that whether the grant were to be regarded as wholly
Ogden. void or not, it must, at least, be inoperative, when the rights claimed under it came in collision with other rights, enjoyed and secured under the laws of the United States; and such collision, he maintained, clearly existed in this case. It would not be denied that the law of Congress was paramount. The constitution has expressly provided for that. So that the only question in this part of the case is, whether the two rights be inconsistent with each other. The appellant had a right to go from New-Jersey to New-York, in a vessel, owned by himself, of the proper legal description, and enrolled and licensed according to law. This right belonged to him as a citizen of the United States. It was derived under the laws of the United States, and no act of the Legislature of New-York can deprive him of it, any more than such act could deprive him of the right of holding lands in that State, or of suing in its Courts. It appears from the record, that the boat in question was regularly enrolled, at Perth Amboy, and properly licensed for carrying on the coasting trade. Under this enrolment, and with this license, she was proceeding to New-York, when she was stopped by the injunction of the Chancellor, on the application of the New-York grantees. There. can be no doubt that here is a collision, in fact; that which the appellant claimed as a right, the respondent resisted"; and there remains nothing
1824. now but to determine, whether the appellant hud,
w as he contends, a right to navigate these waters; Gibbons
because, if he had such right, it must prevail. Now, this right was expressly conferred by the laws of the United States. The first section of the act of February, 1793, c. 8. regulating the coasting trade and fisheries, declares, that all ships and vessels, enrolled and licensed as that act provides, “ and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries." The fourth section of the same declares, “ that in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries,” bond shall be given &c. according to the provisions of the act. And the same section declares, that the owner having complied with the requisites of the law, « it shall be the duty of the Collector to grant a license for varrying on the coasting trade;" and the act proceeds to give the form and words of the license, which is, therefore, of course, to be received as a part of the act; and the words of the license, after the necessary recitals, ate, “ license is hereby granted for the said vessel to be employed in carrying on the coasting trade.”
Words could not make this authority more ex: press.
The Court below seemed to him, with great deference, to have mistaken the object and nature of the license. It seemed to have been of.opinion that the license had no other intent or effect than to ascertain the ownership and character of the 1824.
vessel. But this was the peculiar office and object of the enrolment. That document ascertains that the regular proof of ownership and character has been given; and the license is given, to confer the right, to which the party has shown himself entitled. It is the authority which the master carries with him, to prove his right to navigate freely the waters of the United States, and to carry on the coasting trade.
'In some of the discussions which had been had on this question, it had been said, that Congress had only provided for ascertaining the ownership and property of vessels, but had not prescribed to what use they might be applied. But this thought an obvious crror; the whole object of the act regulating the coasting trade, was to declare what vessels shall enjoy the benefit of being used in the coasting trade. To secure this use to certain vessels, and to deny it to others, was precisely the purpose for which the act was passed. The error, or what he humbly supposed to be the error, in the judgment of the Court below, consisted in that Court's having thought, that aļthough Congress might act, it had not yet acted, in such a way as to confer a right on the appellant: whereas, if a right was not given by this law, it never could be given; no law could be inorc express. It had been admitted, that supposing there was a provision in the act of Congress, that all vesseis duly licensed should be at liberty to navigate, for the purpose of trade and commerce, over all the navigable harbours, bays, rivers and lakes, within the several States, any
ny to any . Gibbons
law of the States, creating particular privileges as to any particular class of vessels, to the contrary notwithstanding, the only question that could arise, in in such a case, would be, whether the law was constitutional; and that if that was to be granted or decided, it would certainly, in all Courts and places, overrule and set aside the State grant. . Now, he did not see that such supposed case could be distinguished from the present. We show a provision in an act of Congress, that all vessels, duly licensed, may carry on the coasting irade; nobody doubts the constitutional validity of that law; and we show that this vessel was duly licensed according to its provisions. This is all that is essential in the case supposed. The presence or absence of a non obstante clause, cannot affect the extent or operation of the act of Congress. Congress has no power of revoking State laws, as a distinct power. It legislates over subjects; and over those subjects which are within its power, its legislation is supreme, and necessarily overrules, all inconsistent or repugnant State Jegislation. If Congress were to pass an act expressly revoking or annulling, in whole or in part; this New-York grant, such an act would be wholly useless and inoperative. If the New-York grant be opposed to, or inconsistent with, any constitutional power which Congress has exercised, then, 80 far as the incompatibility exists, the grant is nugatory and void, necessarily, and by reason of the supremacy of the law of Congress. But if the grant be not inconsistent with any exercise of the powers of Congress, then, certainly, Con