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1824. any attempt to use his privilege, repealing the

grant to him, and conferring similar privileges on 1. Robert R. Liringston, for the term of twenty Ogden.

years, on a suggestion, made by him, that he was possessor of a mode of applying the steam engine to p opel a boat, on new and advantageous principles. On the 5th of April, 1803, another act was passed, by which it was declared, that the rights and privileges granted to R. R. Livingston, by the last act, should be extended to him and Robert Fulton, for twenty years, from the passing of this act. Then there is the act of April 11, 1808, purporting to extend the monopoly, in point of time, five years for every additional boat, the whole duration, however, not to exceed thirty years; and forbidding any and all persons to navigate the waters of the State, with any steam boat or vessel, without the license of Liringston and Fulton, under penalty of forfeiture of the boat or vessel. And, lastly, comes the act of April 9, 1811, for enforcing the provisions of the last mentioned act, and declaring, that the forfeiture, of the boat or vessel, found navigating against the provisions of the previous acts, shall be deemed to accrue on the day on which such boat or vessel should navigate the waters of the State ; and that Livingston and Fulton might immediately have an action for such boat or vessel, in like manner as if they themselves had been dispossessed thereof by force; and that on bringing any such suit, the defendant therein should be prohibited, by injunc. tion, from removing the boat or yessel out of the State, or using it within the State. There were

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one or two other acts mentioned in the plead ags, which principally respected the time allowed for complying with the condition of the grant, and were not material to the discussion of the case.

By these acts, then, an exclusive right is given to Livingston and Fulton, to use steam navigation on all the waters of New-York, for thirty years from 1808.

It is not necessary to recite the several conveyances and agreements, stated in the record, by which Ogden, the plaintiff below, derives title under Livingston and Fulton, to the exclusive use of part of these waters.

The appellant being owner of a steam-boat, and being found navigating the waters between New Jersey and the city of New-York, over which : waters Ogden, the plaintiff below, claimed an exclusive right, under. Livingston and Fulton, this bill was filed against him by Ogden, in October, 1818, and an injunction granted, restraining him from such use of his boat. This injunction was made perpetual, on the final bearing of the cause, in the Court of Chancery; and the deeree of the Chancellor has been duly affirmed in the Court of Errors. The right, therefore, which the plaintiff below asserts to have and maintain his injunction, depends dbviously on the general validity of the New-York laws, and, especially, on their force and operation as against the right set up by the defendant. This right he states, in his answer, to be, that he is a citizen of NewJersey, and owner of the steam-boat in question ; that the boat was a vessel of more than twenty

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1824. tons burden, duly enrolled and licensed for car

rying on the coasting trade, and intended to be

employed by him, in that trade, between ElizaOgden.

bethtown, in New-Jersey, and the city of NewYork; and was actually employed in navigating between these places, at the tinie of, and until notice of the injunction from the Court of Chancery was served on him.

On these pleadings the substantial question is raised: Are these laws such as the Legislature of New-York had a right to pass ? If so, do they, secondly, in their operation, interfere with any right enjoyed under the constitution and laws of the United States, and are they, therefore, void, as far as such interference extends ?

It may be well to state again their general purport and effect, and the purport and effect of the other State laws, which have been enacted by way of retaliation.

A steam vessel, of any description, going to New-York, is forfeited to the representatives of Livingston and Fulton, unless she have their license.

Going from New-York, or elsewhere, to Connecticut, she is prohibited from entering the waters of that State, if she hade such license.

If the representatives of Livingston and Fulton, in New York, carry into effect, by judicial process, the provision of the New-York laws, against any citizen of New-Jersey, they expose themselves to a statute action, in New Jersey, for all damages, and treble costs.

The New-York laws extend to all steam vessels;

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to steam frigates, steam ferry-boats, and all intermediate classes.

They extend to public as well as private ships ; and to vessels employed in foreign commerce, as well as to those employed in the coasting trade.

The remedy is as summary as the grant itself is ample; for immediate confiscation, without seizure, trial, or judgment, is the penalty of infringemont.

In regard to these acts, he should contend, in the first place, that they exceeded the power of the Legislature; and, secondly, that if they could be considered valid, for any purpose, they were void, still, as against any right enjoyed under the laws of the United States, with which they came in collision; and that, in this case, they were found interfering with such rights.

He should contend, that the power of Congrens to regulate commerce, was complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question were regulations of como: merce, in a most important particular; and affectiog it in those respects, in which it was under the exclusive authority of Congress: He stated this finst proposition guardedly. He did not mean to say that all regulations which might, in their operation, affect commerce, were exclusively in the power of Congress; but that suck pomoct as had been exercised in this case, did not remain with the States. Nothing was more complex than Commorce; and in such an age as this, ao words embracod a wider field than commercial regular tion. Almost all the business and intercourse of

Vol. IX.

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1824. life may be connected, incidentally, more or less,

with commercial regulations. But it was only

necessary to apply to this part of the constitution Ogden.

the well settled rules of construction. Some powers are holden to be exclusive in Congress, from the use of exclusive words in the grant; others, from the prohibitions on the States to exeroise similar powers; and others, again, from the nature of the powers themselves. It has been by this mode of reasoning that the Court has adjudicated on many important questions;- and the same mode is proper here. And, as some powers have been holden exclusive, and others not so, under the same form of expression, from the na ture of the different powers respectively; 89, where the power, on any one subject, is given in general words, like the power to regulate commerce, the true method of construction would be, to consider of what parts the grant is composed, and which of those, from the nature of the thing, ought to be considered exclusive. The right set up in this case, under the laws of New-York, is a monopoly. Now, he thought it very reasonable to say, that the constitution never intended to leave with the States the power of granting monopolies, either of trade ot of navigation ; and, therefore, that as to this, the commercial power was exclusive in Congress.

It was in vain to look for a precise and exact definition of the powers of Congress, on several subjects. The constitution did not undertake the task of making such exact definitions. In confering powers, it proceeded in the way of enumera

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