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1824. and

BEBE

the concurrent power also, to regulate and control it, in all cases where its regulations do not actually conflict with those of Congress; that Congress has made no regulations, which alter or affect the right at all, by giving any other right than was before enjoyed; that all the regulations of the State, therefore, which operate within its own limits, are binding upon all who come within its jurisdiction; and that if Congress deems such regulations to be injurious, it may control them by express provisions, operating directly upon the case.

The case has, heretofore, been considered as if the steam boat laws were regulations of commerce among the States, in the ordinary acceptation of those terms. But is the law in question any thing more than a regulation of the internal'navigation of the waters of the State ? In terms, it applies only to the waters within the State. It does not deny the right of entry into its waters to any vessel navigated by steam : it only forbids such vessel, when within its waters and jurisdiction, to be moved by steam; but that vessel may still navigate by all other means; and it leaves the people of other States, or of New York, in the full possession of the right of navigation, by all the means known or used at the time of the passage of the law. It is, therefore, strictly a regulation of internal trade and navigation, which belongs to the State. This may, indeed, indirectly affect the right of commercial intercourse between theStates. But so do all other laws regulating internal trade, or the right of transit from one part to another of the same State ; such as quarantine laws, inspec

1824. tion laws, duties on auctions, licenses to sell goods,

&c. All these laws are acknowledged to be vaGibbons

lid. They are passed, nonwith a view or design Ogden.

to regulate commerce, but to promote some great
object of public interest, within the acknowledged
scope of State legislation : such as the public
health, agriculture, revenue, or the encouragement
of some public improvement. Being passed for
these legitimate objects, they are valid as internal
regulations, though they may incidentally restrict
or regulate foreign trade, or that between the
States. So of the laws now in question ; they
were passed to introduce and promote a great pub-
lic improvement, clearly within the power of the
State to encourage. They operate entirely with-
in the limits of the State. They put no restraint
on the right of entry into the State ; but they ex-
clude from the right of navigation on its waters in
a particular mode, because they deem that mode
injurious to the public interest, unless used by
particular persons. How can they be distinguish-
ed in principle, from all the other laws which have
been referred to? If steam boats had been per-
nicious in themselves, or had been deemed so as
affecting injuriously other great public interests,
could Congress have prohibited them on the wa-
ters of New York, by any exercise of the power to
regulate commerce ? Could not the State have
done it, by virtue of its general power, on its navi-
gable waters ? . Suppose that steam boats were
found to be unsafe, and destrûctive to property
or lives, unless built or navigated by persons par.
ticularly skilful, could not the State prohibit the

1824.

Gibbons

Ogden.

use of them, unless thus built and navigated? If, under any circumstances, the State may restrict the use of them to particular persons, it may do so in its own discretion, for reasons of which it alone is the judge.

All this shows that the restraint imposed by these laws, on the navigation of the waters of the State, is merely an internal regulation of the right of transit, or passage from one part of the State to another; that it is a regulation which, if even indispensable to the public safety, Congress could not make ; and that the power to make it must, therefore, be in the State.

The right of a State to regulate its internal trade, applies as well to its navigable waters, as to its other territory. Its rivers are its territory and domain, as much as the land, and equally subject to its laws in all respects. The power of Congress to regulate commerce applies as well to the land as to the water. Commerce between the States, and with foreign powers, is very extensively carried on by land. Congress has accordingly adapted its revenue laws to the land, by imposing duties on goods imported in carriages, &c. When goods are brought into the State in a carriage or wagon, cannot the State prohibit the transportation of those goods from one part of the State to another, except in a particular manner, or by a particular road, or in vehicles of a particular description? Where is the difference between an exclusive right to navigate vessels by steam on the water, and an exclusive right to move carriages by steam on the land? Cannot a Vol. IX.

10

Ogden.

1824. State grant an exclusrve privilege to carry goods Gibbons

as well as passengers, in carriages or vessels, by water or by land? May it not convert all its roads leading into other States, into turnpikes, levy tolls upon them, and alter and abolish them at pleasure? All these are regulations of the internal trade of the State, but they may, and, indeed, must affect, to a great degree, the trade between the States. By virtue of the right of a State over: its navigable waters, it establishes. ferries, which are exclusive rights to use parts of pavigable'waters for particular purposes and in a particular manner; and bridges, which interrupt, and sometimes destroy the navigation of rivers: It grants the land under the water at pleasure, builds public pters, erects dams and other obstructions, and diverts the course of the waters for any purpose whatsoever. By its power over its land territory, a State establishes roads and canals, regulates the carrying of goods, and the amount of tolls upon them, grants exclusive privileges to stage wagons and others, for the carriage of gouds and passengers, and performs all other acts of sovereignty in regard to these public highways.

It appears, then, that a State may exercise the same control in these respects, over both land and water, within its own jurisdiction; that the right, as to both, rests on the same foundation, that of a sovereign over his domain; and that it has uniformly been exercised over both in the same manper. What; then, is the right under which the respondent claims? It is only an internal regulation of the use of the waters of the State. This

is clearly the case, when it applies to the case of 1824. the conveyance of passengers or goods, on the

Gibbons waters of the State, where the whole journey or transit is within the State, as from New-York to Ogdeso Albany. Is it in truth any thing more than an exclusive right of ferry over the waters of Hud. son's river? It is, in substance and effect, an exclusive right to carry passengers in boats navigated in a particular mode, on the navigable waters of the State. These waters are a public highway, like any other public road on land, and, as such, are completely subject to the control of the State laws. There are; various acts of Congress, which recognise the power of the States to control their navigable waters. Thus, in the act enabling the people of Louisiana to form a constitution, there is a provision, that the State convention shall pass an ordinance providing that the river Mississippi, and the navigable rivers and waters leading into the same, or into the gulf of Mexico, shall be common highways, and for ever free, as well to the inhabitants of the said State, as to other citizens of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State." And in the act for the admission of that.State, the above provisions, as to the navigation of the Mississippi, are made one of the fundamental conditions of the admission.” Similar conditions were also imposed upon the admission of the States of Mississippi, Missouri,

a Ingersolls Dig. 588. 6 Id. 583.

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