Gibbons

V.

Ogden.

1824. and Alabama;* which strongly imply, that the new States would have had a right to control the navigation of their waters, if these provisions had not been inserted; that there is nothing in the constitution which could prevent them from doing so, when they should once have been admitted as equal members of the Union; and that Congress could pass no law, under the constitution, to prevent them from doing it.

But the power of Congress is "to regulate commerce." The correct definition of commerce is, the transportation and sale of commodities. It is so considered in all the regulations made by the laws of Congress, They speak generally of vessels and their cargoes, and whatever rights are given by the laws of Congress, apply to commerce strictly and properly speaking. Any person claiming to navigate the waters of the State of New-York against the State laws, under any right derived from the laws of Congress relative to commerce, must show himself qualified according to these laws, and actually exercising that right under their provisions. Now, if the license here set up gives any right it is to carry on the coasting trade, which consists in transporting goods from one State to another. It is not pretended that the appellant was engaged in this trade, when stopped by the injunction. It appears by the pleadings, that his boat was employed in the transportation of persons or passengers for hire, and it is notorious that this is a distinct business.

a Ingersoll's Dig. 506. 612. 617.

It is often entirely disconnected from any commercial object, though sometimes indirectly connected with trade. So it has been considered by some of the States. New-York once laid a tax upon passengers travelling in the steam boats; and Delaware taxed passengers travelling through that State in carriages. But these States could have laid ro tax on property thus transported. If, then, the appellant's boat was engaged, bona fide, in the coasting trade, the question might arise as to its rights and privileges under the enrolment and license. But, when no trade is carried on, or intended to be carried on, under the license, it is clear that the license is a fraud upon the State law, if that law is in other respects valid. An examination of the provisions of the statutes relating to the coasting trade will show, that they all relate exclusively to the coasting trade as before defined, and do not contemplate the carrying of passengers as distinguished from commerce. Every vessel engaged in it, must not only have a license, but must comply with various regulations, at every departure she takes from one district to another; and, unless it is shown that such regulations have been complied with, the vessel can claim no right (in any case) to navigate under the laws of the United States. It does not appear that the appellant's boat has ever done this, or pretended to do it, or, in fact, to be engaged in trade at all.

It has thus been attempted to be shown, that our exclusive right is valid, even if the law granting it is to be considered as a regulation or restric

1824.

Gibbons

V.

Ogden.

tion of the right of commercial intercourse between the States, on the ground, (1.) That the power to regulate commerce is strictly a concurrent power. (2.) That the State may act in any manner, in the exercise of that power, so long as its laws do not interfere with any right exercised under the constitution or laws of the United States. (3.) That the appellant, in this case, has shown no right under that constitution or these laws, and, therefore, cannot contest the validity of the exclusive grant. (4.) That even if the enrolment and license relied on, give a right, it is not the right of intercourse for any other purpose than for tho coasting trade; and the appellant does not show that he was carrying on, or intended to carry on, that trade. But that the State law, in fact, is only a regulation of the internal trade and right of navigation, within the territorial limits of the State: that the 'power to regulate this, is exclusively in the State; that the State has exercised it, in the same manner, both by land and water; and that the law is valid, although incidentally it may affect the right of intercourse between the States.

To which it may be added, that the State law may be valid in part, or as enforced under particular circumstances, though it may be void under other circumstances. Thus, the law may be held void, so far as it restrains the right of navigation between State and State, either for commercial purposes, strictly speaking, or for all purposes, including the transportation of passengers. And it may, at the same time, be valid, so far as it restrains the right of internal navigation, strictly

Gibbons

speaking, either in the whole extent of the right, 1824. or as a mere exclusive right to carry passengers in steam boats. Thus, the State law may be suffered to operate, in whole or in part, so far as it Ogden. may, without actual conflict with the constitution or laws of the United States.

Mr. Emmett, on the same side, stated, that the question sought to be presented, was the complete invalidity of these laws of New-York, as being repugnant to the constitution of the United States. If the invalidity be not total and absolute, (and that might well be the case with statutes, which are often void in part, and good for the residue,) the appellant must further show, that he himself stands in that situation, which entitles him to allege their partial invalidity; that his case is such, as that the part of the law which is void, is calculated, if enforced, to affect or injure his rights.

In addition to the general prima facie presumption in favour of the constitutionality of every act of a State Legislature, this series of laws derives a peculiar claim to that presumption, from the history of the circumstances attendant on their enactment. On the 19th of March, 1787, a short time before the meeting of the federal convention, the Legislature of the State of New-York made its grant to John Fitch, for 14 years. From motives, of the correctness of which this Court can take no cognizance, the Legislature, on the 27th of March, 1798, thought fit to repeal that law, on the suggestion that Fitch was either dead, or had with

Gibbons

Y.

1824. drawn himself, and that Robert R.. Livingston was possessed of a mode of applying the steam engine to propel boats, &c. At this time, all the Ogden. laws of Congress regulating commerce and patents, had been for above five years in operation, and their provisions familiarly known. The Council of Revision, consisting of Mr. Jay, as Governor, Chief Justice Lansing, Judge Lewis, and Judge Benson, notwithstanding the personal regard they might well be supposed to have entertained for Chancellor Livingston, (who was also a member, but did not sit,) thought it their duty to object to this bill, on the ground that the facts from which Fitch's forfeiture was to arise, had not been found by some due course of law. The act, however, passed the Legislature by a constitutional majority. But he would here ask, who made this objection, and what were the inferences it afforded, as to the constitutionality of the law? Mr, Jay's is a name of peculiar authority; Chief Justice Lansing had been a member of the federal convention; and both the Judges were perfectly conversant with the political proceedings of the day. They were adverse to this act on principle, and must be presumed to have presented all the objections against it which they thought well founded. They not only did not think that the adoption of the constitution, and the enacting by Congress of her revenue and patent laws, had made Fitch's privileges cease, but neither the constitution nor those laws appeared to furnish any objection against a similar grant to Robert R. Livingston. On the 29th of March, 1799, an act was passed, extend