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ing the former act for twenty years from its date, 1824. and giving two years for making the experiment. That passed the Council of Revision without any
Ogden objection, none of the judges having dreamt that it was unconstitutional. The time for making the experiment having run out, without a boat having been made, and Mr. Fulton having associated himself to Mr. Livingston in the investigation, on the 5th of April, 1803, the Legislature made the grant anew to Messrs. Livingston and Fulton. And that law was again approved of by the Council of Revision, consisting almost entirely of new members, and differing from the first. The time granted by this law for constructing a boat, again ran out; and on the 6th of April, 1807, it was again extended for two years, and that act also approved of by the Council of Revision. In the course of that year, the experiment was successfully made; and on the 11th of April, 1808, the. Legislature, by an act, which also passed the Council of Revision, made a contract with Messrs. Livingston and Ful. ton, by which they hoped to gain, and did gain, unequalled accommodations for persoss travelling in the State.
The success of those gentlemen awoke the cupidity of others, and doubts of the constitutionality of those laws were, for the first time, raised. But; after these questions were first broached, and while opposition boats were actually building, on the 9th of April, 1811, the Legislature passed another act, which also received the sanction of the Council of Revision. These were not judicial decisions; but they were six consecutive and de
1824. liberative acts of Judges, equally bound, by their
duty and oath of office, to examine, decide, and
act upon this objection, if it had sufficient force ; Ogden.
they do nearly resembled judicial decisions, that they might well be cited as authorities. They also showed, that the laws now objected to had not grown out of any temporary effervescence, or excitement, or party intrigues. The grant began in 1798, and had been universally ratified down to 1811.
But the constitutionality of those laws had been the subject of a judicial decision of the most respectable character. The act of 1811 had a proviso, that nothing therein contained should extend to the three opposition boats actually built and launched. With regard to two of them, Livingston and Fulton filed a bill for an injunction to prevent their navigating. The then Chancellor thought the question too important to grant an injunction, in the first instance, and refused it; from that decision an appeal was made to the Court of Errors of that State ; there the constitutionality of those laws was very ably disputed, but supported by the unanimous decree of that Court, and the very elaborate opinions of the Judges, which, for sound constitutional reason-, ing, can scarcely be surpassed."
New-York is not the only State which has passed such laws. Massachusetts, February 7, 1815, granted to J. L. Sullivan, a similar grant for steam tow-boats, on Connecticut 'river, for
a Livingston v. Ven logen; 9 Johns. Rep. 507..
twenty-eight years, after the expiration of his pa- 1824. tent, which, on February 11, 1819, was enlarged for two years. New Hampshire, in June, 1810, gave him a similar privilege on the Merri
Ogden. mack. Pennsylvania, on the 26th of March, 1813, gave a similar right to James Barnes, from Wilksbarre to Tioga Point, the borders of our State. Georgia, on the 14th November, 1814, gave a similar right to 8. Howard, for all the waters of the State, with steam tow-boats; and by another act, 19th December, 1817, granted to a company, (probably deriving under Howard,) a similar right for steam boats for twenty years. Tennessee has lately given a similar right on the Tennessee river.
What are the provisions of the constitution alleged agains the validity of those laws? They are to be found in the powers given to Congress, art. 1. 8. 8. to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; and, also, to promote the progress ni science and of the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.
If the constitution had not contained either of the provisions referred to, the right of the States to grant exclusive privileges would be unquestionable. At any rate, no point could be presented to this Court, by which it could have jurisdiction to consider the validity of their grants. In free. countries, which reject the pretensions of prerogative, it is (unless constitutionally forbidden) a
part of the right of legislation; and whether wisely exercised or not, is a question between the government and the people, with which this Court have nothing to do. Those are the only provisions on the subject; for it is clear, that the 2d sec. of the 4th art. (which, however, has sometimes been mentioned,) would not have prevented the exercise of this right: That is only intended to secure to all citizens of the United States, when coming into any State, the same immunities and privileges that are enjoyed by the citizens of that State, and subject to the same laws and regulations; and, unquestionably, those laws do not place the citizens of other States on a different footing than the citizens of the State of NewYork.
Those provisions, before specified, cannot apply to interfere with the State laws, unless where a case is presented, the facts of which bring it. within one or other of those provisions. Now, the case presented contains nothing to make either of the provisions of the constitution applicable to it. Certainly no patent is here presented touching the same subject matter, and with which the State grants are pretended to interfere. On this point the appellant has no right to ask for the decision of this Court, or to claim the benefit of its jurisdiction.
Neither does the case present any ground on
a 6 Johns. Rep. 559, 560. Per Yates, J. 569. Per Thompson, J. 573, 574. Per Kent, Ch. J.
8 Houston v. Moore, 5 Wheat. Rep. 1. Pec Johnson, J. p. 38.
which the application of the clause, respecting 1824. commerce can be made; the vessels not having Gibbons been engaged in trade or commerce, but in carry
Ogden. ing passengers for hire. But if either of those provisions can be applicable, what is the general rule for their construction, as to the extent and conclusiveness of the powers they confer? In the delegation of authority to Congress itself by the constitution, the phraseology does not imply exclusive power. It is remarkable, that even the definite article the is omitted, and it is only provided that Congress shall have power, &c. And this omission was not accidental, but studiously made. By referring to the journals of the Federal Convention, it will be found, that the sixth article of Mr. Charles Pinkney's draft has the words “shall have the power,” &c. In the draft reported by the committee of five, (art. 7th,) the definite article is still preserved. In the draft as reported by Mr. Brearly, the word “the” is left out, clearly by design.' Notwithstanding that, Mr. Patrick Henry and Mr. George Mason, and, indeed, the opposers of the constitution generally, thought, that by that instrument, as originally presented to the people, all the powers given to Congress would be considered as given to them exclusively of the States. Mr. Henry said, “ the right interpretation of the delegation of those