Gibbons

V.

Ogden.

1824. right to trade any where. It enacts, that before getting the license, the tonnage for the year must be paid; and the effect and object. of the license was to certify that the proper tonnage duty for that year had been paid, and that the vessel was, therefore, licensed for that year to trade without paying tonnage. But every other vessel had still a right to trade. By scc. 6." vessels of twenty tons and upwards, except registered, found trading between district and district, or different places in the same district or fishery, not enrolled and licensed, &c. if laden with domestic produce or manufacture, shall pay the same duties as foreign ships; or, if laden with foreign produce or manufacture, or distilled spirits, shall be forfeited. This shows that foreign ships had a right to carry on the coasting trade without a license, (a thing which they could not possibly obtain,) on paying the extra tonnage duties, and making entry at every port. This further and most fully appears by the 24th section of the same act,' prescribing the duties of masters of foreign ships, bound from one district to another, whether with a cargo or in ballast; and by sec. 34. establishing the rates of fees under that act, in which are found, "For granting a permit for a vessel not belonging to a citizen or citizens of the United States, to proceed from district to district, and receiving the manifest, 200 cents. For receiving a manifest, and

granting a permit to unload, for such last mentioned vessel, on her arriving in one district from another district, 200 cents." Indeed, until the year 1817, there was no kind of prohibition on foreign vessels carrying on the coasting trade. On the 1st of March, 1817, "an act concerning the navigation of the United States" was passed; and by sec. 4. it was enacted, "that no goods, wares, or merchandise, shall be imported, under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging, wholly or in part, to a subject of any foreign power." This, however, does not affect American ships not having a license, and they have still a right to trade coastwise, subject only to the increased tonnage duty, and the necessity of making entry at every port. How, then, can it be said, that the license gives the right to carry on the coasting trade, which exists as part of the jus commune, and existed, and was exercised, before the constitution, or any law on the subject, was formed; and when, until March, 1817, every foreign vessel had a right to carry it on; and when, to this hour, every American vessel has a right to carry it on, without a license or register, and only becomes subject to an increase of tonnage duty, and the necessity of making entry at the custom-house on every voyage? It is only a license to carry on the coasting trade, without making entry or paying tonnage duties, conformably to the laws of Congress in other It gives no right to enter, nor to trade, nor to navigate the waters of, the United States:

cases.

1824.

Gibbons

V.

Ogden.

Gibbons

V.

Ogden.

1824. it only enables the licensed vessel to do those things, in certain cases, on cheaper and easier terms than other vessels could, who, nevertheless, had equal rights to carry on the same trade, though with less advantages; and now, in the event of having foreign produce or manufacture, or distilled spirits, on board, a license protects from a forfeiture, which was not enacted for some years after licenses were devised and used in their present shape. It is not, then, a license to trade, to enter, or to navigate, but to be exempt from paying tonnage duty for a year. If, then, the position is correct, (and it undoubtedly is,) that a license gives no right to trade, to enter a port, or to navigate its waters, no argument can be drawn from the act of March 12, 1812, "respecting the enrolling and licensing of steam boats." The only object of that law is, to enable aliens to be part owners of such vessels, and to modify, as to them, the oath that the boat belongs to a citizen or citizens of the United States.

a

But, even if the right of entry, or to trade or navigate, were given by the acts of Congress, and not by the common law, as originally existing or subsequently modified, this exclusive right does not prevent the entry of any vessels into our waters, nor their navigating or trading there; nor does it materially impede them. The only part of this exclusive grant that can come under the cognizance of this Court, in this case, is that on which the injunction is grounded. That, and the

a 4 U. S. L. p. 393.

Gibbons

V.

Ogden..

prohibition of the injunction, can only be fairly 1824. considered as extending to prevent the navigation of the waters by the force or agency of steam or fire; not to prevent vessels from navigating those waters, because they have a steam engine on board, and wheels at the side, if the engine and the wheels be not used on our waters for propelling the vessel, contrary to our State laws. Before the vessel comes into those waters, and after it leaves them, it is out of the State jurisdiction, and not liable to any State penalty for using the agency of steam. What, then, is the amount of the prohibition of entry? That the same vessel, with the same cargo and crew, may come up and pass through our waters, if, while in our waters, she will come up and navigate under sail, as all commercial vessels have hitherto done. In the argument of this case before the Court of Errors," one of the appellant's counsel couched his reasoning in the form of a remonstrance by an English ship master against those State laws. The reply can, perhaps, be best given by turning the discussion into a dialogue. An English steam vessel is boarded by a pilot, outside of SandyHook. "Captain," says the pilot, "you will have to stop those wheels at your sides, when you get within our waters." "Why so?" asks the captain. "Because the. State of New-York have granted to Livingston and Fulton an exclusive right of navigating in its waters by steam." "Sir," resumes the captain, "I care nothing for the laws

a 17 Johns. Rep. p. 488.

1824.

Gibbons

V.

Ogden.

of New-York. I know of no laws or regulations of a particular State, in regard to trade and commerce. I claim the privilege of entering the harbour of New-York, under the laws of the United States, and the treaty of amity and commerce subsisting between them and my sovereign. I insist upon my right of -entering your waters as I please; and if your State authorities, or any one acting under them, should prevent me, the King, my master, will know how to enforce the rights of his subjects." "Patience, good captain, patience," replies the pilot; "let your head and your boiler cool; no one means to prevent your entering into our waters. Only stop your machinery, and hoist those sails you have carried twenty times between this and Liverpool, and, I'll answer for it, we shall be alongside the wharf as soon as yon vessel, that you see bound inwards, with all her canvass spread." This is the extent of the prohibition-the Deo dignus vindice nodus! When the case occurs of a vessel navigating across the Atlantic, without sails, the question may be discussed, whether it be a violation of the laws of Congress, that she should be required to fit herself to the harbour, by providing herself with a sail. The same may be said as to coasting vessels from more distant States. As to those from contiguous States, and whose trade can just as well be carried on by sails as by steam engines, it is ridiculous to say, that such a regulation prohibits or interferes with their commerce. Is it any part of the power intended to be delegated to Congress, to regulate as to those matters?