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1824. in the transportation of a cargo; and no reason is

perceived why such vessel should be withdrawn Gibbons

from the regulating power of that government, Ogden.

which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen, and respecting ownership, are as applicable to vessels carrying men, as to vessels carrying manufactures ; and no reason is perceived why the power over the subject should not be placed in the same hands. The argument urged at the bar, rests on the foundation, that the power of Congress does not extend to navigation, as a branch of commerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some. plain, intelligible distinction, supported by the constitution, or by reason, for discriminating between the power of Congress over vessels employed in navigating the same seas. We can perceive no such distinetion.

If we refer to the constitution, the inference to be drawn from it is rather against the distinction. The section which restrains Congress from prohibiting the migration or importation of such persons as any of the States may think proper to admit, until the year 1808, has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with importation. Migration applies as appropriately to voluntary, as importation does to involuntary, arrivals ; and, so far as an exception from a power proves its existence, this section proves that the power to regulate commerce applies equal

ly to the regulation of vessels employed in trans- 1824. porting men, who pass from place to place volun- Simone

Gibbons tarily, and to those who pass involuntarily.

Ogdena If the power reside in Congress, as a portion of the general grant to regulate commerce, then acts applying that power to vessels generally, must be construed as comprehending all vessels If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be, on that account, withdrawn from the control or protection of Congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them.

The duty act, sections 23 and 46, contains pro'visions respecting passengers, and shows, that vessels which transport them, have the same rights, and must perform the same duties, with other vessels. They are governed by the general laws of navigation.

In the progress of things, this seems to have grown into a particular employment, and to have attracted the particular attention of government. Congress was no longer satisfied with comprehending vessels engaged specially in this business, within those provisions which were intended for vessels generally; 'and, on the 2d of March, 1819, passed “an act regulating passenger ships and

Vol. IX. .

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1824. vessels." This wise and humane law provides

for the safety and comfort of passengers, and for the commụnication of every thing concerning them which may interest the government, to the Department of State, but makes no provision concerning the entry of the vessel, or her conduct in the waters of the United States. This, we think, shows conclusively the sense of Congress, (if, indeed, any evidence to that point could be re-. quired,) that the pre-existing regulations comprehended passenger ships among others; and, in prescribing the same duties, the Legislature must have considered them as possessing the same sights.

If; then, it were even true, that the Bellona and the Stoudinger were employed exclusively in the oonveyance of passengers between New-York and New-Jersey, it would not follow that this occupation did not constitute a part of the coasting trade of the United States, and was not protected by the license annexed to the answer. But we canpot perceive how the occupation of these vessels can be drawn into question, in the case before the Court. The laws of New-York, which grant the exclusive privilege set up by the respondent, take no notice of the employment of vessels, and relate only to the principle by which they are propelled. Those laws do not inquire whether ressels are engaged in transporting men or merchandise, but whether they are moved by steam or wind. If by the former, the waters of NewYork are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in 1824. New-York. If by the latter, those waters are Sims free to them, though they should carry passengers only. In conformity with the law, is the bill of geen. the plaintiff in the State Court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he complains, and is the sole injury against the continuance of which he asks reliéf. The bill does not even allege, specially, that those vessels were employed in the transportation of passengers, but says, generally, that they were employed " in the transportation of passengers, or otherwise.” The answer avers, only, that they were employed in the coasting trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of injunction and decree restrain these licensed vessels, not from carrying passengers, but from being moved through the waters of New-York by steam, for any purpose whatever.

The questions, then, whether the conveyance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coasting license, are not, and cannot be. raised in this case. The real and sole question theo seems to be, whether a steam machine, in actual of regulating use, deprives a vessel of the privileges conferred tends to ves:

sels propelled by a license.

by steam or

fire, as well as In considering this question, the first idea which to those navi

gated by the presents itself, is, that the laws of Congress for instrumentali

ty of wind agg , the regulation of commerce, do not look to the sails.

commerce ex

1824. principle by which vessels are moved. That subGibbons

ject is left entirely to individual discretion; and,

in that vast and complex system of legislative Ogden.

enactment concerning it, which embraces every
thing that the Legislature thought it necessary to
notice, there is not, we believe, one word respect-
ing the peculiar principle by which vessels are
propelled through the water, except what may be
found in a single act, granting a particular privi-
lege to steam boats. With this exception, every
act, either prescribing duties, or granting privi-
leges, applies to every vessel, whether navigated
by the instrumentality of wind or fire, of sails or
machinery. The whole weight of proof, then, is
thrown, upon him who would introduce a distinc-
tion to which the words of the law give no coun-
tenance.
• If a real difference could be admitted to exist
between vessels carrying passengers and others, it
has already been observed, that there is no fact
in this case which can bring up that question.
And, if the occupation of steam boats be a mat-
ter of such general notoriety, that the Court may
be presumed to know it, although not specially
informed by the record, then we deny that the
transportation of passengers is their exclusive oc-
cupation. It is a matter of general history, that,
in our western waters, their principal employment
is the transportation of merchandise; and all know,
that in the waters of the Atlantic they are fre-
quently so employed.

But all inquiry into this subject seems to the
Court to be put completely at rest, by the act al-

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