Livingston v. Van Ingen

This is an appeal from an order of the court of chancery, refusing to grant an injunction.

The appellants claim an exclusive right to navigate the waters of this state, by steam, for a limited time, grounded upon several statutes of this state, by which this right is granted, and intended to be protected and secured to them.

The respondents contend that the laws are void, as repugnant to the constitution and laws of the United States, and, therefore, give no right to the appellants upon which the relief, or injunction sought by their bill, could be founded. Two questions, consequently, arise.

1. As to the constitutionality of the laws:

2. Admitting their validity, whether the appellants are entitled to enjoin the respondents, according to the prayer of their bill, or to any other remedy than that prescribed by the legislature.

The importance of this decision must be evident to every one that hears me; no question has, perhaps, ever presented itself to this court of greater magnitude, involving principles so highly interesting to the community. In making up my opinion, therefore, I have endeavoured to bestow the strictest attention, in order to bring my mind to a satisfactory and correct conclusion on the subject.

The first law, passed in March, 1798, recited, that whereas it had been suggested to the people of this state, represented in senate and assembly, that Robert R. Livingston was the possessor of a mode of applying the .steam engine, to propel a boat on new and advantageous principles, but that he was deterred from carrying the same into effect, by the existence of a law granting and securing to John Fitch the sole right of making and employing the steam-boat by him invented; that Fitch was either dead, or had withdrawn himself from the state, without having made any ■attempt, in the space of more than ten years, to execute the plan for which he obtained the exclusive privilege, whereby the same was justly forfeited. By this act privileges similar to those be-*5598>re granted to Fitch were granted to Mr. Livingston,‘ for twenty years, on Ms satisfying the governor, lieutenant-governor and the surveyor-general of this state, of his having built a boat, of at least twenty tons’ capacity, which should be propelled by steam, and the mean of whose progress through the water, with and against the ordinary current of Hudson river, taken together, should not be less than four miles an hour; and that he should, at no time, omit, for the space of one year, to have a boat of such construction plying between the cities of Nem-York and Albany. The same privilege was granted, in April, 1803, to Messrs. Livingston and Fulton, the present appellants. In 1807, the act was extended for two years, within which time it was not contended but that the provisions in the first act were complied with, the boat being built, and the experiment proving successful. In April, 1808, an act passed for the further encouragement of steam-boats in the waters of this state, and for other purposes. This law enacted, that when - ever Robert R. Livingston and Robert Fulton, and such persons as they might associate with them, should establish one or more steam-boats, or vessels other than that already established, they should, for each and every such additional boat, be entitled to five years prolongation of their grant or contract with this state; provided, nevertheless, that the whole term of their exclusive privileges should not exceed thirty years after the passing of that act; that no person or persons, without the license of the persons entitled to the exclusive right to navigate the waters of this state by boats moved by steam or fire, or those holding the major part of the interest of such privilege, should set in motion, or navigate upon the waters of this state, or within the jurisdiction thereof, any boat or vessel moved by steam or fire; and the person or persons, so navigating with boats or vessels moved by steam or fire, in contravention of the exclusive right of the appellants, and their associates and legal representatives, should forfeit such boat or boats and vessels, together with the engines, tackle and apparel thereof, to the appellants and their associates.

After the most minute examination of those statutes, I cannot find that Mr. Livingston, originally, nor Mr. Fulton, subsequently, pretended tobe the inventors of their steam-boats; on the contrary, by the recital in the law of 1798, Livingston represents himself to be the possessor of a mode of applying the steam engine to propel a boat on new and advantageous principles.

This power of granting exclusive privileges, must necesssarily *560exist somewhere, as the legitimate source from whence the encouragement and extension of useful improvements is derived; and from its nature, it is generally exercised by the sovereign authority of every civilized country; and in no government can it be placed in safer hands to ensure those important advantages than |n 0Hr 0WD) where the sovereignly is in the representatives of the people. Before the adoption of the constitution of the United States, every state in the union, unquestionably, possessed the uncontrolled exercise of this power within its own territory, and most of them exercised it, as will appear on an examination of the laws passed by the legislatures of some of the states, several of which have been stated to this court. This, however, is so plain and evident a proposition, that a recurrence to those laws cannot be necessary to establish it.

The laws granting and securing this exclusive right, it is contended, are unconstitutional:

1. Because they interfere with the powers of congress to regulate patents.

2. Because they interfere with the regulation of commerce.

I do not think it necessary, on this occasion, to enter generally into the discussion of the powers granted to congress, and which are to be considered as exclusive, or which ought to be deemed concurrent. It cannot now be questioned, particularly since the amendments to the constitution of the United States were adopted, that according to the 10th article of those amendments, “ the powers not delegated to the United States by the constitution, nor-prohibited by it to the states, are reserved to the states respectively, or to the people.” By the 8th section of the constitution, among the powers granted to congress, it is stated, that they shall have power “ to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” Thus it appears, in the exercise of this power, they are limited to authors and inventors only; this clause, therefore, never can admit of so extensive a construction, as to prohibit the respective states from exercising the power of securing to persons introducing useful inventions (without being the authors or inventors) the exclusive benefit of such inventions, for a limited time; a power no less instrumental in promoting the progress of science and the useful arts, and, consequently, equally essential to the prosperity of the country. The beneficial effects experienced by other countries, *561particularly England, sufficiently show the policy and propriety of passing laws for the encouragement of imported inventions. • This power, then, evidently necessary and useful, is not granted to congress by the clause as to authors and inventors, and as it is , , y, , „ „ ,. . . „ not taken away by any other part ot the constitution, it must, of course, be retained by the respective states, to be exercised by them, until it interferes with the laws of the United States, passed to secure the author or inventor. It is not probable that such collision will take place. Whenever it does occur, it remains exclusively with the courts of the United States to interpose; and no doubt can be entertained, but that the person claiming a right by patent, as inventor, would prevail, and the state law would give way to the superior power of congress.

The laws granting this exclusive privilege to the appellants cannot interfere with the regulation of commerce. It never could have been intended that the navigable waters within the territory of the respective states, should not be subject to their municipal regulations. Such a construction might, with equal propriety, be applied to turnpike roads, ferries, bridges and various other local objects, and thus, in the vortex of this construction, almost all subjects of legislation would be swallowed up, and it might, eventually, lead to the total prostration of internal improvements.

To all municipal regulations, therefore, in relation to the navigable waters of the state, according to the true construction of the constitution, to which the citizens of this state are subject, the citizens of other states, when within the state territory, are equally subjected; and until a discrimination is made, no constitutional barrier does exist. The constitution of the United States intends that the same immunities and privileges shall be extended to all the citizens equally, for the wise purpose of preventing local jealousies which discriminations (always deemed odious) might otherwise produce. As this constitution, then, according to my view, does not prevent the operation of those laws granting this exclusive privilege to the appellants, they are entitled to the full benefit of them.

By the law of 1808, the boats, together with the engine, tackle and apparel thereof, are forfeited to the appellants; and a question is raised here, whether they are entitled to any other remedy than that prescribed by the legislature.

This right being claimed under an express grant by the statute, creating the forfeiture, and no doubt remaining of the existence of *562the boats, the presumption was irresistible that they navigated contrary to the statute, and that the property was in the appellants. The injunction, therefore, on those grounds, might well have been ordered. I cannot discover what injury could arise, by preventing such acts as might create the forfeiture afterwards; it could only operate as a prohibition to navigating contrary to the statute.

Most of the cases cited by the respondents, where injunctions had been refused, in the first instance, are cases of prerogative, or where the right was doubtful, and the granting of the injunction might create irreparable mischief. I do not think they can apply to this case.

In the case of Gyles v. Wilcox and others, (2 Atk. 141.) a bill was brought for an injunction to stay the printing of a book, and the question was, whether it had been borrowed from another book, contrary to the statute of Anne, also creating a forfeiture. Lord Hardwicke said it was not a case proper for law, as it would be absurd for a judge to sit and hear both books read over, which was necessary, where one is only a copy; and that the court was not under an indispensable obligation to send all facts to a jury, and continued the injunction, until arbitrators had awarded as to the fact. If this be so, might not the propriety of refusing this injunction to try a fact at law of such public notoriety, as to their navigating or not, be questioned ? There is scarcely a citizen not conusant of the fact. And ought this injury, then, to be permitted, in the present case, by an inflexible adherence to what was not deemed indispensable in the case just cited ? I should think not.

In the case of Blackwell v. Harper, (2 Atk. 92.) the remedy was by injunction; and where the right is matter of record, injunctions are granted. (1 Ves. 476.) So in 3 Ves. 140. an injunction was granted, that the validity of a patent might be tried at law ; and in Harmer v. Plane, (14 Ves. 130.) an injunction was granted where the right was doubtful, the party being in possession. The cases in 6 Ves. 707. and in 1 Bro. 451. are to the same point.

From these and numerous other cases, no doubt can exist that the injunction, in this instance, ought to have issued. My opinion, therefore, is, that the order of his honour the chancellor ought to be reversed, and that the cause should be sent back with directions to enjoin the respondents.

*563Van Ness, J. was of the same opinion, and gave his reasons.

Spencer, J. being related to some of the parties concerned, declined giving any opinion.

In examining the questions which have been presented in this case, I shall pursue the order adopted on the argument; by first inquiring into the right claimed by the appellants ; and, secondly, whether, if the right be established in them, they are entitled to an injunction to restrain the respondents from, an infringement of that right.

In considering the first branch of this subject, I deem it unnecessary to go into a particular inquiry as to the constitutional power and authority of the legislature to grant exclusive privileges upon the navigable waters within this state. All objections heretofore raised against the laws in question on this ground, have been, in a great measure, abandoned by the respondents’ counsel. I would observe, however, generally, that viewing this state as an independent sovereignty, not having surrendered any of its constitutional powers to the government of the United Slates, I am at a loss to discover any reasons why this power should be denied to the legislature. There is certainly no express prohibition in our constitution; nor do I see any reasons, growing out of the nature and principles of our government, for denying to it this act of sovereignty. It appears to me a necessary and indispensable power, which, under a wise and discreet exercise of it, will be productive of very beneficial effects. The power of granting exclusive privileges upon land, has not been, in the least degree, questioned; and the same reasons, both of principle and policy, will allow to the government the exercise of analogous powers upon the waters within the jurisdiction of the state. No distinction appears to have been recognised in the practice of our government. Grants of land under the water, the exclusive right of ferriage, and the regulation of the fisheries in the Hudson river, as well as canals, turnpike roads, and exclusive privileges of running stage-waggons, have all been occasionally subjects of legislative bounty and provision.

All the arguments which have been urged against the policy or expediency of granting exclusive privileges in general, or the particular privilege which forms the present subject of- inquiry», *564have been addressed to the wrong forum. They are arguments for legislative, not for judicial consideration. We are called upon to pronounce what the law is, not what it ought to be. In a legislative capacity, considerations of policy and expediency are entitled to their due weight, to convince the judgment or guide the discretion. But in a judicial capacity, no such latitudinary power is given; we are under the solemnity of an oath to decide the rights and claims of parties, according to existing law. Unless, therefore, we are prepared to pronounce the appellants’ claim, as set up, to be absolutely void, their right must be considered fixed and established.

I shall not stop to examine whether it be competent for the courts of justice in this state, to disregard acts of the legislature, and declare them unconstitutional and void. The counsel for the appellants have not put their cause upon that ground. But admitting such a power in the judiciary, it ought to be exercised with great caution and circumspection, and in extreme cases only. It certainly afíbrds a strong and powerful argument in favour of the constitutionality of a law, that it has passed not only that branch of the legislature which constitutes the greater portion of our court of dernier resort, but also the council of revision, which is composed of the governor and the two highest judicial tribunals of the state, (next to this court,) and whose peculiar province it is to examine and make all constitutional objections to bills, before they become laws. If this affords ground of argument in favour of a single law, which might have passed hastily and without due consideration, how strong and cogent is it in favour of a series of laws, on the same subject, from time to time, enlarging and strengthening the same right or claim ; and more especially, as one of those laws has been passed since the present controversy has arisen, and after the attention of the several branches of the legislature must have been called to the objections now raised against them. With such a weight of prima facie evidence in favour of the constitutionality of these laws, I should not have boldness enough to pronounce them void, without the most clear, satisfactory and unanswerable reasons. I shall proceed, however, to examine the force of the objections which have been raised against the constitutionality of the laws, giving to the appellants the exclusive right to navigate the waters of the state by steam, uninfluenced by any presumption in favour of their validity.

These objections grow out of that part of the constitution of *565the United States which gives to congress, 1st. The power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries; and, 2dly. The power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. (Art. 1. s. 8.) it is an undeniable rule of construction, applicable to the constitution of the United States, that all powers and rights of sovereignty, possessed and enjoyed by the several states, as independent governments, before the adoption of the constitution, and which are not either expressly, or by necessary implication, delegated to the general government, are retained by the states. This has been the uniform understanding of the ablest jurists, ever since the formation of that government; and it is a rule, indispensably necessary, in order to preserve harmony in the administration of the different governments, and prevent that collision which a partial consolidation is peculiarly calculated to produce. This was the object contemplated and intended to be secured by the 10th article of the amendments of the constitution, which declares, that the powers not delegated to the United Slates by the constitution, nor prohibited by it, to the states, are reserved to the states respectively, or to the people. If, then, the grant of the right or privilege claimed by the appellants, would, before the adoption of the constitution, have been a legitimate exercise of state sovereignty, it would, I think, under the rule of construction which I have suggested, be a strained interpretation of that instrument, to say such sovereignty has been thereby surrendered by the state. This power is certainly not denied to the states, nor exclusively granted to the union, by express terms: and those powers which are exclusive, by necessary implication, must be such as are created by the constitution, and which did not antecedently form a part of state sovereignty, or the objects of which, from their nature, are beyond the reach and control of the state governments. An express prohibition to the states, against the exercise of powers of that description, would have been useless and absurd. I might go through the various powers given to congress, and illustrate the truth of the position I have laid down, but shall refer only to one or two. Congress have power to borrow 'money on the credit of the United Slates. This is an exclusive power by necessary implication. It is a power created by the constitution. No prohibition to the states was necessary, and indeed would have been absurd; be*566cause this never was, before the adoption of the constitution# within the scope of state power: no state being able to pledge credit of the United States for the repayment of the money borrowed. The power to constitute tribunals, inferior to the supreme court, falls under the same class.

^ is obvious that the mere grant of a power to congress dices not necessarily vest it exclusively in that body. Congress has power to lay and collect taxes. But this does not preclude the states from the exercise of a like power, except so far as they are expressly restrained, in relation to duties on imports and exports. Thus we see that there are subjects upon which the United States and the individual states must, of necessity, have concurrent jurisdiction ; and all the fears and apprehensions of collision in the exercise of these powers, which have been urged in argument, are unfounded. The constitution has guarded against such an event, by providing that the laws of the United States shall be the supreme law of the land, any thing in the constitution of any state to the contrary notwithstanding. In case of collision, therefore, the state laws must yield to the superior authority of the United States.

The power given to congress to promote the progress of science and useful arts is restricted to the rights of authors and inventors, and their rights are only to be secured for a limited time. Whatever power the states had over these subjects prior to the adoption of the constitution, and which have not been granted to the general government, and which are not within the scope and purview of its authority, must, beyond all possible doubt, be retained by .the states. The appellants do not, in the case before us, claim as inventors, but only as possessors of a mode of applying the steam-engine to propel boats on new and advantageous principles. The right, therefore, claimed by them, as granted by the laws of this state, was beyond the reach of congressional authority; and the idea ought not for a moment to be indulged that, even admitting this to be a foreign and imported improvement, it is not worthy of legislative patronage and protection. The power given to congress on this subject was intended for the benefit of authors and inventors, and to secure their rights throughout the United States. The state government could only give this security within its own jurisdiction. It was, therefore, a wise and useful provision in the constitution, calculated to encourage the arts and sciences, which ought to be a favourite ob*567ject with every enlightened government. But because the states have delegated to congress this power, in a limited degree, shall it be denied to them to lend their aid in protecting and patronising useful improvements in any way they may think proper, not repugnant to the right secured under the authority of congress ? Such a doctrine appears to me degrading to state sovereignty, and unnecessarily relinquishing a power not contemplated by the constitution. For the purpose of the present suit, the appellants are to be considered as the possessors only of the invention, and in that point of view I cannot discover the remotest doubt as to the constitutionality of the laws, the subject matter of them not being within the purview of any power given to congress.

But if the appellants are considered the inventors, and entitled to a patent, or as having actually obtained one, it cannot operate as an exclusion of all legislative authority and interference, to aid and protect the rights thus obtained under the general government. If the subject matter be within the scope of state jurisdiction, and the power is exercised in harmony with, and in subordination to, the superior power of congress, it is, beyond all doubt, legitimately exercised. If any person should appear claiming under a patent, in hostility to the privilege granted by this state, that would be a paramount right, and must prevail, if set up in a court having jurisdiction of the question; though it may well be doubted, whether even a patent could be set up, in the courts of this state, against these laws, as that might involve questions arising under the laws of the United States, which belong exclusively to the courts of the United States. (7 Johns. Rep. 144.) It was admitted by the respondents’ counsel, that, had not congress begun to exercise the power given by this clause in the constitution, the subject matter would have been within the scope of state jurisdiction. Why this should make any difference, I am unable to conceive, as long as the power exercised by the state is not repugnant to, or incompatible with, that exercised by congress. That the mere grant of a power to congress does not necessarily imply an exclusion of state jurisdiction, has been the practical construction of the constitution in a variety of cases. As, for instance, congress have the power to provide for the punishment of counterfeiting the current coin of the United States; yet the legislature of this state has provided for the punishment of the same offence; and numerous other instances might be mentioned, if necessary. The only restriction upon the state government, in the. *568exercise of all concurrent powers is, that the state must act in ¿subordination to the general government. It is not a sufficient reason for denying to the states the exercise of a power, that it may possibly interfere with the acts of the general government. It wj¡j time enough to surrender the power when such interference g|ja]j arjse> The framers of the constitution foresaw the possi* bility of such a state of things, and wisely provided the remedy, by making the laws of the United States the supreme law of the land. Thus guarded, there can no possible inconvenience result from the two governments exercising legislative authority over the same subject. But for the purpose of deciding the present question, it is unnecessary to go thus far, because the laws in question extend protection to the appellants as possessors only of the improvement, and this not being a subject within the authority of congress, there cannot arise any interference or collision of power.

/ The objection to the laws under consideration, on the ground / that they interfere with the power given to congress, “ to regulate I commerce with foreign nations, and among the several states, and j with the Indian tribes,” is less colourable than the former; for j admitting the power here granted to belong exclusively to the ge1 neral government, it does not, in any manner whatever, interfere ' with these laws, or extend to the rights and privileges which they ; are intended to secure. They neither concern foreign commerce, j nor commerce among the several states, nor with the Indian ! tribes, but only give to the appellants the exclusive privilege of j navigating all waters, within the jurisdiction of this state, by every i species of boat or water-craft, which might be impelled by force of fire or steam. If this can, in any sense, be considered a regulation of commerce, it is the internal commerce of the state, over which congress has no power; atid if the right to regulate internal commerce, or the intercourse between different parts of the. state, ever belonged to the state government, it is still retained; for it never has been, either expressly or impliedly, yielded to the gene- • ral government. To deny to the legislature this right, would be . at once striking from our statute book grants, almost innumerable, i of a similar nature; all our turnpike roads, toll-bridges, canals, ferries, and the like, more or less concern commerce, or the intercourse between different parts of the state, and must depend on the same principles with the privileges granted to the appellants. ■■ The truth, however, is, that none of them relate to commerce ' within the sense and meaning of the term as used in the constitu*569tion; they are mere municipal regulations, with which congress have no concern. It can answer no valuable end, to enter into any speculative inquiry as to what would be the effect upon the appellants’ rights under these laws, should congress, in regulating commerce, interfere with them. No such interference has at yet , . arisen, and it will be time enough to consider that question when it does arise. The general and conclusive answer, however, to all such supposed collisions of powers, is what has already been mentioned, that the laws of congress are paramount, and must prevail.

I have thus noticed the principal arguments which have been urged against the constitutionality of the laws under which the appellants set up their claim, and I am satisfied that the objections are untenable; and unless these laws are absolutely void, the right of the appellants is clearly established.

The only remaining inquiry is, whether they are entitled to an injunction, to restrain the respondents from an infringement of that right; and this, it appears to me, must follow as a matter of course. - It has been contended that an injunction ought not to issue until the | appellants’ right has been first settled at law. This is, by no means, j the universal, or even the common rule of practice on the subject. Where the right is doubtful, and that doubt can only be removed by a trial at law, there is some plausibility in requiring a party to establish his right before an injunction is granted. But this is not always the course, even in doubtful cases. There are many instances in the books, where the courts have said that possession, under colour of title, is enough to enjoin and continue the injunction, until it is proved, at law, that it is only colour, and not real title. The case of Boulton v. Bull (3 Ves. jun. 140.) is one of that description. An injunction had been granted that the question as to the validity of a patent, might be tried in an action at law; and so doubtful was the right of the patentee, that the court, upon a case stated, were equally divided. Yet the lord chancellor refused to dissolve the injunction, declaring that he would not put the party to accept a compensation. So, also, in the case of The Universities of Oxford and Cambridge v. Richardson, (6 Ves. jun. 707.) Lord Eldon, in noticing what fell from Lord Mansfield, in Miller v. Taylor, “ that it was a universal rule, that if the title is not clear at law, the court will not sustain an injunction,” said, that he could not accede to that proposition, so unqualified, for that there had been many instances, within his own *570memory, in which an injunction had been granted, and continued under such circumstances, until the hearing. The same doctrine is laid down in the case of Harmer v. Plane. (14 Ves. jun. 132.) And the ford chancellor said, there would be less inconvenience in granting the injunction, until the legal question could be tried, than in dissolving it at the hazard that the grant of the crown may, in the result, prove to have been valid. That the question was not really between the parties upon the record; for unless the injunction is granted, any person might violate the patent, and the consequence would be, that the patentee must be ruined by litigation. This last observation is entitled to great weight and consideration, and furnishes a strong and cogent reason for granting injunctions in cases of this kind. The prevention of a multiplicity of suits is one of the most salutary powers of a court of equity. These cases are sufficient to show that it is the prevailing practice in England, even where the right is doubtful, and the case is sent to be tried at law, to send it with an injunction, instead of denying it on that ground. But where the right is clear, an injunction is never refused; as when the right claimed appears on record, or is founded on an act of parliament, it is matter of course to grant an injunction, without first obliging the party to establish his case at law. (Cooper’s Eq. Pl. 157. Mitford, 129. 1 Ves. 476.)

In the case of Blanchard v. Hill, (2 Atk. 485.) Lord Hardwicke said, that in cases of monopolies, the rule that the court had governed itself by was, whether there was any act of parliament under which the restriction was founded. But the court will never establish a right of this kind, claimed under a charter only from the crown, unless there has been an action to try the right at law. This will be found, on examination, to be a governing distinction, running through the numerous cases cited on the argument. And whenever an injunction has been refused, the right was claimed under a patent from the crown, and that right considered doubtful.

Applying these principles to the case before us, there is no possible ground upon which the injunction can be denied. The claim of the appellants is founded on acts of the legislature, and if those acts are considered valid, no doubt can exist as to the right. And if any doubt should be thought to exist on that point, yet, according to the established rule in England, this is not sufficient to warrant a denial of the injunction. If it be necessary to send the cause to be tried at law, it ought to be sent with an injunction.

*571But where can be the necessity or propriety of sending the appellants into a court of law to establish their right ? There are no facts in dispute upon which it is requisite for a jury to decide. The right must depend upon the validity of the statutes under which it is claimed. And that question, according to the course of our courts, may be brought back again to this tribunal for ulti - mate decision. But it is said the right claimed by the appellants, being created by statute, they are entitled to no other remedy than that which the statute gives.

Without examining whether the rule of law upon which this objection is founded is not confined to criminal cases altogether, it certainly cannot be applied to the present case; for the forfeiture is not given by the same statute which created and gave the right, nor until the right was actually vested in the appellants, by a fulfilment of the terms and conditions upon which they were to be entitled to the exclusive privilege now claimed by them; and if the right was vested, all existing remedies to enforce it were also vested, and are not to be taken away by implication. The act of April, 1808, creating the forfeiture, purports to be an act for the further encouragement of the appellants’ steam-boats, which plainly shows that the remedies therein provided were intended as cumulative, and in addition to those already existing. This would be the construction in criminal cases, even where the offence is created and the penalty given by the same statute, provided they are in separate clauses. In the case of The King v. Harris, (4 Term Rep. 205.) Ashhurst, J. says, it is a clear and established principle, that where a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause on the ground of its being a misdemeanor.

I think it unnecessary to pursue the question as to the remedy any farther, or to notice all the cases cited on the argument. I have looked into most of them, and am fully satisfied that if the appellants have the right claimed, the remedy cannot be denied to them. I the more readily abstain from taking up any more time in this examination, because I understood the respondents’ counsel as, in a great measure, abandoning all opposition to an injunction, if the right was determined against them. Upon the whole, from a very attentive examination of the case, I entertain *572a clear and decided opinion in favour of the validity of the appel^an*s’ r’ght, as granted by the acts of the legislature, and that they are entitled to the remedy asked for to protect and secure them in the enjoyment of it.

I am accordingly of opinion, that the decree of the court of cjjanceiy ought to be reversed.

The great point in this cause is, whether the several acts of the legislature which have been passed in favour of the appellants, are to be regarded as constitutional and binding.

This house, sitting in its judicial capacity as a court, has nothing to do with the policy or expediency of these laws. The only question here is, whether the legislature had authority to pass them. If we can satisfy ourselves upon this point, or, rather, unless we are fully persuaded that they are void, we are bound to obey them, and give them the requisite effect.

In the first place, the presumption must be admitted to be extremely strong in favour of their validity. There is no very obvious constitutional objection, or it would not so repeatedly have escaped the notice of the several branches of the government, when these acts were under consideration. There are, in the whole, five different statutes, passed in the years 1798, 1803, 1807, 1808 and 1811, all relating to one subject, and all granting or confirming to the appellants, or one of them, the exclusive privilege of using steam-boats upon the navigable waters of this state. The last act was passed after the 'right of the appellants was drawn into question, and made known to the legislature, and that act was, therefore, equivalent to a declaratory opinion of high authority, that the former laws were valid and constitutional. The act in the year 1798 was peculiarly calculated to awaken attention, as it was the first act that was passed upon the subject, after the adoption of the federal constitution, and it would naturally lead to a consideration of the power of the state to make such a grant. That act was, therefore, a legislative exposition given to the powers of the state governments, and there were circumstances existing at the time, which gave that exposition singular weight and importance. It was a new and original grant to one of the appellants, encouraging him, by the pledge of an exclusive privilege for twenty years, to engage, according to the language of the preamble to the statute, in the “ uncertainty and hazard of a very expensive experiment.” The legislature must *573have been clearly satisfied of their competency to make this pledge, or they acted with deception and injustice towards the individual on whose account it was made. There were members in that legislature, as well as in all the other departments of the government, who had been deeply concerned in the study of the constitution of the United States, and who were masters of all the critical discussions which had attended .the interesting progress of its adoption. Several of them had been members of the state convention, and this was particularly the case with the exalted character, who at that time was chief magistrate of this state,* and who was distinguished, as well in the council of revision, as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature.

After such a series of statutes, for the last fourteen years, and passed under such circumstances, it ought not to be any light or trivial difficulty that should induce us to set them aside. Unless the court should be able to vindicate itself by the soundest and most demonstrable argument, a decree prostrating all these laws would weaken, as I should apprehend, the authority and sanction of law in general, and impair, in some degree, the public conscience, either in the intelligence or integrity of the government.

But we are not to rest upon presumption alone; we must bring these laws to the test of a severer scrutiny.

If they are void,' it must be because the people of this state have alienated to the government of the United Stales their whole original power over the subject matter of the grant. No one can entertain a doubt of a competent power existing in the legislature, prior to the adoption of the federal constitution. The capacity to grant separate and exclusive privileges appertains to every sovereign authority. It is a necessary attribute of every independent government". All our bank charters, turnpike, canal and bridge companies, ferries, markets, &c. are grants .of exclusive privileges for beneficial public purposes. These grants may possibly be inexpedient or unwise, but that has nothing to do with the question of constitutional right. The legislative power in a single, independent government, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind. In the present case, the grant to the appellants took away no vested right. It interfered with ho man’s property. It left every citizen to enjoy all the rights of *574navigation, and all the use of the waters of this state which he ' before enjoyed. There was, then, no injustice, no violation of first principles, in a grant to the appellants, for a limited time, of the exclusive benefit of their own hazardous and expensive ex? periments. The first impression upon every unprejudiced mind would he, that there was justice and policy in the grant. = Clearly, then, it is valid, unless the power to make it be taken away by the constitution of the United States.

We are not called upon to say affirmatively what powers have been granted to the general government, or to xvhat extent. Those powers, whether express or implied, may be plenary and sovereign, in reference to the specified objects of them. They may even be liberally construed in furtherance of the great and essential ends of the government. To this doctrine I willingly accede. But the .question here is, not what powers are granted to I that government, but xvhat powers are retained by this, and, parti\f cularly, xvhether the states have absolutely parted with their origif Inal power of granting such an exclusive prixdlege, as the one now 1 before us. It does not follow, that because a given poxver is granted to congress, the states cannot exercise a similar poxver. We ought to bear in mind certain great rules or principles of construction peculiar to the case of a confederated government, and by attending to them in the examination of the subject, all our seeming difficulties will x'anish.

When the people create a single, entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite, and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a federal government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserxred to the members that is not, either in express terms, or by necessary implication, taken away from them, and vested exclusively in the federal head. This rule has not, only been acknoxvledged by the most intelligent friends to the constitution, but is plainly declared by the instrument itself. Congress have power to lay and collect taxes, duties and excises, but as these powers are not given exclusively, the states have a concurrent jurisdiction, and retain the same absolute powers of taxation whic^. they possessed before the adoption of the constitution, except ¿lie power of laying an impost, which is expressly *575taken away. This very exception proves that, without it,' the states would have retained the power of laying an impost; and it further implies, that in cases not excepted, the authority of the states remains unimpaired.

This principle might be illustrated by other instances of grants of power to congress with a prohibition to the states from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the constitution. That article declares that “ the powers not delegated to the United States by thp constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The ratification of the constitution by the convention of this state, was made with the explanation and understanding, that “ every power, jurisdiction and right, which was not clearly delegated to the general government, remained to the people of the several states, or to their respective state governments.” There was a similar provision in the articles of confederation, and the principle results from the very nature of a federal government, which consists only of a defined portion of the undefined mass of sovereign power originally vested in the several members of the union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be' any interruption of the public peace, in the concurrent exercise of those powers. The powers of the two governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same object. The powers of the two governments cannot indeed be supreme over each other, for that would involve a contradiction. When those powers, therefore, come directly in contact, as when they are aimed at each other, or at one indivisible object, the power of the state is subordinate, and must yield. The legitimate exercise of the constitutional powers of the general government becomes the supreme law of the land, and the national judiciary is specially charged with the maintenance of that law, and this is the true and efficient power to preserve order, dependence and harmony in our complicated system of government. We have, then, nothing to do, in the ordinary course of legislation, with the possible contingency of a collision, nor are we to embarrass ourselves in the anticipation of theoretical difficulties, than which nothing could, in general, he more fal*576lacious, Such a doctrine would be constantly taxing our sagacity, to see whether the law might not contravene some future regula*i0n commerce, or some moneyed or some military operation of the United States. Our most simple municipal provisions would enacte¿ v^ith diffidence, for fear we might involve ourselves, our citizens and our consciences in some case of usurpation. Fortunately, for the peace and happiness of this country, we have a plainer path to follow. We do not handle a work of such hazardous consequence. We are not always walking per ignes snppositos cineri doloso. I"Our safe rule of construction and of action is this, that if any given power was originally vested in this state, if it has not been exclusively ceded to congress, or if the exercise of it has not been prohibited to the state's, we may then go on in the exercise of the power until it com