It is not, then, a license to trade, to enter, or to navigate, but to be exempt from paying tonnage duty for a year. The partnership collapsed three years later, however, when Gibbons operated another steamboat on Ogden's route between Elizabeth-town, New Jersey, (now Elizabeth) and New York City, that had been licensed by the United States Congress under a 1793 law regulating the coasting trade. But in truth, his right is not to the use of any invention, or of any thing for which a patent can be granted. On the other hand, it does not appear, that the appellant has a patent for any thing connected with the subject of steam boats, or for any thing belonging to the steam engine, which can be used in navigation by steam. Could not the State have done it, by virtue of its general power, on its navigable waters? All powers, therefore, not expressly exclusive, or clearly exclusive in their nature, ought to be deemed concurrent. This is the sense in which the constitution uses it; and the great national object was, to regulate the terms on which intercourse between foreigners and this country, and between the different States of the Union, should be carried on. Per Marshall, C. J. Houston v. Moore, 5 Wheat. The case was originally brought to court as a patent case. Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labour, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. This broader definition includes navigation.
The license is not merely intended to confer the national character. How, then, can implication give to the patentee the same right? The provision, that the law of Congress shall be the supreme law in such cases, is the ground of a conclusive inference, not only that there are concurrent powers, but that those powers may be exercised by both governments at the same time. The appellant being owner of a steam-boat, and being found navigating the waters between New-Jersey and the city of New-York, over which waters Ogden, the plaintiff below, claimed an exclusive right, under Livingston and Fulton, this bill was filed against him by Ogden, in October, 1818, and an injunction granted, restraining him from such use of his boat. Gibbons v. Ogden is a 1824 landmark case of the Supreme Court of the United States, which gave Congress complete power in regulating interstate commerce. Ogden's lawyer contended that states often passed laws on issues regarding interstate matters and that states should have fully concurrent power with Congress on matters concerning interstate commerce.
As to trade with the Indian tribes, without stopping to enter into details, it is sufficient to say, it must stand on the same footing as foreign commerce and that among the States, as they are all given in the same sentence. By express prohibitions on the States, in those particulars in which the evils had been most sensibly felt, preventing them from levying any impost or duty of tonnage, without the consent of Congress. 'Captain,' says the pilot, 'you will have to stop those wheels at your sides, when you get within our waters.' Its exclusive character is rested on the constitutional requisition, that the rule established under it should be uniform.86, It had been objected, that this would have been a concurrent power, but for the auxiliary provision in the constitution, that a citizen of one State shall be entitled to all the privileges of a citizen in every other State. Aaron Ogden got permission to operate his steamboats in New York. They are all so similar, that one or two may suffice as examples. That was only to 'secure' a right, and meant nothing more than that a patentee should enjoy it alone, if any body was permitted to enjoy it. Aaron Ogden had a license from the State of New York to navigate between New York City and the New Jersey Shore. The Court did not discuss the argument pressed for Gibbons by U.S. Attorney General Wirt that the federal patent laws preempted New York's patent grant to Fulton and Livingston. Yet they never suspected that navigation was no branch of trade, and was, therefore, not comprehended in the power to regulate commerce. same ed. Those where, from their nature, when Congress has acted on the subject matter, the States cannot legislate at all in any degree. The truth was, he thought, that all these things were, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. They operate entirely within the limits of the State. If Congress license vessels to sail from one port to another, in the same State, the act is supposed to be, necessarily, incidental to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State, or to act directly on its system of police.
Suppose there was no treaty with a foreign power, and no act of Congress regulating intercourse with that power, but barely a state of peace; that power would enjoy the right of trade and intercourse with New-York, by the law of nations alone.
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