jurisdiction of a state, is not cognizable in a court of the United States.1

33. The controversy as to the respective provinces of the United States and of the states in the regulation of navigation was first brought to the attention of the court in the leading case of Gibbons v. Ogden, wherein the facts were, that the state of New York had by statute granted to Livingston and Fulton the exclusive right, for a term of years not then expired, of navigating with boats moved by steam all the waters within the jurisdiction of New York, and that license had by mesne assignments become vested in Ogden, a citizen of New York. Gibbons, styled on the record a citizen of New Jersey, was then engaged in the business of transporting passengers on steamboats owned by him, licensed as coasting vessels by the United States, and plying between Elizabethtown in New Jersey and the city and port of New York. Ogden filed his bill in the Court of Chancery of New York, and obtained an injunction restraining Gibbons from running his steamboats in the waters of New York, and a final decree having been entered against Gibbons in the court of last resort of the state of New York, he removed the cause by appeal to the Supreme Court of the United States, which reversed the decree of the court below, and remanded the record with directions to dismiss the plaintiff's bill.

1 U. S. v. Bevans, 3 Wheat. 336.

29 Wheat. 1.

66

The

3 Mr. Justice Wayne, in his speech of 26th May, 1847, welcoming Mr. Webster to Savannah, referred to Gibbons v. Ogden as a controversy begun by a Georgian in behalf of the constitutional rights of the citizen," and added, "when the late Mr. Thomas Gibbons determined to hazard a large part of his fortune in testing the constitutionality of the laws of New York limiting the navigation of the waters in that state to steamers belonging to a company, his own interest was not so much concerned as the right of every citizen to use a coasting license upon the waters of the United States, in whatever way their vessels were propelled. It was a sound view of the law

record, therefore, required the court to decide two questions, first, as to the power of the United States to so regulate commerce as to license passenger-carrying steam vessels, plying between different states, to navigate waters within the jurisdiction of a state, and second, as to the power of a state to so regulate commerce as to control the navigation of its waters by vessels engaged in interstate commerce. The judgment of the court sustained the power asserted for the government of the United States, and denied the existence of the power claimed to have been reserved to the state, and in reaching that result the court enunciated in clear terms the criteria of distinction between federal and state power over commerce. They held that the power to regulate commerce with foreign nations and among the several states "includes every species of commercial intercourse between the residents of any one state and the residents of a foreign nation, or the residents of another state," but that it does not "comprehend that commerce, which is completely internal, which is car

but not broad enough for the occasion. It is not unlikely that the case would have been decided upon it, if you had not insisted that it should be put upon the broader constitutional ground of commerce and navigation. The court felt the application and force of your reasoning, and it made a decision releasing every creek and river, lake, bay, and harbour, in our country, from the interference of monopolies, which had already provoked unfriendly legislation between some of the states, and which would have been as little favourable to the interest of Fulton as they were unworthy of his genius." Mr. Webster, in his reply to Judge Wayne, said: "It is true, that, in the case of Gibbons v. Ogden, I declined to argue the case on any other ground than that of the great commercial question presented by it, the then novel question of the constitutional authority of Congress exclusively to regulate commerce in all its forms. on all the navigable waters of the United States, their bays rivers, and harbours, without any monopoly, restraint, or interference created by stare legislation. That question I regarded as all-important. Other grounds might have been sufficient for the disposal of this particular cause, but they were of no public or permanent importance. If that great point had then been waived or evaded, it is easy now to see what inferences unfavourable to the just authority of Congress might have been drawn." 2 Webster's Works, 399, 402.

ried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states ;" that, both as to foreign and interstate commerce," the power of Congress does not stop at the jurisdictional lines of the several states," but may be exercised within the territory of a state wherever that which is at the time the subject of foreign or interstate commerce may be; that the power of regu lating foreign and interstate commerce is exclusively vested in Congress, and no part of that power can be concurrently or to any extent, exercised by the states; that the power to regulate interstate and foreign commerce includes as an integral part thereof the regulation of the navigation of waters within the jurisdiction of any state in the prosecution of such commerce by the transportation of either passengers or goods in vessels propelled by any sort of motive power; that the grant to the United States of that power forbids the states to create monopolies to interfere with the free navigation of their waters in the prosecution of foreign or interstate commerce; and that, for these reasons, the statutes of New York granting to Fulton and his successors the exclusive rights under which they claimed were void for repugnancy to the Constitution. In The Daniel Ball,' a legitimate corollary of the main point established in Gibbons v. Ogden, was enunciated. The facts were, that the Acts of Congress of 7 July, 1838,2 and 30 August, 1852, having required, under a penalty, all steam vessels engaged in the transportation of passengers and goods upon "the bays, lakes, rivers, or other navigable waters of the United States, to be inspected and licensed," the Daniel Ball, a steamer engaged in navigating Grand river in the state of Michigan between. the cities of Grand Rapids and Grand Haven was libeled

1 10 Wall. 557.

25 Stat. 304.

3 10 Stat. 61.

by the United States in the court of the proper district for violation of the statutes, it being admitted by stipulation that some of the goods she carried came from, or were destined for, places out of the state of Michigan. A decree of condemnation was made in the court below, and affirmed in the Supreme Court, on the ground that the vessel, though plying exclusively within the limits of a state, was engaged in interstate commerce, for as to each article of merchandise transported from a point without the state to a point within the state, or vice versa, interstate commerce began whenever the article commenced to move in trade from one state to another, and continued until the article reached its destination, and the vessel was, by reason of its participation in that transportation, subject to the regulating power of Congress. The judgments in Sinnot v. Davenport, and in Foster Davenport, were the necessary result of the principles upon which the judgment in Gibbons v. Ogden was based. These cases raised the question of the constitutionality of a statute of Alabama requiring the owners of steainboats navigating the waters of that state to file with the local authorities a statement in writing setting forth the name of the vessel, the name of its owners, their places of residence, and the amount of their respective interests in the vessel, as regulations of commerce affecting in Sinnot's case, vessels licensed

1 22 How. 227.

2 22 How. 244.

3 Field, J., said very forcibly, p. 566, "we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a state, its entire authority over interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a state, and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter."

under the Act of Congress to carry on the coasting trade and plying between a port in Alabama and ports in other states, and, in Foster's case, steamboats licensed by the United States and employed as lighters and towboats in the port and harbour of Mobile in aid of vessels engaged in commerce, either foreign or coastwise, with other states. In each case the court held the statute of Mobile to be void as an attempted regulation of commerce. The case of Philadelphia and Southern Steamship Company v. Pennsylvania" follows in the same line, for it was therein held, that a state cannot tax the gross receipts of a steamship company incorporated by it and engaged in the transportation of persons and of goods in the prosecution of both foreign and interstate commerce. The principle established by Gibbons v. Ogden is further exemplified by Hall v. DeCuir, in which the question was as to the validity of a Civil-Rights statute of Louisiana, which had been so construed by the Supreme Court of the state as to require "those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in such business, equal rights and privileges in all parts of the vessel, without distinction on account of race or colour," and to subject "to an action for damages the owner of such a vessel, who excludes coloured passengers, on account of their colour, from the cabin set apart by him for the use of whites during the passage." The Court held the statute to be void as an attempted regulation of interstate commerce, on the ground that the statute did not "act upon the business through the local instruments to be employed after coming within the

1 The case of New York v. Miln, 11 Pet. 102, though cited and relied upon at the argument, was not noticed in the judgment of the court.

2 122 U. S. 326.

95 U. S. 485.