Livingston v. Van Ingen , 9 Johns. 507 ( 1812 )

. Yates, J.

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to John Fitch the sole right of making and employing the steam-boat by him invented; that Fitch was either dead, or had withdrawn himself from the state, without having made any ■attempt, in the space of more than ten years, to execute the plan for which he obtained the exclusive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-8>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 exist 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, particularly 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 the 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.

Van 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.

Thompson, J.

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», have 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 the 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; because 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 object 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. exercise 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 constitution; 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 memory, 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.

But 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 a 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.

Kent, Ch. J.

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 have 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 navigation, 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 taken 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 fallacious, 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 comes practically in collision with the actual exercise of some congressional power. When that happens to be the case, the state authority will so far be controlled, • but it will still be good in all those respects in which it does not absolutely contravene the provision of the paramount Iaw.l

This construction of the powers of the federal compact has the authority of Mr. Hamilton, in the 32d number of the Federalist, he admits that all the authorities of which the states are not explicitly devested, remain with them in full vigour, and that in all cases in which it was deemed improper that a like authority with that granted to the union should reside in the states, there was the most pointed care in the constitution to insert negative clauses-He further states that there are only three pases of the aliena™ tion of the state sovereignty; 1. Where the grant to the general government is, in express terms, exclusive; 2. Where a like power is expressly prohibited to the states; and, 3. Where an authority in the states would be absolutely and totally contradictory and repugnant to one granted to the union; and it must be, he says, an immediate constitutional repugnancy that can, by implication, alienate and extinguish a pre-existing right of sovereignty. The same view of the powers of the federal and state governments, and the same rules of interpretation, were given by him, in the discussions which the constitution underwent in our state convention, and they seem generally, if not unanimously, to have been acquiesced in by the members of that very respectable assembly. (See the Debates of the New-York Convention, published by Francis Childs.) These opinions-may be regarded as the best evidence of the sense of the authors of that instrument, the best. test of its "principles, and the most accurate cotemporary exposition to which we can recur. For every one acquainted with the history of those times, well knows that the principles of the constitution, in the progress of its adoption through the United States, were discussed in the several conventions, and before the public, by men of the most powerful talents, and with the most animated zeal for the public welfare. There were many distinguished individuals, and none more so than the one to whom I have referred, who had bestowed intense thought, not only upon the science of civil government at large, but who had specially and deeply studied the history and nature, the tendency and genius of the federal system of government, of which the European confederacies had given us imperfect examples, and to which system, as improved by more skilful artists, the destinies of this country were to be confided. Principles of consl ruction solemnly sanctioned at that day, and flowing from such sources, are to be regarded by us, and by posterity, as coming in t$ie language of truth, and with the force of authority.

I now proceed to apply these general rules to those parts of the constitution which are supposed to have an influence on the present question.

The provision that the citizens of each state shall be entitled te all privileges and immunities of citizens in the several states, has ' nothing to do with this case. It means only that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights. Their persons and property must, in all respects, be equally subject to our law. This is a very clear proposition, and the provision itself was taken from the articles of the confederation. The two paragraphs of the constitution by which it is contended that the original power in the state governments to make the grant has been withdrawn, and vested exclusively in the union, are, 1. The power to regulate commerce with foreign nations, and among the several states; and, 2. The power to secure to authors and inventors the exclusive right to their writings and discoveries.

1. As to the power to regulate commerce.

This power is not, in express terms, exclusive, and the only prohibition upon the states is, that they shall not enter into any treaty or compact with each other, or with a foreign power, nor lay any duty on tonnage, or on imports or exports, except what may be necessary for executing their inspection laws. Upon the principies above laid down, the states are under no other constitutional restriction, and are, consequently, left in possession of a vast field °f commercial regulation; all the internal commerce of the state by land and water remains entirely, and I may say exclusively, within the scope of its original sovereignty. The congressional p0wer relates to external not to internal commerce, and it is confined to the regulation of that commerce. To what extent these regulations may be carried, it is not our present duty to inquire. The limits of this power seem not to be susceptible of precise definition. It may be difficult to draw an exact line between those regulations which relate to external and those which relate to internal commerce, for every regulation of the one will, directly or indirectly, affect the other. To avoid doubts, embarrassment and contention on this complicated question, the general rule of interpretation which has been mentioned, is extremely salutary., It removes all difficulty, by its simplicity and certainty. The states are under no other restrictions than those expressly specified in the constitution, and such regulations as the national government may, by treaty, and by laws, from time to time, prescribe, Subject to these restrictions, I contend, that the states are at liberty to make their own commercial regulations. There can be no other safe or practicable rule of conduct, and this, as I have already shown, is the true constitutional rule arising from the nature of our federal system. This does away all colour for the suggestion that the steam-boat grant is illegal and void under this clause in the constitution. It comes not within any prohibition upon the ■ states, and it interferes with no existing regulation. Whenever the case shall arise of an exercise of power by congress which shall be directly repugnant and destructive to the use and enjoyment of the appellants’ grant, it would fall under the cognisance of the federal courts, and they would, of course, take care that the laws of the union are duly supported. I must confess, however, that I can hardly conceive of such a case, because I do not, at present, perceive any power which congress can lawfully carry to that extent. But when there is no existing regulation which interferes - with the grant, nor any pretence of a constitutional interdict, it would be most extraordinary for us to adjudge it void, on the mere contingency of a collision with some future exercise of congressional power. Such a doctrine is a monstrous heresy. It would go, in a great degree, to annihilate the legislative power of the states. May not the legislature declare that no bank paper shall circulate, or be given or received in payment, but what originates from some incorporated bank of our own, or that none shall circulate under the nominal value of one dollar ? But suppose congress should institute a national bank, with authority to issue and circulate throughout the union, bank notes, as well below as above that nominal value: This would so far control the state law, but it would remain valid and binding, except as to the paper of the national bank. The state law would be absolute, until the appearance of the national bank, and then it would have a qualified effect, and be good pro tanto. So, again, the legislature may declare that it shall be unlawful to vend lottery tickets, unless they be tickets of lotteries authorized by a law of this state, and who will question the validity of the provision? But suppose congress should deem it expedient to establish a national lottery, and should authorize persons in each state to vend the tickets, this would so far control the state prohibition, and leave it in full force as to all other lotteries. The possibility that a national bank, or a national lottery, might be instituted, would be a very strange reason for holding the state laws to be absolutely null and void. It strikes me to be an equally inadmissible proposition, that the state is devested of a capacity to grant an exclusive privilege of navigating a steam-boat, within its own waters, merely because we can imagine that congress, in the plenary exercise of its power to regulate commerce, may make some regulation inconsistent with the exercise of this privilege. When such a case arises, it will provide for itself; and there is, fortunately, a paramount power in the supreme court of the United States to guard against the mischiefs of collision.

The grant to the appellants may, then, be considered as taken subject to such future commercial regulations as congress may lawfully prescribe. Congress, indeed, has not any direct jurisdiction over our interior commerce or waters. Hudson river is the property of the people of this state, and the legislature have the same jurisdiction over it that they have over the land, or over any of our public highways, or over the waters of any of our rivers or lakes. They may, in their sound discretion, regulate and control, enlarge or abridge the use of its waters, and they are in the habitual exercise of that sovereign right. If the constitution had given to congress exclusive jurisdiction over our navigable waters, then the argument of the respondents would have applied; but the people never did, bof ever intended, to grant such a power; and congress have concurrent jurisdiction over the navigable waters no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations,

What has been the uniform, practical construction of this p0Wer p £,et us examine the code of our statute laws. Our turnpike roads, our toll-bridges, the exclusive grant to ran stagewaggons, our laws relating to paupers from other states, our Sunday laws, our rights of ferriage over navigable rivers and lakes, our auction licenses, our licenses to retail spirituous liquors, the laws to restrain hawkers and pedlars; what are all these provisions but regulations of internal commerce, affecting as well the intercourse between the citizens of this and other states, as between our own citizens ? So we also exercise, to a considerable degree, a concurrent power with congress in the regulation of external. commerce. What are our inspection laws relative to the staple commodities of this state, which prohibit the exportation, except upon certain conditions, of flour, of salt provisions, of certain articles of lumber, and of pot and pearl ashes, but regulations of external commerce ? . Our health and quarantine laws, and the laws prohibiting the importation of slaves are. striking examples of the same kind. So the act relative to the poor, which requires all masters of vessels coming from abroad to report and give security to the mayor of New-York, that the passengers, being aliens, shall not . become chargeable as paupers, and in case of default, making even the ship or vessel from which the alien shall be landed liable to seizure, is another and very important regulation affecting foreign commerce.

Are we prepared to say, in the face of all these regulations, which form such a mass of evidence of the uniform construction of our powers, that a special privilege for the exclusive navigation by a steam-boat upon our waters, is void, because it may, by possibility, and in the course of events, interfere with the power granted to congress to regulate commerce ? Nothing, in my opinion, would be more preposterous and extravagant. Which of our existing regulations may not equally interfere with the power of congress? It is said that a steam-boat may become ■the vehicle of foreign commerce; and, it is asked, can then the entry of them into this state, or the use of them within it, be prohibited ? I. answer yes, equally as we may prohibit the. entry or use of slaves, or of pernicious animals, or an obscene book, or infectious goods, or any thing else that the legislature shall deem noxious or inconvenient. Our quarantine laws amount to an occlusion of the port of Nem-York from a portion of foreign commerce, for several * 1 . ° . months in the year; and the mayor is even authorized under those laws to stop all commercial intercourse with the ports of any neighbouring state. N o doubt these powers may be abused, or exercised in bad faith, or with such jealousy and hostility towards our neighbours, as to call for some explicit and paramount regulation of congress on the subject of foreign commerce, and of commerce between the states. Such cases may easily be supposed, but it is not logical to reason from the abuse against the lawful existence of a power; and until such congressional regulations appear* the legislative will of this state* exercised on a subject within its original jurisdiction, and not expressly prohibited to it by the constitution of the United States, must be taken to be of valid and irresistible authority.

2. If the grant is not inconsistent with the power of congress to regulate commerce, there is as little pretence to hold it repugnant to the power to grant patents. That power only secures, for a limited time, to authors and inventors the exclusive privilege to their writings and discoveries; and as it is not granted, by exclusive words, to the United States, nor prohibited to the individual states, it is a concurrent power which may be exercised by the states, in a variety of cases, without any infringement of the congressional power. A state cannot take away from an individual his patent right, and render it common to all the citizens. This would contravene the act of congress, and would be, therefore, unlawful. But if an author or inventor, instead of resorting to the act of congress, should apply to the legislature of this state for an exclusive right to his production, I see nothing to hinder the state from granting it, and the operation of the grant would, of course, be confined to the limits of this state. Within our own jurisdiction, it would be complete and perfect. Bo a patentee under the act of congress may have the time of his monopoly extended by the legislature of any state, beyond the term of fourteen or twenty-eight years allowed by that law. Congress may secure, for a limited time, an exclusive right throughout the union; but there is nothing in the constitution to take away from the states the power to enlarge the privilege within their respective jurisdictions. The states are not entirely devested of their original sovereignty over the subject matter; and whatever power has not been clearly granted to the union, remains with them. Again, the power granted to congress goes no further than to secure to the author or inventor a right of property, which, like every other species of property, must be used and enjoyed within each state, according to the laws * . , ot such state. The power of congress is only to ascertain an(j ¿¡egae flie r¡gj)t 0f property; it does not extend to regulating the use of it. That must be exclusively of local cognisance. If the author’s book or print contains matter injurious to the public morals or peace, or if the inventor’s machine or other production will have a pernicious effect upon the public health or safety, no doubt a competent authority remains with the states to restrain the use of the patent right. That species of property must likewise be; subject to taxation, and to the payment of debts, as other personal property. The national power will be fully satisfied, if the property created by patent be, for the given time, enjoyed and used exclusively, so far as under the policy of the several states the property shall be deemed fit for toleration and use. There is no need of giving this power any broader construction in order to attain the end for which it was granted, which was to reward the beneficent efforts of genius, and to encourage the useful arts.

If, then, the respondents were in possession of a patent for their steam-boat, as original inventors, our statute prohibition, not being made against the use of steam-boats, as per se injurious, would, possibly, before a competent tribunal, be obliged to yield to the patent right, as being founded on the paramount law.^(a) But even this plea would not answer in this case; for if the respondents were in possession of such a patent, the state courts could not take notice of it. They cannot enforce a patent right, nor can they declare the patent void, if obtained by fraud or imposition. The acts of congress have vested the federal courts with the exclusive cognisance of all infringements of patent rights; and such was the opinion and decision of the supreme court of this state in a late case. (Parsons v. Barnard, 7 Johns. Rep. 144.) None of our courts could receive a plea of a patent right, in justification of a breach of the statutes: we should be obliged to send the party to the courts of the United States, in order to test the validity of his patent, and to seek the competent redress.

But the respondents show no patent, and the appellants have not obtained their grant, as inventors of the steam-boat, and, therefore, the privilege is totally unconnected with the patent power. It seems to be admitted that congress are authorized to grant patents only to the inventor of the useful art. The act of congress of 25th February, 1793, (Laws United States, v. 2. p. 200.) applies only to the inventor, and the applicant for the patent must make oath that he believes he is the true inventor or discoverer of the art or improvement. The act of 22d April, 1800, (Laws United States, v. 5. p. 88.) extends the benefit of the former law to aliens, after two years’ residence, on their making oath that such invention, art or discovery, hath not, to their belief, been known or used either in this or any foreign country. There cannot, then, be any aid or encouragement, by means of an exclusive right under the law of the United States, to importers from abroad of any useful invention or improvement. Such persons must resort to the patronage of the state governments, in which the power to reward their expensive and hazardous exertions was originally vested, and in which it still remains. The grant of 1798, was made to Chancellor Livingston, as “ the possessor oi a mode of applying the steam éngine to propel a boat on new and advantageous principles.” This power to encourage the importation of improvements, by the grant of an exclusive enjoyment, for a limited period, is extremely useful, and the English nation have long perceived and felt its beneficial effects. This will appear by a cursory view of the law of that country.

The creation of monopolies was anciently claimed and exercised as a branch of the royal prerogative. Lord Coke (3 Inst. 181.) defines a monopoly to be “an institution or allowance by the king’s grant, for the sole using of any thing and he considers such royal grants to have been against the ancient and fundamental laws of the realm. Parliament, at last, interposed to check the abuse of these grants, which had been issued, under Elisabeth, with inconsiderate profusion; and by the statute of 21 Jac. I. c. 3. commonly called the statute of monopolies, there were due limitations placed upon the exercise of this branch of the prerogative. That statute, by a general sweeping clause, demolished all the existing monopolies that were not specially excepted; and some of I those exceptions are worthy of our particular notice. In thejjggj;f place, all grants of privileges by act of parliament were saved;» for no one ever doubted (unless it be since the origin of this controversy) of the power of the legislature to create an exclusive privilege. The statiife"aIso allowed gráHs to bé imade" for a limited time, by the authority of the crown, for the sole working or making of any new manufacture not before used in the realm. Upon this clause it has been held by such distinguished judges as Holt and Pollexfen, (2 Salk. 447.) that if the invention be new in England, a patent may be granted, though the thing was practised beyond sea before; for the statute, as they observe, intended to encourage new devices useful to the kingdom, and whether learned by travel or by study, it is the same thing. In the case of Darcy v. Allen, which arose under Elisabeth, before the statute of monopolies, (11 Co. 84. Noy, 273.) it was admitted, in the interesting argument on the part of the defendant, as preserved in Noy, (p. 182, 183.) that where any man, by his own charge and industry, or by his own wit or invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade, that never was used before, and that for the good of the realm, the king might grant a monopoly patent. Thus, in 9 Elis, there was a patent granted to Hastings for the sole making and selling for divers years, of frisador s, in consideration that he brought in the skill of making them as they were made in Holland. But in a suit on this patent, as it appeared that the defendant had used them before the patent, he was held not punishable for infringing the patent. So a like patent issued, in the beginning of the reign of Elisabeth, to one Mathey, for making certain knives with bone shafts, &c. on the suggestion that he brought the first use of them from beyond sea, but as the suggestion was false, he, on that ground alone, lost the benefit of his patent.

These cases clearly show that the uniform opinion, in England, both before and since the statute of James, has been, that imported improvements, no, less than original inventions, ought to be encouraged by patent. And can we for a moment suppose that such a power does not exist in the several states ? We have seen that it does not belong to congress, and if it does not reside in the states, it resides nowhere, and is wholly extinguished. This would be leaving the states in a condition of singular and contemptible imbecility. The power is important in itself, and may be most benecially exercised for the encouragement of the arts; and if well nd judiciously exerted, it may ameliorate the condition of society, iy enriching and adorning the country with useful and elegant improvements. This ground is clear of any constitutional difficulty, and renders the argument in favour of the validity of the statutes perfectly conclusive. And permit me here to add, that I think the power has been wisely applied, in the instance before us, to the creation of the privilege now in controversy. Under its auspices the experiment of navigating boats by steam has been made, and crowned with triumphant success. «Every lover of the arts, every patron of useful improvement, every friemTtohis country’s honouijjhas beheld this success withjjleasure and admiration., From this single source the improvement is progressively extending to all the navigable waters of the United States, and it promises to become a great public blessing, by giving astonishing facility, despatch and safety, not only to travelling, but to the internal commerce of this country. It is difficult to consider even the known results of the undertaking, without feeling a sentiment of good will and gratitude towards the individuals by whom they have been procured, and who have carried on their experiment with patient industry, at great expense,.under repeated disappointments, and while constantly exposed to be held up, as dreaming projectors, to the whips and scorns of time. So far from charging the authors of the grant with being rash and inconsiderate, or from wishing to curtail the appellants of their liberal recompense, I think the prize has been dearly earned and fairly won, and that the statutes' bear the stamp of an enlightened and munificent spirit.

If the legal right be in favour of the appellants, the remedy prayed for by their bill is a matter of course. One of the learned counsel for the respondents, with his usual frankness, seemed, in a great degree, to concede this point.

Injunctions are always granted to secure the enjoyment of sta-j tute privileges of which the party is in the actual possession, un-' less the right be doubtful. This is the uniform course of the pre-! cedents. I believe there is no case to the contrary; and the deci- $ sions in the English chancery, on this point, were the same before | as since the American revolution; and we are, consequently, \ boundby them as a branch of the common law. It appears, by the facts stated in the bill, and which we must take to be true, as they have been sworn to, and are not answered or denied, that the appellants had been, for three years, in the actual and exclusivo enjoyment of their statute privilege, when the respondents interfered to disturb that right and that enjoyment.

It will be necessary to attend, for a moment, to the most prominent English cases, on the subject of injunctions; and on this point I shall be very brief.

In Gyles v. Wilcox and others, which was as early as the year 1740, (2 Atk. 141. S. C. 3 Atk. 269.) there was a bill filed for an injunction to stay the printing of a book, on suggestion, that the book, pretending to be a different work, was, in truth, an invasion of the complainant’s copyright, under the statute of Anne. The lord chancellor referred the cause, by consent, to arbitrators, to examine whether the one book was a copy from the other; and though that point was not clear, he allowed an injunction and continued it in the mean time. So, also, in the case of Blackwell v. Harper, in the year 1740, (2 Atk. 92.) a bill was exhibited to establish a right under the statute of 8 Geo. II. c. 13. for encouraging the arts of designing, engraving, &c. and to restrain the defendant from copying the complainant’s engravings of medicinal plants, and an injunction was decreed, though the statute said nothing about an injunction, and had given, as against the offender, a forfeiture of the plates and sheets engraved, and an additional penalty of 5s. for every print, to be recovered by suit at law. In another case, in the same year, 1740, before the same chancellor, (1 Ves. 476.) he admitted, that when the right appeared by matter of record, or was grounded upon an act of parliament, it was a foundation for an injunction before answer. These cases I have particularly selected, because two of them were cases of injunction, founded on a statute right, and where the statute had also given a forfeiture, and because these cases were long before our revolution, and were the decisions óf so correct and distinguished a chancellor as Lord Hardwicke.

It is impossible, in any cause, to produce cases more in point or more controlling;. and they put the authority and duty to grant an injunction, in a case of clear statute right, beyond contradiction. There are many other cases in the English chancery, to the like effect, all of which I shall not stay to examine. (Baskett v. Parsons, 1718, decided by Sir J. Jekyl, and cited in 13 Ves. 493. Smith v. Clark, Dick. 455. Hicks v. Raincock, Dick. 647. Pope v. Curl, 2 Atk. 342. Bell v. Walker and others, 1 Bro. 451.) It will be sufficient, by referring to a few of them^ to show the uniform language of the equity courts. The case of The City of London v. Pughs (3 Bro. Ch. Cas. 374.) arose as early as 1727, and as it was decided by the house of lords, upon an appeal, it merits the more attention. The quesiion there was, on a penalty given by a lease of 100Z. an acre, for digging up the soil, and yet the court ordered that the chancellor issue an injunction until the hearing, to stay the trespass, notwithstanding the party had his remedy for the penalty. In the case of Bolton v. Bull, which was in chancery, as late as 1796) (3 Ves. 140.) there was a bill for an injunction against, infringing a patent right for a fire engine, and it was granted, ánd the validity of the patent was left, in the mean time, to be tried at law. It was there admitted to be the most ordinary jurisdiction of the court of chancery, not to alter the possession until the right was decided, and the party in enjoyment of his patent privilege was considered as in such possession. In a late case, before the present Lord Chancellor Eldon, (The Universities v. Richardson, 6 Ves. 707.) it was held, that in the case of apatentright, if the party gets his patent and puts it in execution, his possession, under colour of that title, is good enough to enjoin a disturber froin interfering, and to continue the injunction until it is proved at law that he had no title. In a still later case, (14 Ves. 130.) the court expressed itself in strong terms against the invasion of a patent right, and said, that unless the injunction was granted, any person might violate the patent, and the consequence would be, that the patentee would be harassed with litigation.

I cite these latter cases to show that the law has beeh settled, in England, for the last 70 years at least, and has been preserved in a steady, uniform course, under a succession of their ablest and wisest men. The principle is, that statute privileges, no less than common law rights, when in actual possession and exercise, will not be permitted to be disturbed, until the opponent has fairly tried them at law, and overthrown their pretension. And is not this a most excellent principle, calculated to preserve peace, and order, and morals, in the community; and if it was not the law, yet deserving to be the law, and well worthy of our encouragement and sanction ? The federal courts, in this country have thought for under the patent law of congress, they have equally pro-so; tected the right by injunction. The case of Morse v. Reid was an injunction bill filed in 1796, to restrain the defendant from reprinting Winterbotham's History, which, the complainant alleged, was an invasion of the copyright of his American Geography. The propriety of the injunction was not questioned; it issued in the first instance. The complainant recovered 1,500 dollars, and the injunction was made perpetual. So in the late case of Whitney v. Fort, which arose in Georgia, upon a violation of the complainant’s patent for a machine for cleaning cotton, an injunction was granted, in the first instance, and was afterwards made perpetual, at the circuit court, at which Judge Johnson pregye¿¡s As far, then, as authority goes, it is in favour of the injunction, and if we are satisfied, in this case, of the appellants’ right, we cannot hesitate about the remedy. The act which the legislature passed at the last session, making it expressly the duty of the chancellor to grant an injunction as to all other boats except the two then built, proves very clearly the sense of the legislature that this was a fit and proper remedy in the case. Those two boats were excepted out of the law, merely because it was improper to interfere with a pending suit, and the statute did not impair the pre-existing remedy by injunction; it only made it more clear and peremptory thereafter; and there is no reason why the injunction should issue against one set of boats, and not against another.

It would only be productive of litigation and mischief, to allow the respondents to continue the use of their boats, if the right be against them. Their counsel admit that they must not only forfeit the boats, but must answer in damages for all the intermediate profits. If the legal right be with the appellants, this is the proper court, and this is the proper time to declare it. This court, from its peculiar constitutional structure, unites with it the highest court of common law, and nothing would be more useless than to withhold an injunction until the chancellor had sent the question to be tried at law, when the judges before whom it is to be tried, are members of this court, and have already declared their opinion. The legal question can never be tried by a jury. It is not a question of fact. The single point is the constitutionality of the statutes. That point never can be more fully and móre ably argued than it has been before this court, and if we are of opinion that the acts are constitutional, they must be obeyed. We are bound to cause them to be obeyed. . There is no escape from this duty.

If we refuse the injunction, it ought to be for some substantial reason. We must not put it upon the mere hoc volo, sic jubeo, sit pro rations voluntas. There must be some solid principle, that will correspond with the character, as well as satisfy the conscience of this court. If the laws are valid, it would be of pernicious consequence not to arrest the further progress of their violation. It is impossible for any act to be committed which-attracts more universal notice, and if wrong and illegal, none which has a more fatal influence upon the general habits of respect and reverence for the legislative authority. The boats cannot run but in the face of day, and in the presence, as it were, of the whole people, whose laws are set at defiance, nor without seducing thousands, by the contagion of example, into an approbation and support of the trespass.

March 12th, 1812.

I am sensible that the case is calculated to excite sympathy. I feel it with others, and I sincerely wish that the respondents had brought the laws to a test, at less risk and expense; for every one who had eyes to read, or ears to hear the contents of our statute book, must have been astonished at. the boldness and rashness of the experiment. But in proportion to the respectability and strength of the combination, should be the vigour of our purpose to maintain the law. If we were to suffer the plighted faith of this state to be broken, upon a mere pretext, we should become a reproach and a by-word throughout the union. It was a saying of Euripides, and often repeated by Cæsar, that if right was ever to be violated, it was for the sake of power. We follow a purer and nobler system of morals, and one which teaches us that right is never to be violated. This principle ought to be kept steadfast in every man’s breast; and, above all, it ought to find an asylum in the sanctuary of justice.

I am accordingly of opinion, that the order of the court of chancery be reversed, and that an injunction be awarded.

Lewis, Senator, and Townsend, Senator, being related to some of the parties, declined giving any opinions.

The other senators declared their concurrence in the opinions delivered by the judges. The following order was, thereupon, unanimously adopted and directed to be entered:

“ Whereupon, after hearing counsel, as well for the appellants as for the respondents, upon the order of the court of chancery, complained of by the appellants, and considering and hereby declaring the exclusive privilege granted by the legislature of this state, to the appellants, as mentioned in their bill of complaint, valid, and that the same ought to be enjoyed by them according to law;

"It is therefore, ordered, adjudged and decreed, and this court doth, accordingly, order, adjudge and decree, that the order of the court of chancery complained of be reversed. And y,is court doth further order, adjudge and decree, that a writ of injunction issue, restraining and prohibiting the respondents from using and employing the boat or vessel, called the Hope, in the bill mentioned, on any of the waters of this state, in contravention of the legislative grant and privilege made to, and vested in, the appellants, as in their bill set forth; and that such injunction be continued until the final hearing of the cause in the court of chancery; and that the injunction ought then to be made perpetual, so long as the exclusive right and privilege of the appellants shall continue under the acts of the legislature of this state, in the bill set forth; unless, on the final hearing of the cause, the equity contained in the appellants’ bill shall be destroyed, by the new mutter to be set forth and established by the respondents.

“ And it is further ordered, adjudged and .decreed, that the record be remitted to the court of chancery, to the end, that the order, judgment and decree, of this court, may be forthwith executed, by awarding such injunction.”

Judgment of reversal.

* Mr. Jay.

(a) The Chief Justice requested it to be added, that the idea here intimated hypothetically, was not necessary to the argument, and, on more reflection, he thought that even that intimation might lead to error. He wished not to.be understood as saying that a state grant could, in any case, or before any tribunal, be questioned or controlled by a patent right.