PREFACE.

THE important controversy respecting the constitutionality of the exclusive grant from the legislature, to Messrs. LIVINGSTON and FULTON, has at length been decided in the Supreme Court of the United States, against the validity of the state laws; and we are well persuaded, that whosoever will give an attentive and candid perusal to the opinion which is now offered to the public in this convenient form of republication, must acknowledge the justness of that decision.

The result, perhaps, is neither unexpected nor unacceptable to the great body of the people of this state, as well as of other portions of the Union; and whatever may be our sympathies with the individuals whose private interests are affected, we are confident that no feelings of state interest or pride, militate against a cheerful submission to the decision of that high tribunal, whose judgment alone is final; in cases of this nature.

The controversy has indeed, at different periods, excited much feeling and interest amongst ourselves; and notwithstanding the decisions of our state courts, we believe the current of popular opinion to have been so strong against the validity of the grant in question, that the legislature would have long since repealed at least the extraordinary remedies given for its protection, had not the reversal of those decisions in the forum of the last resort, been confidently expected.

So long ago as 1811, the state right was openly contravened by a company in this city, by whom opposition steam-boats were established on Hudson's river. A bill in chancery was filed, and an injunction prayed for against them, by the state grantees. The then chancellor (Mr. LANSING) refused to grant the writ; but upon an appeal to the court of errors, his decree was reversed, and a perpetual injunction directed to be issued against the proprietors of the opposition boats. The same questions were de bated in that cause, that were lately discussed in the supreme court of the United States; but as no patent right was pretended, and no coasting license set up under the laws of the United States, the court of errors merely held the state grant to be valid, on the ground of a concurrent, but subordinate power in the state legislature, and acknowledged that in case of conflict, a patent right

would prevail against it. It was moreover denied, that any interference had in that case been shewn between the laws of this state, and the constitutional power of congress to regulate commerce ; it was alleged, that it would be time enough to consider that question when it should arise; and the general answer given to all such supposed collisions of power, was the same as in the case of conflict with a patent right—" that the laws of congress were paramount, and must prevail."

By a subsequent compromise, the opposition company was admitted to a participation of the exclusive right; and consequently that cause was not carried up to the supreme court of the United States. Pending the suit, both parties had united in obtaining from the legislature new and extraordinary penalties against any other interference with the state grant; and as those penalties were applicable, at the discretion of the grantees themselves, not only to cases falling within the decision of the court of errors, to those expressly excepted from its operation, all further litigation in the courts of justice was for a season put to rest.

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The legislature was then resorted to, on the ground that the courts were in effect shut against claimants under an authority, which had been admitted to be superior to that whence Messrs. Livingston and Fulton had derived their right; and the first applicant for relief was Mr. OGDEN of New-Jersey, the very party who has been unsuccessful in the late suit at Washington. The memorial presented by him to the legislature at the session of 1814, was referred to a select committee of the assembly, of which the present Judge DUER was chairman; and in the report made on that occasion, it was in effect declared as the opinion of the committee, that a right derived by patent from the United States, was paramount to the state grant; and further, that "as the constitution of the United States vests congress with the power (necessarily an exclusive one) to regulate commerce, it was at least questionable whether the legislature of this state had any power to interfere with, or prevent the navigation of a vessel in any of the waters of this state, and more especially in any waters lying between this and a neighbouring state, with a license obtained according to the laws of the United States."

The committee considered the act giving the extraordinary pe-nalties referred to, as in effect closing the courts of justice against persons desirous of bringing to a legal test the rights claimed by Messrs. Livingston and Fulton; and as that act formed no part of the right, but only gave additional remedies for its protection, they recommended to the legislature so to alter or modify the act, as to prevent its working such manifest injustice. The bill reported by them for that purpose, was passed by the assembly, but rejected in the senate.

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A compromise was then made with Mr. Ogden. New claimants, however, arose with similar pretensions; but their applications were so uniformly unsuccessful, that it at length became evident that the rights claimed under the state laws were at all events to be protected from judicial enquiry, except at the risk of losing a steam-boat, which, by the operation of the state law, must have been subjected to seizure, as a necessary act of the court of chancery, before a hearing could be had.

No person of sufficient hardihood and resources for such an enterprise presented himself, until Mr. GIBBONS, the appellant in the late suit, resolved to enter the lists; and in all probability the hazard would have seemed too great even for him, had not circumstances in the mean time occurred to encourage him in his resolution. About three years after the report of the committee on Mr. Ogden's memorial, Mr. COLDEN of New-York, one of the parties interested in the grant from the state, published a biography of his friend Mr. Fulton, in which he undertook to censure the committee, and attack their report. This produced an "Answer" from Mr. Duer, in which both were defended. A "Vindication" of the state grant followed from Mr. Colden-a "Reply" to which was afterwards published by his antagonist; and in this last pamphlet, Judge Duer urges the same ground of objection to the exclusive right of Messrs. Livingston and Fulton, upon which the late decision at Washington is founded.

The main point in controversy, however, between Mr. Colden and Judge Duer, was the repugnancy asserted by the latter, of the state grant to the power vested in congress to grant patents for new inventions and discoveries. But in adverting to the question, arising from the power of congress to regulate commerce with foreign nations and amongst the several states, he addresses his adversary as follows:- "As you permitted that part of the report which relates to the power vested in congress to regulate commerce, to escape vituperation in your memoir, I did not, in my former letter, urge the objection to the state grant which had been founded on that article of the constitution; but as you have thought it expedient to revive the question, it may be proper merely to observe, that a state law may interfere with the provisions of the power to regulate commerce, either when it proposes such regulation as its end or object, or when, in its natural effects and consequences, it interferes with that power, which, in regard to the objects specified, is admitted to be necessarily exclusive. Quarantine laws undoubtedly affect the intercourse of foreign nations with particular states, or of one state with another; but the object and end of those laws is not to regulate commerce, but to guard against infectious diseases. It is only by accident, and not in their natural results, that they regulate commerce, or interfere with its regulation. Neither do the acts for granting ferries, turnpike roads or toll bridges, aim to regulate commerce. That is not their end or

object; nor can they in their natural results be said to interfere with the power of congress; and if in any wise they do interfere with it, chance.

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"The object of the grants in question, is to promote easy and expeditious internal intercourse; and their accidental effects may be to facilitate commercial intercourse. The exclusive privileges given in these cases to the grantees, were given to promote the end of the grant, and are the means which the legislature thought it most proper to resort to for taxing the public, in order to attain the object. It is from confounding the natural result, with the accidental effects of a law, that the fallacy has arisen. By distinguishing the one from the other, we are guarded against the possibility of delusion. In truth, the accidental effects of every law for the regulation of trade, or the imposition of taxes on articles of home consumption, and for the inspection of those of domestic growth or manufacture, may, in the same loose and extended sense, be said to be regulations of commerce, because they affect it indirectly. But how different are such laws in their aim and consequences, from a grant that directly, in its natural results, and by a foreseen consequence, monopolizes one grand method for the cheap and expeditious prosecution both of foreign and domestic trade?"

With the publication from which the above extract is taken, the controversy between Mr. Colden and Judge Duer terminated. Public opinion declared itself very distinctly against the validity of the state grant; and Mr. Gibbons and others who severally claimed the right of navigating our waters with their steam vessels, either under coasting licenses or patents, were emboldened to persevere, until a determination upon their rights could be had in the court of the last resort. In the state courts they were unsuccessful; as the opinions of our judges advanced step by step, until they successively determined that neither a patent right nor a coasting license presented a case of collision with the state grant! Appeals, in most of these cases were prosecuted in the supreme court of the United States; and the issue, as it respects the case of Gibbons, we have now, before us. The other suits are still pending ; besides one in the district court of the United States for the northern district of New-York, in which the question in regard to a patent right has been decided by Judge SKINNER, in conformity with the principles advanced by Mr. Duer. No appeal has as yet been entered in this case; and whether one be ever prosecuted or not, we conceive to be immaterial; as the opinion in the case of Gibbons, as to every practical purpose, covers the whole ground of controversy.

We may now, therefore, confidently look for a new era in the history of steam navigation. Hitherto the public has been perhaps better accommodated with steam-boats for passengers upon our waters, than could have reasonably been expected whilst this

branch of navigation was the subject of a monopoly. We may therefore, with greater certainty, conclude, that when competition is admitted, it will at least be attended with its usual benefits to the community at large, and that weshall have boats of various sorts and sizes, at rates adapted to the circumstanees of every description and class of passengers.

The means of transporting merchandize by steam vessels has heretofore been denied to us altogether; for although the state grantees upon their incorporation voluntarily precluded themselves from carrying freight, they nevertheless persisted in depriving others of that right. It will now become common, and when we reflect upon the superior expedition, certainty, and economy of steam transportation, and that it affords in itself the most effectual remedy for all the obstructions in the navigation of the Hudson, some faint idea may be formed of the benefits which it holds forth -benefits which will not only be extended throughout the state, but équally felt in every part of it. It will not only enable the remote merchant and farmer to avail themselves most readily of our principal markets; but those on the margin of the river, will find their proportional account in it. They may convert their farms into gardens, and transport their produce to New-York with almost the same expedition and in better order, than it could be conveyed by a land carriage of a few miles.

And whilst these advantages are promised to the public, there is no hardship or injustice in the privation to which the owners of the state grant are necessarily subjected. They have still an exclusive right under their patents from the United States, to the use of such modes of steam navigation as are secured to them as the original inventions and improvements of Messrs. Livingston and Fulton; they have already realized large sums of money from fourteen years enjoyment of an exclusive privilege, which it now appears the state had no power to confer on them; and they may now enjoy the freighting business in common with others, as well as a fair competition in the transportation of passengers, with peouliar advantages in their favor.

Nor have they any just ground of complaint or claim against the state, for the failure of their exclusive grant. It was not purchased by them for a valuable consideration, with warranty either express or implied; but the legislature merely gave them what they asked, and were content to take at their own risk; and that was the privilege of making large fortunes, at the expense, as it proves, of the common rights of their fellow citizens. To suppose, therefore, that on being law fully deprived of such a privilege, they are entitled to remuneration from the state, would be in effect to admit, that every insolvent debtor discharged under our state laws, may claim to be reimbursed by the state, the amount of former