laws, so far, and so far only as such incompatibili- 1824. ty exists, must necessarily yield." Although those authorities show, that nothing but a direct and absolute collision can produce such an interference as will render the State grants invalid, yet a license is relied on by our adversaries, as creating this interference. There is a leading and fundamental error growing out of the nature and form of that instrument, and one which has induced the supposition, that a license gives a right to trade, or a right to enter, or a right to navigate the waters of the United States, to any vessel possessing it. It, indeed, uses the words, "license is hereby granted for the said vessel to be employed in carrying on the coasting trade for one year, from the date hereof, and no longer;" but those words must necessarily be understood in reference to the extent of the authority granting the permission. Equivalent words are to be found in every license to distil or to sell, or to do any act, the right to do which existed prior to and independent of the authority by which it may be regulated; and they only mean, license is granted to do the act, notwithstanding the regulations made on that subject by the licensing authority, and which, without this instrument, would restrain the act. So far as those rights to trade, to enter, or to navigate, exist unmodified, they rest on the common law, independent of any gift from or right conferred by Congress; which, in truth, has no power whereby it might be enabled to make such gift, its authority being only to regulate commerce. These rights are, all three, portions of the Gibbons V. Ogden. Gibbons V. Ogden. 1824. jus commune, and so far as the competent LegislaLures have thought fit to let them remain, the right to them, and their efficacy, depend on that jus commune and the common law. The right to trade is regulated by the State Legislatures and laws of Congress; the right to enter is modified principally by the laws of Congress; and the right to navigate the waters, almost exclusively by the State Legislatures. The license has nothing to do with any of those rights; it only gives some privileges as to payment of tonnage duties, and less frequent entries at the custom houses; and it exempts the licensed vessel from being included within a restriction of the jus commune as to trading, by which Congress prohibits certain vessels from carrying foreign articles and distilled spirits from State to State: even there, not giving to the licensed vessel the right of doing so, but only exempting them from the prohibition. A review of the acts of Congress on the subject, will show the truth of these positions. By the now repealed act of July 20th, 1789," imposing duties on tonnage, different rates were fixed: 1st. six cents per ton on vessels built in the United States, &c., and belonging to a citizen or citizens of the United States; 2d. thirty cents on vessels built in the United States, and belonging to foreigners; 3d. forty cents on all other ships and vessels. But it was provided, that no United States built vessel, owned by a citi zen, or citizens, while employed in the coast. ing trade, or on the fisheries, should pay ton nage more than once a year; and that every a 2 U. S. L. p. 6. The Gibbons V. Ogden. ship employed in transporting the produce and 1824. manufactures of the United States, unless United States built, and owned by a citizen or citizens, should, on every entry, pay 50 cents per ton. only advantages, then, to American built and owned ships, were, a less tonnage duty; and, if on the coasting trade, paying it only once a year; but let it be well remembered, that they had no exclusive or peculiar right to trade any where. By the collection law of July 31, 1789," which established ports of entry and delivery, it was enacted, that no ship or vessel from a foreign port, not wholly belonging to a citizen or citizens, should be permitted to unload at any port or place, except those there specified. Neither this, nor any other act, GIVES the right of entering into the designated ports. It proceeds on the supposition and the truth, that by some other code, distinct from the laws of Congress, the entry into all places had been antecedently lawful, and then restrains it as to all other places but those named. The registering, recording, and enrolling of vessels, were enacted by the act on that subject, passed September 1st, 1789. They were for the purpose of describing the vessel, her built, tonnage, and ownership; and neither they, nor their certificates, give, nor purport to give, any right to trade. The enrolment, and certificate of enrols ment, is to entitle unregistered vessels of twenty a 2 U. S. L. p. 7. b Ib. p. 35. 42. 1824. Gibbons V. Ogden. tons and upwards, American built and property, and destined from district to district, or to the fisheries, to the privileges of a ship belonging to the United States, employed in the coasting trade or fisheries. These I have already mentioned, to be a less tonnage duty, and paying it only once a year; but no exclusive or peculiar right to trade any where. Registered or enrolled vessels, on application to the collector where they belonged, were entitled to receive a license to trade between the different districts in the United States, or carry on the bank or whale fishery for one year. The meaning of that license, notwithstanding the generality of its language, was only to certify that the proper tonnage duty for that year had been paid; and that the vessel was licensed, for that year, to trade without paying any tonnage duty. That such is its object, appears from the 22d sec. enacting, that the master, &c. "shall annually procure a license from the collector of the district to which such vessel belongs, who is hereby authorized to give the same, purporting that such vessel is exempt from clearing and entering for the term of one year from the date thereof." Every vessel had a right to carry on the trade (between district and district) without a license, on paying the prescribed tonnage duties, suited to the case. That further appears, by a provision in the same section, (s. 23.) that if any vessel of twenty tons or a 2 U. S. L. p. 6 b Ib. p. 43. s. 23. c Ib. p. 42, 43. upwards, not having certificate of registry, or enrolment, and a license, should be found trading between different districts, or be employed in the bank or whale fisheries, it should be subject to the same tonnage and fees as foreign ships or vessels. The act, already cited, for tonnage and duties, was repealed by the act of July 20th, 1790;" but the substituted clauses do not affect this argument. A ship having a license to trade between different districts, or to carry on the fisheries, while employed therein, is only to pay the six cents per ton once a year, (i. e. on getting the license,) and upon every ship, &c. not of the United States, which shall be entered in one district from another, having on board goods, &c. taken in one district, to be delivered in another, there shall be paid at the rate of fifty cents per ton:" a duty which clearly recognises. their right to carry on that trade on those terms. 66 The former act for registering and clearing vessels, was repealed by that passed the 18th of February, 1793. This enacted, that none but enrolled and licensed ships, &c. (or, if under twenty tons, simply licensed,) should be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries. These privileges, it will be again remembered, are only the paying of a less tonnage duty, and paying it but once a year; and they do not comprehend any exclusive or peculiar a 2 U. S. L. p. 119, 120. b Ib. p. 332. 1824. Gibbons V. Ogden. |