When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every State. Still it would be said, that there is no direct repugnance between these powers, and that the power of Congress may still act. 'Constitit, et lachrymans; Quis jam locus, inquit, Achate, Quae regio in terris nostri non plena laboris?'. And that law was again approved of by the Council of Revision, consisting almost entirely of new members, and differing from the first. It is remarkable, that even the definite article the is omitted, and it is only provided that Congress shall have power, &c. And this omission was not accidental, but studiously made. At the time of making the State grant in question, no man had, and, indeed, no man yet has, any pre-existing right to an invention, connected with the subject matter of the grant. Inspection laws are of a more equivocal nature, and it is obvious, that the constitution has viewed that subject with much solicitude. This, we think, shows conclusively the sense of Congress, (if, indeed, any evidence to that point could be required,) that the pre-existing regulations comprehended passenger ships among others; and, in prescribing the same duties, the Legislature must have considered them as possessing the same rights.
Certainly if the powers be repugnant at all, they must be so with all these qualifications. The laws in question, he knew, had been deliberately re-enacted by the Legislature of New-York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference.
He contended, therefore, in conclusion on this point, that the power of Congress over these high branches of commercial regulation, was shown to be exclusive, by considering what was wished and intended to be done, when the convention, for forming the constitution, was called; by what was understood, in the State conventions, to have been accomplished by the instrument; by the prohibitions on the States, and the express exception relative to inspection laws; by the nature of the power itself; by the terms used, as connected with the nature of the power; by the subsequent understanding and practice, both of Congress and the States; by the grant of exclusive admiralty jurisdiction to the federal government; by the manifest danger of the opposite doctrine, and the ruinous consequences to which it directly leads. By the 4th sec. Livingston v. Van Ingen, 9 Johns. It excludes also all right to legislate for the benefit of any person who is not himself the 'inventor.' If it does belong to some of them, to whom does it belong? The article in the constitution, art.
He was, of necessity, either the inventor or the importer. Exiled Irish patriot Thomas Addis Emmet and Thomas J. Oakley argued for Ogden, while U.S. Attorney General William Wirt and Daniel Webster argued for Gibbons. It has an incidental power, indeed, to regulate navigation, but only so far as that navigation is, or may be, subservient to the commerce it has a direct power to regulate.
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