licensed vessels not from carrying passengers, but from being moved through the waters of New York by steam for any purpose whatever.

The questions, then, whether the conveyance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coasting license, are not, and cannot be, raised in this case. The real and sole question seems to be whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a license.

In considering this question, the first idea which presents itself is that the laws of congress for the regulation of commerce do not look to the principle by which vessels are moved. That subject is left entirely to individual discretion; and in that vast and complex system of legislative enactment concerning it, which embraces everything that the legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act granting a particular privilege to steamboats. With this exception, every act, either prescribing duties, or granting privileges, applies to every vessel, whether navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance.

If a real difference could be admitted to exist between vessels carrying passengers and others, it has already been observed that there is no fact in this case which can bring up that question. And if the occupation of steamboats be a matter of such general notoriety that the court may be presumed to know it, although not specially informed by the record, then we deny that the transportation of passengers is their exclusive occupation. It is a matter of general history that in our western waters their principal employment is the transportation of merchandise; and all know that in the waters of the Atlantic they are frequently so employed.

But all inquiry into this subject seems to the court to be put

completely at rest by the act already mentioned, entitled "An act for the enrolment and licensing of steamboats."

This act authorizes a steamboat employed, or intended to be employed, only in a river or bay of the United States, owned wholly or in part by an alien, resident within the United States, to be enrolled and licensed as if the same belonged to a citizen of the United States.

This act demonstrates the opinion of congress that steamboats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained from navigating waters and entering ports which are free to such vessels than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the union; and the act of a state, inhibiting the use of either to any vessel having a license under the act of congress, comes, we think, in direct collision with that act.

As this decides the cause, it is unnecessary to enter on an examination of that part of the constitution which empowers congress to promote the progress of science and the useful arts.

The court is aware, that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavor to prove that which is already clear is imputable to a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken; and although some of them were thought nearly self-evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar, demanded that we should assume nothing.

Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the union are

to be contracted, by construction, into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles, to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined.

9 Wh. 222.

OSBORN AND OTHERS v. THE BANK OF THE UNITED STATES.

FEBRUARY TERM, 1824.

[9 Wheaton's Reports, 738-903.]

THE legislature of Ohio, in 1819, passed an act for collecting a tax from banks, &c., doing banking business in that state without being allowed to do so by the laws thereof. Under this act the Bank of the United States was to pay an annual tax of fifty thousand dollars, if it continued to do business in Ohio after a specified time; and this tax the state auditor was authorized to issue his warrant for, empowering the bearer to enter the banking-house by force and seize any property he might find.

To prevent any proceeding, the bank, on the 14th of September, filed their bill in the United States circuit court for an injunction against Osborn, the state auditor, which was granted, and notice given him. After notice was given, but before the injunction issued, the banking-house was entered, under a warrant from Osborn, and ninety-eight thousand dollars taken, in specie and bills, which was delivered to the treasurer of the state. The bank then amended their bill, stating these facts; and upon a hearing the circuit court ordered the money to be restored to the bank, with interest on the specie. Osborn appealed to the supreme court, - the opinion of which was given by the chief justice as follows:

Ar the close of the argument a point was suggested of such vital importance as to induce the court to request that it might be particularly spoken to. That point is, the right of the bank to sue in the courts of the United States. It has been argued, and ought to be disposed of, before we proceed to the actual exercise of jurisdiction, by deciding on the rights of the parties.

9 Wh. 816.

The appellants contest the jurisdiction of the court on two grounds :

1st. That the act of congress has not given it.

2d. That, under the constitution, congress cannot give it. 1. The first part of the objection depends entirely on the language of the act. The words are, that the bank shall be "made able and capable in law," "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all state courts having competent jurisdiction, and any circuit court of the United States."

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These words seem to the court to admit of but one interpretation. They cannot be made plainer by explanation. They give, expressly, the right "to sue and be sued,” “in every circuit court of the United States," and it would be difficult to substitute other terms which would be more direct and appropriate for the purpose. The argument of the appellants is founded on the opinion of this court in The Bank of the United States v. Deveaux (5 Cranch, 85). In that case it was decided that the former Bank of the United States was not enabled, by the act which incorporated it, to sue in the federal courts. The words of the third section of that act are, that the bank may "sue and be sued," &c., "in courts of record, or any other place whatsoever." The court was of opinion that these general words, which are used in all acts of incorporation, gave only a general capacity to sue, not a particular privilege to sue in the courts of the United States; and this opinion was strengthened by the circumstance that the ninth rule of the seventh section of the same act subjects the directors, in case of excess in contracting debt, to be sued, in their private capacity, in any court of record of the United States, or either of them." The express grant of jurisdiction to the federal courts, in this case, was considered as having some influence on the construction of the general words of the third section, which does not mention those courts. Whether this decision be right or wrong, it amounts only to a declaration that a general capacity in the bank to sue, without mentioning the courts of the