CHAPTER VIII

COMMERCE MADE FREE

Marshall's decision involved in its consequences the existence

of the Union. (John F. Dillon.)

Opposing rights to the same thing cannot exist under the

Constitution of our country. (Chancellor Nathan Sanford.)

Sir, we shall keep on the windward side of treason, but we must

combine to resist these encroachments,--and that effectually.

(John Randolph.)

That uncommon man who presides over the Supreme Court is, in all

human probability, the ablest Judge now sitting on any judicial

bench in the world. (Martin Van Buren.)

At six o'clock in the evening of August 9, 1803, a curious assembly of

curious people was gathered at a certain spot on the banks of the Seine

in Paris. They were gazing at a strange object on the river--the model

of an invention which was to affect the destinies of the world more

powerfully and permanently than the victories and defeats of all the

armies that, for a dozen years thereafter, fought over the ancient

battle-fields of Europe from Moscow to Madrid. The occasion was the

first public exhibition of Robert Fulton's steamboat.

France was once more gathering her strength for the war which, in May,

Great Britain had declared upon her; and Bonaparte, as First Consul, was

in camp at Boulogne. Fulton had been experimenting for a long time, and

the public exhibition now in progress would have been made months

earlier had not an accident delayed it. His activities had been reported

to Bonaparte, who promptly ordered members of the Institute[1107] to

attend the exhibition and report to him on the practicability of the

invention, which, he wrote, and in italics, "_may change the face of the

world_."[1108] Prominent, therefore, among the throng were these learned

men, doubting and skeptical as mere learning usually is.

More conspicuous than Bonaparte's scientific agents, and as interested

and confident as they were indifferent or scornful, was a tall man of

distinguished bearing, whose powerful features, bold eyes, aggressive

chin, and acquisitive nose indicated a character of unyielding

determination, persistence, and hopefulness. This was the American

Minister to France, Robert R. Livingston of New York, who, three months

before, had conducted the Louisiana Purchase. By his side was Fulton

himself, a man of medium height, slender and erect, whose intellectual

brow and large, speculative eyes indicated the dreamer and contriver.

The French scientists were not impressed, and the French Government

dropped consideration of the subject. But Fulton and Livingston were

greatly encouraged. An engine designed by Fulton was ordered from a

Birmingham manufacturer and, when constructed, was shipped to America.

For many years inventive minds had been at work on the problem of steam

navigation. Because of the cost and difficulties of transportation, and

the ever-growing demand for means of cheap and easy water carriage, the

most active and fruitful efforts to solve the problem had been made in

America.[1109] Livingston, then Chancellor of New York, had taken a deep

and practical interest in the subject.[1110] He had constructed a boat

on the Hudson, and was so confident of success that, five years before

the Paris experiments of Fulton, he had procured from the New York

Legislature an act giving him the exclusive right for twenty years to

navigate by steamboats the streams and other waters of the State,

provided that, within a year, he should build a boat making four miles

an hour against the current of the Hudson.[1111] The only difficulty

Livingston encountered in securing the passage of this act was the

amused incredulity of the legislators. The bill "was a standing subject

of ridicule" and had to run the gamut of jokes, jeers, and

raillery.[1112] The legislators did not object to granting a monopoly on

New York waters for a century or for a thousand years,[1113] provided

the navigation was by steam; but they required, in payment to

themselves, the price of derision and laughter.

Livingston failed to meet in time the conditions of the steamboat act,

but, with Livingston tenacity,[1114] persevered in his efforts to build

a practicable vessel. When, in 1801, he arrived in Paris as American

Minister, his mind was almost as full of the project as of his delicate

and serious official tasks.

Robert Fulton was then living in the French Capital, working on his

models of steamboats, submarines, and torpedoes, and striving to

interest Napoleon in his inventions.[1115] Livingston and Fulton soon

met; a mutual admiration, trust, and friendship followed and a

partnership was formed.[1116] Livingston had left his interests in the

hands of an alert and capable agent, Nicholas J. Roosevelt, who, in

1803, had no difficulty in securing from the now hilarious New York

Legislature an extension of Livingston's monopoly for twenty years upon

the same terms as the first.[1117] Livingston resigned his office and

returned home. Within a year Fulton joined his partner.

The grant of 1803 was forfeited like the preceding one, because its

conditions had not been complied with in time, and another act was

passed by the Legislature reviving the grant and extending it for two

years.[1118] Thus encouraged and secured, Fulton and Livingston put

forth every effort, and on Monday, August 17, 1807, four years and eight

days after the dramatic exhibition on the river Seine in Paris, the

North River,[1119] the first successful steamboat, made her voyage up

the Hudson from New York to Albany[1120] and the success of the great

enterprise was assured.

On April 11, 1808, a final law was enacted by the New York Legislature.

The period of ridicule had passed; the members of that body now voted

with serious knowledge of the possibilities of steam navigation. The new

act provided that, for each new boat "established" on New York waters by

Livingston and Fulton and their associates, they should be "entitled to

five years prolongation of their grant _or contract_ with this state,"

the "whole term" of their monopoly not to exceed thirty years. All other

persons were forbidden to navigate New York waters by steam craft

without a license from Livingston and Fulton; and any unlicensed vessel,

"together with the engine, tackle and apparel thereof," should be

forfeited to them.[1121]

Obedient to "the great god, Success," the public became as enthusiastic

and friendly as it had been frigid and hostile and eagerly patronized

this pleasant, cheap, and expeditious method of travel. The profits

quickly justified the faith and perseverance of Livingston and Fulton.

Soon three boats were running between New York and Albany. The fare each

way was seven dollars and proportionate charges were made for

intermediate landings, of which there were eleven.[1122] Immediately the

monopoly began operating steam ferryboats between New York City and New

Jersey.[1123] Having such solid reason for optimism, Livingston and

Fulton, with prudent foresight, leaped half a continent and placed

steamboats on the Mississippi, the traffic of which they planned to

control by securing from the Legislature of Orleans Territory the same

exclusive privileges for steam navigation upon Louisiana waters, which

included the mouth of the Mississippi,[1124] that New York had granted

upon the waters of that State. Nicholas J. Roosevelt was put in charge

of this enterprise, and in an incredibly short time the steamboat New

Orleans was ploughing the turgid and treacherous currents of the great

river.[1125]

It was not long, however, before troubles came--the first from New

Jersey. Enterprising citizens of that State also built steamboats; but

the owners of any vessel entering New York waters, even though acting

merely as a ferry between Hoboken and New York City, must procure a

license from Livingston and Fulton or forfeit their boats. From

discontent at this condition the feelings of the people rose to

resentment and then to anger. At last they determined to retaliate, and

early in 1811 the New Jersey Legislature passed an act authorizing the

owner of any boat seized under the New York law, in turn to capture and

hold any steam-propelled craft belonging "in part or in whole" to any

citizen of New York; "which boat ... shall be forfeited ... to the ...

owner ... of such ... boats which may have been seized" under the New

York law.[1126]

New York was not slow to reply. Her Legislature was in session when that

of New Jersey thus declared commercial war. An act was speedily passed

providing that Livingston and Fulton might enforce at law or in equity

the forfeiture of boats unlicensed by them, "as if the same had been

tortiously and wrongfully taken out of their possession"; and that when

such a suit was brought the defendants should be enjoined from running

the boat or "removing the same or any part thereof out of the

jurisdiction of the court."[1127]

Connecticut forbade any vessel licensed by Livingston and Fulton from

entering Connecticut waters.[1128] The opposition to the New York

steamboat monopoly was not, however, confined to other States. Citizens

of New York defied it and began to run steam vessels on the

Hudson.[1129] James Van Ingen and associates were the first thus to

challenge the exclusive "contract," as the New York law termed the

franchise which the State had granted to Livingston and Fulton. Suit was

brought against Van Ingen in the United States Circuit Court in New

York, praying that Livingston and Fulton be "quieted in the possession,"

or in the exclusive right, to navigate the Hudson secured to them by two

patents.[1130] The bill was dismissed for want of jurisdiction. Thus far

the litigation was exclusively a State controversy. Upon the face of the

record the National element did not appear; yet it was the governing

issue raised by the dispute.

Immediately Livingston and Fulton sued Van Ingen and associates in the

New York Court of Chancery, praying that they be enjoined from operating

their boats. In an opinion of great ability and almost meticulous

learning, Chancellor John Lansing denied the injunction; he was careful,

however, not to base his decision on a violation of the commerce clause

of the National Constitution by the New York steamboat monopoly act. He

merely held that act to be invalid because it was a denial of a natural

right of all citizens alike to the free navigation of the waters of the

State. In such fashion the National question was still evaded.

The Court of Errors[1131] reversed the decree of Chancellor Lansing.

Justice Yates and Justice Thompson delivered State Rights opinions that

would have done credit to Roane.[1132] At this point the National

consideration develops. The opinion of James Kent, then Chief Justice,

was more moderate in its denial of National power over the subject.

Indeed, Kent appears to have anticipated that the Supreme Court would

reverse him. Nevertheless, his opinion was the source of all the

arguments thereafter used in defense of the steamboat monopoly. Because

of this fact; because of Kent's eminence as a jurist; and because

Marshall so crushingly answered his arguments, a _précis_ of them must

be given. It should be borne in mind that Kent was defending a law

which, in a sense, was his own child; as a member of the New York

Council of Revision, he had passed upon and approved it before its

passage.

There could have been "no very obvious constitutional objection" to the

steamboat monopoly act, began Kent, "or it would not so repeatedly have

escaped the notice of the several branches of the government[1133] when

these acts were under consideration."[1134] There had been five acts all

told;[1135] that of 1798 would surely have attracted attention since it

was the first to be passed on the subject after the National

Constitution was adopted. It amounted to "a legislative exposition" of

State powers under the new National Government.

Members of the New York Legislature of 1798 had also been members of the

State Convention that ratified the Constitution, and "were masters of

all the critical discussions" attending the adoption of that instrument.

This was peculiarly true of that "exalted character," John Jay, who was

Governor at that time; 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."[1136] The Act of 1811 was passed after the

validity of the previous ones had been challenged and "was, therefore,

equivalent to a declaratory opinion of high authority, that the former

laws were valid and constitutional."[1137]

The people of New York had not "alienated" to the National Government

the power to grant exclusive privileges. This was proved by the charters

granted by the State to banks, ferries, markets, canal and bridge

companies. "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."[1138] In what

respect did the steamboat monopoly violate any of these restrictions?

In no respect. "It interfered with no man's property." Everybody could

freely use the waters of New York in the same manner that he had done

before. So there was "no violation of first principles."[1139]

Neither did the New York steamboat acts violate the National

Constitution. State and Nation are "supreme within their respective

constitutional spheres." It is true that when National and State laws

"come directly in contact, as when they are aimed at each other," those

of the State "must yield"; but State Legislatures cannot all the time be

on the watch for some possible future collision. The only "safe rule of

construction" is this: "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 States, 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."[1140]

The power given Congress to regulate commerce is not, "in express terms,

exclusive, and the only prohibition upon the States" in this regard

concerns the making of treaties and the laying of tonnage import or

export duties. All commerce within a State is "exclusively" within the

power of that State.[1141] Therefore, New York's steamboat grant to

Livingston and Fulton is valid. It conflicts with no act of Congress,

according to Kent, who cannot "perceive any power which ... can lawfully

carry to that extent." If Congress has any control whatever over New

York waters, it is concurrent with that of the State, and even then, "no

further than may be incidental and requisite to the due regulation of

commerce between the States, and with foreign nations."[1142]

Kent then plunges into an appalling mass of authorities, in dealing with

which he delighted as much as Marshall recoiled from the thought of

them.[1143] So Livingston and Fulton's steamboat monopoly was

upheld.[1144]

But what were New York waters and what were New Jersey waters? Confusion

upon this question threatened to prevent the monopoly from gathering fat

profits from New Jersey traffic. Aaron Ogden,[1145] who had purchased

the privilege of running ferryboats from New York to certain points on

the New Jersey shore, combined with one Thomas Gibbons, who operated a

boat between New Jersey landings, to exchange passengers at

Elizabethtown Point in the latter State. Gibbons had not secured the

permission of the New York steamboat monopoly to navigate New York

waters. By his partnership with Ogden he, in reality, carried passengers

from New York to various points in New Jersey. In fact, Ogden and

Gibbons had a common traffic agent in New York who booked passengers for

routes, to travel which required the service of the boats of both Ogden

and Gibbons.

So ran the allegations of the bill for an injunction against the

offending carriers filed in the New York Court of Chancery by the

steamboat monopoly in the spring of 1819. Ogden answered that his

license applied only to waters "_exclusively_ within the state of

New-York," and that the waters lying between the New Jersey ports "are

within the jurisdiction of _New Jersey_." Gibbons admitted that he ran a

boat between New Jersey ports under "a coasting _license_" from the

National Government. He denied, however, that the monopoly had "any

exclusive right" to run steamboats from New York to New Jersey. Both

Ogden and Gibbons disclaimed that they ran boats in combination, or by

agreement with each other.[1146]

Kent, now Chancellor, declared that a New York statute[1147] asserted

jurisdiction of the State over "the whole of the river Hudson, southward

of the northern boundary of the city of New-York, and the whole of the

bay between Staten Island and Long or Nassau Island." He refused to

enjoin Ogden because he operated his boat under license of the steamboat

monopoly; but did enjoin Gibbons "from navigating the waters in the bay

of New-York, or Hudson river, between Staten Island and Powles

Hook."[1148]

Ogden was content, but Gibbons, thoroughly angered by the harshness of

the steamboat monopoly and by the decree of Chancellor Kent, began to

run boats regularly between New York and New Jersey in direct

competition with Ogden.[1149] To stop his former associate, now his

rival, Ogden applied to Chancellor Kent for an injunction. As in the

preceding case, Gibbons again set up his license from the National

Government, asserting that by virtue of this license he was entitled to

run his boats "in the coasting trade between ports of the same state, or

of different states," and could not be excluded from such traffic "by

any law or grant of any particular state, on any pretence to an

exclusive right to navigate the waters of any particular state by

steam-boats." Moreover, pleaded Gibbons, the representatives of

Livingston and Fulton had issued to Messrs. D. D. Tompkins, Adam Brown,

and Noah Brown a license to navigate New York Bay; and this license had

been assigned to Gibbons.[1150]

Kent held that the act of Congress,[1151] concerning the enrollment and

licensing of vessels for the coasting trade, conferred no right

"incompatible with an exclusive right in Livingston and Fulton" to

navigate New York waters.[1152] The validity of the steamboat monopoly

laws had been settled by the decision of the Court of Errors in

Livingston _vs._ Van Ingen.[1153] If a National law gave to all vessels,

"duly licensed" by the National Government, the right to navigate all

waters "within the several states," despite State laws to the contrary,

the National statute would "overrule and set aside" the incompatible

legislation of the States. "The only question that could arise in such a

case, would be, whether the [National] law was constitutional." But that

was not the situation; "there is no collision between the act of

Congress and the acts of this State, creating the steam-boat monopoly."

At least "some judicial decision of the supreme power of the Union,

acting upon those laws, in direct collision and conflict" with them, is

necessary before the courts of New York "can retire from the support and

defence of them."[1154]

Undismayed, Gibbons lost no time in appealing to the New York Court of

Errors, and in January, 1820, Justice Jonas Platt delivered the opinion

of that tribunal. Immediately after the decision in Livingston _vs._ Van

Ingen, he said, many, who formerly had resisted the steamboat monopoly

law, acquiesced in the judgment of the State's highest court and secured

licenses from Livingston and Fulton. Ogden was one of these. The Court

of Errors rejected Gibbons's defense, followed Chancellor Kent's

opinion, and affirmed his decree.[1155]

[Illustration: _John Marshall_

_From a painting by J. B. Martin, in the University of Virginia_]

Thus did the famous case of Gibbons _vs._ Ogden reach the Supreme Court

of the United States; thus was John Marshall given the opportunity to

deliver the last but one of his greatest nation-making opinions--an

opinion which, in the judgment of most lawyers and jurists, is second

only to that in M'Culloch _vs._ Maryland in ability and statesmanship.

By some, indeed, it is thought to be superior even to that state paper.

The Supreme Court, the bar, and the public anticipated an Homeric combat

of legal warriors when the case was argued, since, for the first time,

the hitherto unrivaled Pinkney was to meet the new legal champion,

Daniel Webster, who had won his right to that title by his efforts in

the Dartmouth College case and in M'Culloch _vs._ Maryland.[1156] It was

expected that the steamboat monopoly argument would be made at the

February session of 1821, and Story wrote to a friend that "the

arguments will be very splendid."[1157]

But, on March 16, 1821, the case was dismissed because the record did

not show that there was a final decree in the court "from which said

appeal was made."[1158] On January 10, 1822, the case was again

docketed, but was continued at each term of the Supreme Court thereafter

until February, 1824. Thus, nearly four years elapsed from the time the

appeal was first taken until argument was heard.[1159]

By the time the question was at last submitted to Marshall,

transportation had become the most pressing and important of all

economic and social problems confronting the Nation, excepting only that

of slavery; nor was any so unsettled, so confused.

Localism had joined hands with monopoly--at the most widely separated

points in the Republic, States had granted "exclusive privileges" to the

navigation of "State waters." At the time that the last steamboat grant

was made by New York to Livingston and Fulton, in 1811, the Legislature

of the Territory of Orleans passed, and Governor Claiborne approved, an

act bestowing upon the New York monopoly the same exclusive privileges

conferred by the New York statute. This had been done soon after

Nicholas J. Roosevelt had appeared in New Orleans on the bridge of the

first steamboat to navigate the Mississippi. Whoever operated any steam

vessel upon Louisiana waters without license from Livingston and Fulton

must pay them $5000 for each offense, and also forfeit the boat and

equipment.[1160]

The expectations of Livingston and Fulton of a monopoly of the traffic

of that master waterway were thus fulfilled. When, a few months later,

Louisiana was admitted to the Union, the new State found herself bound

by this monopoly from which, however, it does not appear that she wished

to be released. Thus Livingston and Fulton held the keys to the two

American ports into which poured the greatest volume of domestic

products for export, and from which the largest quantity of foreign

trade found its way into the interior.

Three years later Georgia granted to Samuel Howard of Savannah a rigid

monopoly to transport merchandise upon Georgia waters in all vessels "or

rafts" towed by steam craft.[1161] Anybody who infringed Howard's

monopoly was to forfeit $500 for each offense, as well as the boat and

its machinery. The following year Massachusetts granted to John Langdon

Sullivan the "exclusive rights to the Connecticut river within this

Commonwealth for the use of his patent steam towboats for ...

twenty-eight years."[1162] A few months afterwards New Hampshire made a

like grant to Sullivan.[1163] About the same time Vermont granted a

monopoly of navigation in the part of Lake Champlain under her

jurisdiction.[1164] These are some examples of the general tendency of

States and the promoters of steam navigation to make commerce pay

tribute to monopoly by the exercise of the sovereignty of States over

waters within their jurisdiction. Retaliation of State upon State again

appeared--and in the same fashion that wrecked the States under the

Confederation.[1165]

But this ancient monopolistic process could not keep pace with the

prodigious development of water travel and transportation by steamboat.

On every river, on every lake, glided these steam-driven vessels. Their

hoarse whistles startled the thinly settled wilderness; or, at the

landings on big rivers flowing through more thickly peopled regions,

brought groups of onlookers to witness what then were considered to be

marvels of progress.[1166]

By 1820 seventy-nine steamboats were running on the Ohio between

Pittsburgh and St. Louis, most of them from 150 to 650 tons burden.

Pittsburgh, Cincinnati, and Louisville were the chief places where these

boats were built, though many were constructed at smaller towns along

the shore.[1167] They carried throngs of passengers and an ever-swelling

volume of freight. Tobacco, pork, beef, flour, corn-meal, whiskey--all

the products of the West[1168] were borne to market on the decks of

steamboats which, on the return voyage, were piled high with

manufactured goods.

River navigation was impeded, however, by snags, sandbars, and shallows,

while the traffic overland was made difficult, dangerous, and expensive

by atrocious roads. Next to the frantic desire to unburden themselves

of debt by "relief laws" and other forms of legislative

contract-breaking, the thought uppermost in the minds of the people was

the improvement of means of communication and transportation. This

popular demand was voiced in the second session of the Fourteenth

Congress. On December 16, 1816, John C. Calhoun brought the subject

before the House.[1169] Four days later he reported a bill to devote to

internal improvements "the bonus of the National bank and the United

States's share of its dividends."[1170] It met strenuous opposition,

chiefly on the ground that Congress had no Constitutional power to

expend money for such purposes.[1171] An able report was made to the

House based on the report of Secretary Gallatin in 1808. The vital

importance of "internal navigation" was pointed out,[1172] and the bill

finally passed.[1173]

The last official act of President James Madison was the veto of this

first bill for internal improvements passed by Congress. The day before

his second term as President expired, he returned the bill with the

reasons for his disapproval of it. He did this, he explained, because of

the "insuperable difficulty ... in reconciling the bill with the

Constitution." The power "proposed to be exercised by the bill" was not

"enumerated," nor could it be deduced "by any just interpretation" from

the power of Congress "to make laws necessary and proper" for the

execution of powers expressly conferred on Congress. "The power to

regulate commerce among the several States can not include a power to

construct roads and canals, and to improve the navigation of water

courses." Nor did the "'common defense and general welfare'" clause

justify Congress in passing such a measure.[1174]

But not thus was the popular demand to be silenced. Hardly had the next

session convened when the subject was again taken up.[1175] On December

15, 1817, Henry St. George Tucker of Virginia, chairman of the Select

Committee appointed to investigate the subject, submitted an uncommonly

able report ending with a resolution that the Bank bonus and dividends

be expended on internal improvements "with the assent of the

States."[1176] For two weeks this resolution was debated.[1177] Every

phase of the power of Congress to regulate commerce was examined. And so

the controversy went on year after year.

Three weeks before the argument of Gibbons _vs._ Ogden came on in the

Supreme Court, a debate began in Congress over a bill to appropriate

funds for surveying roads and canals, and continued during all the time

that the court was considering the case. It was going on, indeed, when

Marshall delivered his opinion and lasted for several weeks. Once more

the respective powers of State and Nation over internal improvements,

over commerce, over almost everything, were threshed out. As was usual

with him, John Randolph supplied the climax of the debate.

Three days previous to the argument of Gibbons _vs._ Ogden before

Marshall and his associates, Randolph arose in the House and delivered a

speech which, even for him, was unusually brilliant. In it he revealed

the intimate connection between the slave power and opposition to the

National control of commerce. Randolph conceded the progress made by

Nationalism through the extension of the doctrine of implied powers. The

prophecy of Patrick Henry as to the extinction of the sovereignty,

rights, and powers of the State had been largely realized, he said. The

promises of the Nationalists, made in order to secure the ratification

of the Constitution, and without which pledges it never would have been

adopted, had been contemptuously broken, he intimated. He might well

have made the charge outright, for it was entirely true.

Randolph laid upon Madison much of the blame for the advancement of

implied powers; and he arraigned that always weak and now ageing man in

an effective passage of contemptuous eloquence.[1178] When, in the

election of 1800, continued Randolph, the Federalists were overthrown,

and "the construction of the Constitution according to the Hamiltonian

version" was repudiated, "did we at that day dream, ... that a new sect

would arise after them, which would so far transcend Alexander Hamilton

and his disciples, as they outwent Thomas Jefferson, James Madison, and

John Taylor of Caroline? This is the deplorable fact: such is now the

actual state of things in this land; ... it speaks to the senses, so

that every one may understand it."[1179] And to what will all this

lead? To this, at last: "If Congress possesses the power to do

what is proposed by this bill [appropriate money to survey roads

and canals], ... they may _emancipate every slave in the United

States_[1180]--and with stronger color of reason than they can exercise

the power now contended for."

Let Southern men beware! If "a coalition of knavery and fanaticism ...

be got up on this floor, I ask gentlemen, who stand in the same

predicament as I do, to look well to what they are now doing--to the

colossal power with which they are now arming this Government."[1181]

And why, at the present moment, insist on this "new construction of the

Constitution?... Are there not already causes enough of jealousy and

discord existing among us?... Is this a time to increase those

jealousies between different quarters of the country already

sufficiently apparent?"

In closing, Randolph all but threatened armed rebellion: "Should this

bill pass, one more measure only requires to be consummated; and then

we, who belong to that unfortunate portion of this Confederacy which

is south of Mason and Dixon's line, ... have to make up our mind to

perish ... or we must resort to the measures which we first opposed to

British aggressions and usurpations--to maintain that independence which

the valor of our fathers acquired, but which is every day sliding from

under our feet.... Sir, this is a state of things that cannot last....

We shall keep on the windward side of treason--but we must combine to

resist, and that effectually, these encroachments."[1182]

Moreover, Congress and the country, particularly the South, were deeply

stirred by the tariff question; in the debate then impending over the

Tariff of 1824, Nationalism and Marshall's theory of Constitutional

construction were to be denounced in language almost as strong as that

of Randolph on internal improvements.[1183] The Chief Justice and his

associates were keenly alive to this agitation; they well knew that the

principles to be upheld in Gibbons _vs._ Ogden would affect other

interests and concern other issues than those directly involved in that

case.

So it was, then, when the steamboat monopoly case came on for hearing,

that two groups of interests were in conflict. State Sovereignty

standing for exclusive privileges as chief combatant, with Free Trade

and Slavery as brothers in arms, confronted Nationalism, standing at

that moment for the power of the Nation over all commerce as the

principal combatant, with a Protective Tariff and Emancipation as its

most effective allies. Fate had interwoven subjects that neither

logically nor naturally had any kinship.[1184]

The specific question to be decided was whether the New York steamboat

monopoly laws violated that provision of the National Constitution which

bestows on Congress the "power to regulate commerce among the several

States."

The absolute necessity of a general supervision of commerce was the sole

cause of the Convention at Annapolis, Maryland, in 1786, which resulted

in the Constitutional Convention in Philadelphia the following

year.[1185] Since the adoption of uniform commercial regulations was the

prime object of the Convention, there was no disagreement as to, or

discussion of, the propriety of giving Congress full power over that

subject. Every draft except one[1186] of the Committee of Detail, the

Committee of Style, and the notes taken by members contained some

reference to a clause to that effect.[1187]

The earliest exposition of the commerce clause of the Constitution by

any eminent National authority, therefore, came from John Marshall. In

his opinion in Gibbons _vs._ Ogden he spoke the first and last

authoritative word on that crucial subject.

Pinkney was fatally ill when the Supreme Court convened in 1822 and died

during that session. His death was a heavy blow to the steamboat

monopoly, and his loss was not easily made good. It was finally decided

to employ Thomas J. Oakley, Attorney-General of New York, a cold, clear

reasoner, and carefully trained lawyer, but lacking imagination,

warmth, or breadth of vision.[1188] He was not an adequate substitute

for the masterful and glowing Pinkney.

When on February 4, 1824, the argument at last was begun, the interest

in the case was so great that, although the incomparable Pinkney was

gone, the court-room could hold but a small part of those who wished to

hear that brilliant legal debate. Thomas Addis Emmet, whose "whole soul"

was in the case, appeared for the steamboat monopoly and made in its

behalf his last great argument. With him came Oakley, who was expected

to perform some marvelous intellectual feat, his want of attractive

qualities of speech having enhanced his reputation as a thinker. Wirt

reported that he was "said to be one of the first logicians of the

age."[1189]

Gibbons was represented by Webster who, says Wirt, "is as ambitious as

Cæsar," and "will not be outdone by any man, if it is within the compass

of his power to avoid it."[1190] Wirt appeared with Webster against the

New York monopoly. The argument was opened by Webster; and never in

Congress or court had that surprising man prepared so carefully--and

never so successfully.[1191] Of all his legal arguments, that in the

steamboat case is incontestably supreme. And, as far as the assistance

of associate counsel was concerned, Webster's address, unlike that in

the Dartmouth College case, was all his own. It is true that every point

he made had been repeated many times in the Congressional debates over

internal improvements, or before the New York courts in the steamboat

litigation. But these facts do not detract from the credit that is

rightfully Webster's for his tremendous argument in Gibbons _vs._ Ogden.

He began by admissions--a dangerous method and one which only a man of

highest power can safely employ. The steamboat monopoly law had been

"deliberately re-enacted," he said, and afterwards had the "sanction" of

various New York courts," than which there were few, if any, in the

country, more justly entitled to respect and deference." Therefore he

must, acknowledged Webster, "make out a clear case" if he hoped to

win.[1192]

What was the state of the country with respect to transportation?

Everybody knew that the use of steamboats had become general; everywhere

they plied over rivers and bays which often formed the divisions between

States. It was inevitable that the regulations of such States should be

"hostile" to one another. Witness the antagonistic laws of New York, New

Jersey, and Connecticut. Surely all these warring statutes were not

"consistent with the laws and constitution of the United States." If any

one of them were valid, would anybody "point out where the state right

stopped?"[1193]

Webster carefully described the New York steamboat monopoly laws, the

rights they conferred, and the prohibitions they inflicted.[1194] He

contended, among other things, that these statutes violated the National

Constitution. "The power of Congress to regulate commerce was complete

and entire," said Webster, "and to a certain extent necessarily

exclusive."[1195] It was well known that the "immediate" reason and

"prevailing motive" for adopting the Constitution was to "rescue"

commerce "from the embarrassing and destructive consequences resulting

from the legislation of so many different states, and to place it under

the protection of a uniform law."[1196] The paramount object of

establishing the present Government was "to benefit and improve" trade.

This, said Webster, was proved by the undisputed history of the period

preceding the Constitution.[1197]

What commerce is to be regulated by Congress? Not that of the several

States, but that of the Nation as a "unit." Therefore, the regulation of

it "must necessarily be complete, entire and uniform. Its character was

to be described in the flag which waved over it, _E Pluribus Unum_." Of

consequence, Congressional regulation of commerce must be "exclusive."

Individual States cannot "assert a right of concurrent legislation, ...

without manifest encroachment and confusion."[1198]

If New York can grant a monopoly over New York Bay, so can Virginia over

the entrance of the Chesapeake, so can Massachusetts over the bay

bearing the name and under the jurisdiction of that State. Worse still,

every State may grant "an exclusive right of entry of vessels into her

ports."[1199]

Oakley, Emmet, and Wirt exhausted the learning then extant on every

point involved in the controversy. Not even Pinkney at his best ever was

more thorough than was Emmet in his superb argument in Gibbons _vs._

Ogden.[1200]

The small information possessed by the most careful and thorough lawyers

at that time concerning important decisions in the Circuit Courts of the

United States, even when rendered by the Chief Justice himself, is

startlingly revealed in all these arguments. Only four years previously,

Marshall, at Richmond, had rendered an opinion in which he asserted the

power of Congress over commerce as emphatically as Webster or Wirt now

insisted upon it. This opinion would have greatly strengthened their

arguments, and undoubtedly they would have cited it had they known of

it. But neither Wirt nor Webster made the slightest reference to the

case of the Brig Wilson _vs._ The United States, decided during the May

term, 1820.

One offense charged in the libel of that vessel by the National

Government was, that she had brought into Virginia certain negroes in

violation of the laws of that State and in contravention of the act of

Congress forbidding the importation of negroes into States whose laws

prohibited their admission. Was this act of Congress Constitutional? The

power to pass such a law is, says Marshall, "derived entirely" from that

clause of the Constitution which "enables Congress, 'to regulate

commerce with foreign nations, and among the several States.'"[1201]

This power includes navigation. The authority to forbid foreign ships to

enter our ports comes exclusively from the commerce clause. "If this

power over vessels is not in Congress, where does it reside? Does it

reside in the States?

"No American politician has ever been so extravagant as to contend for

this. No man has been wild enough to maintain, that, although the power

to regulate commerce, gives Congress an unlimited power over the

cargoes, it does not enable that body to control the vehicle in which

they are imported: that, while the whole power of commerce is vested in

Congress, the state legislatures may confiscate every vessel which

enters their ports, and Congress is unable to prevent their entry."

The truth, continues Marshall, is that "even an empty vessel, or a

packet, employed solely in the conveyance of passengers and letters, may

be regulated and forfeited" under a National law. "There is not, in the

Constitution, one syllable on the subject of navigation. And yet, every

power that pertains to navigation has been ... rightfully exercised by

Congress. From the adoption of the Constitution, till this time, the

universal sense of America has been, that the word commerce, as used in

that instrument, is to be considered a generic term, comprehending

navigation, or, that a control over navigation is necessarily incidental

to the power to regulate commerce."[1202]

Here was a weapon which Webster could have wielded with effect, but he

was unaware that it existed--a fact the more remarkable in that both

Webster and Emmet commented, in their arguments, upon State laws that

prohibited the admission of negroes.

But Webster never doubted that the court's decision would be against the

New York steamboat monopoly laws. "Our Steam Boat case is not yet

decided, but it _can go but one way_," he wrote his brother a week after

the argument.[1203]

On March 2, 1824, Marshall delivered that opinion which has done more to

knit the American people into an indivisible Nation than any other one

force in our history, excepting only war. In Marbury _vs._ Madison he

established that fundamental principle of liberty that a permanent

written constitution controls a temporary Congress; in Fletcher _vs._

Peck, in Sturges _vs._ Crowninshield, and in the Dartmouth College case

he asserted the sanctity of good faith; in M'Culloch _vs._ Maryland and

Cohens _vs._ Virginia he made the Government of the American people a

living thing; but in Gibbons _vs._ Ogden he welded that people into a

unit by the force of their mutual interests.

The validity of the steamboat monopoly laws of New York, declares

Marshall, has been repeatedly upheld by the Legislature, the Council of

Revision, and the various courts of that State, and is "supported by

great names--by names which have all the titles to consideration that

virtue, intelligence, and office, can bestow."[1204] Having paid this

tribute to Chancellor Kent--for every word of it was meant for that

great jurist--Marshall takes up the capital question of construction.

It is urged, he says, that, before the adoption of the Constitution, the

States "were sovereign, were completely independent, and were connected

with each other only by a league. This is true. But when these allied

sovereigns converted their league into a government, when they converted

their Congress of Ambassadors, deputed to deliberate on their common

concerns, and to recommend measures of general utility, into a

legislature, empowered to enact laws ... the whole character" of the

States "underwent a change, the extent of which must be determined by a

fair consideration" of the Constitution.

Why ought the powers "expressly granted" to the National Government to

be "construed strictly," as many insist that they should be? "Is there

one sentence in the constitution which gives countenance to this rule?"

None has been pointed out; none exists. What is meant by "a strict

construction"? Is it "that narrow construction, which would cripple the

government and render it unequal to the objects for which it is declared

to be instituted,[1205] and to which the powers given, as fairly

understood, render it competent"? The court cannot adopt such a rule for

expounding the Constitution.[1206]

Just as men, "whose intentions require no concealment," use plain words

to express their meaning, so did "the enlightened patriots who framed

our constitution," and so did "the people who adopted it." Surely they

"intended what they have said." If any serious doubt of their meaning

arises, concerning the extent of any power, "the objects for which it

was given ... should have great influence in the construction."[1207]

Apply this common-sense rule to the commerce clause of the

Constitution.[1208] What does the word "commerce" mean? Strict

constructionists, like the advocates of the New York steamboat monopoly,

"limit it to ... buying and selling ... and do not admit that it

comprehends navigation." But why not navigation? "Commerce ... is

traffic, but it is something more; it is intercourse." If this is not

true, then the National Government can make no law concerning American

vessels--"yet this power has been exercised from the commencement of

the government, has been exercised with the consent of all, and has

been understood by all to be a commercial regulation. All America

understands ... the word 'commerce' to comprehend navigation.... The

power over commerce, including navigation, was one of the primary

objects for which the people of America adopted their government.... The

attempt to restrict it [the meaning of the word "commerce"] comes too

late."

Was not the object of the Embargo, which "engaged the attention of every

man in the United States," avowedly "the protection of commerce?... By

its friends and its enemies that law was treated as a commercial, not as

a war measure." Indeed, its very object was "the avoiding of war."

Resistance to it was based, not on the denial that Congress can regulate

commerce, but on the ground that "a perpetual embargo was the

annihilation, and not the regulation of commerce." This illustration

proves that "the universal understanding of the American people" was,

and is, that "a power to regulate navigation is as expressly granted as

if that term had been added to the word 'commerce.'"[1209]

Nobody denies that the National Government has unlimited power over

foreign commerce--"no sort of trade can be carried on between this

country and any other, to which this power does not extend." The same is

true of commerce among the States. The power of the National Government

over trade with foreign nations, and "among" the several States, is

conferred in the same sentence of the Constitution, and "must carry the

same meaning throughout the sentence.... The word 'among' means

intermingled with." So "commerce among the states cannot stop at the

external boundary line of each state, but may be introduced into the

interior." This does not, of course, include the "completely interior

traffic of a state."[1210]

Everybody knows that foreign commerce is that of the whole Nation and

not of its parts. "Every district has a right to participate in it. The

deep streams which penetrate our country in every direction, pass

through the interior of almost every state in the Union." The power to

regulate this commerce "must be exercised whenever the subject exists.

If it exists within a state, if a foreign voyage may commence or

terminate within a state, then the power of Congress may be exercised

within a state."[1211]

If possible, "this principle ... is still more clear, when applied to

commerce 'among the several states.' They either join each other, in

which case they are separated by a mathematical line, or they are remote

from each other, in which case other states lie between them.... Can a

trading expedition between two adjoining states commence and terminate

outside of each?" The very idea is absurd. And must not commerce between

States "remote" from one another, pass through States lying between

them? The power to regulate this commerce is in the National

Government.[1212]

What is this power to "regulate commerce"? It is the power "to prescribe

the rule by which commerce is to be governed. This power ... is complete

in itself, may be exercised to its utmost extent, and acknowledges no

limitations, other than are prescribed in the constitution;" and these

do not affect the present case. Power over interstate commerce "is

vested in Congress as absolutely as it would be in a single government"

under a Constitution like ours. There is no danger that Congress will

abuse this power, because "the wisdom and the discretion of Congress,

their identity with the people, and the influence which their

constituents possess at election, are, in this, as in many other

instances, as that, for example, of declaring war, the sole restraints

on which they [the people] have relied, to secure them from its abuse.

They are restraints on which the people must often rely solely, in all

representative governments." The upshot of the whole dispute is,

declares Marshall, that Congress has power over navigation "within the

limits of every state ... so far as that navigation may be, in any

manner, connected" with foreign or interstate trade.[1213]

Marshall tries to answer the assertion that the power to regulate

commerce is concurrent in Congress and the State Legislatures; but, in

doing so, he is diffuse, prolix, and indirect. There is, he insists, no

analogy between the taxing power of Congress and its power to regulate

commerce; the former "does not interfere with the power of the states to

tax for the support of their own governments." In levying such taxes,

the States "are not doing what Congress is empowered to do." But when a

State regulates foreign or interstate commerce, "it is exercising the

very power ... and doing the very thing which Congress is authorized to

do." However, says Marshall evasively, in the case before the court the

question whether Congress has exclusive power over commerce, or whether

the States can exercise it until Congress acts, may be dismissed, since

Congress has legislated on the subject. So the only practical question

is: "Can a state regulate commerce with foreign nations and among the

states while Congress is regulating it?"[1214]

The argument is not sound that, since the States are expressly forbidden

to levy duties on tonnage, exports, and imports which they might

otherwise have levied, they may exercise other commercial regulations,

not in like manner expressly prohibited. For the taxation of exports,

imports, and tonnage is a part of the general taxing power and is not

connected with the power to regulate commerce. It is true that duties on

tonnage often are laid "with a view to the regulation of commerce; but

they may be also imposed with a view to revenue," and, therefore, the

States are prohibited from laying such taxes. There is a vast difference

between taxation for the regulation of commerce and taxation for raising

revenue. "Those illustrious statesmen and patriots" who launched the

Revolution and framed the Constitution understood and acted upon this

distinction: "The right to regulate commerce, even by the imposition of

duties, was not controverted; but the right to impose a duty for the

purpose of revenue, produced a war as important, perhaps, in its

consequences to the human race, as any the world has ever

witnessed."[1215]

In the same way, State inspection laws, while influencing commerce, do

not flow from a power to regulate commerce. The purpose of inspection

laws is "to improve the quality of the articles produced by the labor of

the country.... They act upon the subject before it becomes an article"

of foreign or interstate commerce. Such laws "form a portion of that

immense mass of legislation which embraces everything within the

territory of a state," and "which can be most advantageously exercised

by the states themselves." Of this description are "inspection laws,

quarantine laws, health laws ... as well as laws for regulating the

internal commerce of a state, and those which respect turnpike-roads,

ferries, etc."[1216]

Legislation upon all these subjects is a matter of State

concern--Congress can act upon them only "for national purposes ...

where the power is expressly given for a special purpose, or is clearly

incidental to some power which is expressly given." Obviously, however,

the National Government "in the exercise of its express powers, that,

for example, of regulating [foreign and interstate] commerce ... may use

means that may also be employed by a state, ... that, for example, of

regulating commerce within the state." The National coasting laws,

though operating upon ports within the same State, imply "no claim of a

direct power to regulate the purely internal commerce of a state, or to

act directly on its system of police." State laws on these subjects,

although of the "same character" as those of Congress, do not flow from

the same source whence the National laws flow, "but from some other,

which remains with the state, and may be executed by the same means."

Although identical measures may proceed from different powers, "this

does not prove that the powers themselves are identical."[1217]

It is inevitable in a "complex system" of government like ours that

"contests respecting power must arise" between State and Nation. But

this "does not prove that one is exercising, or has a right to exercise,

the powers of the other."[1218] It cannot be inferred from National

statutes requiring National officials to "conform to, and assist in the

execution of the quarantine and health laws of a state ... that a state

may rightfully regulate commerce"; such laws flow from "the acknowledged

power of a state, to provide for the health of its citizens."

Nevertheless, "Congress may control the state [quarantine and health]

laws, so far as it may be necessary to control them, for the regulation

of commerce."[1219]

Marshall analyzes, at excessive length, National and State laws on the

importation of slaves, on pilots, on lighthouses,[1220] to show that

such legislation does not justify the inference that "the states

possess, concurrently" with Congress, "the power to regulate commerce

with foreign nations and among the states."

In the regulation of "their own purely internal affairs," States may

pass laws which, although in themselves proper, become invalid when they

interfere with a National law. Is this the case with the New York

steamboat monopoly acts? Have they "come into collision with an act of

Congress, and deprived a citizen of a right to which that act entitles

him"? If so, it matters not whether the State laws are the exercise of a

concurrent power to regulate commerce, or of a power to "regulate their

domestic trade and police." In either case, "the acts of New York must

yield to the law of Congress."[1221]

This truth is "founded as well on the nature of the government as on the

words of the constitution." The theory that if State and Nation each

rightfully pass conflicting laws on the same subject, "they affect the

subject, and each other, like equal opposing powers," is demolished by

the "supremacy" of the Constitution and "of the laws made in pursuance

of it. The nullity of _any act_, inconsistent with the constitution, is

produced by the declaration that the constitution is the supreme law."

So when a State statute, enacted under uncontrovertible State powers,

conflicts with a law, treaty, or the Constitution of the Nation, the

State enactment "must yield to it."[1222]

It is not the Constitution, but "those laws whose authority is

acknowledged by civilized man throughout the world" that "confer the

right of intercourse between state and state.... The constitution found

it an existing right, and gave to Congress the power to regulate it. In

the exercise of this power, Congress has passed an act" regulating the

coasting trade. Any law "must imply a power to exercise the right" it

confers. How absurd, then, the contention that, while the State of New

York cannot prevent a vessel licensed under the National coasting law,

when proceeding from a port in New Jersey to one in New York, "from

enjoying ... all the privileges conferred by the act of Congress,"

nevertheless, the State of New York "can shut her up in her own port,

and prohibit altogether her entering the waters and ports of another

state"![1223]

A National license to engage in the coasting trade gives the right to

navigate between ports of different States.[1224] The fact that

Gibbons's boats carried passengers only did not make those vessels any

the less engaged in the coasting trade than if they carried nothing but

merchandise--"no clear distinction is perceived between the power to

regulate vessels employed in transporting men for hire, and property

for hire.... A coasting vessel employed in the transportation of

passengers, is as much a portion of the American marine as one

employed in the transportation of a cargo."[1225] Falling into his

characteristic over-explanation, Marshall proves the obvious by many

illustrations.[1226]

However the question as to the nature of the business is beside the

point, since the steamboat monopoly laws are based solely on the method

of propelling boats--"whether they are moved by steam or wind. If by the

former, the waters of New York are closed against them, though their

cargoes be dutiable goods, which the laws of the United States permit

them to enter and deliver in New York. If by the latter, those waters

are free to them, though they should carry passengers only." What is the

injury which Ogden complains that Gibbons has done him? Not that

Gibbons's boats carry passengers, but only that those vessels "are moved

by steam."

"The writ of injunction and decree" of the State court "restrain these

[Gibbons's] licensed vessels, not from carrying passengers, but from

being moved through the waters of New York by steam, for any purpose

whatever." Therefore, "the real and sole question seems to be, whether a

steam machine, in actual use, deprives a vessel of the privileges

conferred by a [National] license." The answer is easy--indeed, there is

hardly any question to answer: "The laws of Congress, for the regulation

of commerce, do not look to the principle by which vessels are

moved."[1227]

Steamboats may be admitted to the coasting trade "in common with

vessels using sails. They are ... 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 ... in direct collision with that act."[1228]

Marshall refuses to discuss the question of Fulton's patents since,

regardless of that question, the cause must be decided by the supremacy

of National over State laws that regulate commerce between the States.

The Chief Justice apologizes, and very properly, for taking so "much

time ... 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 question is so great, the judges,

from whose conclusions "we dissent," are so eminent,[1229] the arguments

at the bar so earnest, an "unbroken" statement of principles upon which

the court's judgment rests so indispensable, that Marshall feels that

nothing should be omitted, nothing taken for granted, nothing

assumed.[1230]

Having thus placated Kent, Marshall turns upon his Virginia

antagonists: "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."[1231]

So spoke John Marshall, in his seventieth year, when closing the last

but one of those decisive opinions which vitalized the American

Constitution, and assured for himself the grateful and reverent homage

of the great body of the American people as long as the American Nation

shall endure. It is pleasant to reflect that the occasion for this

ultimate effort of Marshall's genius was the extinction of a monopoly.

Marshall, the statesman, rather than the judge, appears in his opinion.

While avowing the most determined Nationalism in the body of his

opinion, he is cautious, nevertheless, when coming to close grips with

the specific question of the respective rights of Gibbons and Ogden. He

is vague on the question of concurrent powers of the States over

commerce, and rests the concrete result of his opinion on the National

coasting laws and the National coasting license to Gibbons.

William Johnson, a Republican, appointed by Jefferson, had, however, no

such scruples. In view of the strong influence Marshall had, by now,

acquired over Johnson, it appears to be not improbable that the Chief

Justice availed himself of the political status of the South Carolinian,

as well as of his remarkable talents, to have Johnson state the real

views of the master of the Supreme Court.

At any rate, Johnson delivered a separate opinion so uncompromisingly

Nationalist that Marshall's Nationalism seems hesitant in comparison. In

it Johnson gives one of the best statements ever made, before or since,

of the regulation of commerce as the moving purpose that brought about

the American Constitution. That instrument did not originate liberty of

trade: "The law of nations ... pronounces all commerce legitimate in a

state of peace, until prohibited by positive law." So the power of

Congress over that vital matter "must be exclusive; it can reside but in

one potentate; and hence, the grant of this power carries with it the

whole subject, leaving nothing for the state to act upon."[1232]

Commercial laws! Were the whole of them "repealed to-morrow, all

commerce would be lawful." The authority of Congress to control foreign

commerce is precisely the same as that over interstate commerce. The

National power over navigation is not "incidental to that of regulating

commerce; ... it is as the thing itself; inseparable from it as vital

motion is from vital existence.... Shipbuilding, the carrying trade, and

the propagation of seamen, are such vital agents of commercial

prosperity, that the nation which could not legislate over these

subjects would not possess power to regulate commerce."[1233]

Johnson therefore finds it "impossible" to agree with Marshall that

freedom of interstate commerce rests on any such narrow basis as

National coasting law or license: "I do not regard it as the foundation

of the right set up in behalf of the appellant [Gibbons]. If there was

any one object riding over every other in the adoption of the

constitution, it was to keep the commercial intercourse among the states

free from all invidious and partial restraints.... If the [National]

licensing act was repealed to-morrow," Gibbons's right to the free

navigation of New York waters "would be as strong as it is under this

license."[1234]

So it turned out that the first man appointed for the purpose of

thwarting Marshall's Nationalism, expressed, twenty years after his

appointment, stronger Nationalist sentiments than Marshall himself was,

as yet, willing to avow openly. Johnson's astonishing opinion in Gibbons

_vs._ Ogden is conclusive proof of the mastery the Chief Justice had

acquired over his Republican associate, or else of the conquest by

Nationalism of the mind of the South Carolina Republican.

For the one and only time in his career on the Supreme Bench, Marshall

had pronounced a "popular" opinion. The press acclaimed him as the

deliverer of the Nation from thralldom to monopoly. His opinion, records

the _New York Evening Post_, delivered amidst "the most unbroken

silence" of a "courtroom ... crowded with people," was a wonderful

exhibition of intellect--"one of the most powerful efforts of the human

mind that has ever been displayed from the bench of any court. Many

passages indicated a profoundness and a forecast in relation to the

destinies of our confederacy peculiar to the great man who acted as the

organ of the court. The steamboat grant is at an end."[1235]

Niles published Marshall's opinion in full,[1236] and in this way it

reached, directly or indirectly, every paper, big and little, in the

whole country, and was reproduced by most of them. Many journals

contained long articles or editorials upon it, most of them highly

laudatory. _The New York Evening Post_ of March 8 declared that it would

"command the assent of every impartial mind competent to embrace the

subject." Thus, for the moment, Marshall was considered the benefactor

of the people and the defender of the Nation against the dragon of

monopoly. His opinion in Gibbons _vs._ Ogden changed into applause that

disfavor which his opinion in M'Culloch _vs._ Maryland had evoked. Only

the Southern political leaders saw the "danger"; but so general was the

satisfaction of the public that they were, for the most part, quiescent

as to Marshall's assertion of Nationalism in this particular case.

But few events in our history have had a larger and more substantial

effect on the well-being of the American people than this decision, and

Marshall's opinion in the announcement of it. New York instantly became

a free port for all America. Steamboat navigation of American rivers,

relieved from the terror of possible and actual State-created

monopolies, increased at an incredible rate; and, because of two decades

of restraint and fear, at abnormal speed.[1237]

New England manufacturers were given a new life, since the

transportation of anthracite coal--the fuel recently discovered and

aggravatingly needed--was made cheap and easy. The owners of factories,

the promoters of steamboat traffic, the innumerable builders of river

craft on every navigable stream in the country, the farmer who wished to

send his products to market, the manufacturer who sought quick and

inexpensive transportation of his wares--all acclaimed Marshall's

decision because all found in it a means to their own interests.

The possibilities of transportation by steam railways soon became a

subject of discussion by enterprising men, and Marshall's opinion gave

them tremendous encouragement. It was a guarantee that they might build

railroads across State lines and be safe from local interference with

interstate traffic. Could the Chief Justice have foreseen the

development of the railway as an agency of Nationalism, he would have

realized, in part, the permanent and ever-growing importance of his

opinion--in part, but not wholly; for the telegraph, the telephone, the

oil and gas pipe line were also to be affected for the general good by

Marshall's statesmanship as set forth in his outgiving in Gibbons _vs._

Ogden.

It is not immoderate to say that no other judicial pronouncement in

history was so wedded to the inventive genius of man and so interwoven

with the economic and social evolution of a nation and a people. After

almost a century, Marshall's Nationalist theory of commerce is more

potent than ever; and nothing human is more certain than that it will

gather new strength as far into the future as forecast can penetrate.

At the time of its delivery, nobody complained of Marshall's opinion

except the agents of the steamboat monopoly, the theorists of Localism,

and the slave autocracy. All these influences beheld, in Marshall's

statesmanship, their inevitable extinction. All correctly understood

that the Nationalism expounded by Marshall, if truly carried out,

sounded their doom.

Immediately after the decision was published, a suit was brought in the

New York Court of Equity, apparently for the purpose of having that

tribunal define the extent of the Supreme Court's holding. John R.

Livingston secured a coasting license for the Olive Branch, and sent the

boat from New York to Albany, touching at Jersey and unloading there two

boxes of freight. The North River Steamboat Company, assignee of the

Livingston-Fulton monopoly, at once applied for an injunction.[1238] The

matter excited intense interest, and Nathan Sanford, who had succeeded

Kent as Chancellor, took several weeks to "consider the question."[1239]

He delivered two opinions, the second almost as Nationalist as that of

Marshall. "The law of the United States is supreme.... The state law is

annihilated, so far as the ground is occupied by the law of the union;

and the supreme law prevails, as if the state law had never been made.

The supremacy of constitutional laws of the union, and the nullity of

state laws inconsistent with such laws of the union, are principles of

the constitution of the United States.... So far as the law of the union

acts upon the case, the state law is extinguished.... Opposing rights to

the same thing, can not co-exist under the constitution of our

country."[1240] But Chancellor Sanford held that, over commerce

exclusively within the State, the Nation had no control.

Livingston appealed to the Court of Errors, and in February, 1825, the

case was heard. The year intervening since Marshall delivered his

opinion had witnessed the rise of an irresistible tide of public

sentiment in its favor; and this, more influential than all arguments

of counsel even upon an "independent judiciary," was reflected in the

opinion delivered by John Woodworth, one of the judges of the Supreme

Court of that State. He quotes Marshall liberally, and painstakingly

analyzes his opinion, which, says Woodworth, is confined to commerce

among the States to the exclusion of that wholly within a single State.

Over this latter trade Congress has no power, except for "national

purposes," and then only where such power is "'expressly given ... or is

clearly incidental to some power expressly given.'"[1241]

Chief Justice John Savage adopted the same reasoning as did Justice

Woodworth, and examined Marshall's opinion with even greater

particularity, but arrived at the same conclusion. Savage adds, however,

"a few general remarks," and in these he almost outruns the Nationalism

of Marshall. "The constitution ... should be so construed as best to

promote the great objects for which it was made"; among them a principal

one was "'to form a more perfect union,'" etc.[1242] The regulation of

commerce among the States "was one great and leading inducement to the

adoption" of the Nation's fundamental law.[1243] "We are the citizens of

two distinct, yet connected governments.... The powers given to the

general government are to be first satisfied."

To the warning that the State Governments "will be swallowed up" by the

National Government, Savage declares, "my answer is, if such danger

exists, the states should not provoke a termination of their existence,

by encroachments on their part."[1244] In such ringing terms did Savage

endorse Marshall's opinion in Gibbons _vs._ Ogden.

The State Senators "concurred" automatically in the opinion of Chief

Justice Savage, and the decree of Chancellor Sanford, refusing an

injunction on straight trips of the Olive Branch between New York

landings, but granting one against commerce of any kind with other

States, was affirmed.

So the infinitely important controversy reached a settlement that, to

this day, has not been disturbed. Commerce among the States is within

the exclusive control of the National Government, including that which,

though apparently confined to State traffic, affects the business

transactions of the Nation at large. The only supervision that may be

exercised by a State over trade must be wholly confined to that State,

absolutely without any connection whatever with intercourse with other

States.

One year after the decision of Gibbons _vs._ Ogden, the subject of the

powers and duties of the Supreme Court was again considered by Congress.

During February, 1825, an extended debate was held in the Senate over a

bill which, among other things, provided for three additional members of

that tribunal.[1245] But the tone of its assailants had mellowed. The

voice of denunciation now uttered words of deference, even praise.

Senator Johnson, while still complaining of the evils of an

"irresponsible" Judiciary, softened his attack with encomium:

"Our nation has ever been blessed with a most distinguished Supreme

Court, ... eminent for moral worth, intellectual vigor, extensive

acquirements, and profound judicial experience and knowledge.... Against

the Federal Judiciary, I have not the least malignant emotion."[1246]

Senator John H. Eaton of Tennessee said that Virginia's two members of

the Supreme Court (Marshall and Bushrod Washington) were "men of

distinction, ... whose decisions carried satisfaction and

confidence."[1247]

Senator Isham Talbot of Kentucky paid tribute to the "wise, mild, and

guiding influence of this solemn tribunal."[1248] In examining the

Nationalist decisions of the Supreme Court he went out of his way to

declare that he did not mean "to cast the slightest shade of imputation

on the purity of intention or the correctness of judgment with which

justice is impartially dispensed from this exalted bench."[1249]

This remarkable change in the language of Congressional attack upon the

National Judiciary became still more conspicuous at the next session in

the debate upon practically the same bill and various amendments

proposed to it. Promptly after Congress convened in December, 1825,

Webster himself reported from the Judiciary Committee of the House a

bill increasing to ten the membership of the Supreme Court and

rearranging the circuits.[1250] This measure passed substantially as

reported.[1251]

When the subject was taken up in the Senate, Senator Martin Van Buren in

an elaborate speech pointed out the vast powers of that tribunal,

unequaled and without precedent in the history of the world--powers

which, if now "presented for the first time," would undoubtedly be

denied by the people.[1252] Yet, strange as it may seem, opposition has

subsided in an astonishing manner, he said; even those States whose laws

have been nullified, "after struggling with the giant strength of the

Court, have submitted to their fate."[1253]

Indeed, says Van Buren, there has grown up "a sentiment ... of idolatry

for the Supreme Court ... which claims for its members an almost entire

exemption from the fallibilities of our nature." The press, especially,

is influenced by this feeling of worship. Van Buren himself concedes

that the Justices have "talents of the highest order and spotless

integrity." Marshall, in particular, deserves unbounded praise and

admiration: "That ... uncommon man who now presides over the Court ...

is, in all human probability, the ablest Judge now sitting upon any

judicial bench in the world."[1254]

The fiery John Rowan of Kentucky, now Senator from that State, and one

of the boldest opponents of the National Judiciary, offered an amendment

requiring that "seven of the ten Justices of the Supreme Court shall

concur in any judgement or decree, which denies the validity, or

restrains the operation, of the Constitution, or law of any of the

States, or any provision or enaction in either."[1255] In advocating his

amendment, however, Rowan, while still earnestly attacking the

"encroachments" of the Supreme Court, admitted the "unsuspected

integrity" of the Justices upon which "suspicion has never scowled....

The present incumbents are above all suspicion; obliquity of motive has

never been ascribed to any of them."[1256] Nevertheless, he complains of

"a judicial superstition--which encircles the Judges with

infallibility."[1257]

This seemingly miraculous alteration of public opinion, manifesting

itself within one year from the violent outbursts of popular wrath

against Marshall and the National Judiciary, was the result of the

steady influence of the conservatives, unwearyingly active for a quarter

of a century; of the natural reaction against extravagance of language

and conduct shown by the radicals during that time; of the realization

that the Supreme Court could be resisted only by force continuously

exercised; and, above all, of the fundamental soundness and essential

justness of Marshall's opinions, which, in spite of the local and

transient hardship they inflicted, in the end appealed to the good sense

and conscience of the average man. Undoubtedly, too, the character of

the Chief Justice, which the Nation had come to appreciate, was a

powerful element in bringing about the alteration in the popular concept

of the Supreme Court.

But, notwithstanding the apparent diminution of animosity toward the

Chief Justice and the National Judiciary, hatred of both continued, and

within a few years showed itself with greater violence than ever. How

Marshall met this recrudescence of Localism is the story of his closing

years.

When, in Gibbons _vs._ Ogden, Marshall established the supremacy of

Congress over commerce among the States, he also announced the absolute

power of the National Legislature to control trade with foreign nations.

It was not long before an opportunity was afforded him to apply this

principle, and to supplement his first great opinion on the meaning of

the commerce clause, by another pronouncement of equal power and

dignity. By acts of the Maryland Legislature importers or wholesalers of

imported goods were required to take out licenses, costing fifty dollars

each, before they could sell "by wholesale, bale or package, hogshead,

barrel, or tierce." Non-observance of this requirement subjected the

offender to a fine of one hundred dollars and forfeiture of the amount

of the tax.[1258]

Under this law Alexander Brown and his partners, George, John, and

James Brown, were indicted in the City Court of Baltimore for having

sold a package of foreign dry goods without a license. Judgment against

the merchants was rendered; and this was affirmed by the Court of

Appeals. The case was then taken to the Supreme Court on a writ of error

and argued for Brown & Co. by William Wirt and Jonathan Meredith, and

for Maryland by Roger Brooke Taney[1259] and Reverdy Johnson.[1260]

On March 12, 1827, the Chief Justice delivered the opinion of the

majority of the court, Justice Thompson dissenting. The only question,

says Marshall, is whether a State can constitutionally require an

importer to take out a license "before he shall be permitted to sell a

bale or package" of imported goods.[1261] The Constitution prohibits any

State from laying imposts or duties on imports or exports, except what

may be "absolutely necessary for executing its inspection laws."

The Maryland act clearly falls within this prohibition: "A duty on

imports ... is not merely a duty on the act of importation, but is a

duty on the thing imported....

"There is no difference," continues Marshall, "between a power to

prohibit the sale of an article and a power to prohibit its introduction

into the country.... No goods would be imported if none could be sold."

The power which can levy a small tax can impose a great one--can, in

fact, prohibit the thing taxed: "Questions of power do not depend on the

degree to which it may be exercised."[1262] He admits that "there must

be a point of time when the prohibition [of States to tax imports]

ceases and the power of the State to tax commences"; but "this point of

time is [not] the instant that the articles enter the country."[1263]

Here Marshall becomes wisely cautious. The power of the States to tax

and the "restriction" on that power, "though quite distinguishable when

they do not approach each other, may yet, like the intervening colors

between white and black, approach so nearly as to perplex the

understanding, as colors perplex the vision in marking the distinction

between them. Yet the distinction exists, and must be marked as cases

arise. Till they do arise, it might be premature to state any rule as

being universal in its application. It is sufficient for the present, to

say, generally, that, when the importer has so acted upon the thing

imported that it has become incorporated and mixed up with the mass of

property in the country, it has, perhaps, lost its distinctive character

as an import, and has become subject to the taxing power of the State;

but while remaining the property of the importer, in his warehouse, in

the original form or package in which it was imported, a tax upon it is

too plainly a duty on imports to escape the prohibition in the

constitution."[1264]

It is not true that under the rule just stated, the State is precluded

from regulating its internal trade and from protecting the health or

morals of its citizens. The Constitutional inhibition against State

taxation of imports applies only to "the form in which it was imported."

When the importer sells his goods "the [State] law may treat them as it

finds them." Measures may also be taken by the State concerning

dangerous substances like gunpowder or "infectious or unsound

articles"--such measures are within the "police power, which

unquestionably remains, and ought to remain, with the States." But State

taxation of imported articles in their original form is a violation of

the clause of the Constitution forbidding States to lay any imposts or

duties on imports and exports.[1265]

Such taxation also violates the commerce clause. Marshall once more

outlines the reasons for inserting that provision into the Constitution,

cites his opinion in Gibbons _vs._ Ogden, and again declares that the

power of Congress to regulate commerce "is co-extensive with the subject

on which it acts and cannot be stopped at the external boundary of a

State, but must enter its interior." This power, therefore, "must be

capable of authorizing the sale of those articles which it introduces."

In almost the same words already used, the Chief Justice reiterates that

goods would not be imported if they could not be sold. "Congress has a

right, not only to authorize importation, but to authorize the importer

to sell." A tariff law "offers the privilege [of importation] for sale

at a fixed price to every person who chooses to become a purchaser." By

paying the duty the importer makes a contract with the National

Government--"he ... purchase[s] the privilege to sell."

"The conclusion, that the right to sell is connected with the law

permitting importation, as an inseparable incident, is inevitable." To

deny that right "would break up commerce." The power of a State "to tax

its own citizens, or their property within its territory," is

"acknowledged" and is "sacred"; but it cannot be exercised "so as to

obstruct or defeat the power [of Congress] to regulate commerce." When

State laws conflict with National statutes, "that which is not supreme

must yield to that which is supreme"--a "great and universal truth ...

inseparable from the nature of things," which "the constitution has

applied ... to the often interfering powers of the general and State

governments, as a vital principle of perpetual operation."

The States, through the taxing power, "cannot reach and restrain the

action of the national government ...--cannot reach the administration

of justice in the Courts of the Union, or the collection of the taxes of

the United States, or restrain the operation of any law which Congress

may constitutionally pass--... cannot interfere with any regulation of

commerce." Otherwise a State might tax "goods in their transit through

the State from one port to another for the purpose of re-exportation";

or tax articles "passing through it from one State to another, for the

purpose of traffic"; or tax "the transportation of articles passing from

the State itself to another State for commercial purposes." Of what

avail the power given Congress by the Constitution if the States may

thus "derange the measures of Congress to regulate commerce"?

Marshall is here addressing South Carolina and other States which, at

that time, were threatening retaliation against the manufacturers of

articles protected by the tariff.[1266] He pointedly observes that the

decision in M'Culloch _vs._ Maryland is "entirely applicable" to the

present controversy, and adds that "we suppose the principle laid down

in this case to apply equally to importations from a sister

State."[1267]

The principles announced by Marshall in Brown _vs._ Maryland have been

upheld by nearly all courts that have since dealt with the subject of

commerce. But there has been much "distinguishing" of various cases from

that decision; and, in this process, the application of his great

opinion has often been modified, sometimes evaded. In some cases in

which Marshall's statesmanship has thus been weakened and narrowed,

local public sentiment as to questions that have come to be considered

moral, has been influential. It is fortunate for the Republic that

considerations of this kind did not, in such fashion, impair the liberty

of commerce among the States before the American Nation was firmly

established. When estimating our indebtedness to John Marshall, we must

have in mind the state of the country at the time his Constitutional

expositions were pronounced and the inevitable and ruinous effect that

feebler and more restricted assertions of Nationalism would then have

had.

Seldom has a triumph of sound principles and of sound reasoning in the

assertion of those principles been more frankly acknowledged than in the

tribute which Roger Brooke Taney inferentially paid to John Marshall,

whom he succeeded as Chief Justice. Twenty years after the decision of

Brown _vs._ Maryland, Taney declared: "I at that time persuaded myself

that I was right.... But further and more mature reflection has

convinced me that the rule laid down by the Supreme Court is a just and

safe one, and perhaps the best that could have been adopted for

preserving the right of the United States on the one hand, and of the

States on the other, and preventing collision between them."[1268]

Chief Justice Taney's experience has been that of many thoughtful men

who, for a season and when agitated by intense concern for a particular

cause or policy, have felt Marshall to have been wrong in this, that, or

the other of his opinions. Frequently, such men have, in the end, come

to the steadfast conclusion that they were wrong and that Marshall was

right.

FOOTNOTES:

[1107] Institut national des sciences et des arts.

[1108] Dickinson: _Robert Fulton, Engineer and Artist_, 156-57; also see

Thurston: _Robert Fulton_, 113.

[1109] See Dickinson, 126-32; also Knox: _Life of Robert Fulton_, 72-86;

and Fletcher: _Steam-Ships_, 19-24.

[1110] Dickinson, 134-35; Knox, 90-93.

[1111] Act of March 27, 1798, _Laws of New York, 1798_, 382-83.

This act, however, was merely the transfer of similar privileges granted

to John Fitch on March 19, 1787, to whom, rather than to Robert Fulton,

belongs the honor of having invented the steamboat. It was printed in

the _Laws of New York_ edited by Thomas Greenleaf, published in 1792, I,

411; and also appears as Appendix A to "A Letter, addressed to

Cadwallader D. Colden, Esquire," by William Alexander Duer, the first

biographer of Fulton. (Albany, 1817.) Duer's pamphlet is uncommonly

valuable because it contains all the petitions to, and the acts of, the

New York Legislature concerning the steamboat monopoly.

[1112] Reigart: _Life of Robert Fulton_, 163. Nobody but Livingston was

willing to invest in what all bankers and business men considered a

crazy enterprise. (_Ib._ 100-01.)

[1113] Knox, 93. It should be remembered, however, that the granting of

monopolies was a very common practice everywhere during this period.

(See Prentice: _Federal Power over Carriers and Corporations_, 60-65.)

[1114] Compare with his brother's persistence in the Batture

controversy, _supra_, 100-15.

[1115] Dickinson, 64-123; Knox, 35-44.

[1116] Knox, 93; see also Dickinson, 136.

[1117] Act of April 5, 1803, _Laws of New York, 1802-04_, 323-24.

[1118] Act of April 6, 1807, _Laws of New York, 1807-09_, 213-14.

[1119] The North River was afterward named the Clermont, which was the

name of Livingston's county seat. (Dickinson, 230.)

[1120] The country people along the Hudson thought the steamboat a sea

monster or else a sign of the end of the world. (Knox, 110-11.)

[1121] Act of April 11, 1808, _Laws of New York, 1807-09_, 407-08.

(Italics the author's.)

[1122] Dickinson, 233-34.

[1123] _Ib._ 234-36. The thoroughfare in New York, at the foot of which

these boats landed, was thereafter named Fulton Street. (_Ib._ 236.)

[1124] See _infra_, 414.

[1125] Dickinson, 230. From the first Roosevelt had been associated with

Livingston in steamboat experiments. He had constructed the engine for

the craft with which Livingston tried to fulfill the conditions of the

first New York grant to him in 1798. Roosevelt was himself an inventor,

and to him belongs the idea of the vertical wheel for propelling

steamboats which Fulton afterward adopted with success. (See J. H. B.

Latrobe, in _Maryland Historical Society Fund-Publication_, No. 5,

13-14.)

Roosevelt was also a manufacturer and made contracts with the Government

for rolled and drawn copper to be used in war-vessels. The Government

failed to carry out its agreement, and Roosevelt became badly

embarrassed financially. In this situation he entered into an

arrangement with Livingston and Fulton that if the report he was to make

to them should be favorable, he was to have one third interest in the

steamboat enterprise on the Western waters, while Livingston and Fulton

were to supply the funds.

The story of his investigations and experiments on the Ohio and

Mississippi glows with romance. Although forty-six years old, he had but

recently married and took his bride with him on this memorable journey.

At Pittsburgh he built a flatboat and on this the newly wedded couple

floated to New Orleans; the trip, with the long and numerous stops to

gather information concerning trade, transportation, the volume and

velocity of various streams, requiring six months' time.

Before proceeding far Roosevelt became certain of success. Discovering

coal on the banks of the Ohio, he bought mines, set men at work in them,

and stored coal for the steamer he felt sure would be built. His

expectation was justified and, returning to New York from New Orleans,

he readily convinced Livingston and Fulton of the practicability of the

enterprise and was authorized to go back to Pittsburgh to construct a

steamboat, the design of which was made by Fulton. By the summer of 1811

the vessel was finished. It cost $38,000 and was named the New Orleans.

Late in September, 1811, the long voyage to New Orleans was begun, the

only passengers being Roosevelt and his wife. A great crowd cheered them

as the boat set out from Pittsburgh. At Cincinnati the whole population

greeted the arrival of this extraordinary craft. Mr. and Mrs. Roosevelt

were given a dinner at Louisville, where, however, all declared that

while the boat could go down the river, it never could ascend. Roosevelt

invited the banqueters to dine with him on the New Orleans the next

night and while toasts were being drunk and hilarity prevailed, the

vessel was got under way and swiftly proceeded upstream, thus convincing

the doubters of the power of the steamboat.

From Louisville onward the voyage was thrilling. The earthquake of 1811

came just after the New Orleans passed Louisville and this changed the

river channels. At another time the boat took fire and was saved with

difficulty. Along the shore the inhabitants were torn between terror of

the earthquake and fright at this monster of the waters. The crew had to

contend with snags, shoals, sandbars, and other obstructions. Finally

Natchez was reached and here thousands of people gathered on the bluffs

to witness this triumph of science.

At last the vessel arrived at New Orleans and the first steamboat voyage

on the Ohio and Mississippi was an accomplished fact. The experiment,

which began two years before with the flatboat voyage of a bride and

groom, ended at the metropolis of the Southwest in the marriage of the

steamboat captain to Mrs. Roosevelt's maid, with whom he had fallen in

love during this thrilling and historic voyage. (See Latrobe, in _Md.

Hist. Soc. Fund-Pub_. No. 6. A good summary of Latrobe's narrative is

given in Preble: _Chronological History of the Origin and Development of

Steam Navigation_, 77-81.)

[1126] Act of Jan. 25, 1811, _Acts of New Jersey, 1811_, 298-99.

[1127] Act of April 9, 1811, _Laws of New York, 1811_, 368-70.

[1128] _Laws of Connecticut_, May Sess. 1822, chap. XXVIII.

[1129] Dickinson, 244.

[1130] Livingston _et al._ _vs._ Van Ingen _et al._, 1 Paine, 45-46.

Brockholst Livingston, Associate Justice of the Supreme Court, sat in

this case with William P. Van Ness (the friend and partisan of Burr),

and delivered the opinion.

[1131] The full title of this tribunal was the "Court for the Trial of

Impeachments and the Correction of Errors." It was the court of last

resort, appeals lying to it from the Supreme Court of Judicature and

from the Court of Chancery. It consisted of the Justices of the Supreme

Court of Judicature and a number of State Senators. A more absurdly

constituted court cannot well be imagined.

[1132] 9 Johnson, 558, 563.

[1133] The State Senate, House, Council of Revision, and Governor.

[1134] 9 Johnson, 572.

[1135] Those enacted in 1798, 1803, 1807, 1808, and 1811.

[1136] 9 Johnson, 573. Jay as Governor was Chairman of the Council of

Revision, of which Kent was a member.

[1137] _lb._ 572.

[1138] _Ib._ 573. (Italics the author's.)

[1139] 9 Johnson, 574.

[1140] _Ib._ 575-76.

[1141] _Ib._ 577-78.

[1142] 9 Johnson, 578, 580.

[1143] _Ib._ 582-88.

[1144] All the Senators concurred except two, Lewis and Townsend, who

declined giving opinions because of relationship with the parties to the

action. (_Ib._ 589.)

[1145] Ogden protested against the Livingston-Fulton steamboat monopoly

in a Memorial to the New York Legislature. (See Duer, 94-97.) A

committee was appointed and reported the facts as Ogden stated them; but

concluded that, since New York had granted exclusive steamboat

privileges to Livingston, "the honor of the State requires that its

faith should be preserved." However, said the committee, the

Livingston-Fulton boats "are in substance the invention of John Fitch,"

to whom the original monopoly was granted, after the expiration of which

"the right to use" steamboats "became common to all the citizens of the

United States." Moreover, the statements upon which rested the

Livingston monopoly of 1798 "were not true in fact," Fitch having

forestalled the claims of the Livingston pretensions. (_Ib._ 103-04.)

[1146] 4 Johnson's _Chancery Reports_, 50-51. The reader must not

confuse the two series of Reports by Johnson; one contains the decisions

of the Court of Errors; the other, those of the Court of Chancery.

[1147] Act of April 6, 1808, _Laws of New York, 1807-09_, 313-15.

[1148] 4 Johnson's _Chancery Reports_, 51, 53.

[1149] _Ib._ 152.

[1150] _Ib._ 154.

[1151] Act of Feb. 18, 1793, _U.S. Statutes at Large_, I, 305-18.

[1152] 4 Johnson's _Chancery Reports_, 156.

[1153] 9 Johnson, 507 _et seq._

[1154] 4 Johnson's _Chancery Reports_, 158-59.

[1155] 17 Johnson, 488 _et seq._

[1156] See _supra_, 240-50, 284-86.

[1157] Story to Fettyplace, Feb. 28, 1821, Story, I, 397.

[1158] Records Supreme Court, MS.

[1159] The case was first docketed, June 7, 1820, as Aaron Ogden _vs._

Thomas _Gibbins_, and the defective transcript was filed October 17, of

the same year. When next docketed, the title was correctly given, Thomas

Gibbons _vs._ Aaron Ogden. (_Ib._)

[1160] Act of April 19, 1811, _Acts of Territory of Orleans, 1811_,

112-18.

[1161] Act of Nov. 18, 1814, _Laws of Georgia, 1814_, October Sess.

28-30.

[1162] Act of Feb. 7, 1815, _Laws of Massachusetts, 1812-15_, 595.

[1163] Act of June 15, 1815, _Laws of New Hampshire, 1815_, II, 5.

[1164] Act of Nov. 10, 1815, _Laws of Vermont, 1815_, 20.

[1165] Ohio, for example, passed two laws for the "protection" of its

citizens owning steamboats. This act provided that no craft propelled by

steam, operated under a license from the New York monopoly, should land

or receive passengers at any point on the Ohio shores of Lake Erie

unless Ohio boats were permitted to navigate the waters of that lake

within the jurisdiction of New York. For every passenger landed in

violation of these acts the offender was made subject to a fine of $100.

(Chap, XXV, Act of Feb. 18, 1822, and chap. II, Act of May 23, 1822,

_Laws of Ohio, 1822_.)

[1166] Niles's _Register_ for these years is full of accounts of the

building, launching, and departures and arrivals of steam craft

throughout the whole interior of the country.

[1167] See Blane: _An Excursion Through the United States and Canada_,

by "An English Gentleman," 119-21. For an accurate account of the

commercial development of the West see also Johnson: _History of

Domestic and Foreign Commerce_, I, 213-15.

On March 1, 1819, Flint saw a boat on the stocks at Jeffersonville,

Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's

Letters, in _E. W. T._: Thwaites, IX, 164.)

[1168] Blane, 118.

[1169] _Annals_, 14th Cong. 2d Sess. 296.

[1170] _Ib._ 361.

[1171] See debate in the House, _ib._ 851-923; and in the Senate, _ib._

166-70.

[1172] _Ib._ 924-33.

[1173] March 1, 1817, _ib._ 1052.

[1174] Veto Message of March 3, 1817, Richardson, I, 584-85.

[1175] Monroe gingerly referred to it in his First Inaugural Address.

(Richardson, II, 8.) But in his First Annual Message he dutifully

followed Madison and declared that "Congress do not possess the right"

to appropriate National funds for internal improvements. So this third

Republican President recommended an amendment to the Constitution "which

shall give to Congress the right in question." (_Ib._ 18.)

[1176] _Annals_, 15th Cong. 1st Sess. 451-60.

[1177] _Ib._ 1114-1250, 1268-1400.

[1178] "All the difficulties under which we have labored and now labor

on this subject have grown out of a fatal admission" by Madison "which

runs counter to the tenor of his whole political life, and is expressly

contradicted by one of the most luminous and able State papers that ever

was written [the Virginia Resolutions]--an admission which gave a

sanction to the principle that this Government had the power to charter

the present colossal Bank of the United States. Sir, ... that act, and

one other which I will not name [Madison's War Message in 1812], bring

forcibly home to my mind a train of melancholy reflections on the

miserable state of our mortal being:

'In life's last scenes, what prodigies surprise!

Fears of the brave, and follies of the wise.

From Marlborough's eyes the streams of dotage flow,

And Swift expires a driv'ler and a show.'

"Such is the state of the case, Sir. It is miserable to think of it--and

we have nothing left to us but to weep over it." (_Annals_, 18th Cong.

1st Sess. 1301.)

Randolph was as violently against the War of 1812 as was Marshall, but

he openly proclaimed his opposition.

[1179] _Ib._

[1180] Italics the author's.

[1181] _Annals_, 18th Cong. 1st Sess. 1308.

[1182] _Ib._ 1310-11. The bill passed, 115 yeas to 86 nays. (_Ib._

1468-69.)

[1183] See _infra_, 535-36.

[1184] See _infra_, chap. X.

[1185] See vol. I, 310-12, of this work; also Marshall: _Life of George

Washington_, 2d ed. II, 105-06, 109-10, 125. And see Madison's "Preface

to Debates in the Convention of 1787." (_Records of the Federal

Convention_: Farrand, III, 547.) "The want of authy. in Congs. to

regulate Commerce had produced in Foreign nations particularly G. B. a

monopolizing policy injurious to the trade of the U. S. and destructive

to their navigation.... The same want of a general power over Commerce

led to an exercise of this power separately, by the States, w^{ch} not

only proved abortive, but engendered rival, conflicting and angry

regulations."

[1186] _Records, Fed. Conv_.: Farrand, II, 143. The provision in this

draft is very curious. It declares that "a navigation act shall not be

passed, but with the consent of (eleven states in) <2/3d. of the Members

present of> the senate and (10 in) <the like No. of> the house of

representatives."

[1187] _Ib._ 135, 157, 569, 595, 655. Roger Sherman mentioned interstate

trade only incidentally. Speaking of exports and imports, he said that

"the oppression of the uncommercial States was guarded agst. by the

power to regulate trade between the States." (_Ib._ 308.)

Writing in 1829, Madison said that the commerce clause "being in the

same terms with the power over foreign commerce, the same extent, if

taken literally, would belong to it. Yet it ... grew out of the abuse of

the power by the importing States in taxing the non-importing, and was

intended as a negative and preventive provision against injustice among

the States themselves, rather than as a power to be used for the

positive purposes of the General Government, in which alone, however,

the remedial power could be lodged." (Madison to Cabell, Feb. 13, 1829,

_ib._ III, 478.)

[1188] See _Monthly Law Reporter_, New Series, X, 177.

[1189] Wirt to Carr, Feb. 1, 1824, Kennedy, II, 164.

[1190] _Ib._

[1191] "Reminiscence," that betrayer of history, is responsible for the

fanciful story, hitherto accepted, that Webster was speaking on the

tariff in the House when he was suddenly notified that Gibbons _vs._

Ogden would be called for argument the next morning; and that, swiftly

concluding his great tariff argument, he went home, took medicine, slept

until ten o'clock that night, then rose, and in a strenuous effort

worked until 9 A.M. on his argument in the steamboat case; and that this

was all the preparation he had for that glorious address. (Ticknor's

reminiscences of Webster, as quoted by Curtis, I, 216-17.)

On its face, Webster's argument shows that this could not have been

true. The fact was that Webster had had charge of the case in the

Supreme Court for three years; and that, since the argument was twice

before expected, he had twice before prepared for it.

The legend about his being stopped in his tariff speech is utterly

without foundation. The debate on that subject did not even begin in the

House until February 11, 1824 (_Annals_, 18th Cong. 1st Sess. 1470),

three days after the argument of Gibbons _vs._ Ogden was concluded; and

Webster did not make his famous speech on the Tariff Bill of 1824 until

April 1-2, one month after the steamboat case had been decided. (_Ib._

2026-68.)

Moreover, as has been stated in the text, the debate on the survey of

roads and canals was on in the House when the argument in Gibbons _vs._

Ogden was heard; had been in progress for three weeks previously and

continued for some time afterward; and in this debate Webster did not

participate. Indeed, the record shows that for more than a week before

the steamboat argument Webster took almost no part in the House

proceedings. (_Ib._ 1214-1318.)

[1192] 9 Wheaton, 3.

[1193] 9 Wheaton, 4-5.

[1194] _Ib._ 6-9.

[1195] _Ib._ 9.

[1196] _Ib._ 11.

[1197] _Ib._ 11-12.

[1198] 9 Wheaton, 14.

[1199] _Ib._ 24.

[1200] The student should carefully read these three admirable

arguments, particularly that of Emmet. All of them deal with patent law

as well as with the commerce clause of the Constitution. (See 9 Wheaton,

33-135.) The argument lasted from February 4 to February 9 inclusive.

[1201] 1 Brockenbrough, 430-31.

[1202] 1 Brockenbrough, 431-32.

[1203] Webster to his brother, Feb. 15, 1824, Van Tyne, 102.

[1204] 9 Wheaton, 186.

[1205] "WE THE PEOPLE of the United States, in Order to form a more

perfect Union, establish Justice, insure domestic Tranquility, provide

for the common defence, promote the general Welfare, and secure the

Blessings of Liberty to ourselves and our Posterity, do ordain and

establish this CONSTITUTION for the United States of America." (Preamble

to the Constitution of the United States.)

[1206] 9 Wheaton, 187-88.

[1207] _Ib._ 188-89.

[1208] "The Congress shall have Power ... to regulate Commerce with

foreign Nations, and among the Several States, and with the Indian

Tribes." (Constitution of the United States, Article I, Section 8.)

[1209] 9 Wheaton, 192-93.

[1210] 9 Wheaton, 193-94.

[1211] _Ib._ 195.

[1212] 9 Wheaton, 195-96.

[1213] _Ib._ 196-97.

[1214] 9 Wheaton, 199-200.

[1215] 9 Wheaton, 202-03.

[1216] _Ib._ 203.

[1217] 9 Wheaton, 203-04.

[1218] _Ib._ 204-05.

[1219] _Ib._ 205-06.

[1220] 9 Wheaton, 206-09.

[1221] _Ib._ 209-10.

[1222] 9 Wheaton, 210-11. (Italics the author's.)

[1223] _Ib._ 211-12.

[1224] _Ib._ 214.

[1225] 9 Wheaton, 215-16.

[1226] _Ib._ 216-18.

[1227] _Ib._ 218-20.

[1228] 9 Wheaton, 221.

[1229] Marshall is here referring particularly to Chancellor Kent.

[1230] 9 Wheaton, 221-22.

[1231] 9 Wheaton, 222. (Italics the author's.)

[1232] 9 Wheaton, 227.

[1233] 9 Wheaton, 228-30.

[1234] _Ib._ 231-32.

[1235] _New York Evening Post_, March 5, 1824, as quoted in Warren, 395.

[1236] Niles, XXVI, 54-62.

[1237] For example, steamboat construction on the Ohio alone almost

doubled in a single year, and quadrupled within two years. (See table in

Meyer-MacGill: _History of Transportation in the United States_, etc.,

108.)

[1238] 1 Hopkins's _Chancery Reports_, 151.

[1239] _Ib._ 198.

[1240] 3 Cowen, 716-17.

[1241] 3 Cowen, 731-34.

[1242] _Ib._ 750.

[1243] _Ib._

[1244] 3 Cowen, 753-54.

[1245] This bill had been proposed by Senator Richard M. Johnson of

Kentucky at the previous session (_Annals_, 18th Cong. 1st Sess, 575) as

an amendment to a bill reported from the Judiciary Committee by Senator

Martin Van Buren (_ib._ 336).

[1246] _Debates_, 18th Cong. 2d Sess. 527-33.

[1247] _Ib._ 588.

[1248] _Ib._ 609.

[1249] _Ib._ 614.

After considerable wrangling, the bill was reported favorably from the

Judiciary Committee (_ib._ 630), but too late for further action at that

session.

[1250] _Debates_, 19th Cong. 1st Sess. 845.

[1251] Four days after the House adopted Webster's bill (_ib._ 1149), he

wrote his brother: "The judiciary bill will probably pass the Senate, as

it left our House. There will be no difficulty in finding perfectly safe

men for the new appointments. The contests on those constitutional

questions in the West have made men fit to be judges." (Webster to his

brother, Jan. 29, 1826, _Priv. Corres_.: Webster, I, 401.)

[1252] _Debates_, 19th Cong. 1st Sess. 417-18.

[1253] _Ib._ 419.

[1254] _Ib._ 420-21.

[1255] _Debates_, 19th Cong. 1st Sess. 423-24.

[1256] _Ib._ 436.

[1257] _Ib._ 442. Rowan's amendment was defeated (_ib._ 463). Upon

disagreements between the Senate and House as to the number and

arrangement of districts and circuits, the entire measure was lost. In

the House it was "indefinitely postponed" by a vote of 99 to 89 (_ib._

2648); and in the Senate the bill was finally laid on the table (_ib._

784).

[1258] 12 Wheaton, 420.

[1259] Taney, leading counsel for Maryland, had just been appointed

Attorney-General of that State, and soon afterwards was made

Attorney-General of the United States. He succeeded Marshall as Chief

Justice. (See _infra_, 460.)

[1260] Johnson was only thirty-one years old at this time, but already a

leader of the Baltimore bar and giving sure promise of the distinguished

career he afterward achieved.

[1261] 12 Wheaton, 436.

[1262] 12 Wheaton, 437-39.

[1263] _Ib._ 441.

[1264] _Ib._ 441-42.

[1265] 12 Wheaton, 443-44.

[1266] See _infra_, 536-38.

[1267] 12 Wheaton, 448-49.

[1268] 5 Howard, 575.