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 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.