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.)
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 grantor contractwith 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 therewere 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 ofthat 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 otherStates. 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, aprécisof 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 itwas 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 thecouncil 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 asingle, 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? Inno 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 overNew 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 "exclusivelywithin the state of New-York," and that the waters lying between the New Jersey ports "are within the jurisdiction ofNew Jersey." Gibbons admitted that he ran a boat between New Jersey ports under "a coastinglicense" 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 heoperated 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 Livingstonvs.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 Livingstonvs.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]
John Marshall From a painting by J. B. MartinJohn MarshallFrom a painting by J. B. Martin, in the University of Virginia
Thus did the famous case of Gibbonsvs. Ogden reach the Supreme Court of the United States; thuswas 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'Cullochvs.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'Cullochvs.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 toMarshall, 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 watertravel 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 otherforms 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 Gibbonsvs.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 therespective 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 Gibbonsvs.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 mayemancipate 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 inGibbonsvs.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 uniformcommercial 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 Gibbonsvs.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 Gibbonsvs.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 Gibbonsvs.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 Wilsonvs.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 confiscateevery 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 itcan 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 oneforce in our history, excepting only war. In Marburyvs.Madison he established that fundamental principle of liberty that a permanent written constitution controls a temporary Congress; in Fletchervs.Peck, in Sturgesvs.Crowninshield, and in the Dartmouth College case he asserted the sanctity of good faith; in M'Cullochvs.Maryland and Cohensvs.Virginia he made the Government of the American people a living thing; but in Gibbonsvs.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 expeditionbetween 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 ofany 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 Constitutionof the Nation, the State enactment "must yield to it."[1222]