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 thetransportation 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 uponhis 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 Gibbonsvs.Ogden is conclusive proof of the mastery the Chief Justice had acquired over his Republican associate, or else ofthe 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 theNew 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 Postof 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 Gibbonsvs.Ogden changed into applause that disfavor which his opinion in M'Cullochvs.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 Gibbonsvs.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 encroachmentson their part."[1244]In such ringing terms did Savage endorse Marshall's opinion in Gibbonsvs.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 Gibbonsvs.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 Housea 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 justnessof 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 Gibbonsvs.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 nonecould 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 Gibbonsvs.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'Cullochvs.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 Brownvs.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 ofthe 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 Brownvs.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 theLaws of New Yorkedited 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]Seeinfra, 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, inMaryland 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, inMd. 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]Livingstonet al.vs.Van Ingenet 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'sChancery 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'sChancery 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'sChancery Reports, 156.[1153]9 Johnson, 507et seq.[1154]4 Johnson'sChancery Reports, 158-59.[1155]17 Johnson, 488et seq.[1156]Seesupra, 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 Ogdenvs.ThomasGibbins, and the defective transcript was filed October 17,
of the same year. When next docketed, the title was correctly given,
Thomas Gibbonsvs.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'sRegisterfor 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, inE. 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]Seeinfra, 535-36.[1184]Seeinfra, 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, wchnot 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)
[1107]Institut national des sciences et des arts.
[1107]Institut national des sciences et des arts.
[1108]Dickinson:Robert Fulton, Engineer and Artist, 156-57; also see Thurston:Robert Fulton, 113.
[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.
[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.
[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 theLaws of New Yorkedited 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.
[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 theLaws of New Yorkedited 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.)
[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.)
[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.
[1114]Compare with his brother's persistence in the Batture controversy,supra, 100-15.
[1115]Dickinson, 64-123; Knox, 35-44.
[1115]Dickinson, 64-123; Knox, 35-44.
[1116]Knox, 93; see also Dickinson, 136.
[1116]Knox, 93; see also Dickinson, 136.
[1117]Act of April 5, 1803,Laws of New York, 1802-04, 323-24.
[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.
[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.)
[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.)
[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.)
[1121]Act of April 11, 1808,Laws of New York, 1807-09, 407-08. (Italics the author's.)
[1122]Dickinson, 233-34.
[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.)
[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]Seeinfra, 414.
[1124]Seeinfra, 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, inMaryland 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, inMd. 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.)
[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, inMaryland 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, inMd. 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.
[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.
[1127]Act of April 9, 1811,Laws of New York, 1811, 368-70.
[1128]Laws of Connecticut, May Sess. 1822, chap.xxviii.
[1128]Laws of Connecticut, May Sess. 1822, chap.xxviii.
[1129]Dickinson, 244.
[1129]Dickinson, 244.
[1130]Livingstonet al.vs.Van Ingenet 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.
[1130]Livingstonet al.vs.Van Ingenet 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.
[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.
[1132]9 Johnson, 558, 563.
[1133]The State Senate, House, Council of Revision, and Governor.
[1133]The State Senate, House, Council of Revision, and Governor.
[1134]9 Johnson, 572.
[1134]9 Johnson, 572.
[1135]Those enacted in 1798, 1803, 1807, 1808, and 1811.
[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.
[1136]9 Johnson, 573. Jay as Governor was Chairman of the Council of Revision, of which Kent was a member.
[1137]lb.572.
[1137]lb.572.
[1138]Ib.573. (Italics the author's.)
[1138]Ib.573. (Italics the author's.)
[1139]9 Johnson, 574.
[1139]9 Johnson, 574.
[1140]Ib.575-76.
[1140]Ib.575-76.
[1141]Ib.577-78.
[1141]Ib.577-78.
[1142]9 Johnson, 578, 580.
[1142]9 Johnson, 578, 580.
[1143]Ib.582-88.
[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.)
[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.)
[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'sChancery 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.
[1146]4 Johnson'sChancery 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.
[1147]Act of April 6, 1808,Laws of New York, 1807-09, 313-15.
[1148]4 Johnson'sChancery Reports, 51, 53.
[1148]4 Johnson'sChancery Reports, 51, 53.
[1149]Ib.152.
[1149]Ib.152.
[1150]Ib.154.
[1150]Ib.154.
[1151]Act of Feb. 18, 1793,U.S. Statutes at Large,i, 305-18.
[1151]Act of Feb. 18, 1793,U.S. Statutes at Large,i, 305-18.
[1152]4 Johnson'sChancery Reports, 156.
[1152]4 Johnson'sChancery Reports, 156.
[1153]9 Johnson, 507et seq.
[1153]9 Johnson, 507et seq.
[1154]4 Johnson'sChancery Reports, 158-59.
[1154]4 Johnson'sChancery Reports, 158-59.
[1155]17 Johnson, 488et seq.
[1155]17 Johnson, 488et seq.
[1156]Seesupra, 240-50, 284-86.
[1156]Seesupra, 240-50, 284-86.
[1157]Story to Fettyplace, Feb. 28, 1821, Story,i, 397.
[1157]Story to Fettyplace, Feb. 28, 1821, Story,i, 397.
[1158]Records Supreme Court, MS.
[1158]Records Supreme Court, MS.
[1159]The case was first docketed, June 7, 1820, as Aaron Ogdenvs.ThomasGibbins, and the defective transcript was filed October 17, of the same year. When next docketed, the title was correctly given, Thomas Gibbonsvs.Aaron Ogden. (Ib.)
[1159]The case was first docketed, June 7, 1820, as Aaron Ogdenvs.ThomasGibbins, and the defective transcript was filed October 17, of the same year. When next docketed, the title was correctly given, Thomas Gibbonsvs.Aaron Ogden. (Ib.)
[1160]Act of April 19, 1811,Acts of Territory of Orleans, 1811, 112-18.
[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.
[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.
[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.
[1163]Act of June 15, 1815,Laws of New Hampshire, 1815,ii, 5.
[1164]Act of Nov. 10, 1815,Laws of Vermont, 1815, 20.
[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.)
[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'sRegisterfor these years is full of accounts of the building, launching, and departures and arrivals of steam craft throughout the whole interior of the country.
[1166]Niles'sRegisterfor 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, inE. W. T.: Thwaites,ix, 164.)
[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, inE. W. T.: Thwaites,ix, 164.)
[1168]Blane, 118.
[1168]Blane, 118.
[1169]Annals, 14th Cong. 2d Sess. 296.
[1169]Annals, 14th Cong. 2d Sess. 296.
[1170]Ib.361.
[1170]Ib.361.
[1171]See debate in the House,ib.851-923; and in the Senate,ib.166-70.
[1171]See debate in the House,ib.851-923; and in the Senate,ib.166-70.
[1172]Ib.924-33.
[1172]Ib.924-33.
[1173]March 1, 1817,ib.1052.
[1173]March 1, 1817,ib.1052.
[1174]Veto Message of March 3, 1817, Richardson, I, 584-85.
[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.)
[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.
[1176]Annals, 15th Cong. 1st Sess. 451-60.
[1177]Ib.1114-1250, 1268-1400.
[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.
[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.
[1179]Ib.
[1180]Italics the author's.
[1180]Italics the author's.
[1181]Annals, 18th Cong. 1st Sess. 1308.
[1181]Annals, 18th Cong. 1st Sess. 1308.
[1182]Ib.1310-11. The bill passed, 115 yeas to 86 nays. (Ib.1468-69.)
[1182]Ib.1310-11. The bill passed, 115 yeas to 86 nays. (Ib.1468-69.)
[1183]Seeinfra, 535-36.
[1183]Seeinfra, 535-36.
[1184]Seeinfra, chap.x.
[1184]Seeinfra, 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, wchnot only proved abortive, but engendered rival, conflicting and angry regulations."
[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, wchnot 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)
[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)
[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.)
[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]SeeMonthly Law Reporter, New Series,x, 177.
[1188]SeeMonthly Law Reporter, New Series,x, 177.
[1189]Wirt to Carr, Feb. 1, 1824, Kennedy,ii, 164.
[1189]Wirt to Carr, Feb. 1, 1824, Kennedy,ii, 164.
[1190]Ib.
[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 Gibbonsvs.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 9A.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 Gibbonsvs.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 Gibbonsvs. 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.)
[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 Gibbonsvs.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 9A.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 Gibbonsvs.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 Gibbonsvs. 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.
[1192]9 Wheaton, 3.
[1193]9 Wheaton, 4-5.
[1193]9 Wheaton, 4-5.
[1194]Ib.6-9.
[1194]Ib.6-9.
[1195]Ib.9.
[1195]Ib.9.
[1196]Ib.11.
[1196]Ib.11.
[1197]Ib.11-12.
[1197]Ib.11-12.
[1198]9 Wheaton, 14.
[1198]9 Wheaton, 14.
[1199]Ib.24.
[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.
[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.
[1201]1 Brockenbrough, 430-31.
[1202]1 Brockenbrough, 431-32.
[1202]1 Brockenbrough, 431-32.
[1203]Webster to his brother, Feb. 15, 1824, Van Tyne, 102.
[1203]Webster to his brother, Feb. 15, 1824, Van Tyne, 102.
[1204]9 Wheaton, 186.
[1204]9 Wheaton, 186.
[1205]"We the Peopleof 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 thisConstitutionfor the United States of America." (Preamble to the Constitution of the United States.)
[1205]"We the Peopleof 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 thisConstitutionfor the United States of America." (Preamble to the Constitution of the United States.)
[1206]9 Wheaton, 187-88.
[1206]9 Wheaton, 187-88.
[1207]Ib.188-89.
[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, Articlei, Section 8.)
[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, Articlei, Section 8.)
[1209]9 Wheaton, 192-93.
[1209]9 Wheaton, 192-93.
[1210]9 Wheaton, 193-94.
[1210]9 Wheaton, 193-94.
[1211]Ib.195.
[1211]Ib.195.
[1212]9 Wheaton, 195-96.
[1212]9 Wheaton, 195-96.
[1213]Ib.196-97.
[1213]Ib.196-97.
[1214]9 Wheaton, 199-200.
[1214]9 Wheaton, 199-200.
[1215]9 Wheaton, 202-03.
[1215]9 Wheaton, 202-03.
[1216]Ib.203.
[1216]Ib.203.
[1217]9 Wheaton, 203-04.
[1217]9 Wheaton, 203-04.
[1218]Ib.204-05.
[1218]Ib.204-05.
[1219]Ib.205-06.
[1219]Ib.205-06.
[1220]9 Wheaton, 206-09.
[1220]9 Wheaton, 206-09.
[1221]Ib.209-10.
[1221]Ib.209-10.
[1222]9 Wheaton, 210-11. (Italics the author's.)
[1222]9 Wheaton, 210-11. (Italics the author's.)
[1223]Ib.211-12.
[1223]Ib.211-12.
[1224]Ib.214.
[1224]Ib.214.
[1225]9 Wheaton, 215-16.
[1225]9 Wheaton, 215-16.
[1226]Ib.216-18.
[1226]Ib.216-18.
[1227]Ib.218-20.
[1227]Ib.218-20.
[1228]9 Wheaton, 221.
[1228]9 Wheaton, 221.
[1229]Marshall is here referring particularly to Chancellor Kent.
[1229]Marshall is here referring particularly to Chancellor Kent.
[1230]9 Wheaton, 221-22.
[1230]9 Wheaton, 221-22.
[1231]9 Wheaton, 222. (Italics the author's.)
[1231]9 Wheaton, 222. (Italics the author's.)
[1232]9 Wheaton, 227.
[1232]9 Wheaton, 227.
[1233]9 Wheaton, 228-30.
[1233]9 Wheaton, 228-30.
[1234]Ib.231-32.
[1234]Ib.231-32.
[1235]New York Evening Post, March 5, 1824, as quoted in Warren, 395.
[1235]New York Evening Post, March 5, 1824, as quoted in Warren, 395.
[1236]Niles,xxvi, 54-62.
[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.)
[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'sChancery Reports, 151.
[1238]1 Hopkins'sChancery Reports, 151.
[1239]Ib.198.
[1239]Ib.198.
[1240]3 Cowen, 716-17.
[1240]3 Cowen, 716-17.
[1241]3 Cowen, 731-34.
[1241]3 Cowen, 731-34.
[1242]Ib.750.
[1242]Ib.750.
[1243]Ib.
[1243]Ib.
[1244]3 Cowen, 753-54.
[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).
[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.
[1246]Debates, 18th Cong. 2d Sess. 527-33.
[1247]Ib.588.
[1247]Ib.588.
[1248]Ib.609.
[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.
[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.
[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.)
[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.
[1252]Debates, 19th Cong. 1st Sess. 417-18.
[1253]Ib.419.
[1253]Ib.419.
[1254]Ib.420-21.
[1254]Ib.420-21.
[1255]Debates, 19th Cong. 1st Sess. 423-24.
[1255]Debates, 19th Cong. 1st Sess. 423-24.
[1256]Ib.436.
[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).
[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.
[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. (Seeinfra, 460.)
[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. (Seeinfra, 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.
[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.
[1261]12 Wheaton, 436.
[1262]12 Wheaton, 437-39.
[1262]12 Wheaton, 437-39.
[1263]Ib.441.
[1263]Ib.441.
[1264]Ib.441-42.
[1264]Ib.441-42.
[1265]12 Wheaton, 443-44.
[1265]12 Wheaton, 443-44.
[1266]Seeinfra, 536-38.
[1266]Seeinfra, 536-38.
[1267]12 Wheaton, 448-49.
[1267]12 Wheaton, 448-49.
[1268]5 Howard, 575.
[1268]5 Howard, 575.