The Life of John Marshall
Chapter 260 : Immediately Livingston and Fulton sued Van Ingen and a.s.sociates in the New York Cour

Immediately Livingston and Fulton sued Van Ingen and a.s.sociates 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 Const.i.tution 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 fas.h.i.+on 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 antic.i.p.ated 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 crus.h.i.+ngly answered his arguments, a _precis_ of them must be given. It should be borne in mind that Kent was defending a law which, in a sense, was his own child; as a member of the New York Council of Revision, he had pa.s.sed upon and approved it before its pa.s.sage.

There could have been "no very obvious const.i.tutional objection" to the steamboat monopoly act, began Kent, "or it would not so repeatedly have escaped the notice of the several branches of the government[1133] when these acts were under consideration."[1134] There had been five acts all told;[1135] that of 1798 would surely have attracted attention since it was the first to be pa.s.sed on the subject after the National Const.i.tution 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 Const.i.tution, and "were masters of all the critical discussions" attending the adoption of that instrument.

This was peculiarly true of that "exalted character," John Jay, who was Governor at that time; and "who was distinguished, as well in the _council of revision_, as elsewhere, for the scrupulous care and profound attention with which he examined every question of a const.i.tutional nature."[1136] The Act of 1811 was pa.s.sed 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 const.i.tutional."[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, ca.n.a.l and bridge companies. "The legislative power in a _single, independent government_, extends to every proper object of power, and is limited only by its own const.i.tutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind."[1138] In what respect did the steamboat monopoly violate any of these restrictions?

In no respect. "It interfered with no man's property." Everybody could freely use the waters of New York in the same manner that he had done before. So there was "no violation of first principles."[1139]

Neither did the New York steamboat acts violate the National Const.i.tution. State and Nation are "supreme within their respective const.i.tutional spheres." It is true that when National and State laws "come directly in contact, as when they are aimed at each other," those of the State "must yield"; but State Legislatures cannot all the time be on the watch for some possible future collision. The only "safe rule of construction" is this: "If any given power was originally vested in this State, if it has not been exclusively ceded to Congress, or if the exercise of it has not been prohibited to the States, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some congressional power."[1140]

The power given Congress to regulate commerce is not, "in express terms, exclusive, and the only prohibition upon the States" in this regard concerns the making of treaties and the laying of tonnage import or export duties. All commerce within a State is "exclusively" within the power of that State.[1141] Therefore, New York's steamboat grant to Livingston and Fulton is valid. It conflicts with no act of Congress, according to Kent, who cannot "perceive any power which ... can lawfully carry to that extent." If Congress has any control whatever over New York waters, it is concurrent with that of the State, and even then, "no further than may be incidental and requisite to the due regulation of commerce between the States, and with foreign nations."[1142]

Kent then plunges into an appalling ma.s.s 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 sh.o.r.e, combined with one Thomas Gibbons, who operated a boat between New Jersey landings, to exchange pa.s.sengers 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 partners.h.i.+p with Ogden he, in reality, carried pa.s.sengers from New York to various points in New Jersey. In fact, Ogden and Gibbons had a common traffic agent in New York who booked pa.s.sengers for routes, to travel which required the service of the boats of both Ogden and Gibbons.

So ran the allegations of the bill for an injunction against the offending carriers filed in the New York Court of Chancery by the steamboat monopoly in the spring of 1819. Ogden answered that his license applied only to waters "_exclusively_ within the state of New-York," and that the waters lying between the New Jersey ports "are within the jurisdiction of _New Jersey_." Gibbons admitted that he ran a boat between New Jersey ports under "a coasting _license_" from the National Government. He denied, however, that the monopoly had "any exclusive right" to run steamboats from New York to New Jersey. Both Ogden and Gibbons disclaimed that they ran boats in combination, or by agreement with each other.[1146]

Kent, now Chancellor, declared that a New York statute[1147] a.s.serted 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 Na.s.sau Island." He refused to enjoin Ogden because he operated his boat under license of the steamboat monopoly; but did enjoin Gibbons "from navigating the waters in the bay of New-York, or Hudson river, between Staten Island and Powles Hook."[1148]

Ogden was content, but Gibbons, thoroughly angered by the harshness of the steamboat monopoly and by the decree of Chancellor Kent, began to run boats regularly between New York and New Jersey in direct compet.i.tion with Ogden.[1149] To stop his former a.s.sociate, 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, a.s.serting that by virtue of this license he was ent.i.tled 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 a.s.signed to Gibbons.[1150]

Kent held that the act of Congress,[1151] concerning the enrollment and licensing of vessels for the coasting trade, conferred no right "incompatible with an exclusive right in Livingston and Fulton" to navigate New York waters.[1152] The validity of the steamboat monopoly laws had been settled by the decision of the Court of Errors in Livingston _vs._ Van Ingen.[1153] If a National law gave to all vessels, "duly licensed" by the National Government, the right to navigate all waters "within the several states," despite State laws to the contrary, the National statute would "overrule and set aside" the incompatible legislation of the States. "The only question that could arise in such a case, would be, whether the [National] law was const.i.tutional." But that was not the situation; "there is no collision between the act of Congress and the acts of this State, creating the steam-boat monopoly."

At least "some judicial decision of the supreme power of the Union, acting upon those laws, in direct collision and conflict" with them, is necessary before the courts of New York "can retire from the support and defence of them."[1154]

Undismayed, Gibbons lost no time in appealing to the New York Court of Errors, and in January, 1820, Justice Jonas Platt delivered the opinion of that tribunal. Immediately after the decision in Livingston _vs._ Van Ingen, he said, many, who formerly had resisted the steamboat monopoly law, acquiesced in the judgment of the State's highest court and secured licenses from Livingston and Fulton. Ogden was one of these. The Court of Errors rejected Gibbons's defense, followed Chancellor Kent's opinion, and affirmed his decree.[1155]

[Ill.u.s.tration: _John Marshall_ _From a painting by J. B. Martin, in the University of Virginia_]

Thus did the famous case of Gibbons _vs._ Ogden reach the Supreme Court of the United States; thus was John Marshall given the opportunity to deliver the last but one of his greatest nation-making opinions--an opinion which, in the judgment of most lawyers and jurists, is second only to that in M'Culloch _vs._ Maryland in ability and statesmans.h.i.+p.

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

The Supreme Court, the bar, and the public antic.i.p.ated 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 t.i.tle by his efforts in the Dartmouth College case and in M'Culloch _vs._ Maryland.[1156] It was expected that the steamboat monopoly argument would be made at the February session of 1821, and Story wrote to a friend that "the arguments will be very splendid."[1157]

But, on March 16, 1821, the case was dismissed because the record did not show that there was a final decree in the court "from which said appeal was made."[1158] On January 10, 1822, the case was again docketed, but was continued at each term of the Supreme Court thereafter until February, 1824. Thus, nearly four years elapsed from the time the appeal was first taken until argument was heard.[1159]

By the time the question was at last submitted to Marshall, transportation had become the most pressing and important of all economic and social problems confronting the Nation, excepting only that of slavery; nor was any so unsettled, so confused.

Localism had joined hands with monopoly--at the most widely separated points in the Republic, States had granted "exclusive privileges" to the navigation of "State waters." At the time that the last steamboat grant was made by New York to Livingston and Fulton, in 1811, the Legislature of the Territory of Orleans pa.s.sed, 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 quant.i.ty 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 Ma.s.sachusetts 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 Hamps.h.i.+re 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 fas.h.i.+on that wrecked the States under the Confederation.[1165]

But this ancient monopolistic process could not keep pace with the prodigious development of water travel and transportation by steamboat.

On every river, on every lake, glided these steam-driven vessels. Their hoa.r.s.e 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 sh.o.r.e.[1167] They carried throngs of pa.s.sengers and an ever-swelling volume of freight. Tobacco, pork, beef, flour, corn-meal, whiskey--all the products of the West[1168] were borne to market on the decks of steamboats which, on the return voyage, were piled high with manufactured goods.

River navigation was impeded, however, by snags, sandbars, and shallows, while the traffic overland was made difficult, dangerous, and expensive by atrocious roads. Next to the frantic desire to unburden themselves of debt by "relief laws" and other forms of legislative contract-breaking, the thought uppermost in the minds of the people was the improvement of means of communication and transportation. This popular demand was voiced in the second session of the Fourteenth Congress. On December 16, 1816, John C. Calhoun brought the subject before the House.[1169] Four days later he reported a bill to devote to internal improvements "the bonus of the National bank and the United States's share of its dividends."[1170] It met strenuous opposition, chiefly on the ground that Congress had no Const.i.tutional 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 pa.s.sed.[1173]

The last official act of President James Madison was the veto of this first bill for internal improvements pa.s.sed 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 Const.i.tution." 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 ca.n.a.ls, and to improve the navigation of water courses." Nor did the "'common defense and general welfare'" clause justify Congress in pa.s.sing 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 a.s.sent of the States."[1176] For two weeks this resolution was debated.[1177] Every phase of the power of Congress to regulate commerce was examined. And so the controversy went on year after year.

Three weeks before the argument of Gibbons _vs._ Ogden came on in the Supreme Court, a debate began in Congress over a bill to appropriate funds for surveying roads and ca.n.a.ls, and continued during all the time that the court was considering the case. It was going on, indeed, when Marshall delivered his opinion and lasted for several weeks. Once more the respective powers of State and Nation over internal improvements, over commerce, over almost everything, were threshed out. As was usual with him, John Randolph supplied the climax of the debate.

Three days previous to the argument of Gibbons _vs._ Ogden before Marshall and his a.s.sociates, 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 Const.i.tution, 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 pa.s.sage of contemptuous eloquence.[1178] When, in the election of 1800, continued Randolph, the Federalists were overthrown, and "the construction of the Const.i.tution 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 ca.n.a.ls], ... they may _emanc.i.p.ate 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 Const.i.tution?... 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 pa.s.s, 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 Const.i.tutional construction were to be denounced in language almost as strong as that of Randolph on internal improvements.[1183] The Chief Justice and his a.s.sociates were keenly alive to this agitation; they well knew that the principles to be upheld in Gibbons _vs._ Ogden would affect other interests and concern other issues than those directly involved in that case.

So it was, then, when the steamboat monopoly case came on for hearing, that two groups of interests were in conflict. State Sovereignty standing for exclusive privileges as chief combatant, with Free Trade and Slavery as brothers in arms, confronted Nationalism, standing at that moment for the power of the Nation over all commerce as the princ.i.p.al combatant, with a Protective Tariff and Emanc.i.p.ation as its most effective allies. Fate had interwoven subjects that neither logically nor naturally had any kins.h.i.+p.[1184]

The specific question to be decided was whether the New York steamboat monopoly laws violated that provision of the National Const.i.tution 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 Const.i.tutional Convention in Philadelphia the following year.[1185] Since the adoption of uniform commercial regulations was the prime object of the Convention, there was no disagreement as to, or discussion of, the propriety of giving Congress full power over that subject. Every draft except one[1186] of the Committee of Detail, the Committee of Style, and the notes taken by members contained some reference to a clause to that effect.[1187]

The earliest exposition of the commerce clause of the Const.i.tution by any eminent National authority, therefore, came from John Marshall. In his opinion in Gibbons _vs._ Ogden he spoke the first and last authoritative word on that crucial subject.

Pinkney was fatally ill when the Supreme Court convened in 1822 and died during that session. His death was a heavy blow to the steamboat monopoly, and his loss was not easily made good. It was finally decided to employ Thomas J. Oakley, Attorney-General of New York, a cold, clear reasoner, and carefully trained lawyer, but lacking imagination, warmth, or breadth of vision.[1188] He was not an adequate subst.i.tute 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 Caesar," and "will not be outdone by any man, if it is within the compa.s.s 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 a.s.sistance of a.s.sociate counsel was concerned, Webster's address, unlike that in the Dartmouth College case, was all his own. It is true that every point he made had been repeated many times in the Congressional debates over internal improvements, or before the New York courts in the steamboat litigation. But these facts do not detract from the credit that is rightfully Webster's for his tremendous argument in Gibbons _vs._ Ogden.

He began by admissions--a dangerous method and one which only a man of highest power can safely employ. The steamboat monopoly law had been "deliberately re-enacted," he said, and afterwards had the "sanction" of various New York courts," than which there were few, if any, in the country, more justly ent.i.tled 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 const.i.tution 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 Const.i.tution. "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 Const.i.tution was to "rescue"

commerce "from the embarra.s.sing 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 establis.h.i.+ng the present Government was "to benefit and improve" trade.