THE NATIONAL SUPREMACY OVER FOREIGN

AND INTERSTATE COMMERCE.

No more impressive example of the great and permanent influence and value of Marshall's constitutional decisions exists than in what is known as the great New York Steamboat Case, next given, reported under the name of Gibbons v. Ogden, decided in 1824. It is the first case that construed, in any important particular, the commerce clause of the Constitution. The doctrines of this case remain in full force until this day.

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The most efficient cause of the formation of the Union under the Constitution was the selfish and conflicting regulations of the different States in respect of commerce, each trying to secure an advantage over the others, there being no power under the Articles of Confederation to regulate or control this vital subject.1 perience led to a provision in the Constitution words: "The Congress shall have power ulate commerce with foreign nations and among the several States." This power, as respects foreign and domestic commerce, is contained in eleven words "to regulate commerce with foreign nations and among the several States." There is, most wisely, no attempt to define what is "commerce," or what is meant by "regulation." The Steamboat Case involved the respective powers of Congress and the States over the all-important subject of commerce. It attracted the attention of the whole country.

1 See note at end of this case in the present volume. 2 Art. I, sec. 8, par. 3.

The circumstances out of which that case arose and under which the decision of Marshall was made are not only extremely interesting, but should be borne in mind. as showing Marshall's judicial courage in overruling the New York view so long maintained and supported by such great names.1

There were enacted by the State of New York five different statutes between 1798 and 1811, granting or confirming to Livingston and Fulton, or one of them, the exclusive right of using steamboats upon all the navigable rivers, bays and waters within the limits and jurisdiction of the State of New York for a specified term of years. One provision was that for each additional boat which could be propelled by steam with or against the current of the Hudson River, at not less than four miles an hour, they should be entitled to five years' extension to their grant, not to exceed thirty years. For such period the State granted a monopoly, under pain of forfeiture of boats and vessels owned by others which should violate the exclusive right granted to Livingston and Fulton. These acts recited that the inducement to the grant was to encourage the grantee to engage in the hazard of making expensive experiments in improving steam navigation.

In 1812 the highest court of New York, in Livingston v. Van Ingen, sustained the validity of this grant, holding that it was not repugnant to the commerce clause of the Constitution of the United States, and was, at all

1 Marshall Memorial, I, 375–379; and see references to the Marshall Memorial in the note at the end of case in the present publication. Further as to this celebrated cause see Kent, Com. (12th Ed.), I, 432 et seq.; Prof. James B. Thayer, "John Marshall," 88, 89; Magruder's "John Marshall," 173-175; Van Santvoord, "Lives of Chief Justices," 412.

29 Johnson's Reports, 507 (1812).

events, good until Congress should enact a statute which would conflict with the right granted by the State of New York.

The grounds and reasons in favor of sustaining the legislation of the State were stated by Chancellor Kent with great force. He pointed out that this legislation extended over a period of fourteen years, the first act having been passed by men familiar with the discussions which attended the adoption of the Constitution when Jay was Governor, had been approved by the Council of Revision, and the last act was passed after the State grant was drawn into question; that the States retained all powers not clearly surrendered to the General Government, including, he said, "all the internal commerce of the State by land and water; that the Hudson River is the property of the people of this State, and the Legislature had the same jurisdiction over it that they have over the land or over any of our public highways, and that the Congressional power relates to external and not to internal commerce, and is confined to a regulation of external commerce, and all the internal commerce of the State by land and water remains entirely, and I may say exclusively, within the scope of the original sovereignty of the State." Accordingly, the defendants were absolutely enjoined, in favor of Livingston and Fulton, from navigating the Hudson with their steamboat, the "Hope," and carrying passengers on that river from New York to Albany.

Livingston, the grantee, was the celebrated chancellor and was distinguished for his eminent and patriotic services in the establishment of the Union. He had for many years been engaged in schemes of steam naviga

19 Johns. 507, 572, 578.

tion, and when he was the minister of our country at Paris accidentally met Robert Fulton. An experimental boat was put upon the Seine, Livingston furnishing the funds; Fulton devised the engine and ordered it from the celebrated inventor and manufacturer, Watt. The Legislature of New York renewed the exclusive grant to Livingston and Fulton. The "Clermont," a vessel of one hundred and fifty-five tons burden, one hundred and thirty-two feet long, eighteen feet wide and seven feet deep, was launched on the East River, and departed for Albany in September, 1807, from a dock on the Hudson River, making the trip of one hundred and fifty miles in thirty-two hours. The success was complete. Other vessels were built, and the steamboat service fully and finally established. Fulton, though not the original inventor of steam navigation, is now admitted to be entitled to the honor of having been the first who successfully applied steam to navigation. Practically the "Clermont" had navigated. Under these grants and under the decision of the highest court of New York, already mentioned, made in 1812, a large amount of money had been invested in the construction of steamboats. Afterwards, 1818, in this condition of affairs, the case of Gibbons against Ogden was brought in the Court of Chancery in New York.

Chancellor Kent enjoined the defendant Ogden from running a steamboat between Elizabethtown, in New Jersey, and the City of New York, holding that the question had, after an elaborate and profound discussion, been decided in the previous case of Livingston v. Van Ingen. At the January term, 1820, the highest court of the State unanimously affirmed Chancellor Kent's order, holding the exclusive monopoly in the grants made by the Legis

lature of New York to be valid, and that the Court of Chancery had the power to restrain citizens of another State from navigating the waters of New York with vessels propelled by steam, although such vessels may have been duly enrolled and licensed under the laws of the United States as coasting vessels. It was this last case that came before the Supreme Court of the United States. That court reversed the decree of the New York courts and held that the power of the General Government to regulate commerce extends to navigation in the waters throughout the entire Union, and does not stop at the external boundary of a State, and that the grants to Livingston and Fulton of an exclusive right to navigate all waters within the jurisdiction of the State of New York, by steamboats, was inoperative as against the laws of the United States regulating the coasting trade, and could not restrain vessels licensed under these laws from navigating waters within the jurisdiction of a State in the prosecution of such trade.

The cause was argued in the Supreme Court by counsel of the greatest eminence; Wirt and Webster against the constitutionality of the New York legislation; Emmet and Oakley in favor of it. The opinion of the Supreme

1 The substance of the legal points in Wirt's argument, written out by himself, may be seen in Wheaton's Reports, including a characteristic rhetorical display in the peroration, in reply to Emmet. On February 1, 1824, Wirt thus writes to his friend Judge Carr: "About to-morrow week will come on the great Steamboat question from New York. Emmet and Oakley on one side, Webster and myself on the other. Come down and hear it. Oakley is said to be one of the first logicians of the age. Webster is as ambitious as Cæsar. He will not be outdone by any man, if it is within the compass of his power to avoid it. It will be a combat worth witnessing. I have the last speech, and have yet to study the cause; but I know