Volume IV Part 47 (1/2)

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.