Volume IV Part 47 (2/2)
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.
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