Volume IV Part 49 (1/2)
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 Const.i.tution. That instrument did not originate liberty of trade: ”The law of nations ... p.r.o.nounces 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 Were the whole of them ”repealed to-morrow, all commerce would be lawful.”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.... s.h.i.+pbuilding, 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 const.i.tution, 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licensing act was repealed to-morrow,” Gibbons's right to the free navigation of New York waters ”would be as strong as it is under this license.”[1234]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 astonis.h.i.+ng opinion in Gibbons _vs._ Ogden is conclusive proof of the mastery the Chief Justice had acquired over his Republican a.s.sociate, or else of the 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 p.r.o.nounced a ”popular” opinion. The press acclaimed him as the deliverer of the Nation from thralldom to monopoly. His opinion, records the _New 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 pa.s.sages 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 Post_ of March 8 declared that it would ”command the a.s.sent 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 Gibbons _vs._ Ogden changed into applause that disfavor which his opinion in M'Culloch _vs._ 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 a.s.sertion 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 statesmans.h.i.+p as set forth in his outgiving in Gibbons _vs._ Ogden.
It is not immoderate to say that no other judicial p.r.o.nouncement 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, n.o.body 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 statesmans.h.i.+p, 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, a.s.signee 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 const.i.tutional laws of the union, and the nullity of state laws inconsistent with such laws of the union, are principles of the const.i.tution 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 const.i.tution 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 a.n.a.lyzes 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 const.i.tution ... should be so construed as best to promote the great objects for which it was made”; among them a princ.i.p.al 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 encroachments on their part.”[1244] In such ringing terms did Savage endorse Marshall's opinion in Gibbons _vs._ 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 Gibbons _vs._ 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 a.s.sailants 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 Was.h.i.+ngton) 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 House a bill increasing to ten the members.h.i.+p of the Supreme Court and rearranging the circuits.[1250] This measure pa.s.sed 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 astonis.h.i.+ng 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]