The Life of John Marshall, Volume 4: The building of the nation, 1815-1835

by Albert J. Beveridge

Immediately Livingston and Fulton sued Van Ingen and associates 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 Constitution 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 fashion 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 anticipated 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 crushingly answered his arguments, a précis 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 passed upon and approved it before its passage.

There could have been "no very obvious constitutional 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 passed on the subject after the National Constitution 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 Constitution, 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 constitutional nature."[1136] The Act of 1811 was passed 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 constitutional."[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, canal 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 constitutional 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 Constitution. State and Nation are "supreme within their respective constitutional 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 mass 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 shore, combined with one Thomas Gibbons, who operated a boat between New Jersey landings, to exchange passengers 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 partnership with Ogden he, in reality, carried passengers from New York to various points in New Jersey. In fact, Ogden and Gibbons had a common traffic agent in New York who booked passengers 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]