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 passed, 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 quantity 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 Massachusetts 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 Hampshire 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 fashion 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. On every river, on every lake, glided these steam-driven vessels. Their hoarse 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 shore.[1167] They carried throngs of passengers 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 Constitutional 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 passed.[1173]
The last official act of President James Madison was the veto of this first bill for internal improvements passed 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 Constitution." 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 canals, and to improve the navigation of water courses." Nor did the "'common defense and general welfare'" clause justify Congress in passing 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 assent 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 canals, 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 associates, 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 Constitution, 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.