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 passage of contemptuous eloquence.[1178] When, in the election of 1800, continued Randolph, the Federalists were overthrown, and "the construction of the Constitution 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 canals], ... they may emancipate 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 Constitution?... 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 pass, 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 Constitutional construction were to be denounced in language almost as strong as that of Randolph on internal improvements.[1183] The Chief Justice and his associates 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 principal combatant, with a Protective Tariff and Emancipation as its most effective allies. Fate had interwoven subjects that neither logically nor naturally had any kinship.[1184]
The specific question to be decided was whether the New York steamboat monopoly laws violated that provision of the National Constitution 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 Constitutional 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 Constitution 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 substitute 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]