The Life of John Marshall Volume IV Part 46

[1083] Marshall here refers to threats to resist forcibly the execution of the Tariff of 1824. See _infra_, 535-36.

[1084] 9 Wheaton, 847-48.

[1085] 9 Wheaton, 848-49.

[1086] 9 Wheaton, 849.

[1087] _Ib._ 852-53.

[1088] 9 Wheaton, 857. (Italics the author's.)

[1089] _Ib._ 858.

[1090] See _supra_, chap, VI.

[1091] 9 Wheaton, 859.

[1092] _Ib._ 859-60.

[1093] 9 Wheaton, 861-62.

[1094] _Ib._ 862-63.

[1095] 9 Wheaton, 866.

[1096] _Ib._ 868-69.

[1097] _Ib._ 871.

[1098] 9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is here referring to the threats of physical resistance to the proposed tariff law of 1824. (See _infra_, chap. X.)

[1099] _Ib._ 875-903.

[1100] _Annals_, 18th Cong. 1st Sess. 2514.

[1101] _Ib._ 2519-20.

[1102] _Ib._ 2527. This debate was most scantily reported. Webster wrote of it: "We had the Supreme Court before us yesterday.... A debate arose which lasted all day. Cohens _v._ Virginia, Green and Biddle, &c. were all discussed.... The proposition for the concurrence of five judges will not prevail." (Webster to Story, May 4, 1824, _Priv. Corres._: Webster, I, 350.)

[1103] _Annals_, 18th Cong. 1st Sess. 2538.

[1104] _Ib._ 2539.

[1105] _Annals_, 18th Cong. 1st Sess. 2541.

Throughout this session Webster appears to have been much disturbed. For example, as early as April 10, 1824, he writes Story: "I am exhausted.

When I look in the gla.s.s, I think of our old New England saying, 'As thin as a shad.' I have not vigor enough left, either mental or physical, to try an action for a.s.sault and battery.... I shall call up some bills reported by our [Judiciary] committee.... The gentlemen of the West will propose a clause, requiring the a.s.sent of a majority of all the judges to a judgment, which p.r.o.nounces a state law void, as being in violation of the const.i.tution or laws of the United States. Do you see any great evil in such a provision? Judge Todd told me he thought it would give great satisfaction in the West. In what phraseology would you make such a provision?" (Webster to Story, April 10, 1824, _Priv. Corres._: Webster, I, 348-49.)

[1106] See next chapter.

CHAPTER VIII

COMMERCE MADE FREE

Marshall's decision involved in its consequences the existence of the Union. (John F. Dillon.)

Opposing rights to the same thing cannot exist under the Const.i.tution of our country. (Chancellor Nathan Sanford.)

Sir, we shall keep on the windward side of treason, but we must combine to resist these encroachments,--and that effectually.

(John Randolph.)

That uncommon man who presides over the Supreme Court is, in all human probability, the ablest Judge now sitting on any judicial bench in the world. (Martin Van Buren.)

At six o'clock in the evening of August 9, 1803, a curious a.s.sembly of curious people was gathered at a certain spot on the banks of the Seine in Paris. They were gazing at a strange object on the river--the model of an invention which was to affect the destinies of the world more powerfully and permanently than the victories and defeats of all the armies that, for a dozen years thereafter, fought over the ancient battle-fields of Europe from Moscow to Madrid. The occasion was the first public exhibition of Robert Fulton's steamboat.

France was once more gathering her strength for the war which, in May, Great Britain had declared upon her; and Bonaparte, as First Consul, was in camp at Boulogne. Fulton had been experimenting for a long time, and the public exhibition now in progress would have been made months earlier had not an accident delayed it. His activities had been reported to Bonaparte, who promptly ordered members of the Inst.i.tute[1107] to attend the exhibition and report to him on the practicability of the invention, which, he wrote, and in italics, "_may change the face of the world_."[1108] Prominent, therefore, among the throng were these learned men, doubting and skeptical as mere learning usually is.

More conspicuous than Bonaparte's scientific agents, and as interested and confident as they were indifferent or scornful, was a tall man of distinguished bearing, whose powerful features, bold eyes, aggressive chin, and acquisitive nose indicated a character of unyielding determination, persistence, and hopefulness. This was the American Minister to France, Robert R. Livingston of New York, who, three months before, had conducted the Louisiana Purchase. By his side was Fulton himself, a man of medium height, slender and erect, whose intellectual brow and large, speculative eyes indicated the dreamer and contriver.

The French scientists were not impressed, and the French Government dropped consideration of the subject. But Fulton and Livingston were greatly encouraged. An engine designed by Fulton was ordered from a Birmingham manufacturer and, when constructed, was shipped to America.

For many years inventive minds had been at work on the problem of steam navigation. Because of the cost and difficulties of transportation, and the ever-growing demand for means of cheap and easy water carriage, the most active and fruitful efforts to solve the problem had been made in America.[1109] Livingston, then Chancellor of New York, had taken a deep and practical interest in the subject.[1110] He had constructed a boat on the Hudson, and was so confident of success that, five years before the Paris experiments of Fulton, he had procured from the New York Legislature an act giving him the exclusive right for twenty years to navigate by steamboats the streams and other waters of the State, provided that, within a year, he should build a boat making four miles an hour against the current of the Hudson.[1111] The only difficulty Livingston encountered in securing the pa.s.sage of this act was the amused incredulity of the legislators. The bill "was a standing subject of ridicule" and had to run the gamut of jokes, jeers, and raillery.[1112] The legislators did not object to granting a monopoly on New York waters for a century or for a thousand years,[1113] provided the navigation was by steam; but they required, in payment to themselves, the price of derision and laughter.

Livingston failed to meet in time the conditions of the steamboat act, but, with Livingston tenacity,[1114] persevered in his efforts to build a practicable vessel. When, in 1801, he arrived in Paris as American Minister, his mind was almost as full of the project as of his delicate and serious official tasks.

Robert Fulton was then living in the French Capital, working on his models of steamboats, submarines, and torpedoes, and striving to interest Napoleon in his inventions.[1115] Livingston and Fulton soon met; a mutual admiration, trust, and friendship followed and a partnership was formed.[1116] Livingston had left his interests in the hands of an alert and capable agent, Nicholas J. Roosevelt, who, in 1803, had no difficulty in securing from the now hilarious New York Legislature an extension of Livingston's monopoly for twenty years upon the same terms as the first.[1117] Livingston resigned his office and returned home. Within a year Fulton joined his partner.

The grant of 1803 was forfeited like the preceding one, because its conditions had not been complied with in time, and another act was pa.s.sed by the Legislature reviving the grant and extending it for two years.[1118] Thus encouraged and secured, Fulton and Livingston put forth every effort, and on Monday, August 17, 1807, four years and eight days after the dramatic exhibition on the river Seine in Paris, the North River,[1119] the first successful steamboat, made her voyage up the Hudson from New York to Albany[1120] and the success of the great enterprise was a.s.sured.

On April 11, 1808, a final law was enacted by the New York Legislature.

The period of ridicule had pa.s.sed; the members of that body now voted with serious knowledge of the possibilities of steam navigation. The new act provided that, for each new boat "established" on New York waters by Livingston and Fulton and their a.s.sociates, they should be "ent.i.tled to five years prolongation of their grant _or contract_ with this state,"

the "whole term" of their monopoly not to exceed thirty years. All other persons were forbidden to navigate New York waters by steam craft without a license from Livingston and Fulton; and any unlicensed vessel, "together with the engine, tackle and apparel thereof," should be forfeited to them.[1121]

Obedient to "the great G.o.d, Success," the public became as enthusiastic and friendly as it had been frigid and hostile and eagerly patronized this pleasant, cheap, and expeditious method of travel. The profits quickly justified the faith and perseverance of Livingston and Fulton.

Soon three boats were running between New York and Albany. The fare each way was seven dollars and proportionate charges were made for intermediate landings, of which there were eleven.[1122] Immediately the monopoly began operating steam ferryboats between New York City and New Jersey.[1123] Having such solid reason for optimism, Livingston and Fulton, with prudent foresight, leaped half a continent and placed steamboats on the Mississippi, the traffic of which they planned to control by securing from the Legislature of Orleans Territory the same exclusive privileges for steam navigation upon Louisiana waters, which included the mouth of the Mississippi,[1124] that New York had granted upon the waters of that State. Nicholas J. Roosevelt was put in charge of this enterprise, and in an incredibly short time the steamboat New Orleans was ploughing the turgid and treacherous currents of the great river.[1125]

It was not long, however, before troubles came--the first from New Jersey. Enterprising citizens of that State also built steamboats; but the owners of any vessel entering New York waters, even though acting merely as a ferry between Hoboken and New York City, must procure a license from Livingston and Fulton or forfeit their boats. From discontent at this condition the feelings of the people rose to resentment and then to anger. At last they determined to retaliate, and early in 1811 the New Jersey Legislature pa.s.sed an act authorizing the owner of any boat seized under the New York law, in turn to capture and hold any steam-propelled craft belonging "in part or in whole" to any citizen of New York; "which boat ... shall be forfeited ... to the ...

owner ... of such ... boats which may have been seized" under the New York law.[1126]

New York was not slow to reply. Her Legislature was in session when that of New Jersey thus declared commercial war. An act was speedily pa.s.sed providing that Livingston and Fulton might enforce at law or in equity the forfeiture of boats unlicensed by them, "as if the same had been tortiously and wrongfully taken out of their possession"; and that when such a suit was brought the defendants should be enjoined from running the boat or "removing the same or any part thereof out of the jurisdiction of the court."[1127]

Connecticut forbade any vessel licensed by Livingston and Fulton from entering Connecticut waters.[1128] The opposition to the New York steamboat monopoly was not, however, confined to other States. Citizens of New York defied it and began to run steam vessels on the Hudson.[1129] James Van Ingen and a.s.sociates were the first thus to challenge the exclusive "contract," as the New York law termed the franchise which the State had granted to Livingston and Fulton. Suit was brought against Van Ingen in the United States Circuit Court in New York, praying that Livingston and Fulton be "quieted in the possession,"

or in the exclusive right, to navigate the Hudson secured to them by two patents.[1130] The bill was dismissed for want of jurisdiction. Thus far the litigation was exclusively a State controversy. Upon the face of the record the National element did not appear; yet it was the governing issue raised by the dispute.