The Life of John Marshall Volume IV Part 48

This, said Webster, was proved by the undisputed history of the period preceding the Const.i.tution.[1197]

What commerce is to be regulated by Congress? Not that of the several States, but that of the Nation as a "unit." Therefore, the regulation of it "must necessarily be complete, entire and uniform. Its character was to be described in the flag which waved over it, _E Pluribus Unum_." Of consequence, Congressional regulation of commerce must be "exclusive."

Individual States cannot "a.s.sert a right of concurrent legislation, ...

without manifest encroachment and confusion."[1198]

If New York can grant a monopoly over New York Bay, so can Virginia over the entrance of the Chesapeake, so can Ma.s.sachusetts over the bay bearing the name and under the jurisdiction of that State. Worse still, every State may grant "an exclusive right of entry of vessels into her ports."[1199]

Oakley, Emmet, and Wirt exhausted the learning then extant on every point involved in the controversy. Not even Pinkney at his best ever was more thorough than was Emmet in his superb argument in Gibbons _vs._ Ogden.[1200]

The small information possessed by the most careful and thorough lawyers at that time concerning important decisions in the Circuit Courts of the United States, even when rendered by the Chief Justice himself, is startlingly revealed in all these arguments. Only four years previously, Marshall, at Richmond, had rendered an opinion in which he a.s.serted the power of Congress over commerce as emphatically as Webster or Wirt now insisted upon it. This opinion would have greatly strengthened their arguments, and undoubtedly they would have cited it had they known of it. But neither Wirt nor Webster made the slightest reference to the case of the Brig Wilson _vs._ The United States, decided during the May term, 1820.

One offense charged in the libel of that vessel by the National Government was, that she had brought into Virginia certain negroes in violation of the laws of that State and in contravention of the act of Congress forbidding the importation of negroes into States whose laws prohibited their admission. Was this act of Congress Const.i.tutional? The power to pa.s.s such a law is, says Marshall, "derived entirely" from that clause of the Const.i.tution which "enables Congress, 'to regulate commerce with foreign nations, and among the several States.'"[1201]

This power includes navigation. The authority to forbid foreign ships to enter our ports comes exclusively from the commerce clause. "If this power over vessels is not in Congress, where does it reside? Does it reside in the States?

"No American politician has ever been so extravagant as to contend for this. No man has been wild enough to maintain, that, although the power to regulate commerce, gives Congress an unlimited power over the cargoes, it does not enable that body to control the vehicle in which they are imported: that, while the whole power of commerce is vested in Congress, the state legislatures may confiscate every vessel which enters their ports, and Congress is unable to prevent their entry."

The truth, continues Marshall, is that "even an empty vessel, or a packet, employed solely in the conveyance of pa.s.sengers and letters, may be regulated and forfeited" under a National law. "There is not, in the Const.i.tution, one syllable on the subject of navigation. And yet, every power that pertains to navigation has been ... rightfully exercised by Congress. From the adoption of the Const.i.tution, till this time, the universal sense of America has been, that the word commerce, as used in that instrument, is to be considered a generic term, comprehending navigation, or, that a control over navigation is necessarily incidental to the power to regulate commerce."[1202]

Here was a weapon which Webster could have wielded with effect, but he was unaware that it existed--a fact the more remarkable in that both Webster and Emmet commented, in their arguments, upon State laws that prohibited the admission of negroes.

But Webster never doubted that the court's decision would be against the New York steamboat monopoly laws. "Our Steam Boat case is not yet decided, but it _can go but one way_," he wrote his brother a week after the argument.[1203]

On March 2, 1824, Marshall delivered that opinion which has done more to knit the American people into an indivisible Nation than any other one force in our history, excepting only war. In Marbury _vs._ Madison he established that fundamental principle of liberty that a permanent written const.i.tution controls a temporary Congress; in Fletcher _vs._ Peck, in Sturges _vs._ Crowninshield, and in the Dartmouth College case he a.s.serted the sanct.i.ty of good faith; in M'Culloch _vs._ Maryland and Cohens _vs._ Virginia he made the Government of the American people a living thing; but in Gibbons _vs._ Ogden he welded that people into a unit by the force of their mutual interests.

The validity of the steamboat monopoly laws of New York, declares Marshall, has been repeatedly upheld by the Legislature, the Council of Revision, and the various courts of that State, and is "supported by great names--by names which have all the t.i.tles to consideration that virtue, intelligence, and office, can bestow."[1204] Having paid this tribute to Chancellor Kent--for every word of it was meant for that great jurist--Marshall takes up the capital question of construction.

It is urged, he says, that, before the adoption of the Const.i.tution, the States "were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of Amba.s.sadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws ... the whole character" of the States "underwent a change, the extent of which must be determined by a fair consideration" of the Const.i.tution.

Why ought the powers "expressly granted" to the National Government to be "construed strictly," as many insist that they should be? "Is there one sentence in the const.i.tution which gives countenance to this rule?"

None has been pointed out; none exists. What is meant by "a strict construction"? Is it "that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be inst.i.tuted,[1205] and to which the powers given, as fairly understood, render it competent"? The court cannot adopt such a rule for expounding the Const.i.tution.[1206]

Just as men, "whose intentions require no concealment," use plain words to express their meaning, so did "the enlightened patriots who framed our const.i.tution," and so did "the people who adopted it." Surely they "intended what they have said." If any serious doubt of their meaning arises, concerning the extent of any power, "the objects for which it was given ... should have great influence in the construction."[1207]

Apply this common-sense rule to the commerce clause of the Const.i.tution.[1208] What does the word "commerce" mean? Strict constructionists, like the advocates of the New York steamboat monopoly, "limit it to ... buying and selling ... and do not admit that it comprehends navigation." But why not navigation? "Commerce ... is traffic, but it is something more; it is intercourse." If this is not true, then the National Government can make no law concerning American vessels--"yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands ... the word 'commerce' to comprehend navigation.... The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government.... The attempt to restrict it [the meaning of the word "commerce"] comes too late."

Was not the object of the Embargo, which "engaged the attention of every man in the United States," avowedly "the protection of commerce?... By its friends and its enemies that law was treated as a commercial, not as a war measure." Indeed, its very object was "the avoiding of war."

Resistance to it was based, not on the denial that Congress can regulate commerce, but on the ground that "a perpetual embargo was the annihilation, and not the regulation of commerce." This ill.u.s.tration proves that "the universal understanding of the American people" was, and is, that "a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.'"[1209]

n.o.body denies that the National Government has unlimited power over foreign commerce--"no sort of trade can be carried on between this country and any other, to which this power does not extend." The same is true of commerce among the States. The power of the National Government over trade with foreign nations, and "among" the several States, is conferred in the same sentence of the Const.i.tution, and "must carry the same meaning throughout the sentence.... The word 'among' means intermingled with." So "commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior." This does not, of course, include the "completely interior traffic of a state."[1210]

Everybody knows that foreign commerce is that of the whole Nation and not of its parts. "Every district has a right to partic.i.p.ate in it. The deep streams which penetrate our country in every direction, pa.s.s through the interior of almost every state in the Union." The power to regulate this commerce "must be exercised whenever the subject exists.

If it exists within a state, if a foreign voyage may commence or terminate within a state, then the power of Congress may be exercised within a state."[1211]

If possible, "this principle ... is still more clear, when applied to commerce 'among the several states.' They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other states lie between them.... Can a trading expedition between two adjoining states commence and terminate outside of each?" The very idea is absurd. And must not commerce between States "remote" from one another, pa.s.s through States lying between them? The power to regulate this commerce is in the National Government.[1212]

What is this power to "regulate commerce"? It is the power "to prescribe the rule by which commerce is to be governed. This power ... is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the const.i.tution;" and these do not affect the present case. Power over interstate commerce "is vested in Congress as absolutely as it would be in a single government"

under a Const.i.tution like ours. There is no danger that Congress will abuse this power, because "the wisdom and the discretion of Congress, their ident.i.ty with the people, and the influence which their const.i.tuents possess at election, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse.

They are restraints on which the people must often rely solely, in all representative governments." The upshot of the whole dispute is, declares Marshall, that Congress has power over navigation "within the limits of every state ... so far as that navigation may be, in any manner, connected" with foreign or interstate trade.[1213]

Marshall tries to answer the a.s.sertion that the power to regulate commerce is concurrent in Congress and the State Legislatures; but, in doing so, he is diffuse, prolix, and indirect. There is, he insists, no a.n.a.logy between the taxing power of Congress and its power to regulate commerce; the former "does not interfere with the power of the states to tax for the support of their own governments." In levying such taxes, the States "are not doing what Congress is empowered to do." But when a State regulates foreign or interstate commerce, "it is exercising the very power ... and doing the very thing which Congress is authorized to do." However, says Marshall evasively, in the case before the court the question whether Congress has exclusive power over commerce, or whether the States can exercise it until Congress acts, may be dismissed, since Congress has legislated on the subject. So the only practical question is: "Can a state regulate commerce with foreign nations and among the states while Congress is regulating it?"[1214]

The argument is not sound that, since the States are expressly forbidden to levy duties on tonnage, exports, and imports which they might otherwise have levied, they may exercise other commercial regulations, not in like manner expressly prohibited. For the taxation of exports, imports, and tonnage is a part of the general taxing power and is not connected with the power to regulate commerce. It is true that duties on tonnage often are laid "with a view to the regulation of commerce; but they may be also imposed with a view to revenue," and, therefore, the States are prohibited from laying such taxes. There is a vast difference between taxation for the regulation of commerce and taxation for raising revenue. "Those ill.u.s.trious statesmen and patriots" who launched the Revolution and framed the Const.i.tution understood and acted upon this distinction: "The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed."[1215]

In the same way, State inspection laws, while influencing commerce, do not flow from a power to regulate commerce. The purpose of inspection laws is "to improve the quality of the articles produced by the labor of the country.... They act upon the subject before it becomes an article"

of foreign or interstate commerce. Such laws "form a portion of that immense ma.s.s of legislation which embraces everything within the territory of a state," and "which can be most advantageously exercised by the states themselves." Of this description are "inspection laws, quarantine laws, health laws ... as well as laws for regulating the internal commerce of a state, and those which respect turnpike-roads, ferries, etc."[1216]

Legislation upon all these subjects is a matter of State concern--Congress can act upon them only "for national purposes ...

where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given." Obviously, however, the National Government "in the exercise of its express powers, that, for example, of regulating [foreign and interstate] commerce ... may use means that may also be employed by a state, ... that, for example, of regulating commerce within the state." The National coasting laws, though operating upon ports within the same State, imply "no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police." State laws on these subjects, although of the "same character" as those of Congress, do not flow from the same source whence the National laws flow, "but from some other, which remains with the state, and may be executed by the same means."

Although identical measures may proceed from different powers, "this does not prove that the powers themselves are identical."[1217]

It is inevitable in a "complex system" of government like ours that "contests respecting power must arise" between State and Nation. But this "does not prove that one is exercising, or has a right to exercise, the powers of the other."[1218] It cannot be inferred from National statutes requiring National officials to "conform to, and a.s.sist in the execution of the quarantine and health laws of a state ... that a state may rightfully regulate commerce"; such laws flow from "the acknowledged power of a state, to provide for the health of its citizens."

Nevertheless, "Congress may control the state [quarantine and health]

laws, so far as it may be necessary to control them, for the regulation of commerce."[1219]

Marshall a.n.a.lyzes, at excessive length, National and State laws on the importation of slaves, on pilots, on lighthouses,[1220] to show that such legislation does not justify the inference that "the states possess, concurrently" with Congress, "the power to regulate commerce with foreign nations and among the states."

In the regulation of "their own purely internal affairs," States may pa.s.s laws which, although in themselves proper, become invalid when they interfere with a National law. Is this the case with the New York steamboat monopoly acts? Have they "come into collision with an act of Congress, and deprived a citizen of a right to which that act ent.i.tles him"? If so, it matters not whether the State laws are the exercise of a concurrent power to regulate commerce, or of a power to "regulate their domestic trade and police." In either case, "the acts of New York must yield to the law of Congress."[1221]

This truth is "founded as well on the nature of the government as on the words of the const.i.tution." The theory that if State and Nation each rightfully pa.s.s conflicting laws on the same subject, "they affect the subject, and each other, like equal opposing powers," is demolished by the "supremacy" of the Const.i.tution and "of the laws made in pursuance of it. The nullity of _any act_, inconsistent with the const.i.tution, is produced by the declaration that the const.i.tution is the supreme law."

So when a State statute, enacted under uncontrovertible State powers, conflicts with a law, treaty, or the Const.i.tution of the Nation, the State enactment "must yield to it."[1222]

It is not the Const.i.tution, but "those laws whose authority is acknowledged by civilized man throughout the world" that "confer the right of intercourse between state and state.... The const.i.tution found it an existing right, and gave to Congress the power to regulate it. In the exercise of this power, Congress has pa.s.sed an act" regulating the coasting trade. Any law "must imply a power to exercise the right" it confers. How absurd, then, the contention that, while the State of New York cannot prevent a vessel licensed under the National coasting law, when proceeding from a port in New Jersey to one in New York, "from enjoying ... all the privileges conferred by the act of Congress,"

nevertheless, the State of New York "can shut her up in her own port, and prohibit altogether her entering the waters and ports of another state"![1223]

A National license to engage in the coasting trade gives the right to navigate between ports of different States.[1224] The fact that Gibbons's boats carried pa.s.sengers only did not make those vessels any the less engaged in the coasting trade than if they carried nothing but merchandise--"no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire, and property for hire.... A coasting vessel employed in the transportation of pa.s.sengers, is as much a portion of the American marine as one employed in the transportation of a cargo."[1225] Falling into his characteristic over-explanation, Marshall proves the obvious by many ill.u.s.trations.[1226]

However the question as to the nature of the business is beside the point, since the steamboat monopoly laws are based solely on the method of propelling boats--"whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in New York. If by the latter, those waters are free to them, though they should carry pa.s.sengers only." What is the injury which Ogden complains that Gibbons has done him? Not that Gibbons's boats carry pa.s.sengers, but only that those vessels "are moved by steam."

"The writ of injunction and decree" of the State court "restrain these [Gibbons's] licensed vessels, not from carrying pa.s.sengers, but from being moved through the waters of New York by steam, for any purpose whatever." Therefore, "the real and sole question seems to be, whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a [National] license." The answer is easy--indeed, there is hardly any question to answer: "The laws of Congress, for the regulation of commerce, do not look to the principle by which vessels are moved."[1227]

Steamboats may be admitted to the coasting trade "in common with vessels using sails. They are ... ent.i.tled to the same privileges, and can no more be restrained from navigating waters, and entering ports which are free to such vessels, than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the Union; and the act of a state inhibiting the use of either to any vessel having a license under the act of Congress comes ... in direct collision with that act."[1228]

Marshall refuses to discuss the question of Fulton's patents since, regardless of that question, the cause must be decided by the supremacy of National over State laws that regulate commerce between the States.

The Chief Justice apologizes, and very properly, for taking so "much time ... to demonstrate propositions which may have been thought axioms.

It is felt that the tediousness inseparable from the endeavor to prove that which is already clear, is imputable to a considerable part of this opinion. But it was unavoidable." The question is so great, the judges, from whose conclusions "we dissent," are so eminent,[1229] the arguments at the bar so earnest, an "unbroken" statement of principles upon which the court's judgment rests so indispensable, that Marshall feels that nothing should be omitted, nothing taken for granted, nothing a.s.sumed.[1230]

Having thus placated Kent, Marshall turns upon his Virginia antagonists: "Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted, by construction, into the narrowest possible compa.s.s, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, _explain away the const.i.tution of our country, and leave it a magnificent structure indeed, to look at, but totally unfit for use_.

"They may so entangle and perplex the understanding, as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived.

"In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined."[1231]

So spoke John Marshall, in his seventieth year, when closing the last but one of those decisive opinions which vitalized the American Const.i.tution, and a.s.sured for himself the grateful and reverent homage of the great body of the American people as long as the American Nation shall endure. It is pleasant to reflect that the occasion for this ultimate effort of Marshall's genius was the extinction of a monopoly.

Marshall, the statesman, rather than the judge, appears in his opinion.

While avowing the most determined Nationalism in the body of his opinion, he is cautious, nevertheless, when coming to close grips with the specific question of the respective rights of Gibbons and Ogden. He is vague on the question of concurrent powers of the States over commerce, and rests the concrete result of his opinion on the National coasting laws and the National coasting license to Gibbons.

William Johnson, a Republican, appointed by Jefferson, had, however, no such scruples. In view of the strong influence Marshall had, by now, acquired over Johnson, it appears to be not improbable that the Chief Justice availed himself of the political status of the South Carolinian, as well as of his remarkable talents, to have Johnson state the real views of the master of the Supreme Court.