The Steamboat’s Charter Of Freedom

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Nor was this all. The contest between state-conferred steamboat monopolies and the clash of state retaliatory laws threatened to reduce the nation’s commerce to that particularist chaos which the Constitution itself had been providentially designed to avert. And here the indefatigable Thomas Gibbons was not backward. He persuaded the New Jersey legislature to pass a new retaliatory act, and on February 20, 1820, it did so. By this act, any nonresident of New Jersey who enjoined a New Jersey citizen, in the Chancery Court of New York, from navigating by steamboat any of the waters between the “ancient” shores of New Jersey, could in turn be enjoined by the Chancery Court of New Jersey from navigating between those “ancient” shores. Moreover, and this was the sting, he could be made liable for all damages, with triple costs, in any action for trespass or writ of attachment which he had obtained against a New Jersey citizen in the New York court.

Thus John R. Livingston, to his dismay, discovered that his Olive Branch had been detained and attached in New Brunswick to answer for damages alleged to have arisen from the injunction he had won against Gibbons in May, 1819. Threatened with successive attachments and prohibitive costs, he had at one time withdrawn the Olive Branch from service. In Livingston v. D. D. Tompkins (June 1, 1820), Livingston v. Gibbons (August 26, 1820), and Livingston v. Gibbons, impleaded with Ogden (May 8, 1821), one may trace his efforts, on behalf of Ogden as well as himself, to wriggle out of this predicament. But, alas, there was in Livingston’s character just a touch of Sir Giles Overreach; he succeeded only in arousing the wrath of Chancellor Kent, a high-minded gentleman who cared little for the stratagems of entrepreneurs, but much for the dignity of the law.

Actually, Chancellor Kent had now thrown in the sponge. He had done his best for the rights and dignity of his state and his court; he might talk about state reprisals and jurisdictions until the very walls of his courtroom reverberated with his declamations; but he was, after all, one of the first jurists in the nation; and there had been growing upon his shuddering inner vision, feature by feature, like some Cheshire cat’s, the implacably smiling visage of the commerce clause of the Constitution. In the meantime, he had left the quarrel between Ogden and Gibbons in a state of armed neutrality, and Gibbons and Vanderbilt continued, by one device or another, to keep the Bellona steaming between New Jersey and New York until such time as the Supreme Court should rule upon Gibbons’ appeal from the New York Court of Errors.

This appeal had been docketed with the Supreme Court in 1820, dismissed for technical reasons in 1821, docketed again in 1822, and continued from term to term until February, 1824. By that time and in that political climate, with nationalism and states’ rights opposed on many fronts, it was already a famous case. Eminent counsel had been briefed on both sides: Daniel Webster and Attorney General William Wirt for Gibbons; Thomas J. Oakley and Thomas Addis Emmet for Ogden and the monopoly.

One might have supposed, since the nationalist John Marshall was Chief Justice and the Court was supposedly “Marshall’s Court,” that a decision in favor of Gibbons was a foregone conclusion. But the assertion that Congress could actually regulate interstate trade was in those days a very daring one; and although John Marshall was a bold man, many people doubted if he would be as bold as all that. Nor could one be sure that, in this instance, he would be supported by a majority of his brethren.

The legal questions were extremely complicated, and Gibbons’ able lawyers exploited every possible argument. Wirt, for example, reasoned that the monopoly laws conflicted with certain acts of Congress and were therefore void. Webster, however, who opened for Gibbons, went boldly to the heart of the matter by claiming that it was of no moment whether or not the New York statutes were in conflict with an act of Congress. The constitutional authority of Congress was such that it had the power exclusively to regulate commerce in all its forms upon all the navigable waters of the United States. Afterward he said—whatever Webster’s faults, self-depreciation was not among them—that Marshall took in his words “as a baby takes in his mother’s milk.” This was not quite the case. The truth seems to be that the two men thought very much alike on the question, but that it required all Marshall’s gifts to weave into a more prudent form the arguments so vehemently presented by Webster.

The pleadings consumed four and a half days, and it was generally conceded that every one of the counsel had surpassed himself—in learning, in subtlety, in eloquence. Nearly a month passed before Marshall delivered the Court’s opinion. It was one of the most statesmanlike he had ever penned, and, from a legal point of view, one of his soundest. And one should always remember, as Justice Felix Frankfurter says, that when Marshall applied the commerce clause in Gibbons v. Ogden “he had available no fund of mature or coherent speculation regarding its implications.” Like the steamboat itself, the decision which freed the steamboat was a pioneer.