The Steamboat’s Charter Of Freedom


Marshall began by defining “commerce” not in the strict sense of “buying and selling” (as Ogden’s counsel had urged) but (this was Wirt’s definition) as “intercourse,” which, of course, included navigation. It comprehended also the power to prescribe rules for carrying on that intercourse.

This being the case, one had then to ask whether the power of Congress, under the commerce clause, invalidated the monopoly statutes of the state of New York. Here Marshall ruled that the coasting license act of 1793, dealing with the subject matter of that clause, was superior to a state law dealing with the same subject matter. Thus Gibbons’ license did not merely confer upon his vessel an American character; it also permitted that vessel to trade between the port of one state and the port of another; nor did the fact that it was a steamboat have any relevance. Marshall’s majestic reasoning struck down the monopoly in twenty words: “The laws of Congress, for the regulation of commerce, do not look to the principle by which vessels are moved.”

Congress, in short, had power over navigation “within the limits of every State” so far as navigation may be, in any way, connected with foreign or interstate trade. (It should be remarked in passing that it took two more suits in the New York courts to determine whether or not the Livingston-Fulton monopoly was valid for purely intra-state commerce. Chief Justice Savage in the Court of Errors— North River Steamboat Co. v. John R. Livingston, February, 1825—declared that it was not.)

The subtleties, the complexities, the mass of subsequent legal glossing, the vexed questions of state taxing and state police powers—all these are irrelevant to this bare narrative: the point is that Marshall’s great decision, which has been called “the emancipation proclamation of American commerce,” has substantially survived the erosions of time and of change. Its immediate effect was to set the steamboat free on all the waters of the United States. Its more distant effects were beyond the scrutiny of Marshall and his contemporaries: the railroad, the telegraph, the telephone, the oil and the gas pipe-lines, the aeroplane, as they moved across state borders, all came under the protection of Gibbons v. Ogden.

The decision was the only popular one which Marshall ever rendered. And yet there were many dissidents. Slaveowners, for example, were deeply alarmed for the future of the interstate slave trade. Others, more selfless and high-minded—and of these Thomas Jefferson was the first and greatest—saw in Gibbons v. Ogden only a despotic extension of the powers of the federal government. What Gibbons and Ogden had to say has not been recorded for the instruction of posterity. One might, however, add by way of postscript that Ogden died a bankrupt and Gibbons a millionaire. Since Ogden was undoubtedly the more estimable of the two, one wonders whether the outcome proves the injudiciousness of yielding to a monopoly, or the advantage of breaking the law.