The circumstances out of which that case arose and under which the decision of Marshall was made are extremely interesting. There were enacted by the State of New York five different statutes between the years 1798 and 1811, granting or confirming to Livingston and Fulton, or one of them, the exclusive right of using steamboats upon all the navigable rivers, bays and waters within the limits and jurisdiction of the State of New York for a specified term of years. One provision was that for each additional boat which could be propelled by steam with or against the current of the Hudson river, at not less than four miles an hour, they should be entitled to five years' extension to their grant, not to exceed thirty years. If good for thirty years the State could, of course, renew or extend it indefinitely. For the specified period the State granted a monopoly, under pain of forfeiture of boats and vessels owned by others, which should violate the exclusive right granted to Livingston and Fulton. These acts recited that the inducement to the grant was to encourage the grantee to engage in the uncertainty and hazard of making expensive experiments in improving steam navigation.

In 1812 the highest court of New York (in Livingston v. Van Ingen1) sustained the validity of this grant, holding that it was not repugnant to the commerce clause of the Constitution of the United States, or it was, at all events, good until Congress should enact a statute which would conflict with the right granted by the State of New York.

The grounds and reasons in favor of sustaining the legislation of the State were stated by Chancellor Kent with great force. Accordingly, the defendants were ab

19 Johnson's Reports, 507, 572, 578 (1812).

solutely enjoined, in favor of Livingston and Fulton, from navigating the Hudson with their steamboat, the "Hope," and carrying passengers on that river from New York to Albany.

Under these grants and under the decision of the highest court of New York, already mentioned, made in 1812, a large amount of money had been invested in the construction of steamboats. Afterwards, 1818, in this condition of affairs, the case of Gibbons against Ogden was brought in the Court of Chancery in New York.'

Chancellor Kent enjoined the defendant, Ogden, from running his two steamboats between Elizabethtown, in New Jersey, and the City of New York, holding that the question had, after an elaborate and profound discussion, been decided in the previous case of Livingston v. Van Ingen. At the January term, 1820, the highest court of the State unanimously affirmed Chancellor Kent's order, holding the exclusive monopoly in the grants made by the Legislature of New York to be valid, and that its Court of Chancery had the power to restrain citizens of another State from navigating the waters of New York with vessels propelled by steam, although such vessels may have been duly enrolled and licensed under the laws of the United States as coasting vessels.

It was this last case that came by due process of law before the Supreme Court of the United States. The cause was argued by counsel of the greatest eminence; Wirt and Webster against the constitutionality of the New York legislation; Emmet and Oakley in favor of it. That court reversed the decree of the New York courts and held that the power of the General Government to regulate commerce extends to navigation in the waters

1 See 17 Johnson's Reports, 488 (1820).

throughout the entire Union and does not stop at the external boundary of a State, and that the grants to Liv ingston and Fulton of an exclusive right to navigate all waters within the jurisdiction of the State of New York, by steamboats, was inoperative as against the laws of the United States regulating the coasting trade, and could not restrain vessels licensed under these laws from navigating waters within the jurisdiction of a State in the prosecution of such trade.

The opinion of the court was delivered by Chief Justice Marshall. He defined, for the first time, the meaning of the word "commerce," as used in the Constitution. He said it includes navigation. It includes trade and commerce. But he went further and said that it is intercourse itself. He defined also the word "regulate " in a definition which it has been justly said can never be excelled in its brevity, accuracy and comprehensiveness. To "regulate" commerce, said Marshall, is to prescribe the rule by which commerce is to be governed; and he, furthermore, asserted the proposition, so extensive and beneficent in its future operation, that "wherever commerce among the States goes, the judicial power of the United States goes to protect it from invasion by State legislatures."

The same sound and liberal principle was applied by the Chief Justice as against the right of the States to tax foreign commerce, in the case of Brown against Maryland.

We owe it to Marshall and the eminent judges who sat in the court with him that our vast foreign commerce is unfettered, and that our interstate commerce, still vaster, on land and water, by boat, or rail, or telegraph, knows

no State lines, is subject to no State exactions, and is as free to everyone engaged in it as the elements of air and

water.

The Constitution provided for freedom of commerce between the States by prohibiting one State from levying any duties upon goods brought from another State. This was the initiation of a policy new in the history of the world, but this provision by itself would not be adequate to secure the end sought, viz., the absolutely free interchange of traffic-and it was, therefore, accompanied with the provision, not found in the Articles of Confederation, vesting in Congress the power of commercial regulation, both as to external and internal commerce. This wise policy would have been brought to naught if the constitutional question in the New York Steamboat Case had been decided the other way by the Supreme Court of the United States.

The importance of the decision, and of the principles and grounds on which Marshall's judgment rested it, grow upon us year by year, commensurately with our ever-increasing domestic commerce. But the value of that decision is not to be estimated from a commercial standpoint. Its momentousness consisted in the fact that it involved in its consequences the existence of the Union. New Jersey and Connecticut had already passed retaliatory laws. The Union could not have long survived if the New York legislation had been sustained by the Supreme Court of the United States.

Marshall's wisdom and foresight so expounded the commerce clause that it embraced within it the railway, the telegraph and the telephone, as they successively came into existence. And now every vessel, however propelled, every car and every electric message destined to another

State has a national character, and absolute immunity from State control or interference. Marshall's judgments, our great waterways and our transcontinental lines of railway and telegraph, free for all commercial and social intercourse, without regard for State boundaries, have done more than any other visible agencies to bind together into one united nation the forty-five States which compose it. I said visible agencies. The still stronger agencies are invisible—I mean race, blood, genius for government, love of freedom, the common law, the herit age of liberties which go back to Hampden and Magna Charta, pride in the Union, and universal respect and reverence for law.

Time does not permit further reference to single cases. Those which have passed under this rapid review illustrate the more important of the great powers and limitations of the Constitution. This survey suggests a few general observations.

The field of constitutional law at the commencement of Marshall's judicial career was, as we have seen, almost uncultivated. It was not even explored. Marshall found the Constitution an open text. Its grants of power to the central government and its restraints upon the States were couched in the fewest and most general words. It wisely defined nothing. As it came fresh from the hands of the Federal Convention, which Jefferson called "an assembly of demi-gods," it reminds one of what a celebrated critic said of Bayle's Dictionary: "When you open it, what do you expect to find? Nothing. What may you find? Everything." Whether this new instrument meant everything or nothing, it became the solemn, and, when we consider the stupendous issues at stake, the awful duty of Marshall and his associates to determine.