powers, and that any interfering legislation on their part is unconstitutional and void. The States cannot lay the weight of their little finger upon the powers of the General Government. The views of the Chief Justice on both branches of this case are now everywhere accepted and unquestioned, and their general adoption is among the most splendid and useful triumphs of Marshall's genius. As a complementary doctrine it may be stated that the Supreme Court, in other cases, have decided that the United States cannot tax, control or interfere with the agencies or instrumentalities of the States.

As falling within the principle that the Federal courts have the power to protect all rights given by the Constitution and laws of the United States, I have only time to refer in the briefest way to the great case of Cohens against Virginia. Some time before this case was decided the Court of Appeals of Virginia, in 1813, declared that they were not bound by a judgment of the Supreme Court reversing a judgment of the highest court of Virginia, even although it involved a Federal question - a principle which would break up the Union. This question was again presented to the Supreme Court of the United States in the case of Cohens against Virginia, complicated by the further fact that the State of Virginia was a party to the record. This came before the Supreme Court in the exercise of its appellate jurisdiction, and Chief Justice Marshall, in the great judgment which he delivered in that case, in 1821, decided that the Supreme Court of the United States had rightful jurisdiction over the judgments of the State tribunals whenever those judgments, in the opinion of the Supreme Court of the United States, denied to any person any right which the Constitution and laws

of the United States conferred, and this even though a State was a party to the record. That doctrine, absolutely vital to the supremacy of the Constitution and laws of the United States, has never since been disputed and is daily acted on in the Supreme Court of the United States. Mr. Jefferson severely criticised this opinion.1

As a striking example of the extensive and beneficent influence and operation of Marshall's constitutional decisions, I select what is known as the New York Steamboat Case (reported under the name of Gibbons v. Ogden2). This was decided in 1824. It is the first case that construed, in any important particular, the commerce clause of the Constitution. It is a well-known historical fact that the most efficient cause of the formation of the Union which resulted from the Constitution of the United States was the selfish and conflicting regulations of the different States in respect of commerce, each trying to secure an advantage over the others, there being no power under the Articles of Confederation to regulate or control this great and essential subject. This experience led to a provision in the Constitution in these words: "The Congress shall have power. to regulate commerce with foreign nations and among the several States." This truly vital power, as respects foreign and domestic commerce, is contained in eleven words — "to regulate commerce with foreign nations and among the several States." There is no attempt to define what is "commerce," or what is meant by "regulation." The case involved the respective powers of Congress and the States over com

merce.

1 Jefferson's Writings (Ford), Vol. X, pp. 229, 232. 29 Wheaton's Reports, 1.

Article I, sec. 8, par. 3.

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 they grant was to encourage the grantee to engage in the un certainty and hazard of making expensive experiments in improving steam navigation.

In 1812 the highest court of New York (in Livingston v. Van Ingen 1) 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 Livingston 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