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it may be, must be exercised within the territorial jurisdiction of the several States...

We are now arrived at the inquiry -- what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. ... The power of Congress, then, comprehends navigation within the limits of every State in the Union, so far as that navigation may be, in any manner, connected with commerce with foreign nations, or among the several States, or with the Indian Tribes.' It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies."

By analyzing this great opinion we see that Marshall defined with masterful genius the important term and words in this clause, and settled many questions arising out of their consideration, and made them all so clear that no mistake could be made in the meaning of his language.

(1). He defined commerce, and said it was traffic and intercourse, and that it described commercial intercourse between nations, and parts thereof.

(2). Said that the language of this clause shows that commerce includes navigation.

(3). Decided that every species of commercial intercourse between the United States and foreign nations is comprehended; that no sort of trade can be carried on between this and other countries to which this power does not extend; that commerce as used in the Constitution, is a unit, every part of which is indicated by the term.

(4). Defined the word “among” as meaning “intermingled with.” Made it quite plain that it was restricted to that commerce which concerned more States than one.

(5). Commerce that is completely internal not comprehended in this clause, and concerns only the State where carried


(6). In regulating commerce with foreign nations the power of Congress does not stop at State lines, because it is that of the whole United States.

(7). Commerce among the States must be commerce with

the states necessarily, and the power of Congress must be exercised within the territorial jurisdiction of the States.

(8). In regard to "what is this power of Congress?” he said, it is the power to regulate, the power to prescribe the rule by which commerce shall be governed. That it is vested in Congress, is complete in itself, and may be exercised to its utmost extent, for it has no limitations beyond those found in the Constitution.

Every definition of commerce which has been given by the courts since this decision, reflects the definition given by Chief Justice Marshall.

In regard to power of Congress over commerce among the States, Marshall says: 80

“ In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. If Congress has the power to regulate it, that power must be exercised whenever the subject exists, and this principle, if possible, is still more clear when applied to commerce ' among the States.'

This important case which is so often discussed is given a place here for several reasons. One of them being to show what the method of the Expounder of the Constitution was like, and the thorough manner of attacking the various details. Many think that this opinion is overlauded, and that it lays down too barely and didactically, with too small a basis of argument and history, the American doctrine of Constitutional law.

80 Gibbons v. Ogden, 9 Wheaton, 195.



CHIEF Justice MARSHALL died July 6, 1835, at the age of eighty, having seen during his lifetime the firm establishment of nearly all the fundamental doctrines of American Constitional and International Law as applied by the courts of the country.

The bulk of this work was done by Chief Justice Marshall himself. As I have mentioned elsewhere in this volume, there were but five cases of any importance before the Supreme Court of the United States prior to 1801, when John Marshall was made Chief Justice. How great was his share of the work may be judged by the following figures. Between 1801 and 1835 there were 62 decisions of a Constitutional nature, in 36 of which Marshall wrote the opinion. Of a total of 1,215 cases during that period, in 94 no opinions were filed, in 15 the decision was “ by the court," and of the remaining 1,106 cases Marshall delivered the opinion in 519.

During the same period of time there were 196 cases involving questions of International Law, or in some way affecting international relations. In 80 of these the opinion was delivered by Marshall; in 37, by Story; in 28, by Johnson; in one each by Baldwin, Cushing, and Duvall; and in 8 the opinion was given “ by the court.

No doubt the members of the legal profession at that time looked forward to the appointment of Judge Joseph Story as Marshall's successor. But, as Jackson's phrase put it, “the school of Story and Kent” could expect no favors at the hands of the President, for their political constitutional views differed too widely. Story wrote: “Whoever suceeds Marshall will have a most painful and discouraging duty. He will follow a man who cannot be equalled, and all the public will see or think they see the difference.... I take it for granted that all of us who are on the bench are hors de combat.”

1 Address by John Bassett Moore before the Delaware State Bar Association, February 5th, 1901.

John Quincy Adams, in his diary of July 10, 1835, says:

John Marshall died at Philadelphia last Monday. He was one of the most eminent men that this country has ever produced -- a Federalist of the Washington School. The Associate Judges from the time of his appointment have generally been taken from the Democratic or Jeffersonian party. Not one of them, excepting Story, has been a man of great ability. Several of them have been men of strong prejudices, warm passions, and contracted minds; one of them occasionally insane. Marshall, by the ascendancy of his genius, by the amenity of his deportment, and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the Court, and settled many great constitutional questions favorably to the continuance of the Union. Marshall has cemented the Union which the crafty and quixotic democracy of Jefferson had a perpetual tendency to dissolve. Jefferson hated and dreaded him. It is much to be feared that a successor will be appointed of a very different character. The President of the United States now in office, has already appointed three Judges of the Supreme Court; with the next appointment he will have constituted the Chief Justice and a majority of the Court. He has not yet made one good appointment. His Chief Justice will be no better than the rest.”

Six months after Chief Justice Marshall's death Roger B. Taney, of Maryland, was appointed by President Jackson. As Charles Warren in “ The History of the American Bar " says, “ This was a surprise to most of the Bar.” Chief Justice Taney's decisions showed a decided reaction from the centralizing views of Chief Justice Marshall. This was first seen in three cases in 1837, in each of which a State Statute alleged to be in violation of the Federal Constitution was upheld.


pp. 8°.

ANECDOTES of John Marshall. In World's Work, Vol. I, Feb.

1901, pp. 394-395. BARRE, W. L. John Marshall. In his “Lives of Illustrious

Men of America," pp. 426-452. Cincinnati, 1859. 8°. BINNEY, HORACE. An eulogy on the life and character of John

Marshall, Chief Justice of the Supreme Court of the United

States. Philadelphia: J. Crissy & G. Goodman, 1835. 70 BINNEY, HORACE. Same. In Waldie, A. Select Circulating

Library, Vol. 6, pp. 327-335. Philadelphia, 1835. 4°. BINNEY, HORACE. Binney's eulogy on Chief Justice Marshall

. In "American Jurist," Vol. 14, Oct., 1835, pp. 462-465. BLACK, JOHN C. John Marshall. In Illinois State Bar Asso

ciation. Proceedings, Vol. 20, pt. 2, July 14-15, 1896, pp.

25-45. BLACK, John C. John Marshall. In Albany Law Journal.

Vol. 54, July 25, 1896, pp. 55-62. BRADLEY, Joseph P. Saint Mémin's Portrait of Marshall. In

Century Magazine, Vol. 38, Sept., 1889, pp. 778-781. BROOKS, ELBRIDGE S. The Story of John Marshall, of Rich

mond, called “ The great Chief Justice.” In his “ Historic

Americans,” pp. 161-174. New York, 1899. 8°. BROWNE, IRVING. John Marshall. In his “ Short Studies of

Great Lawyers,” pp. 201-217. Albany, N. Y., 1878. BRYANT, JAMES R. M. Eulogium on Chief Justice Marshall, de

livered in the Unitarian church, Washington city, on the 24th of September, 1835, at the request of the Union literary society. Washington: Printed by Jacob Gideon, Jr.,

1835. 16 pp. BARNES, William Horatio. “The Supreme Court of the

United States: a series of Biographies.” With an introduction, by Samuel F. Miller. Washington, D. C.: W. H.

Barnes & Co., 1877: (2), 116 pp. Portraits. 4o. BATEMAN, HORATIO. Biographies of Two Hundred and Fifty

Distinguished National Men. Ist ed. New York; John T.

Giles & Co., 1871. 12°. P. 50.
Carson, HAMPTON LAWRENCE. The Supreme Court of the

United States : its History, and its Centennial Celebration,
Feb. 4, 1890. Prepared under direction of the Judiciary
Centennial Committee. Philadelphia: A. R. Keller Co.

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