York a grant of the
exclusive right to run steamboats on the waters of the State, and in
this case one of their licensees, Ogden, was seeking to prevent Gibbons,
who had steamers in the coasting trade under an Act of Congress, from
operating them on the Hudson in trade between points in New York and New
Jersey. A circumstance which made the case the more critical was
that New Jersey and Connecticut had each passed retaliatory
statutes excluding from their waters any vessel licensed under the
Fulton-Livingston monopoly. The condition of interstate commercial
warfare which thus threatened was not unlike that which had originally
operated so potently to bring about the Constitution.

* 9 Wheaton, 1.

The case of Gibbons vs. Ogden was argued in the early days of February,
1824, with Attorney-General Wirt and Daniel Webster against the grant,
while two famous New York lawyers of the day, Thomas Addis Emmet,
brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden's
counsel. The arguments have the importance necessarily attaching to a
careful examination of a novel legal question of the first magnitude by
learned and acute minds, but some of the claims that have been made for
these arguments, and especially for Webster's effort, hardly sustain
investigation. Webster, never in any case apt to regard his own
performance overcritically, seems in later years to have been persuaded
that the Chief Justice's opinion "followed closely the track" of his
argument on this occasion; and it is true that Marshall expressed
sympathy with Webster's contention that Congress may regulate as truly
by inaction as by action, since inaction may indicate its wish that the
matter go unregulated; but the Chief Justice did not explicitly adopt
this idea, and the major part of his opinion was a running refutation
of Emmet's argument, which in turn was only an elaboration of Chancellor
Kent's opinion upon the same subject in the New York courts. * In other
words, this was one of those cases in which Marshall's indebtedness to
counsel was far less for ideas than for the stimulation which his
own powers always received from discussion; and the result is his
profoundest, most statesmanlike opinion, from whose doctrines the Court
has at times deviated, but only to return to them, until today it is
more nearly than ever before the established law on the many points
covered by its dicta.

* See Livingston vs. Van Ingen, 9 Johnson, 807 (18