The Hudson
The Rivers of America Series
by: Carl Carmer   Illustrated by: Stow Wengenroth
Published: New York, Farrar & Rhinehart, 1939

CHAPTER 18

Odgen vs Gibbons Supreme Court Decision

Both the chancellor and Robert Fulton died believing that their monopoly had many years to run, Livingston in 1813 and Fulton two years later. While the western rivers swarmed with bigger and better steamboats the partners had so hampered the development of steam travel on the Hudson that they had not even profited greatly themselves by the few boats they had built.

The price of a ticket was high and so was the class of passengers. Travel on the North River--the new name of the Clermont--during the next few years was pleasant and socially charming. The Van Rensselaers, the Roosevelts, the Van Tassels, the Ten Eycks, the Duers, the Brevoorts, the Stevenses, the Schuylers, Matthew Vassar found travel by steamboat interesting and convenient. For seventeen years after the first voyage of the Clermont the Livingstons continued on their selfish way, still claiming feudal manor tribute from the farmers on their vast holdings along the shore, and squeezing monopoly tribute from any steamboat owner who ran his vessel on Hudson water.

Through the willing legislature the Livingston interests claimed rights over the entire width of the Hudson to the line of the New Jersey shores. Vainly New Jersey protested that she controlled the waters on her side of mid-river.

Finally, in the spring of 1811, encouraged by William Thornton, clerk of the Patent Office in Washington, who was fully aware that Livingston and Fulton had not invented anything but were with doubtful justice forcing every man who built a steamboat to pay them royalties, an Albany company built the Hope and the Perseverance, steam-propelled vessels.

Fulton complained bitterly of the "twenty-two pirates who have clubbed their purses and copied my boats and actually started my invention in opposition to me." A few months later he had the satisfaction of knowing that by order of the courts the two vessels had been destroyed within sight of their despairing builders.

Eagerly expecting great profits, the monopolists went ahead with the building of the Car of Neptune, the Firefly, the Paragon, the Lady Richmond. After the chancellor’s death Fulton began supervising the building of the biggest and most elaborate Hudson steamer yet contemplated and be gave it the name of his late partner. Before it was completed Fulton, too, died. He had lived but eight years after his first triumphant voyage and the monopoly he had fostered was allowing the operation of only eight boats on the Hudson.

Cornelius Van Derbilt
The Livingstons did not have things their own way as long as they expected. Americans do not like monopolies. They never have. And so before long a typical American monopoly fighter was raising hell on the Hudson. A big towheaded, blue-eyed Dutchman with all of a Dutchman’s poetic gift for inspired profanity was swaggering the decks of a little steamer called the Mouse-of-the-Mountain and the Mouse was running from Elizabethtown, New Jersey, straight through the sacred waters of the Livingstons’ Hudson to dock at the Battery.

The squawk of the monopoly was heard all over the nation. Vainly it tried to get at the owner of the audacious boat. He turned out to be a southern gentleman of means, one Thomas Gibbons, who was living very comfortably outside of New York State’s jurisdiction.

Meanwhile the Mouse was doing so well that her trade had outgrown her and the Dutch skipper was cursing the delay as hurrying builders made a bigger boat, the Bellona. By the time the Bellona was on the water her enemies were beside themselves. They dared not confiscate her when she landed at the Battery for fear New Jersey would seize one of their boats at a west-bank landing. So they procured a warrant for the arrest of the Dutchman, a Cornelius Van Derbilt, and sent officers down to the Battery to serve it.

With cold blue eyes the skipper watched them come aboard. As soon as they were on their way to his cabin he went ashore. No one seemed to know just where he was when the officers asked for him. And no one seemed to have observed him return to the Bellona before she cast off unless he was the man who was seen to make a flying and successful leap for her afterdeck as she got under way. Daily for two whole months the officers descended upon the Bellona. Before that period was over the captain had wearied of his jumping and had built in the hold a secret closet with a sliding panel. There he rested while the deputies searched.

After a few weeks of this the lawyers for his enemies obtained writs against the whole crew for contempt of court in protecting the captain from lawful arrest. When the officers triumphantly hopped aboard from their picket boat, however, they found neither crew nor captain; only a lone young female stood at the wheel and guided the Bellona on her way. The wily captain had dropped his crew in New Jersey and had himself kept things shipshape until the moment when he was obliged to take to his secret closet. The deputies had no writ for the girl and finally had to disembark while the passengers laughed them down the ladder and asked how they liked the new self-servicing boat.

When the deputies saw Captain Van Derbilt loitering conspicuously about the Battery on a bright Sunday some days later they should have known that something was up. Nevertheless, with cries of vengeful delight, they fastened upon him and took him upriver to answer to a contempt charge before the formidable Chancellor Kent. There, while the chancellor lowered in dignity over the proceedings, Cornelius Van Derbilt produced a paper proving that on the Sunday he had been arrested, and for that day only, he had hired himself to old D. D. Tompkins who held a proper license from the monopoly. Out he went, a free man, while the Livingston attorneys cringed under the lash of Kent’s tongue.

Thomas Gibbons
Van Derbilt’s boss, Thomas Gibbons, was so pleased with this exploit that he got the New Jersey legislature to pass a law stating that any New York officer who arrested a citizen of New Jersey for operating a steamboat against the monopoly was liable to see the inside of a Jersey jail. Van Derbilt awaited his chance and when a deputy strode aboard the Bellona to arrest him he suddenly cast off and set out for New Jersey, scaring the kidnaped officer into panic-stricken protest.

By this time the whole country realized that the place where the real battle between the people and the monopoly would be fought was the United States Supreme Court. The case was entitled Gibbons v. Ogden, but everybody knew the name Gibbons meant any plain American who wanted to build a steamboat to carry folks on New York waters, and the name Ogden meant the monopoly because Ogden was a former governor of New Jersey who held special permits from the Livingstons’ North River Company.

Gibbons said there was just one man to get to represent the rights of the people of the nation as a whole and he got him. And so, when Chief Justice John Marshall nibbed his quill pen, drew back the sleeves of his gown, and nodded for the argument to begin, he knew and the whole country knew that the city of Washington was in for some real New Hampshire thunder.

Daniel Webster
In those days there was no need to identify the thickset lawyer with the Indian-black hair, the "fellow with an eye as black as death and as heavy as a lion’s--and no lion in Africa ever had a voice like him.”"Let Tom Oakley, attorney general of the state of New York, show off his clear cold logic. And let his hotheaded, silver-tongued helper--Thomas Addis Emmet--cry out, "The happy and reflecting inhabitants of the States may well ask themselves whether, next to the Constitutions under which they live there is a single blessing they enjoy from the art and labor of man greater than that they have derived from the patronage of the State of New York to Robert Fulton." Everybody except the monopolists knew they were finished before they started, licked by a "man with a mouth like a mastiff, a brow like a mountain and eyes like burning anthracite." They were up against Daniel Webster, and Daniel Webster was in his prime.

The New Hampshire roarer said years later that his speeches in the "steamboat" case and the Dartmouth College case were the best he ever made, and he named the steamboat case first. There in the Supreme Court of the United States he stood and his deep rolling voice was like the eternal warning in the piled-up clouds that are mirrored in Hudson water. And above him sat John Marshall, the greatest of all the great chief justices the country has known, taking it in--Daniel Webster himself said so--"as a baby takes in its mother’s milk."

There were rivermen on the Hudson that day who said the sky was inky and the water black until just about the time Daniel Webster way down there in Washington was saying a sentence that crackled like lightning: "The people of New York have a right to be protected against this monopoly." Then suddenly, the rivermen said, there was a sun in the sky and the water leaped and sparkled, because the great stream knew that once more it was free to all Americans.

The river must have known what was in John Marshall’s mind when Daniel Webster said that, for the decision upholding the argument came weeks later. The chief justice had taken his time just to be sure there was no mincing of words. It took no Philadelphia lawyer to interpret what he meant when he wrote that the state laws giving the monopoly exclusive privilege were "repugnant to the Constitution and laws of the United States."At those words hundreds of hammers took up a rapid beat along the river from New York to Albany. There were going to be a lot of steamboats on the Hudson.