Old Steamboat Days on The Hudson River
By: David Lear Buckman, The Grafton Press, 1907

CHAPTER 5

How the Great River Monopoly was Broken

The State of New Jersey defied the State of New York in the controversy, and it was not until the United States Supreme Court stepped in and settled the dispute for all time, that the atmosphere was cleared and the free use of the river and bay was opened to steamboats. Incidentally many fundamental questions of Constitutional Law, all new to the young Republic, were settled, and it did much to establish the authority of the Federal Government to regulate navigation and other interstate relations.

One would never believe so many important propositions of Constitutional Law, and much less its relation to breaking up the great monopoly of steam navigation on the Hudson, could be found in the misleading parties named in a certain cause of action in the United States Law Reports, designated as Gibbons versus Ogden.

The history behind this action and the case itself is one of the most interesting in the books, having to do, as it had, with so many questions involved in the formative period of the nation. A much more intelligent understanding of the rapid expansion of steamboat enterprise building on the Hudson, the establishment of rival lines, the investment of capital and the fierce competition that followed will be gained by learning who Gibbons and Ogden were and how they came to represent the steamboat interests of two States. To do this one must learn how the river monopoly came to be created.

John Fitch, who was one of the first experimenters with steamboats in this country, had operated a boat on the Collect Pond, the site of which was occupied by the old Tombs prison in Center Street, New York. The pond only covered about four acres and his craft was a small rowboat. So great was the interest in the experiment, however, he had little difficulty in securing from the Legislature of New York, in 1787, the sole and exclusive right to navigate vessels by steam in all creeks, rivers, bays and waters within the jurisdiction of the State for fourteen years.

Fitch having died or left the State and his experiments having been without practical results, the Legislature, in 1798, passed a law which repealed the privilege to Fitch and granted it to Robert R. Livingston, who had meantime become interested in the matter, for a period of twenty years.

We have seen that Livingston’s efforts were also without results until he had met and become interested with Fulton. So it came about that the State law was again amended, in 1803, to extend the exclusive privilege to both Livingston and Fulton for a similar period. The trip of the Clermont to Albany, in 1807, had demonstrated steam navigation to be a success and the State of New Jersey, regarding the New York laws as trespassing upon its sovereignty, passed a statute that same year declaring its jurisdiction reached to the middle of the Hudson River, as far north as the territory of the State extended.

The next year the Fulton-Livingston interests secured the passage through the New York Legislature of an act extending the exclusive privilege three years for each additional steamboat constructed, the whole period, however, not to exceed thirty years, and forbidding any and all persons from navigating with steamboats the waters of the State which under royal grant were hold to reach to the Jersey shore, without a Fulton-Livingston license, under penalty of forfeiture of the boat or vessel.

New Jersey came to the relief of its citizens with an act, in 1811, declaring that New York unjustly claimed an exclusive jurisdiction over the waters of that State.

It was the time for New York to act, and it did. In the same year it passed a law declaring forfeited any vessel or boat using steam, found navigating against the provisions of the previous laws of the State and a means by injunction was provided against removing any such boat from the jurisdiction of the State, that had been seized. New Jersey could not stand for that, so it passed a law in 1813 and again in 1818 passed other acts to uphold and enforce its statute of 1811. But the Fulton and Livingston interests went on suing out injunctions and making it quite as ineffectual for a Jersey man to run a steamboat as it was for a New Yorker, without a license such as was called for by the New York statute.

“Commodore” Vanderbilt became busy in 1820 in trying to find a way to overthrow the river monopoly. The New Jersey Legislature was only too eager to help and so an act was passed that year which among other things provided that if any of its citizens should be

“enjoined or restrained by any writ of injunction or order by the Court of Chancery of the State of New York, by virtue or under color of any act of the Legislature of that State, from navigating any boat or vessel moved by steam or fire belonging or to belong in part or in whole to him, on the waters between the ancient shores of the State of New Jersey and New York, the plaintiff or plaintiffs in such writ or order shall be liable to the person or persons aggrieved for all damages, expenses and charges occasioned thereby, to be recovered with triple costs,” etc.

The case in New Jersey came before the Supreme Court of that State in 1822 and the Chief Justice (Kirkpatrick) promptly held, after discussing State’s rights and Constitutional privileges, that New York had attempted to interfere with the ancient shores of New Jersey and that Mr. Gibbons was entitled to his damages and triple costs under the enactment of that State.

The Chief Justice told the parties, however, it was a question that ought to go to the United States Supreme Court and to the Supreme they went, Gibbons appearing as the appellant from the decree of the New York court. It was the cause célèbre of its day, not only the people of the two States being interested, but the whole country having taken sides for or against the monopoly and there was talk of an interstate war. Indeed, a clash of authority had taken place.

That it was to be a battle for legal giants was early manifest, for Vanderbilt and those interested with him in breaking the monopoly had retained Daniel Webster, then in the zenith of his popularity, and the Fulton-Livingston interests, Mr. Oakley and Mr. Emmett, the latter having been Fulton’s personal counsel and friend for many years. Every precaution was taken to make the case one of which the Supreme Court would have to take cognizance, the Gibbons boats having secured a license under the act of Congress of 1793, governing vessels employed in the coasting trade, with which, it was asserted, the injunction orders of the New York State courts unwarrantably interfered. The case was not reached in the Supreme Court until the February term of 1824.

Daniel Webster in a masterly brief and argument traversed the whole ground of the dispute and contended that the Legislature of New York had passed laws which were unconstitutional, inasmuch as the Federal Constitution had declared “Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian tribes.” Mr. Webster argued with prevailing force that the State had attempted to usurp the specially delegated powers it had given to Congress; that commerce was navigation and that the Federal regulations must apply.

He contended if New York could grant such a monopoly, it might also grant another for other description of vessels; for instance, for all sloops. If it could grant these exclusive privileges to a few it could grant them to many; that is, it might grant them to all its own citizens to the exclusion of everybody else. But the waters of New York State, insisted Mr. Webster, were no more the subject of exclusive grants by that State than the waters of other States were the subjects of such grants by those other States. Virginia might well exercise over the entrance of the Chesapeake all the power that New York could exercise over the Bay of New York and the waters on the shore.

But that was not all. It required no greater power to grant monopoly of trade than a monopoly of navigation. Of course, New York, if its acts could be maintained, might give an exclusive right to entry for vessels into her ports and other States might do the same. The people of New York had a right to be protected against the steamboat monopoly. The appellant had a perfect right to come from New Jersey to New York in a vessel owned by himself of the proper legal description and enrolled and licensed according to the law.

The Constitution made the law of Congress supreme, when State laws came into opposition with them. It was not at all material in that view of the case, whether the law of the State was a law regulating commerce, a law of police or whatever other name or character it might be designated. If this provision was inconsistent with the act of Congress, they were void so far as that inconsistency extended.

There were other provisions of the Constitution of the United States with which the law of the State of New York was in conflict. It was provided “that no State should, without the consent of Congress, lay any duty upon tonnage.” New York had authorized Messrs. Fulton and Livingston to license navigation in the waters of New York. They gave licenses out on their own terms and might require pecuniary consideration, or, having ascertained the tonnage of a vessel, regulate the amount of license upon same. That would be a tonnage duty and clearly in conflict with the Constitution.

Mr. Webster also urged that the Constitution gave Congress the power to promote the progress of science and useful arts, to secure to authors and inventors, for a limited time, an exclusive right to their own writings and discoveries. The States might give exercise of their bounty toward authors and inventors and grant their bounties, but to attempt to confer exclusive grants as a reward was not a power to be exercised by the States. Much less could they, under the notion of conferring rewards in such cases, grant monopolies incompatible with the exercise of rights held under the laws of the United States.

Mr. Oakley, for the monopoly, argued that the power given to Congress by the sovereign State of New York was limited, in that all rights not delegated, were reserved. The State had a right to legislate on all causes of concurrent power, although Congress had acted in the same power and upon the same subject-matter.

The State might make it an offense to counterfeit the coin of any foreign country within its territory. New York had provided for the punishment of counterfeiting as had also Congress, all of which showed that Congress considered the power to punish such offenses as concurrent. A patentee obtained nothing by his grant, except an exclusive right, as it related to the Union instead of a right limited to the State together with more complete and certain remedies to protect and enforce that right. If he could not use the thing invented against the State law before it was patented, he could not use it after it was patented, for his grant conveyed no greater right than before existed.

It belonged exclusively to the local State Legislatures to determine how a man could use his own without injury to his neighbors. A patentee could not give rights by which a patent could infringe the vested rights of others. A patented boat on a ferry could not be used, the exclusive use of which had been granted by a State law. A restraint imposed by the laws of New York on the navigation of the waters of the State was merely an internal regulation of the right to transit or passage from one part of the State to another. It was a regulation which, if even indispensable to public safety, Congress could not make. The power to make it, therefore, must be in the State. The State law was, in fact, only a regulation of the internal trade and right of navigation within the territorial limits of the State. The power to regulate this was exclusively in the State. The State had exercised it in the same manner, both on land and water, and the law was valid although incidentally it might affect the right of intercourse between the States.

Mr. Emmett, on the same side, undertook to show that New York was not the only State which had passed such laws.

Massachusetts, on February 7, 1815, granted to J. L. Sullivan a similar grant for steamboats on the Connecticut River, twenty-eight years after the expiration of his patent, which on February 11, 1819, was enlarged for two years.

New Hampshire, in June, 1816, gave him a similar privilege on the Merrimac.

Pennsylvania, on the 26th of March, 1813, gave a similar right to James Barnes, from Wilkes-Barre to Tioga Point, on the borders of the State of New York.

Georgia, on the 14th of November, 1814, gave a similar grant to S. Howard for all the waters of that State for steamboats; and by another act, the 19th of December, 1817, granted to a company (probably derived from Howard) a similar right for steamboats for twenty years.

Tennessee had similarly given a right on the Tennessee River.

As Congress had no power to regulate the internal commerce of any State, none of its regulations could affect so much of the exclusive grant as restrained vessels which were used only within the States, nor could it give to any man permission to carry on any steamboat navigation which in its beginning and ending was entirely within the waters of the State, for instance, between New York and Albany, on Cayuga Lake, or Lake Ontario and the St. Lawrence or Niagara to Ogdensburg. The only question was as to navigation between foreign countries or another State and New York.

If the power of Congress over commerce was exclusive, it must also have exclusive control over the means of carrying it on. No State then would be mad enough to expend large sums in building canals as New York was doing, susceptible of being used for intercourse between the States or foreign commerce, if Congress had the right to regulate the navigation and vessels that were the medium of foreign trade and that between the States. It could not be seriously contended that Congress could regulate the carrying of passengers to any part of the Union who are traveling to Ballston, Saratoga, or any other place for pleasure, and even if the object of their passage was to trade, that would not legalize the interference of Congress as to the mode of their conveyance from place to place.

Continuing Mr. Emmett asserted: “If ever the day should come when representatives from beyond the Rocky Mountains shall sit in the National Legislature, if ever a numerous and inland delegation shall wield the exclusive power of making regulations for our foreign commerce, without community of interest or knowledge of our local circumstances, the Union would not stand. It cannot be the ordinance of God or nature that it should stand.

It had been said by very high authority that the power of Congress to regulate commerce sweeps away the whole subject-matter. If so, it makes a wreck of State legislation, leaving only a few standing ruins that mark the extent of the desolation. The position, however, was not correct.” . . . The quarantine laws were further appealed to illustrate Mr. Emmett’s position. It was held that they were all considered merely as laws of police. They were laws of police but also laws of commerce, for such is the nature of that commerce, which it was held must be regulated in some manner by Congress, that it enters into and mixes itself with almost all the concerns of life.

The clause in the Constitution authorizing Congress to make laws respecting patents was supposed to present another argument against the constitutionality of the State laws. There was no allegation of a patent or a claim of anything entitled to be protected by the patent laws, the use and enjoyment of which had been interfered with by the exclusive grant. If the last steamboat laws, enacted since the North River boats were in operation, bad, instead of using a general phraseology forbid any person to use on the waters of the State, steamboats constructed or made in the same manner as those made by Fulton and Livingston, or in any manner before known or used or in any manner invented by a non-resident alien, would there be anything for the patent laws or power of Congress to operate on in collision thereto? If not, then the State laws were so far good.

The power to prohibit the use of patented things, either generally or locally, must reside somewhere. Could Congress prohibit the use of locally injurious, but patented things in the waters or the cities or the populous towns of New York? If not, because it had no power of regulation or prohibition, where did that power reside? If it resided as it must exclusively in the State Legislatures or subordinate authorities, who but their constituents could inquire into the motives or propriety or their exercise of that power or the extent to which it should be carried?

A patent could be secured for anything; if it once issued from the patent office as full of evils as Pandora’s box, if they were as new as those that issued from thence, it was above the restraint and control of the State Legislature and the Legislature of the United States and of every human authority. The State of New York by a patient and forbearing patronage of ten years to Livingston and Fulton . . . by the tempting inducement of its proffered reward and by the subsequent liberality of its contract had called into existence the noblest and most useful improvement of the present day. . . she had brought into noonday splendor an invaluable improvement to the intercourse and consequent happiness of man which without her aid would perhaps have scarcely dawned upon our grandchildren.

She had not only rendered this service to her own citizens, but the benefits of her policy have spread themselves over the whole Union . . . and the happy and reflecting inhabitants of the States . . . might well ask themselves whether next to the Constitutions under which they lived there was a single blessing they enjoyed from the art and labor of man greater than that they had derived from the patronage of the State of New York to Robert Fulton.

Finally came William Wirt of Virginia, the famous Attorney-General of the United States, amid the array of counsel, with the argument in support of Mr. Webster’s, that the State law was in conflict with powers vested in Congress and, even if concurrent, as claimed, it was in conflict and, therefore, void. He asked the court to “interpose its friendly hand and extirpate the seeds of anarchy which New York had sown. The war of legislation which had already commenced will, according to its usual course, become a war of blows. Your country will be shaken with civic strife. Your republican institutions will perish in the conflict, your Constitution will fall and the last hope of the nations will be gone.

Mr. Chief Justice John Marshall was quite equal to the important decision he was called upon to render in the steamboat case. In doing so, he added one more to the important opinions he rendered in fixing fast and sure the legal foundation the young nation required to make its new and untested Constitution a workable, respected organic law.

In an opinion fully reviewing the important case before him, and even apologizing for its great length, he held that Congress in being given the power to regulate commerce, was given the power to regulate navigation. It was as expressly granted, as if the term navigation had been added to the word commerce already in the Constitution. “But,” said he, “the power to regulate commerce does not ‘look to the principle by which boats were moved. That power was left to individual discretion.

The act demonstrates the opinion of Congress that steamboats may be enrolled and licensed in common with vessels using sails. They are, of course, entitled to the same privileges and can no more he restrained from navigating waters and entering ports, which are free to such vessels, than if they were wafted on their voyage by the winds instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the river, and the act of a State inhibiting the use of either to any vessel, having a license under the act of Congress, comes, we think, in direct collision with that act.”

This opinion of the Chief Justice, supported as it was by a concurring opinion on some additional grounds by Mr. Justice Johnson, rang a death-knell to the Fulton-Livingston monopoly on the Hudson River and New York Bay. The decree which the United States Supreme Court issued declared “the several laws of the State of New York which prohibit vessels licensed according to the laws of the United States, from navigating the waters of the State of New York, by means of fire or steam, repugnant to the Constitution and void.”

It was certainly a great victory. The battle had been fought for years. Fulton had been dead nine years and it was only the Livingston contingent that witnessed the overthrow of the monopoly that had been enjoyed for so long a period. We have already noted how promptly capital became interested in steamboat enterprises and how the rivers became crowded with navigation which continued for a quarter of a century, until the steam railroads began to dispute with the river craft for both the passenger and freight trade.

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