- Historic Sites
The Steamboat’s Charter Of Freedom
GIBBONS v. OGDEN
October 1963 | Volume 14, Issue 6
Fulton and Livingston put an experimental steamboat upon the Seine; its performance satisfied them, and Fulton left for England to cajole out of the British government a Boulton & Watt engine built to his own specifications. The engine was claimed by Fulton from the New York Customs House on April 23, 1807; it was placed in a boat built at the Charles Brownne shipyards at Paulus Hook; and on August 17, 1807, The Steamboat (her builders never seemed to have called her the Clermont) made her triumphant voyage from New York to Albany. [Fulton variously referred of the vessel as the North River Steamboat of Clermont —after Livingston’s Hudson estate—the North River Steamboat, or the North River. On her first voyage, she seems simply to have been The Steamboat. But the public came to call her the Clermont, and the name stuck.]
On her maiden night, as she passed through the darkling highlands of the Hudson, a plangent volcano, the steamboat excited great terror among the pious dwellers beside the banks of that river. One rustic is said to have raced home, barred the doors, and shouted that the devil himself was going up to Albany in a sawmill.
Here he was, from any point of view, wrong. It was not a demon; it was a most useful spirit that had been released by Fulton and Livingston: the trouble was that, having released it, they at once imprisoned it again. Fulton did indeed take out two United States patents—perhaps more interesting as essays than valid as claims—but it was not upon these that he and Livingston relied: their great support was restrictive state legislation.
On April 6, 1808, the New York legislature extended their privilege up to a limit of thirty years and imposed thumping penalties on anyone who dared, without a license from the monopoly, to navigate by steam upon any of the waters of New York. In 1809, a sister ship, the Car Neptune, was built; in 1810, the Paragon appeared; on April 9, 1811, the New York legislature passed a monopoly act even more stringent in its penalties than the one enacted in 1808. And in April, 1811, the legislature of the Territory of Orleans conferred upon Livingston and Fulton privileges fully as extensive as those granted by New York. Thus they controlled two of the greatest commercial waterways in the United States.
Although they had shown true vision in their estimate of the steamboat’s future, Livingston and Fulton had been somewhat less perceptive in gauging the reaction of their countrymen. They had not supposed that their monopoly would be unpopular, still less that it would be seriously resisted. From the outset, however, obloquy and litigation became their portion. The litigation reached its climax in 1811, when twenty-one enterprising gentlemen of Albany started a rival steamboat, the Hope, upon the Albany-New York run, and threatened to follow her up with a sister ship, not inaptly to be called the Perseverance.
The monopolists, of course, fought back in the courts, and in March, 1812, New York’s Chief Justice James Kent issued a permanent injunction against the Hope. Kent’s very learned opinion may be reduced to this simple proposition: either the New York steamboat acts violated the federal Constitution or they did not. A stern supporter of states’ rights, Kent ruled that they did not. Obviously, he said, where a national and a state law are aimed against each other, the state law must yield. But this was not the case here, since all commerce within a state was exclusively within the power of that state. Supported by Kent, one of the most respected jurists in the nation, the monopoly had certainly become respectable. When Robert R. Livingston, full of years and honors, died in 1813, when Robert Fulton followed him into the shades in 1815, they left to their heirs and assigns an inheritance as rich and safe as state laws could make it.
Nonetheless, the contentious atmosphere which had clouded the monopoly from the beginning seems to have been increased rather than diminished by the decision of Kent. New Jersey had already passed a retaliatory act in 1811; in the course of time her example was followed by Connecticut and Ohio. Massachusetts, Georgia, New Hampshire, Vermont, and Pennsylvania bestowed exclusive rights upon their own favored monopolists. Elsewhere, unlicensed steamboats blew their lonely, defiant whistles upon remote lakes and waterways, while denizens of the uncharted wilderness crept down to watch and wonder.
The development of the steamboat was a great adventure, but it was threatening to provoke a commercial civil war—unless, indeed, someone could break the Livingston-Fulton grip upon Louisiana and New York. In the former state, by 1819, there were distinct signs of rebellion; but the latter, the cradle of the whole restrictive movement, would undoubtedly prove to be the most dramatic and decisive scene for some abrupt reversal of this ominous trend. …