The Steamboat’s Charter Of Freedom

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If the temperaments of Ogden and Gibbons had been more compatible, they might have continued the fight together. The New York law, claiming jurisdiction all the way to the Jersey shore, was clearly preposterous, and simple justice should have compelled the partners to stand together for their common rights. But Ogden decided to content himself with Kent’s decision. No doubt he contemplated the discomfiture of Gibbons with a certain amount of ill-concealed complacency.

The result was the final break between Gibbons and Ogden. Gibbons was justifiably angry and full of fight. Because Kent had ignored his federal coasting license argument, he decided to bring the case to the United States Supreme Court. Meanwhile he hoped to stir up trouble in the New Jersey legislature, and he proposed to be a thorn in the side of the monopoly by breaking the New York statute wherever and whenever he could.

For this latter project he had ready, in the rude but cunning person of Cornelius Vanderbilt, master of the Bellona, precisely the instrument he needed. Together they invented many ingenious ways of outwitting the monopoly. One of the finest of these was to run passengers in the Bellona out of Elizabethtown Point and transship them, in Jersey waters, to the Nautilus of Daniel D. Tompkins, who had acquired from the monopoly the ferry rights between Staten Island and New York. Tompkins was an old opponent of the Livingston faction in the New York Republican party and was not unwilling to make a little mischief. The physical risks of transshipment were far from negligible, but Americans were made of stern stuff in those days, the fare of fifty cents a head was undeniably attractive, and all was going beautifully—until brought to a halt by the decision of Chancellor Kent in Ogden v. Gibbons of December 4, 1819.

The web of litigation was already tangled. Ogden had earlier sued Gibbons—in Ogden v. Gibbons, October 6, 1819—on the grounds that Gibbons was running his two steamboats between New Jersey and New York, in open defiance of the monopoly rights that Ogden had purchased from Livingston, and on this occasion Gibbons had at least wrung from Kent what he most needed, a ruling upon the scope of national coasting licenses. Nobody could deny that an act of Congress of February 18, 1793, permitted vessels of over twenty tons’ burden to be enrolled and licensed. The question was: Did this national license permit a vessel to trade, not only between port and port of one state, but also between a port in one state and a port in another? If it did, there would be little comfort thereafter for the Livingston-Fulton monopoly.

Chancellor Kent, however, was now ready with an ingenious reply. A national license, he said, merely conferred upon any given vessel a national character, freeing it from those burdensome duties which were imposed upon foreign vessels if they attempted to engage in the coasting trade. That it was a license to trade, still less to trade in waters restricted by a state law, he steadfastly denied. Was it likely, he asked, that the New York steamboat acts, every one of which had been written and passed subsequent to the act of Congress, would have been written and passed at all if it could have been held that the act of Congress had annihilated them all in advance?

Gibbons, of course, promptly appealed Kent’s ruling to the New York Court of Errors; the appeal was heard in January, 1820. Gibbons’ counsel now contended that the licensing act was derived from the eighth section of the first article of the federal Constitution—from the power of Congress, that is, to regulate commerce among the several states. Thus, in the case of Gibbons v. Ogden in the New York Court of Errors there dawned what was afterward to become the high nationalist noonday of Gibbons v. Ogden in the Supreme Court of the United States. Justice Jonas Platt, pronouncing the decision of the Court of Errors, upheld Chancellor Kent; and against this decision Gibbons appealed to the Supreme Court.

The times, if not necessarily the law, were now certainly on Gibbons’ side. With the passing of the War of 1812, a new light seemed to fall upon the map of the United States. The nation, now figuratively facing westward, began to think of its lamentable roads, its lack of canals, the primitive counterclockwise motion of its exchange of staples for manufactures as that exchange moved down the Ohio and the Mississippi on rafts and flatboats, up the Atlantic coast, and back across the Appalachians. That the steamboat might do much to reverse this process, nobody now doubted: but the steamboat, a strange but sufficient symbol of nationalism, was struggling in the grip of a monopoly dubiously bottomed upon the doctrine of states’ rights.