October 1963 | Volume 14, Issue 6
GIBBONS v. OGDEN
The famous case of Gibbons v. Ogden, decided on March 2, 1824, was, with its preceding litigation, ultimately concerned with a single question: the power of Congress to regulate interstate as well as foreign commerce. It produced a triumph for nationalism, in the most generous and constructive sense of that term, and its influence has been immense. Its immediate effect, however, was to release from monopoly, like a genie from a bottle, a sooty, romantic, and useful servant to the American people—the steamboat.
One cannot altogether understand this aspect of Gibbons v. Ogden without considering the origins and consequences of the Livingston-Fulton steamboat monopoly and the personalities involved in them: personalities of considerable determination and marked eccentricity, one of whom was brushed with genius.
The actual inaugurators of the American steamboat—John Fitch, James Rumsey, and perhaps Oliver Evans—were also its innocent victims; they could make it run, but they could not make it run economically, nor could they raise sufficient funds to enable them, by research and experiment, to overcome this problem. One still sees them, nobly (and in Fitch’s case somewhat drunkenly) silhouetted against the pale dawn of the age of steam, gesticulating in vain to the inattentive financier, the jocose and skeptical public. From their valiant dust springs Gibbons v. Ogden.
The great case may be taken back to March 27, 1798, when the New York legislature repealed an exclusive privilege to run steamboats on state waters, which it had conferred on John Fitch, and bestowed it instead upon Robert R. Livingston, chancellor of the state. Livingston had what Fitch conspicuously lacked—social status, political influence, wealth, credit. He resembled Fitch only in one respect: he was an enthusiast. An amateur scientist, he believed that nature might at any moment yield one of her tremendous secrets to some chance experiment or happy flash of insight. The building of gristmills on a novel principle to eliminate friction between the stones; the crossing of cows with the elk in his park at Clermont on the Hudson; the manufacture of paper out of river-weed locally known as frog’s spit—such schemes and fancies occupied his leisure hours.
His spirit, one might almost say, dwelt more and more apart on the farthest and most aery borders of rational speculation: almost but not quite. He was a progressive farmer, for example, whose work was of the first importance. And there was a hard, practical element in his singular composition—he was, after all, of Scottish and Dutch descent—which made it unlikely that he would throw good money after bad. To his great credit, he had perceived that the steamboat had a future: and although steamboat legislation, like Vulcan among the gods, excited the immortal laughter of the New York legislature, Livingston was quite impervious to mockery of this sort.
His experiments with John Stevens (one of the fathers of the railroad) and Nicholas J. Roosevelt proved abortive; and when he left for France in 1801, where as American minister he plunged into those complex and exasperating negotiations which ultimately led to the purchase of Louisiana, it was presumed that no more would be heard of the steamboat. But in Paris he met the one man who could give his schemes what they needed—precision, economy, practicability.
Robert Fulton, darkly handsome, supremely self-confident, the very embodiment of energy, had been raised as an artisan in Lancaster, Pennsylvania. He had been a locksmith, a gunsmith, a draughtsman, a portrait painter; he had gone to England to study under Benjamin West; and in England he had first conceived what was to become a permanent preoccupation with submarines and submarine torpedoes. Of Fulton it might indeed be doubted whether his lifelong purpose was to put boats upon the water or to blow them out of it.
One thing, however, was certain. He had, supremely, the faculty of co-ordination. Other men’s original ideas, in the realm of steamboats, existed only to be borrowed: “All these things,” he said airily, “being governed by the laws of nature, the real invention is to find [such laws].” To him, it was all a matter of exact proportions, of nicely calculated relations. Where the steamboat was concerned, it was Fulton’s destiny, and his genius, to find a commotion and to turn it into a revolution.
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. …
In May, 1819, John R. Livingston of New York brought suit in the Chancery Court of that state against Aaron Ogden and Thomas Gibbons of New Jersey. Mr. Livingston, a younger brother of Robert R. Livingston, was a wealthy merchant who had dedicated his youth to making what he called “something clever” out of the Revolution and who had thereafter devoted his energies to the single-minded pursuit of material advantage. In 1808, for the extremely stiff price of one-sixth of his gross proceeds, he had purchased from his brother’s monopoly the exclusive right to navigate steamboats “from any place within the city of New York lying south of the State Prison to the Jersey shore and Staten Island, viz.: Staten Island, EIizabethtown Point, Amboy and the Raritan up to Brunswick, but to no place or point north of Powles Hook.” (The location of Powles, or Paulus, Hook may he determined by drawing a line from the southernmost tip of Manhattan Island due west to the Jersey shore.) He was certain to extract from this hard-bought concession whatever there was to be extracted—and thus arose his suit against Ogden and Gibbons.
Aaron Ogden, finding the New Jersey legislature unwilling to support him in his claim to run steamboats on his own, had reluctantly yielded to the monopoly in 1815, and had purchased from Mr. Livingston, its assignee, the right to run a steamboat ferry from Elizabethtown Point to New York. A Revolutionary soldier who had fought at Yorktown, a former governor of New Jersey, and one of the state’s leading lawyers and most prominent Federalists, Ogden was a man of impressive physique, craggy and truculent countenance, and character to match. He bore the monopoly no good will, and in the course of time he acquired in Thomas Gibbons a partner even more contentious than himself.
Gibbons was a wealthy lawyer from Georgia who had acquired a home in Elizabethtown, New Jersey, in 1811. He had been a Loyalist during the Revolution, thereby (since his brother and father were both patriots) saving the family plantation from both British vandalism and anti-Loyalist revenge. His was not exactly a happy record, but he had survived it, to acquire at length a reputation, notable even in Georgia, for some of the more opprobrious and quarrelsome forms of political meddling. “His soul,” said one enemy, “is faction and his life has been a scene of political corruption.”
The partnership between Ogden and Gibbons, instituted in 1817, was no doubt doomed from the start. In October, 1818, Ogden obtained an injunction against Gibbons in the New York Chancery Court, presumably because that oblique personage could not resist the temptation to cheat his partner by running a steamboat on his own account from Paulus Hook to New York. Nonetheless, when John R. Livingston brought suit against the pair in 1819, their partnership was still uneasily alive upon the following terms: Ogden ran passengers from New York to Elizabethtown Point in his steamboat Atalanta. At Elizabethtown Point, the passengers changed into Gibbons’ Bellona, for which (as for his smaller steamboat, the Stoudinger) Gibbons had taken out a United States coasting license. The passengers were then carried to New Brunswick, from whence they proceeded overland to Trenton and Philadelphia.
John R. Livingston, whose steamboat Olive Branch ran regularly from New York to New Brunswick, claimed that the Ogden-Gibbons partnership constituted a single voyage, in defiance of his exclusive right. He also showed that the partners had a common booking agent in New York, one William B. Jaques. Livingston sought an injunction restraining them from navigating their two boats, except from New York to Elizabethtown Point. This meant that in future the Atalanta would have to transfer her passengers, not into Gibbons’ Bellona, but into Livingston’s Olive Branch.
Both Gibbons and Ogden disclaimed any partnership or any knowledge of Mr. Jaques. Both insisted that the ports and harbors of Elizabethtown Point and New Brunswick were within the jurisdiction of New Jersey, as were the waters lying between them; and both asserted that the agreement between the monopoly and John R. Livingston gave the latter no right whatsoever to navigate between a port in New York and one in New Jersey. Gibbons had other arguments, but the chief of them—and this in time became the crux of the whole matter--was that under his national coasting license he had a perfect right to navigate between one point in New Jersey and another.
The reigning chancellor of New York was now none other than James Kent, who, as chief justice, had delivered the decisive opinion in the case of the Hope in 1812. That he would reverse in the Court of Chancery a decision he had delivered in the Court of Errors was not to be expected. In a complicated decision that adds nothing to his fame as a jurist, he held that Ogden could continue to steam between New York and Elizabethtown Point in the Atalanta, but that Gibbons’ Bellona could not operate between the Point and New Brunswick.
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.
Nor was this all. The contest between state-conferred steamboat monopolies and the clash of state retaliatory laws threatened to reduce the nation’s commerce to that particularist chaos which the Constitution itself had been providentially designed to avert. And here the indefatigable Thomas Gibbons was not backward. He persuaded the New Jersey legislature to pass a new retaliatory act, and on February 20, 1820, it did so. By this act, any nonresident of New Jersey who enjoined a New Jersey citizen, in the Chancery Court of New York, from navigating by steamboat any of the waters between the “ancient” shores of New Jersey, could in turn be enjoined by the Chancery Court of New Jersey from navigating between those “ancient” shores. Moreover, and this was the sting, he could be made liable for all damages, with triple costs, in any action for trespass or writ of attachment which he had obtained against a New Jersey citizen in the New York court.
Thus John R. Livingston, to his dismay, discovered that his Olive Branch had been detained and attached in New Brunswick to answer for damages alleged to have arisen from the injunction he had won against Gibbons in May, 1819. Threatened with successive attachments and prohibitive costs, he had at one time withdrawn the Olive Branch from service. In Livingston v. D. D. Tompkins (June 1, 1820), Livingston v. Gibbons (August 26, 1820), and Livingston v. Gibbons, impleaded with Ogden (May 8, 1821), one may trace his efforts, on behalf of Ogden as well as himself, to wriggle out of this predicament. But, alas, there was in Livingston’s character just a touch of Sir Giles Overreach; he succeeded only in arousing the wrath of Chancellor Kent, a high-minded gentleman who cared little for the stratagems of entrepreneurs, but much for the dignity of the law.
Actually, Chancellor Kent had now thrown in the sponge. He had done his best for the rights and dignity of his state and his court; he might talk about state reprisals and jurisdictions until the very walls of his courtroom reverberated with his declamations; but he was, after all, one of the first jurists in the nation; and there had been growing upon his shuddering inner vision, feature by feature, like some Cheshire cat’s, the implacably smiling visage of the commerce clause of the Constitution. In the meantime, he had left the quarrel between Ogden and Gibbons in a state of armed neutrality, and Gibbons and Vanderbilt continued, by one device or another, to keep the Bellona steaming between New Jersey and New York until such time as the Supreme Court should rule upon Gibbons’ appeal from the New York Court of Errors.
This appeal had been docketed with the Supreme Court in 1820, dismissed for technical reasons in 1821, docketed again in 1822, and continued from term to term until February, 1824. By that time and in that political climate, with nationalism and states’ rights opposed on many fronts, it was already a famous case. Eminent counsel had been briefed on both sides: Daniel Webster and Attorney General William Wirt for Gibbons; Thomas J. Oakley and Thomas Addis Emmet for Ogden and the monopoly.
One might have supposed, since the nationalist John Marshall was Chief Justice and the Court was supposedly “Marshall’s Court,” that a decision in favor of Gibbons was a foregone conclusion. But the assertion that Congress could actually regulate interstate trade was in those days a very daring one; and although John Marshall was a bold man, many people doubted if he would be as bold as all that. Nor could one be sure that, in this instance, he would be supported by a majority of his brethren.
The legal questions were extremely complicated, and Gibbons’ able lawyers exploited every possible argument. Wirt, for example, reasoned that the monopoly laws conflicted with certain acts of Congress and were therefore void. Webster, however, who opened for Gibbons, went boldly to the heart of the matter by claiming that it was of no moment whether or not the New York statutes were in conflict with an act of Congress. The constitutional authority of Congress was such that it had the power exclusively to regulate commerce in all its forms upon all the navigable waters of the United States. Afterward he said—whatever Webster’s faults, self-depreciation was not among them—that Marshall took in his words “as a baby takes in his mother’s milk.” This was not quite the case. The truth seems to be that the two men thought very much alike on the question, but that it required all Marshall’s gifts to weave into a more prudent form the arguments so vehemently presented by Webster.
The pleadings consumed four and a half days, and it was generally conceded that every one of the counsel had surpassed himself—in learning, in subtlety, in eloquence. Nearly a month passed before Marshall delivered the Court’s opinion. It was one of the most statesmanlike he had ever penned, and, from a legal point of view, one of his soundest. And one should always remember, as Justice Felix Frankfurter says, that when Marshall applied the commerce clause in Gibbons v. Ogden “he had available no fund of mature or coherent speculation regarding its implications.” Like the steamboat itself, the decision which freed the steamboat was a pioneer.
Marshall began by defining “commerce” not in the strict sense of “buying and selling” (as Ogden’s counsel had urged) but (this was Wirt’s definition) as “intercourse,” which, of course, included navigation. It comprehended also the power to prescribe rules for carrying on that intercourse.
This being the case, one had then to ask whether the power of Congress, under the commerce clause, invalidated the monopoly statutes of the state of New York. Here Marshall ruled that the coasting license act of 1793, dealing with the subject matter of that clause, was superior to a state law dealing with the same subject matter. Thus Gibbons’ license did not merely confer upon his vessel an American character; it also permitted that vessel to trade between the port of one state and the port of another; nor did the fact that it was a steamboat have any relevance. Marshall’s majestic reasoning struck down the monopoly in twenty words: “The laws of Congress, for the regulation of commerce, do not look to the principle by which vessels are moved.”
Congress, in short, had power over navigation “within the limits of every State” so far as navigation may be, in any way, connected with foreign or interstate trade. (It should be remarked in passing that it took two more suits in the New York courts to determine whether or not the Livingston-Fulton monopoly was valid for purely intra-state commerce. Chief Justice Savage in the Court of Errors— North River Steamboat Co. v. John R. Livingston, February, 1825—declared that it was not.)
The subtleties, the complexities, the mass of subsequent legal glossing, the vexed questions of state taxing and state police powers—all these are irrelevant to this bare narrative: the point is that Marshall’s great decision, which has been called “the emancipation proclamation of American commerce,” has substantially survived the erosions of time and of change. Its immediate effect was to set the steamboat free on all the waters of the United States. Its more distant effects were beyond the scrutiny of Marshall and his contemporaries: the railroad, the telegraph, the telephone, the oil and the gas pipe-lines, the aeroplane, as they moved across state borders, all came under the protection of Gibbons v. Ogden.
The decision was the only popular one which Marshall ever rendered. And yet there were many dissidents. Slaveowners, for example, were deeply alarmed for the future of the interstate slave trade. Others, more selfless and high-minded—and of these Thomas Jefferson was the first and greatest—saw in Gibbons v. Ogden only a despotic extension of the powers of the federal government. What Gibbons and Ogden had to say has not been recorded for the instruction of posterity. One might, however, add by way of postscript that Ogden died a bankrupt and Gibbons a millionaire. Since Ogden was undoubtedly the more estimable of the two, one wonders whether the outcome proves the injudiciousness of yielding to a monopoly, or the advantage of breaking the law.