FOOTNOTES:
[1107] Institut national des sciences et des arts.
[1108] Dickinson: Robert Fulton, Engineer and Artist, 156-57; also see Thurston: Robert Fulton, 113.
[1109] See Dickinson, 126-32; also Knox: Life of Robert Fulton, 72-86; and Fletcher: Steam-Ships, 19-24.
[1110] Dickinson, 134-35; Knox, 90-93.
[1111] Act of March 27, 1798, Laws of New York, 1798, 382-83.
This act, however, was merely the transfer of similar privileges granted to John Fitch on March 19, 1787, to whom, rather than to Robert Fulton, belongs the honor of having invented the steamboat. It was printed in the Laws of New York edited by Thomas Greenleaf, published in 1792, i, 411; and also appears as Appendix A to "A Letter, addressed to Cadwallader D. Colden, Esquire," by William Alexander Duer, the first biographer of Fulton. (Albany, 1817.) Duer's pamphlet is uncommonly valuable because it contains all the petitions to, and the acts of, the New York Legislature concerning the steamboat monopoly.
[1112] Reigart: Life of Robert Fulton, 163. Nobody but Livingston was willing to invest in what all bankers and business men considered a crazy enterprise. (Ib. 100-01.)
[1113] Knox, 93. It should be remembered, however, that the granting of monopolies was a very common practice everywhere during this period. (See Prentice: Federal Power over Carriers and Corporations, 60-65.)
[1114] Compare with his brother's persistence in the Batture controversy, supra, 100-15.
[1115] Dickinson, 64-123; Knox, 35-44.
[1116] Knox, 93; see also Dickinson, 136.
[1117] Act of April 5, 1803, Laws of New York, 1802-04, 323-24.
[1118] Act of April 6, 1807, Laws of New York, 1807-09, 213-14.
[1119] The North River was afterward named the Clermont, which was the name of Livingston's county seat. (Dickinson, 230.)
[1120] The country people along the Hudson thought the steamboat a sea monster or else a sign of the end of the world. (Knox, 110-11.)
[1121] Act of April 11, 1808, Laws of New York, 1807-09, 407-08. (Italics the author's.)
[1122] Dickinson, 233-34.
[1123] Ib. 234-36. The thoroughfare in New York, at the foot of which these boats landed, was thereafter named Fulton Street. (Ib. 236.)
[1124] See infra, 414.
[1125] Dickinson, 230. From the first Roosevelt had been associated with Livingston in steamboat experiments. He had constructed the engine for the craft with which Livingston tried to fulfill the conditions of the first New York grant to him in 1798. Roosevelt was himself an inventor, and to him belongs the idea of the vertical wheel for propelling steamboats which Fulton afterward adopted with success. (See J. H. B. Latrobe, in Maryland Historical Society Fund-Publication, No. 5, 13-14.)
Roosevelt was also a manufacturer and made contracts with the Government for rolled and drawn copper to be used in war-vessels. The Government failed to carry out its agreement, and Roosevelt became badly embarrassed financially. In this situation he entered into an arrangement with Livingston and Fulton that if the report he was to make to them should be favorable, he was to have one third interest in the steamboat enterprise on the Western waters, while Livingston and Fulton were to supply the funds.
The story of his investigations and experiments on the Ohio and Mississippi glows with romance. Although forty-six years old, he had but recently married and took his bride with him on this memorable journey. At Pittsburgh he built a flatboat and on this the newly wedded couple floated to New Orleans; the trip, with the long and numerous stops to gather information concerning trade, transportation, the volume and velocity of various streams, requiring six months' time.
Before proceeding far Roosevelt became certain of success. Discovering coal on the banks of the Ohio, he bought mines, set men at work in them, and stored coal for the steamer he felt sure would be built. His expectation was justified and, returning to New York from New Orleans, he readily convinced Livingston and Fulton of the practicability of the enterprise and was authorized to go back to Pittsburgh to construct a steamboat, the design of which was made by Fulton. By the summer of 1811 the vessel was finished. It cost $38,000 and was named the New Orleans.
Late in September, 1811, the long voyage to New Orleans was begun, the only passengers being Roosevelt and his wife. A great crowd cheered them as the boat set out from Pittsburgh. At Cincinnati the whole population greeted the arrival of this extraordinary craft. Mr. and Mrs. Roosevelt were given a dinner at Louisville, where, however, all declared that while the boat could go down the river, it never could ascend. Roosevelt invited the banqueters to dine with him on the New Orleans the next night and while toasts were being drunk and hilarity prevailed, the vessel was got under way and swiftly proceeded upstream, thus convincing the doubters of the power of the steamboat.
From Louisville onward the voyage was thrilling. The earthquake of 1811 came just after the New Orleans passed Louisville and this changed the river channels. At another time the boat took fire and was saved with difficulty. Along the shore the inhabitants were torn between terror of the earthquake and fright at this monster of the waters. The crew had to contend with snags, shoals, sandbars, and other obstructions. Finally Natchez was reached and here thousands of people gathered on the bluffs to witness this triumph of science.
At last the vessel arrived at New Orleans and the first steamboat voyage on the Ohio and Mississippi was an accomplished fact. The experiment, which began two years before with the flatboat voyage of a bride and groom, ended at the metropolis of the Southwest in the marriage of the steamboat captain to Mrs. Roosevelt's maid, with whom he had fallen in love during this thrilling and historic voyage. (See Latrobe, in Md. Hist. Soc. Fund-Pub. No. 6. A good summary of Latrobe's narrative is given in Preble: Chronological History of the Origin and Development of Steam Navigation, 77-81.)
[1126] Act of Jan. 25, 1811, Acts of New Jersey, 1811, 298-99.
[1127] Act of April 9, 1811, Laws of New York, 1811, 368-70.
[1128] Laws of Connecticut, May Sess. 1822, chap. xxviii.
[1129] Dickinson, 244.
[1130] Livingston et al. vs. Van Ingen et al., 1 Paine, 45-46. Brockholst Livingston, Associate Justice of the Supreme Court, sat in this case with William P. Van Ness (the friend and partisan of Burr), and delivered the opinion.
[1131] The full title of this tribunal was the "Court for the Trial of Impeachments and the Correction of Errors." It was the court of last resort, appeals lying to it from the Supreme Court of Judicature and from the Court of Chancery. It consisted of the Justices of the Supreme Court of Judicature and a number of State Senators. A more absurdly constituted court cannot well be imagined.
[1132] 9 Johnson, 558, 563.
[1133] The State Senate, House, Council of Revision, and Governor.
[1134] 9 Johnson, 572.
[1135] Those enacted in 1798, 1803, 1807, 1808, and 1811.
[1136] 9 Johnson, 573. Jay as Governor was Chairman of the Council of Revision, of which Kent was a member.
[1137] lb. 572.
[1138] Ib. 573. (Italics the author's.)
[1139] 9 Johnson, 574.
[1140] Ib. 575-76.
[1141] Ib. 577-78.
[1142] 9 Johnson, 578, 580.
[1143] Ib. 582-88.
[1144] All the Senators concurred except two, Lewis and Townsend, who declined giving opinions because of relationship with the parties to the action. (Ib. 589.)
[1145] Ogden protested against the Livingston-Fulton steamboat monopoly in a Memorial to the New York Legislature. (See Duer, 94-97.) A committee was appointed and reported the facts as Ogden stated them; but concluded that, since New York had granted exclusive steamboat privileges to Livingston, "the honor of the State requires that its faith should be preserved." However, said the committee, the Livingston-Fulton boats "are in substance the invention of John Fitch," to whom the original monopoly was granted, after the expiration of which "the right to use" steamboats "became common to all the citizens of the United States." Moreover, the statements upon which rested the Livingston monopoly of 1798 "were not true in fact," Fitch having forestalled the claims of the Livingston pretensions. (Ib. 103-04.)
[1146] 4 Johnson's Chancery Reports, 50-51. The reader must not confuse the two series of Reports by Johnson; one contains the decisions of the Court of Errors; the other, those of the Court of Chancery.
[1147] Act of April 6, 1808, Laws of New York, 1807-09, 313-15.
[1148] 4 Johnson's Chancery Reports, 51, 53.
[1149] Ib. 152.
[1150] Ib. 154.
[1151] Act of Feb. 18, 1793, U.S. Statutes at Large, i, 305-18.
[1152] 4 Johnson's Chancery Reports, 156.
[1153] 9 Johnson, 507 et seq.
[1154] 4 Johnson's Chancery Reports, 158-59.
[1155] 17 Johnson, 488 et seq.
[1156] See supra, 240-50, 284-86.
[1157] Story to Fettyplace, Feb. 28, 1821, Story, i, 397.
[1158] Records Supreme Court, MS.
[1159] The case was first docketed, June 7, 1820, as Aaron Ogden vs. Thomas Gibbins, and the defective transcript was filed October 17, of the same year. When next docketed, the title was correctly given, Thomas Gibbons vs. Aaron Ogden. (Ib.)
[1160] Act of April 19, 1811, Acts of Territory of Orleans, 1811, 112-18.
[1161] Act of Nov. 18, 1814, Laws of Georgia, 1814, October Sess. 28-30.
[1162] Act of Feb. 7, 1815, Laws of Massachusetts, 1812-15, 595.
[1163] Act of June 15, 1815, Laws of New Hampshire, 1815, ii, 5.
[1164] Act of Nov. 10, 1815, Laws of Vermont, 1815, 20.
[1165] Ohio, for example, passed two laws for the "protection" of its citizens owning steamboats. This act provided that no craft propelled by steam, operated under a license from the New York monopoly, should land or receive passengers at any point on the Ohio shores of Lake Erie unless Ohio boats were permitted to navigate the waters of that lake within the jurisdiction of New York. For every passenger landed in violation of these acts the offender was made subject to a fine of $100. (Chap, xxv, Act of Feb. 18, 1822, and chap. ii, Act of May 23, 1822, Laws of Ohio, 1822.)
[1166] Niles's Register for these years is full of accounts of the building, launching, and departures and arrivals of steam craft throughout the whole interior of the country.
[1167] See Blane: An Excursion Through the United States and Canada, by "An English Gentleman," 119-21. For an accurate account of the commercial development of the West see also Johnson: History of Domestic and Foreign Commerce, i, 213-15.
On March 1, 1819, Flint saw a boat on the stocks at Jeffersonville, Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's Letters, in E. W. T.: Thwaites, ix, 164.)
[1168] Blane, 118.
[1169] Annals, 14th Cong. 2d Sess. 296.
[1170] Ib. 361.
[1171] See debate in the House, ib. 851-923; and in the Senate, ib. 166-70.
[1172] Ib. 924-33.
[1173] March 1, 1817, ib. 1052.
[1174] Veto Message of March 3, 1817, Richardson, I, 584-85.
[1175] Monroe gingerly referred to it in his First Inaugural Address. (Richardson, ii, 8.) But in his First Annual Message he dutifully followed Madison and declared that "Congress do not possess the right" to appropriate National funds for internal improvements. So this third Republican President recommended an amendment to the Constitution "which shall give to Congress the right in question." (Ib. 18.)
[1176] Annals, 15th Cong. 1st Sess. 451-60.
[1177] Ib. 1114-1250, 1268-1400.
[1178] "All the difficulties under which we have labored and now labor on this subject have grown out of a fatal admission" by Madison "which runs counter to the tenor of his whole political life, and is expressly contradicted by one of the most luminous and able State papers that ever was written [the Virginia Resolutions]—an admission which gave a sanction to the principle that this Government had the power to charter the present colossal Bank of the United States. Sir, ... that act, and one other which I will not name [Madison's War Message in 1812], bring forcibly home to my mind a train of melancholy reflections on the miserable state of our mortal being:
'In life's last scenes, what prodigies surprise!
Fears of the brave, and follies of the wise.
From Marlborough's eyes the streams of dotage flow,
And Swift expires a driv'ler and a show.'
"Such is the state of the case, Sir. It is miserable to think of it—and we have nothing left to us but to weep over it." (Annals, 18th Cong. 1st Sess. 1301.)
Randolph was as violently against the War of 1812 as was Marshall, but he openly proclaimed his opposition.
[1179] Ib.
[1180] Italics the author's.
[1181] Annals, 18th Cong. 1st Sess. 1308.
[1182] Ib. 1310-11. The bill passed, 115 yeas to 86 nays. (Ib. 1468-69.)
[1183] See infra, 535-36.
[1184] See infra, chap. x.
[1185] See vol. i, 310-12, of this work; also Marshall: Life of George Washington, 2d ed. ii, 105-06, 109-10, 125. And see Madison's "Preface to Debates in the Convention of 1787." (Records of the Federal Convention: Farrand, iii, 547.) "The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of the U. S. and destructive to their navigation.... The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations."
[1186] Records, Fed. Conv.: Farrand, ii, 143. The provision in this draft is very curious. It declares that "a navigation act shall not be passed, but with the consent of (eleven states in) <2/3d. of the Members present of> the senate and (10 in) <the like No. of> the house of representatives."
[1187] Ib. 135, 157, 569, 595, 655. Roger Sherman mentioned interstate trade only incidentally. Speaking of exports and imports, he said that "the oppression of the uncommercial States was guarded agst. by the power to regulate trade between the States." (Ib. 308.)
Writing in 1829, Madison said that the commerce clause "being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it ... grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." (Madison to Cabell, Feb. 13, 1829, ib. iii, 478.)
[1188] See Monthly Law Reporter, New Series, x, 177.
[1189] Wirt to Carr, Feb. 1, 1824, Kennedy, ii, 164.
[1190] Ib.
[1191] "Reminiscence," that betrayer of history, is responsible for the fanciful story, hitherto accepted, that Webster was speaking on the tariff in the House when he was suddenly notified that Gibbons vs. Ogden would be called for argument the next morning; and that, swiftly concluding his great tariff argument, he went home, took medicine, slept until ten o'clock that night, then rose, and in a strenuous effort worked until 9 A.M. on his argument in the steamboat case; and that this was all the preparation he had for that glorious address. (Ticknor's reminiscences of Webster, as quoted by Curtis, i, 216-17.)
On its face, Webster's argument shows that this could not have been true. The fact was that Webster had had charge of the case in the Supreme Court for three years; and that, since the argument was twice before expected, he had twice before prepared for it.
The legend about his being stopped in his tariff speech is utterly without foundation. The debate on that subject did not even begin in the House until February 11, 1824 (Annals, 18th Cong. 1st Sess. 1470), three days after the argument of Gibbons vs. Ogden was concluded; and Webster did not make his famous speech on the Tariff Bill of 1824 until April 1-2, one month after the steamboat case had been decided. (Ib. 2026-68.)
Moreover, as has been stated in the text, the debate on the survey of roads and canals was on in the House when the argument in Gibbons vs. Ogden was heard; had been in progress for three weeks previously and continued for some time afterward; and in this debate Webster did not participate. Indeed, the record shows that for more than a week before the steamboat argument Webster took almost no part in the House proceedings. (Ib. 1214-1318.)
[1192] 9 Wheaton, 3.
[1193] 9 Wheaton, 4-5.
[1194] Ib. 6-9.
[1195] Ib. 9.
[1196] Ib. 11.
[1197] Ib. 11-12.
[1198] 9 Wheaton, 14.
[1199] Ib. 24.
[1200] The student should carefully read these three admirable arguments, particularly that of Emmet. All of them deal with patent law as well as with the commerce clause of the Constitution. (See 9 Wheaton, 33-135.) The argument lasted from February 4 to February 9 inclusive.
[1201] 1 Brockenbrough, 430-31.
[1202] 1 Brockenbrough, 431-32.
[1203] Webster to his brother, Feb. 15, 1824, Van Tyne, 102.
[1204] 9 Wheaton, 186.
[1205] "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." (Preamble to the Constitution of the United States.)
[1206] 9 Wheaton, 187-88.
[1207] Ib. 188-89.
[1208] "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes." (Constitution of the United States, Article i, Section 8.)
[1209] 9 Wheaton, 192-93.
[1210] 9 Wheaton, 193-94.
[1211] Ib. 195.
[1212] 9 Wheaton, 195-96.
[1213] Ib. 196-97.
[1214] 9 Wheaton, 199-200.
[1215] 9 Wheaton, 202-03.
[1216] Ib. 203.
[1217] 9 Wheaton, 203-04.
[1218] Ib. 204-05.
[1219] Ib. 205-06.
[1220] 9 Wheaton, 206-09.
[1221] Ib. 209-10.
[1222] 9 Wheaton, 210-11. (Italics the author's.)
[1223] Ib. 211-12.
[1224] Ib. 214.
[1225] 9 Wheaton, 215-16.
[1226] Ib. 216-18.
[1227] Ib. 218-20.
[1228] 9 Wheaton, 221.
[1229] Marshall is here referring particularly to Chancellor Kent.
[1230] 9 Wheaton, 221-22.
[1231] 9 Wheaton, 222. (Italics the author's.)
[1232] 9 Wheaton, 227.
[1233] 9 Wheaton, 228-30.
[1234] Ib. 231-32.
[1235] New York Evening Post, March 5, 1824, as quoted in Warren, 395.
[1236] Niles, xxvi, 54-62.
[1237] For example, steamboat construction on the Ohio alone almost doubled in a single year, and quadrupled within two years. (See table in Meyer-MacGill: History of Transportation in the United States, etc., 108.)
[1238] 1 Hopkins's Chancery Reports, 151.
[1239] Ib. 198.
[1240] 3 Cowen, 716-17.
[1241] 3 Cowen, 731-34.
[1242] Ib. 750.
[1243] Ib.
[1244] 3 Cowen, 753-54.
[1245] This bill had been proposed by Senator Richard M. Johnson of Kentucky at the previous session (Annals, 18th Cong. 1st Sess, 575) as an amendment to a bill reported from the Judiciary Committee by Senator Martin Van Buren (ib. 336).
[1246] Debates, 18th Cong. 2d Sess. 527-33.
[1247] Ib. 588.
[1248] Ib. 609.
[1249] Ib. 614.
After considerable wrangling, the bill was reported favorably from the Judiciary Committee (ib. 630), but too late for further action at that session.
[1250] Debates, 19th Cong. 1st Sess. 845.
[1251] Four days after the House adopted Webster's bill (ib. 1149), he wrote his brother: "The judiciary bill will probably pass the Senate, as it left our House. There will be no difficulty in finding perfectly safe men for the new appointments. The contests on those constitutional questions in the West have made men fit to be judges." (Webster to his brother, Jan. 29, 1826, Priv. Corres.: Webster, i, 401.)
[1252] Debates, 19th Cong. 1st Sess. 417-18.
[1253] Ib. 419.
[1254] Ib. 420-21.
[1255] Debates, 19th Cong. 1st Sess. 423-24.
[1256] Ib. 436.
[1257] Ib. 442. Rowan's amendment was defeated (ib. 463). Upon disagreements between the Senate and House as to the number and arrangement of districts and circuits, the entire measure was lost. In the House it was "indefinitely postponed" by a vote of 99 to 89 (ib. 2648); and in the Senate the bill was finally laid on the table (ib. 784).
[1258] 12 Wheaton, 420.
[1259] Taney, leading counsel for Maryland, had just been appointed Attorney-General of that State, and soon afterwards was made Attorney-General of the United States. He succeeded Marshall as Chief Justice. (See infra, 460.)
[1260] Johnson was only thirty-one years old at this time, but already a leader of the Baltimore bar and giving sure promise of the distinguished career he afterward achieved.
[1261] 12 Wheaton, 436.
[1262] 12 Wheaton, 437-39.
[1263] Ib. 441.
[1264] Ib. 441-42.
[1265] 12 Wheaton, 443-44.
[1266] See infra, 536-38.
[1267] 12 Wheaton, 448-49.
[1268] 5 Howard, 575.