Taking the letters patent from me, Mr. Delacy placed in my hands a carefully prepared assignment from Roosevelt to William Griffith, an eminent lawyer of New Jersey, conveying them in trust for the benefit of Roosevelt, for one-third interest, of Delacy, for one-third, and of Griffith and Aaron Ogden, of a well known and distinguished family, for the remaining third. The assignment gave Griffith the power to sell rights and sue infringers; and excepted from its operation the Shrewsbury and Jersey Stage Company and Ogden, who were already licensees of Roosevelt, the latter running a boat between Elizabethtown and New York.
Nor was this all. Delacy, who evidently was pleased with the impression he saw he was making, next handed me an opinion on a case stated, given by Mr. Wirt, in 1826, of which the following is an extract:
CASE.
In the year 1809, Robert Smith, Esquire, then being Secretary of State, an application was made to him by the late Robert Fulton, Esq., for a patent for the using of vertical wheels with steam engines or other power to propel boats through the water; but though he filed such his application, &c., he neither subscribed nor swore thereto in the manner prescribed, or required, by law; for the name, Robert Fulton, is in the handwriting of another man.
In 1814, (under view of the circumstances,) a patent was granted to Nicholas J. Roosevelt, for the using vertical wheels with steam engines, or other acting power, to propel boats, &c., through water, the patent or papers issued to Fulton being considered void, and but as so much blank paper.
Public notice was given of the patent having been granted to Roosevelt, and Fulton never urged his claim, but from that moment abandoned it; and Roosevelt’s patent, though well and publicly known to exist, and to be in existence for twelve years, has been neither impeached nor impugned; neither does any other person lay claim to the invention of the application of vertical wheels.
It is asked, if, under the within stated circumstances, the patent to Roosevelt is not valid; and at this distance of time from being issued, is not now unimpeachable?
Other questions were asked in connection with the assignment. Mr. Wirt’s answer to the above is alone important however at this time. It is as follows:
Baltimore, July 11th, 1826.
On the above statement I am of opinion, that the patent to Roosevelt is valid. It is still subject to impeachment, however, on the ground that he was not the first discoverer of the improvement which he has patented. The distance of time since the date of the patent is sufficient to bar a proceeding to set it aside by scire facias under the third section of the Act of 1793; but any defendant, against whom an action may be brought under the patent, may impeach it at any distance of time, under the sixth section of the Act of 1793.
Satisfied from this showing that Mr. Delacy’s case was not a bad one, I agreed to undertake it, and wrote to Mr. Roosevelt, in the State of New York, upon the subject. He corroborated all that I had heard, sent me copies of important correspondence, and referred me to Richard S. Coxe, Esq., of Washington, who was the executor of Mr. Griffith, the assignee for the original papers. Mr. Griffith had then been for many years dead.
Among my clients, at this time, was the late Mr. John S. Stiles, who, hearing what had taken place with Delacy, agreed, in consideration of participating in my fee, to visit Washington, call on Mr. Coxe, obtain the Griffith papers, and afterward go to Clermont, the residence of the late Chancellor Livingston, who, I learned from Mr. Roosevelt, was connected with the investigation I was about to make.
On the return of Mr. Stiles to Baltimore, and after an examination of papers he had obtained, the case looked so strong, that I called on Mr. Wirt, reminded him of his opinion, shewed him my documents, and asked him if he would come into the case on a contingent fee. I called also on Mr. Taney. Both gentlemen thought the prospect of success was fair; and both agreed to participate in the trial, which was to take place in the Circuit Court of the United States, in Baltimore. It was thought best, on consultation, to begin the litigation by suing the company owning the steamboats running from Baltimore to Frenchtown, at the head of which was the late General William McDonald; and I addressed myself, at once, to as thorough a preparation as I was capable of making, prior to issuing a writ. Difficulties now presented themselves which I had not appreciated when Mr. Delacy called on me, or while gathering the documentary evidence. I am reminded of the first that occurred by Mr. Roosevelt’s reply to my letter already mentioned. It was necessary that we should have a meeting; but to bring this about required an hundred dollars, which neither of us had to spare. Then, commissions were necessary to collect the testimony of parties at a distance. In a word, it was apparent that more means were needed than I, a young lawyer, just beginning the world, could command; and Mr. Stiles had spent all he could afford in his visits to Washington and Clermont. I was in trouble, too, about Delacy. He had procured, on credit, from Patterson, the then fashionable tailor in South street, a complete outfit; and not having the money to pay for it, Patterson, who was unwilling to wait until our success at law made my client’s fortune, put him in jail, in spite of his sounding name and lofty bearing. I had to become security for him, and ultimately to pay the debt. By this time, I had found out that he had an aptitude for this sort of thing; and that it would be for my own advantage, and the credit of the great case, to get him out of town as soon as possible. Always buoyant in his feelings, gushing in his manner, and intending to be honest, he was one of those men who are always in trouble. As already intimated, therefore, I was not as hopeful at the end of some months as I had been; and, when Mr. Taney asked me, one day, how my preparation was getting on, I told him, candidly, all my troubles, present and prospective. His advice was kind and prompt. The case he still thought was a fair one, and if it went on he would go into it with earnest zeal; but, he advised me not to hamper myself in the commencement of my professional career. One thing was certain. I would have against me every steamboat owner in the United States. Now-a-days, combinations often carry on these great cases. It was not so then; and, after discussing the matter with Mr. Stiles, I tied up my papers, and abandoning the idea of suing General McDonald, placed them in the pigeon-hole, where, with a single exception, they have remained undisturbed for upwards of forty years, and now see the light, only that this Lost Chapter may be written. The exception was this. In 1855 or 1856, I lent the package to Dr. Hamel, a Russian savant, who was about preparing a history of steam navigation, and who visited America to obtain information on this and other subjects. The papers remained in his hands for some months. They were returned when he was on the eve of departure for Europe. He has been dead for many years; and I am not aware that he made any use of what he got from me. It is probable, therefore, that what I am about to tell will be told for the first time, now. It seems proper that it should not be wholly lost, and hence I tell it.
To us, of to-day, it appears strange that the first suggestion of steam, as a motive power for the propulsion of vessels was not accompanied by a plan for using vertical wheels over the sides to which to apply it. And yet, this was very far from being the case. Fitch, in 1783, propelled a boat upon the Delaware by a steam mechanism that moved paddles, as an Indian works the paddle in a canoe. Rumsey had a vertical pump, operated by steam, in the middle of his boat, that drew in water at the stem and expelled it at the stern, through an horizontal trunk in the bottom. Dr. Franklin’s plan was to make a current of steam propel the vessel as it issued from the stern. Then steam was applied to oars, and for a season a boat was rowed by steam between Philadelphia and Bordentown. Dr. Kensey built a steam engine that was to operate upon oars, paddles and flutter wheels. Fulton himself, as stated by his biographer, Colden, after subjecting Rumsey’s mode to the test of calculation, “thought of paddles and duck’s feet, abandoning which, he took up the idea of using endless chains with resisting boards upon them as propellers. His calculations,” still using Colden’s language, “giving him a favorable opinion of the mode; at least, he was persuaded it was greatly preferable to any other method that had been previously tried.”