Gibbons v. Ogden, Law, and Society in the Early Republic

Thomas H. Cox

• Publisher: Ohio University Press
• Year: 2009
• Topic: History
• eBook ISBN:
  9780821443330
• Subtopic: World History
• Index: History

Gibbons v. Ogden, Law, and Society in the Early Republic examines a landmark decision in American jurisprudence, the first Supreme Court case to deal with the thorny legal issue of interstate commerce.

Decided in 1824, Gibbons v. Ogden arose out of litigation between owners of rival steamboat lines over passenger and freight routes between the neighboring states of New York and New Jersey. But what began as a local dispute over the right to ferry the paying public from the New Jersey shore to New York City soon found its way into John Marshall's court and constitutional history. The case is consistently ranked as one of the twenty most significant Supreme Court decisions and is still taught in constitutional law courses, cited in state and federal cases, and quoted in articles on constitutional, business, and technological history.

Gibbons v. Ogden initially attracted enormous public attention because it involved the development of a new and sensational form of technology. To early Americans, steamboats were floating symbols of progress—cheaper and quicker transportation that could bring goods to market and refinement to the backcountry. A product of the rough-and-tumble world of nascent capitalism and legal innovation, the case became a landmark decision that established the supremacy of federal regulation of interstate trade, curtailed states' rights, and promoted a national market economy. The case has been invoked by prohibitionists, New Dealers, civil rights activists, and social conservatives alike in debates over federal regulation of issues ranging from labor standards to gun control. This lively study fills in the social and political context in which the case was decided—the colorful and fascinating personalities, the entrepreneurial spirit of the early republic, and the technological breakthroughs that brought modernity to the masses.

CHAPTER 1

Steam Power and Patent Law Development in the Eighteenth Century

Perseverance against Great Odds

On Monday, August 20, 1787, a crowd gathered at the Front Street ‘wharves on the banks of the Delaware River in Philadelphia. Curious, the people had come to watch John Fitch and Henry Voight launch their experimental steamboat, aptly named Perseverance. The inventors were an interesting pair. Fitch radiated detached impatience, whereas the jovial Voight conversed with the speculators in the crowd. A “crank-and-paddle” engine, which consisted of six sets of steam-powered oars, propelled the narrow craft. Hoping to attract investors, Fitch offered free rides aboard Perseverance to influential observers. Several leading politicians, including Oliver Ellsworth (who would later serve as the second chief justice of the U.S. Supreme Court), Samuel Johnson, Rufus King, and Edmund Randolph, accepted rides in the strange-looking craft, which churned several hundred yards upstream before returning to the dock. Johnson later sent a congratulatory certificate to Fitch; however, neither he nor any of the other spectators offered financial support.¹ While Fitch and Voight promoted their invention, Johnson, Ellsworth, and their colleagues at the Philadelphia Convention meeting three blocks away sought support for their own creation, the U.S. Constitution. On August 18, two days before Fitch and Voight’s demonstration, James Madison had spearheaded the debate over a constitutional clause for the “promotion of useful arts,” which the convention approved on September 12, 1787.²

John Fitch. “Portrait of John Fitch,” in James T. Lloyd, Lloyd’s Steamboat Directory and Disasters on Western Rivers (Cincinnati, OH: James T. Lloyd, 1906), 18

Attempts by Fitch and his colleagues to create steamboat businesses in an era of economic uncertainty and rapid political change were the subject of a vital chapter in the history of American transportation. Fitch hoped that the fledgling federal government would provide European-style legal protection for his inventions. In the sixteenth and seventeenth centuries, industrial development had unleashed advancements in iron forging, building construction, and steam power. Modernization had also created powerful nation-states that granted patents and other exclusive monopolies to increase royal authority. European inventors often secured aristocratic patrons who helped them obtain royal patents in return for a share of the profits. Yet in America, despite the abundance of land and waterways that made it a natural arena for the development of steam power, European patent systems were unrealistic because of the sheer size and sparse population of the frontier.

John Fitch’s steamboat at Philadelphia. “John Fitch’s Steamboat at Philadelphia,” in E. Benjamin Andrews, History of the United States from the Earliest Discovery of America to the Present Time (New York: Charles Scribner’s Sons, 1894), 2:290

Early inventors such as Fitch and Voight had to find new methods to legally defend their inventions. Rather than discovering a single solution for their problems, these entrepreneurs learned to rely on a combination of state-granted monopolies and personal reputations to discourage competitors. In particular, Fitch learned than in an increasingly democratizing American society, cultivating a reputation as a heroic scientist who was laboring for the public good would help him secure the customers, patrons, and public support that strong patent laws would have provided in European circles. In this regard, Fitch did more than pioneer steam technology. He developed legal precedents and business techniques that future steamboat inventors would adopt with increasing regularity.

The Industrial Revolution

The framers of the U.S. Constitution were not the first political leaders to consider the merits of regulating scientific inventions.³ Since the late Middle Ages, European governments had recognized the value of encouraging technological achievements by promising inventors certain exclusive rights over their discoveries. In the 1400s, the English government took the lead in promoting scientific development through royally granted monopolies. Under that system, monarchs issued monopolies to political allies to raise money or to protect local industries from foreign competition. In 1449, to protect English products from cheaper Italian imports, Henry VI awarded the first British patent to John of Utynam, for stained-glass manufacturing. And throughout the fifteenth and sixteenth centuries, the English monarchy granted patents to ironworkers, stonemasons, shipwrights, and other artisans. These franchises took several legal forms: charters to private corporations, letters patent with directives to the public, and closed letters that provided private instructions to key individuals. Just as titles of nobility gave landowners the right to govern peasants who lived on their lands, patents gave promising inventors exclusive rights to reap the profits of their inventions. In time, these monopolies became an accepted part of English common law.⁴

As part of her efforts to create a modern nation-state, Elizabeth I granted monopolies to promote English mining, iron working, and shipbuilding. In 1557, she granted the Stationers Company a powerful monopoly over all printed material in England. Elizabeth also used patents to attract Dutch, French, and German artisans to England with the promise that they could receive monopoly rights as original inventors, even if they imported only the work of others.⁵ In 1623, Parliament drew from medieval guild laws to pass the Statute of Monopolies, limiting the number of exclusive franchises the monarchy could grant. Just as master craftsmen could bind apprentices to two seven-year terms and thus control their labor, inventors could now gain the profits from their inventions for a maximum of fourteen years. The statute also stipulated that when a monopoly expired, its details would be made available to the public.⁶ Parliament subsequently passed the Statute of Anne in 1710, which distinguished copyrights from patents and gave authors control over their written work for limited periods. Because of two landmark legal cases, Millar v. Taylor (1769) and Donaldson v. Beckett (1774), Parliament declared authors had a common-law right to their intellectual property for twenty-eight years, but grants to inventors were based on royal prerogatives. These precedents formed the basis for English patent law until the mid-nineteenth century, and they were part of the English legal tradition that settlers brought with them to North America.⁷

Social Consequences of Technological Change

By the mid-1700s, the creation of English patent law had achieved its desired result—the industrial development of Great Britain. Canals, clocks, foundries, mechanical looms, toll bridges, gristmills, sawmills, whiskey stills, windmills, and rudimentary steam engines dotted the English landscape. The rise of machines redefined labor and forced industries that could not afford new technology to increase the productivity of their human workforces. As a result, industrialization had a cumulative effect on increasing the rate of production in the workplace. These trends soon became apparent not just in Britain but also in much of western Europe.⁸

Of all the technological developments in the late eighteenth century, steam power had perhaps the most diverse range of industrial uses. British inventor Thomas Newcomen perfected the first steam engine capable of industrial use in 1712. Matthew Boulton and James Watt became partners in 1775 and created an engine based on a high-pressured steam boiler and piston, as opposed to earlier models that relied on condensation to operate. Boulton and Watt patented their invention and opened the first steam engine factory. Following a successful steamboat trial in Lyons, French inventor Claude-François-Dorothée, marquis de Jouffroy d’Abbans, obtained a French patent over steam travel in 1783.⁹ Industrialists used the rudimentary engines to pump water out of coal mines and to run power looms. The development of “vessels powered by fire and steam” visibly had far-reaching social effects and created new communication and trade networks. The evolution of steam engines on both sides of the Atlantic captured the public’s imagination, and the engines became a symbol of increased industrialization.¹⁰

Development of Steam Technology in North America

Effective patent policies helped Britain emerge as the leading producer of steam technology in the world. Given their shared history and culture, when Americans sought to establish their own industrial and legal systems, they did so with British precedents in mind. Chronic labor shortages, the need for fast and reliable transportation, and the opportunity to settle the frontier made the idea of steam power popular in eighteenth-century North America.¹¹ Steamboat inventors made frequent trips to Europe, seeking capital and advice for their experiments. Conversely, English, Scottish, and Irish mechanics well versed in steam power emigrated to work in the foundries and shipyards of Philadelphia, Boston, and New York City.¹²

One such émigré was Christopher Colles, an Irish native and former protégé of Richard Poacoke, a well-known Anglican bishop and anthropologist. Colles perfected his mathematical and engineering skills by constructing a canal across the Shannon River before departing for America with his family in August 1771. Skilled at attracting European patrons, Colles was disheartened when a lecture at the American Philosophical Society on the benefits of steam power met with roaring applause but little financial support. He therefore sent pamphlets to leading Philadelphia citizens and colonial legislatures to propose a canal system in return for governmental land grants, the one form of wealth readily available in the colonies. In 1774, the Philadelphia City Council agreed to fund a plan by Colles to supply the city with water using a steam engine. Unfortunately, a lack of funds with which to purchase much-needed equipment and the services of skilled artisans led to the eventual failure of the project.¹³

One individual who learned much from Colles’s pioneering endeavors was John Fitch. The son of hardscrabble Connecticut farmers, Fitch used his affinity for mathematics to escape rural life. After brief careers as a mechanic, a craftsman, and a land speculator, he became interested in steam travel. Fitch later wrote in his memoirs that a chance encounter in April 1785 with a wealthy man in a horse-drawn carriage inspired him, in a dramatic moment of insight, to design a steam-powered carriage: “I soon thought that there might be a force procured by Steam and set to and made a draft. And in about one weeks time gave over the Idea of Carriages but thought it might answer for a Boat or better yet for a first rate man of war.”¹⁴ More probably Fitch got many of his ideas from William Henry a Pennsylvania gunsmith and inventor who perfected plans for a functional steamboat but who, like Colles, failed to secure financial support to create a working engine.¹⁵

While Fitch struggled with his designs, rival inventor James Rumsey cultivated support for his own fledgling steamboat business. A Maryland native, Rumsey worked as an innkeeper and amateur engineer. He possessed a keen mind but, unlike the impulsive Fitch, tempered his creativity through methodical experimentation. In 1780, Rumsey built a working model of a steam-powered boat that pushed its way along riverbeds by a series of poles.¹⁶ Drawing from European precedents, Rumsey courted the friendship and patronage of wealthy Americans—including George Washington, Thomas Jefferson, James Madison, and John Marshall—who frequented his inn.¹⁷

The Race for Public and Private Patronage

In 1783, Rumsey borrowed from Colles’s techniques to ask the Continental Congress for a grant of western land that he could use or sell to finance his research in steam travel. To his chagrin, he learned that Philadelphia inventor James McMechen had already petitioned Congress for a land grant to finance a pole-powered steamboat, which bore a strong resemblance to the vessel in Rumsey’s own blueprints. Congress appointed a subcommittee to examine the competing claims, and on July 11, 1783, it produced a report that lauded McMechen’s goals but postponed giving him support until he developed a working steamboat. In 1784, McMechen publicly renounced his claims as inventor of the pole boat in exchange for a partnership with Rumsey. The two men jointly appealed for additional funds. Since Rumsey carried the written support of George Washington and Thomas Jefferson, Congress took his petition seriously.¹⁸

Hugh Williamson, who chaired the congressional subcommittee appointed to resolve the steamboat controversy, wrote to Washington and Jefferson for confirmation of Rumsey’s reliability. Washington voiced his support, whereas Jefferson nonchalantly admitted to having seen a demonstration of Rumsey’s boat.¹⁹ On May 11, 1785, Rumsey and McMechen received a congressional promise of twenty thousand acres of land west of the Ohio River—if they could produce a steamboat that ran fift...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Illustrations
• Preface
• Acknowledgments
• 1 Steam Power and Patent Law Development in the Eighteenth Century
• 2 Origins of the Fulton-Livingston Monopoly
• 3 Corporate Negotiations
• 4 Defending the Monopoly
• 5 Interstate Competition
• 6 Personal Rivalries and Lawsuits
• 7 The Road to the U.S. Supreme Court
• 8 Strategies and Deliberations
• 9 The Gibbons Decision and Popular Reaction
• 10 The Decline of the New York Steamboat Monopoly
• Conclusion Gibbons v. Ogden as Historical Precedent
• Notes
• Bibliography
• Index