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drawn from the state without having made any attempt in the
The condition not being complied with, this act of course expired; but it was subsequently revived from time to time with a similar condition — and the same result — until the year 1807, when Mr. Fulton, having been associated with Mr. Livingston in the grant, the condition annexed to it was first performed, and the right thereby became absolutely vested.
Although the grant to Mr. Livingston in 1798, subsequently embracing Mr. Fulton as bis associate, vested no greater right in them than had previously been granted to John Fitch, yet it will be observed that there were several material points of difference in the two cases. In the first place, the grant to them divested another person of a right previously conferred upon him, and that without proof of the facts upon which a forfeiture of the prior grant was alleged to have arisen; secondly, the grant to Fitch was made to him as the “ inventor of the steamboat," and not as in the case of Livingston and Fulton, as the mere “possessors of a mode of propelling boats by steam upon new and advantageous principles;" and thirdly and chiefly, the act in favor of Fitch was passed before the adoption of the constitution of the United States had vested in cougress the power "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and also the power to regulate commerce with foreign nations and among the several states;" whereas the grants to Livingston and Fulton were made long after the constitution had been in operation, and congress had executed the powers vested in them in regard to these subjects, by enacting laws for the purpose, and when in point of fact Fitch had obtained a patent from the federal go
vernment for his invention, and had consequently surrendered any benefit to be derived under bis grant from this state, and had made several successful experiments in different parts of the Union before he repaired to Europe.
These material differences do not seem to have been considered, whilst Fitch was seeking abroad for that encouragement which had been withheld from him at home, and Mr. Livingston was in vain endeavoring to propel a boat “upon his new and advantageous principle," at the mean rate of “four miles an hour.” But when with the assistance of Mr. Fulton he had succeeded in performing the condition requisite to give effect to the grant, its validity began to be questioned chiefly on the ground of its repugnance to those articles of the federal constitution to which we have referred. The legislature, however, in 1808, passed another act confirmatory of their grant, and giving new and specific remedies to Messrs. Livingston and Fulton, to protect them against the threatened competition of those who doubted its validity. So strong, indeed, was the current of popular sentiment in favor of those who had opened to us the vast benefits of steam navigation, that the heavy penalties denounced against any interference with the enjoyment of their right, were not limited to the actual damage sustained by its invasion, but extended even to the forfeiture of every vessel propelled by steam which, in its defiance, should enter waters of this state without the license of its grantees.
Nevertheless, the impression against the validity of the grant was so prevalent amongst calm and impartial men, fortified by the opinions of some of the most eminent lawyers in the union in opposition to the power of the legislature to make it, that, as early as 1810, it was openly contravened by a company formed in Albany, who, at the risk of the impending forfeiture, established another line of steam passage boats on the Hudson river between that city and New York. A bill in chancery was filed, and an injunction prayed for against them, by the state grantees, in virtue of the act of 1808. The then chancellor (Lansing) refused to grant the writ, on the ground of the invalidity of the state grant, not only as repugnant to the constitution of the United States, but as against common right. Upon an appeal to the Court of Errors, this decree, however, was reversed. But in that case no patent right was pretended, and no coasting license under the laws of the United States was set up on the part of the respondents. The Court of Errors held the state grant to be valid, but merely on the ground of a concurrent but subordinate power in the state legislature, and declared, that in case of a condict, a patent right would prevail against it.” It was, moreover, denied by the judges who delivered opinions on that occasion, that "any interference had been shown between the state law and the constitutional power of congress to regulate commerce.” It was emphatically observed by one of them, that it would be " time enough to consider that question when it should arise;" and the general answer given in relation to all such collisions of authority, was the same as in the case of conflict with a patent right, namely, that " the laws of congress are paramount, and must prevail.”'
By a subsequent compromise between the parties, the hostile company was admitted to a participation of the exclusive privilege, the forfeited boats and all penalties and damages were released, and the waters of lake Champlain was assigned to them as their domain. Consequently, this cause was not carried up, as had been determined, for final decision in the supreme court of the United States, to which – as the decree of the state tribunal involved an interpretation of the federal constitution a further appeal might have been carried. Pending this suit, moreover, both parties to it had united in obtaining from the legislature new and more extraordinary remedies and penalties against any other interference with the state grant. By this last act, the chancellor was deprived of all judicial discretion as to granting an injunction, which it directed peremptorily to be allowed upon the filing of a bill by the grantees of the state, whilst any other hostile boat was to be seized and taken into the custody of the court at the commencement of the suit. As these new remedies were available at the discretion of the grantees themselves, not only in cases falling within the decision of the Court of Errors, but also in those which it expressly excepted, all further litigation of the question in the courts of justice was for a season eflectually put to rest.
The citizens of other states, however, especially of those which are separated from us by a boundary of common waters, were by no means disposed to acquiesce in measures interdicting them from the benefits of steam navigation upon those waters, unless they became licentiates and tributaries of Messrs. Livingston and Fulton. The legislature of this state was in the first instance resorted to by them, on the ground that notwithstanding they possessed patent rights, and held coasting licenses under the United States, the courts of justice were in effect closed against claimants under an authority which had been admitted, by our judges, to be
superior to that whence Messrs. Livingston and Fulton derived their right. The first to petition the legislature to remove the impediments which prevented access to the ordinary tribunals, was the late Col. Aaron Ogden of New Jersey, then governor of that
In his memorial, presented in 1814, he set forth, that he was the proprietor of an ancient ferry between Elizabethtownpoint and the city of New York, upon which the establishment of steam boats would not only tend greatly to the public accommodation, but was necessary to preserve to him his accustomed business; and he claimed not only under a patent and a coasting license from the United States, but as the representative of John Fitch, and the assignee of whatever benefit might accrue to him in that character, either under the state grant of 1787 to Fitch, or under the patent which the latter had subsequently obtained from the government of the United States.
This memorial was referred to a select committee of the assembly, of which Mr. William Duer, then a member from the county of Dutchess, afterwards one of the circuit judges of the state, and now president of Columbia college, was the chairman. Remonstrances were presented by the state grantees, which were referred to the same committee, before whom both parties were permitted to appear and adduce evidence, and were heard by counsel, not only before the committee, but subsequently at the bar of the house, npon the bringing up of the report. As to the experiments of Fitch, the evidence consisted of the contemporaneous accounts of the performances of his boat, and certificates from Dr. Rittenhouse, Oliver Evans, John Ewing, and Andrew Ellicott, in full confirmation of his success. The late General Bloomfield was examined personally as a witness, and testified that he had, in 1787 or 8, passed up and down the Delaware, between Philadelphia and Bordentown, as a passenger on board Fitch's steam-boat, and considered the experiment to have succeeded; but had understood the plan of continuing the boat on the Delaware had eventually failed for want of sufficient encouragement, and that Fitch himself afterwards went to Europe, and there had died. The patent granted to Fitch by the government of the United States, and an authenticated drawing of his boat, were exhibited ; and on a comparison of these with the specifications of patents obtained from the same authority by Mr. Fulton, a full quarter of a century afterwards, it appeared that the most material difference in the application of the steam-engine to their respective vessels was, that in Fitch's the cranks of the
NO. VII.-VOL. IV.
axle-beam were connected with a frame, from which paddles were suspended perpendicularly, acuing in an elliptical line upon the waters - whilst in Fulton's the axle was attached to vertical wheels, with paddles or buckets permanently fixed in their periphery ; in both, the motion of the axis itself was rotatory.
These facts, amongst others less material to our present purpose, were reported by the committee to the house, and in compliance with the standing rule of the assembly, requiring that they should not only state the facts, but also their opinion upon them, the committee proceeded to declare, that the steam-boats built by Livingston and Fullon, were in substance the invention patented to John Fitch in 1791 ; that Fitch, during the term of his patent, had the exclusive right to use the same in the Cnited States; and that, after the expiration of that term, the right to use them became common to all the citizens of the United States : thus, in effect, declaring, not merely that the exclusive right secured for a limited time to a patentee under the constitution and laws of the United States, but, as a necessary consequence, that the common right of the public to the use of the patented invention, after the expiration of the time so limited, was paramount to the state grant. The committee further declared, that as the constitution of the United States vests in congress the power (necessarily an exclusive one) to regulate commerce between the states, it was in their opinion at least questionable, whether the legislature of this state had any power to interfere with or prevent the navigation in any of its waters, and more especially in any of the waters lying between this and a neighboring state, of a vessel navigated under a license obtained according to the laws of the union ; and they did not hesitate to pronounce the act of 1811, giving the extraordinary remedies to Messrs. Livingston and Fulton, to be unjust and violent in its operation, closing in effect the courts of justice against any person who might be desirous of bringing the rights vested or claimed under the state grant to a legal test, and enabling the grantees to execute their judgments in their own cause, before even the commencement of a suit. As this arbitrary statute formed no part of the right of Messrs. Livingston and Fulton— giving them only a new and extraordinary remedy to defend that right from investigation - the committee recommended the house so to alter or amend that act, as to permit the questions left open by the Court of Errors to be judicially examined. The bill introduced by them for that purpose was passed by the assembly, but rejecied in the