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

By David S. Shields

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.

• Language: English
• Publisher: Ohio University Press
• Release date: Aug 25, 2009
• ISBN: 9780821443330

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Gibbons v. Ogden,

Law, and Society

in the Early Republic

Gibbons v. Ogden,

Law, and Society

in the Early Republic

THOMAS H. COX

OHIO UNIVERSITY PRESS

Athens

Ohio University Press, Athens, Ohio 45701

www.ohioswallow.com

© 2009 by Ohio University Press

All rights reserved

To obtain permission to quote, reprint, or otherwise reproduce or distribute material from Ohio University Press publications, please contact our rights and permissions department at [phone] or [phone] (fax).

Printed in the United States of America

Ohio University Press books are printed on acid-free paper ™

16 15 14 13 12 11 10 09     5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Cox, Thomas H.

Gibbons v. Ogden, law, and society in the early republic / Thomas H. Cox.

      p. cm.

Includes bibliographical references and index.

ISBN 978-0-8214-1845-1 (cloth : alk. paper) — ISBN 978-0-8214-1846-8 (pbk. : alk. paper)

1. Gibbons, Thomas, 1757-1826—Trials, litigation, etc. 2. Ogden, Aaron, 1756-1839—Trials, litigation, etc. 3. Fulton, Robert, 1765-1815—Trials, litigation, etc. 4. Interstate commerce—Law and legislation—United States—History—19th century. 5. Inland navigation—Law and legislation—United States—History—19th century. 6. Steamboats—Law and legislation—Hudson River (N.Y. and N.J.)—History—19th century.  I. Title.

KF228.G528C69  2009

343.730815—dc22

2009012770

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

ILLUSTRATIONS

John Fitch

John Fitch’s steamboat at Philadelphia

Chancellor Robert R. Livingston

Robert Fulton

Map of the state of New York, 1831

Thomas Addis Emmet

Chancellor James Kent

Aaron Ogden

Thomas Gibbons

New Orleans in 1851

Daniel Webster

William Wirt

U.S. Supreme Court chief justice John Marshall

New York City in 1859

PREFACE

The Galling Shackles with which a few lordly monopolists have, for some years past, contrived to fetter our navigation and intercourse with our sister state, have been at length broken by the Ithuriel spear, whose-all-powerful touch makes every unrighteous decision to crumble into dust, exclaimed an article in the Elizabethtown Gazette of Elizabethtown, New Jersey, on March 15, 1824. Borrowing imagery from John Milton’s Paradise Lost, the article compared the appellate power of the U.S. Supreme Court to a holy weapon that, in the hands of the angel Ithuriel, had uncovered Satan’s deceptions with a single touch. In spring 1824, the justices of the High Court had used their powers of discernment to strike down a New York steamboat monopoly law as a violation of interstate commerce in the landmark case of Gibbons v. Ogden. Created by Chancellor Robert R. Livingston in 1798 and used to defend a steamboat empire built by his partner, Robert Fulton, the monopoly had dominated local steam travel along the Hudson River and across New York Harbor for over twenty years. Long beset by stifled competition and exorbitant fares, citizens of both New York and New Jersey applauded the Gibbons decision. The Gazette article captured the popular sentiment, condemning the monopolists for "their appalling system of monopoly injunctions, penalties, and imprisonments against all who should dare, without their purchased leave, use the two most common elements of nature, in facilitating the intercourse between neighboring ports."¹

The origins of Gibbons v. Ogden, popularly known as the great steamboat monopoly case, lay in a dispute between rival Elizabethtown steamboat operators Aaron Ogden and Thomas Gibbons. In 1824, Chief Justice John Marshall upheld the congressional control of interstate trade by asserting that Gibbons’s federal license trumped a state grant issued to Ogden by the Fulton-Livingston steamboat monopoly. Legal scholars have consistently ranked Gibbons—the first Supreme Court case to confirm Congress’s power over interstate commerce—among other landmark Marshall Court cases such as Marbury v. Madison (1803) and McCulloch v. Maryland (1819), which promoted federal authority over states’ rights.

In 1919, U.S. senator and constitutional scholar Albert J. Beveridge stated in his foundational Life of John Marshall that Gibbons v. Ogden has done more to knit the American people into an indivisible Nation than any other one force in our history, excepting only war. Pathbreaking works such as Charles Warren’s Supreme Court in United States History (1922), and Charles Haines’s Role of the Supreme Court in American Government and Politics, 1789–1835 (1944) likewise depicted Gibbons as a bold statement of nationalist principles in an era dominated by states’ rights. Even Maurice Baxter’s Steamboat Monopoly (1972), the only full-length treatment of the case, discussed primarily the constitutional and political rather than the economic and social dimensions of Gibbons v. Ogden. As Baxter acknowledged, Though I have undertaken the first lengthy study of the case, there is naturally much more that could be said if one were to be ‘exhaustive.’²

This book examines Gibbons v. Ogden as a legal conflict in which three different groups—steamboat entrepreneurs, local elites (including state officials), and federal judges—sought to control the development of steam power in the young nation. In the late 1700s and early 1800s, working-class inventors with dreams of continental steamboat empires sought alliances with landholders eager to develop steam power on the local level through state-granted monopolies. Yet in 1824, steamboat entrepreneur Thomas Gibbons and Supreme Court justices John Marshall and William Johnson, already disliked by many among the American gentry, adopted a nationalistic view of commerce that resulted in a popular Supreme Court decision with long-term implications not only for the regulation of interstate commerce but also for wide-ranging social issues such as the sale of alcohol or the desegregation of busing across state lines.

Scholars have long sought to link the shifting alliances of business elites to the larger economic and social transformations of the United States in the early 1800s. In 1991, Charles Sellers’s influential work, The Market Revolution, posited that encroaching commercialism, with its emphasis on economic individualization, displaced a traditional agrarian world of subsistence farmers in Jacksonian America. Daniel Fellers and Daniel Walker Howe, however, have persuasively argued that Americans across class lines rushed to embrace the economic opportunities created by the transportation and communications revolutions. Perhaps nothing symbolized the economic growth of the young nation more than the spectacle of steam power, a scientific marvel that promised economic progress through technological innovation with minimal social upheaval. Unlike British factories, which invoked images of oppression and drudgery, steamboats appeared to early Americans as floating symbols of progress that would bring raw goods to market and refinement to the backcountry. Controversy over the pros and cons of steam travel paralleled similar debates over internal improvements, federal patents, and incorporation laws. In each of these controversies, Americans from a variety of backgrounds enthusiastically supported economic and technological development. They primarily disagreed as to whether state or federal governments could most effectively promote such progress.³

Throughout the late 1700s, working-class inventors such as John Fitch and James Rumsey were inspired by the success of the American Revolution and the promise of a stronger central government under the U.S. Constitution. These entrepreneurs sought federal patents and political support from national political figures, including George Washington and Benjamin Franklin, to protect their inventions. Fitch and Rumsey believed that such patronage would help them cultivate reputations as heroic inventors whose steamboats would in turn encourage trade and thus strengthen the bonds of political union. Weak patent laws and the scarcity of capital, however, forced subsequent steamboat entrepreneurs such as Nicholas Roosevelt and Robert Fulton to ally with landed elites who, for the moment, remained the principal power brokers in American society. Business-people pursued steam power to gain wealth and social status. Country squires such as John Stevens of New Jersey and Chancellor Robert R. Livingston of New York, on the other hand, dabbled in such technology to maintain reputations as paternalists who would bring scientific progress to their less fortunate neighbors. In 1798, Livingston secured a New York legislative monopoly over steam travel in local waters, and he partnered with Fulton to produce the first practical steamboat in 1807.

Over the next decade, Fulton and Livingston defended their monopoly from rivals through price wars, steamboat races, advertising, and public testimonials. When these methods failed, the partners hired famed attorney Thomas Addis Emmet to defend their monopoly interests in state and federal court. Emmet privately dismissed the monopoly as unconstitutional but publicly defended the measure as a legitimate expression of New York’s right to regulate commerce and encourage science within its borders. Landholding members of the New York legislature and court system sympathetic to Livingston’s interests consistently agreed. In 1811, Chancellor James Kent of the New York Court for the Correction of Errors ruled in Livingston v. Van Ingen that as a vested right, the steamboat monopoly should be protected from the majoritarian impulses of the time. Livingston and Fulton widely circulated Emmet’s legal arguments and Kent’s decision in newspaper articles and pamphlets to ensure that their rights were protected in both the courtroom and the court of public opinion. And for a brief time, the Fulton-Livingston steamboat empire flourished. Other elites, including Stevens, John R. Livingston, and former New Jersey governor Aaron Ogden, quickly cast their lots with the monopoly.

Ironically, the steamboat monopoly eventually fell not because of any advancing democratic tide against the perfidy of vested interests, but because of the efforts of three wealthy landholders who, as economic visionaries and social mavericks, had little to lose by adopting a nationalistic view toward steamboat development. In 1816, Thomas Gibbons, a disgraced planter turned New Jersey steamboat promoter, joined forces with an obscure sloop captain named Cornelius Vanderbilt to destroy Aaron Ogden’s steamboat business between New York and New Jersey through cutthroat competition. Ogden immediately sued his opponent in the Court of Chancery of New York for violating the monopoly that state had awarded him. Gibbons’s attorney, Daniel Webster, argued that his client held a federal license authorized under an act passed by Congress in 1793 to promote domestic trade by giving ship captains the right to conduct business in any American port. When Gibbons appealed the case to the U.S. Supreme Court, Chief Justice John Marshall viewed the matter with apprehension. Marshall was a Virginia Federalist who had recently handed down nationalistic but unpopular decisions in McCulloch v. Maryland (1819) and Cohens v. Virginia (1821). The chief justice thus sought to craft a moderate decision that would skirt both the states rights approach adopted by James Kent, chancellor of the New York Court of Chancery, in previous steamboat monopoly cases and the strongly nationalistic views of William Johnson, an associate justice of the U.S. Supreme Court.

In March 1824, Marshall handed down one of the most significant decisions in American judicial history. The true strength of the Gibbons decision lay in its delivery and timing. By invoking broad appeals to nationalism and free trade, Marshall successfully depicted the federal government as the champion of economic opportunity and social progress. He also steered away from the difficult issue of state commercial regulation by handing down a decision designed to appeal to different groups of Americans at the same moment in time.

By that same token, Gibbons v. Ogden became popular with successive generations of Americans who used the case as a precedent to argue that the state and federal governments had important roles to play in the regulation of commerce, not merely for the sake of economic efficiency but also for the well-being of society. For instance, opponents of alcohol and immigration in the 1830s and 1840s used Gibbons to argue that states retained a sphere free from federal control in which their own police powers could be used to regulate the social good. Following the Civil War, Gibbons alternatively served as a precedent to limit or expand federal commerce authority. Beginning with New Deal cases in the 1930s, attorneys cited Gibbons v. Ogden to justify sweeping federal regulation of economic and social matters, and in the post–World War II period, reformers used Gibbons in cases involving labor standards and civil rights. Then, at the close of the twentieth century, the Supreme Court cited Gibbons to limit congressional commerce power over gun control in United States v. Lopez (1995) and over women’s rights in United States v. Morrison (2000); yet just a few years later, the court cited the same decision to uphold the federal regulation of marijuana in Gonzales v. Raich (2005). Gibbons v. Ogden thus helped solidify federal powers over commerce regulation, and its very broadness allowed different generations of Americans substantial latitude in determining in what form, and on what governmental level, such power would be expressed.

This book begins with a discussion of previous scholarly work on Gibbons v. Ogden as well as the current legal significance of the case. Chapter 1 traces attempts by rival steamboat inventors John Fitch and James Rumsey to develop steam power and secure patent rights for their inventions in the post-Revolutionary United States. The origins of the partnership between Fulton and Livingston and their creation of the New York steamboat monopoly form the basis of chapter 2. Chapter 3 examines the rise of the first serious competition to the Fulton-Livingston syndicate from John Stevens, Chancellor Livingston’s brother-in-law and former partner. Chapter 4 explores Fulton and Livingston’s attempts to establish steamboat monopolies on the Mississippi, Ohio, and Hudson rivers. Chapter 5 discusses how Fulton and Livingston fended off challenges from competitors such as Henry Miller Shreve and created partnerships with rivals, including Aaron Ogden.

Centering on the relationship between Ogden and Thomas Gibbons, chapter 6 examines their personal and professional rivalries to control the lucrative steamboat business between New York and New Jersey—rivalries that spanned twenty years. Chapter 7 discusses attempts by Thomas Gibbons to defeat Ogden and the stockholders of the North River Steam Boat Company (often referred to by contemporaries as the North River Company) in federal court. Highlighting the events of late February 1824, chapter 8 details the arguments used by Gibbons and Ogden before the Marshall Court. Chapter 9 investigates Chief Justice Marshall’s decision and the public reaction to that decision. Chapter 10 discusses the successful attempts by John R. Livingston, one of the original supporters of the monopoly, to defeat the North River Company in both the New York Court of Chancery and the New York Court for the Correction of Errors. A brief conclusion summarizes Gibbons v. Ogden’s role as a legal precedent in subsequent Supreme Court cases dealing with interstate commerce.

The Gibbons v. Ogden case was significant on a number of levels. First, it provided a window into the alliances that inventors and landholders struck to promote their financial interests and social status in the tumultuous years of the early American steamboat industry. Second, it revealed the ways these individuals used the state and federal court systems to advance their economic interests in a twenty-year process in which litigants, lawyers, judges, and juries came to see federalism and free trade as more beneficial to the development of steam power than state-granted monopolies. And third, as a sweeping decision that relied on nationalism and a broad definition of commerce, Gibbons v. Ogden became an important precedent, an Ithuriel spear with which the Supreme Court would rule on a variety of issues involving trade over the next two centuries.

ACKNOWLEDGMENTS

It is with pleasure that I acknowledge the following individuals for their contributions to this book. I am particularly grateful to my doctoral dissertation adviser, Richard E. Ellis, whose sound advice and patience guided this project to completion. Michael H. Frisch, Tamara Plakins Thornton, and Donald M. Roper helped me to place Gibbons v. Ogden within the greater context of American social, cultural, and legal history. Doron Ben-Atar, Michael Les Benedict, Patricia Cline Cohen, Edward Countryman, Richard Demarjian, Songho Ha, Richard Hull, Victoria Jackson, Charles McCurdy, Harry Scheiber, Sandra Van Burkleo, and Edward C. Walterscheid also lent their insight to this book.

The staff of Ohio University Press has been a pure joy to work with. Tremendous thanks go to Gillian Berchowitz for her support in bringing this project to fruition. My external reviewers, Daniel W. Hamilton and Richard Hamm, provided a number of excellent comments that have greatly enhanced the quality of my work. Rick Huard, my editor at Ohio University Press, likewise labored for long hours to make the manuscript detailed, nuanced, and accessible to a popular audience. My thanks also go to Richard Comfort for creating the index for this book. I am particularly indebted to Paul Finkelman, whose scholarly advice and encouragement proved invaluable in the completion of this book.

Jim Folts, director of the New York State Archives, and Jean Schoenthaler, of Drew University Library, helped me to mine the rich collections of their institutions. My colleagues at the State University of New York at Buffalo, University of Nebraska at Kearney, and Sam Houston State University were very supportive of my work. Kersten Biehn, Terry Bilhartz, Ty Cashion, Caroline Crimm, Brian Domitrovic, Ken Hendrickson, Nick Pappas, and Robert Shadle commented on several chapters of this book. Jeffrey Littlejohn helped secure the illustrations that adorn the following pages. Herbert A. Johnson provided advice on several early chapters of my work. And Gregory Witkowski offered a Europeanist perspective on every chapter. I am particularly indebted to Jim Olson for proofreading this manuscript and adding his wit and wisdom to its contents. H. Robert Baker offered guidance and a sympathetic ear as well as feedback on the entire manuscript. A special note of thanks goes to Jeremy Schneider for critiquing every line of this book, often several times over.

I was fortunate to receive funding from several sources for this project. Two Larry J. Hackman Research Residency Awards from the New York State Archives Partnership Trust and a Gilder Lehrman Dissertation Fellowship from the Gilder Lehrman Institute of American History helped me to access the rich historical resources of New York State. Stipends to attend the 2002 Supreme Court Historical Society Summer Seminar on Federalism, the 2003 Law and Society Graduate Student Workshop, the 2007 Institute for Constitutional Studies Summer Seminar, and the 2007 Fulton-Livingston Steamboat Bicentennial Symposium at Bard College afforded me opportunities to discuss my research with fellow scholars: my special thanks go to Maeva Marcus for her extraordinary efforts to sustain such sorely needed scholarly gatherings. A Clements-DeGolyer Research Grant from the Clements Center for Southwest Studies at Southern Methodist University allowed me to research the development of steam travel in the southern United States. I also received generous support from the State University of New York at Buffalo in the form of a College of Arts and Sciences Dissertation Writing Fellowship and a Graduate Student Association Mark Diamond Research Grant. The State University of New York at Buffalo History Department also provided generous funding through a Milton Plesur Dissertation Fellowship and two Thomas B. Lockwood Dissertation Fellowships. A generous Faculty Enhancement Grant from Sam Houston State University and a Library Research Grant from Princeton University allowed me to conduct vital, last-minute research on Gibbons v. Ogden and to gather additional material for a forthcoming biography of Thomas Gibbons. Finally, a yearlong position at the Birmingham Civil Rights Institute in Birmingham, Alabama, first inspired me to pursue a career in American constitutional and legal history.

Throughout my career, I have been sustained by a wonderful group of friends and colleagues. J. David Fraley, David Furber and Diana Dimitrova, Songho Ha, Edward S. LaMonte, Patricia Mazon, Kenneth Moore, Erik Seeman, Samuel Shepherd, and Michael Vorenberg have provided excellent advice over the years. After spending so much time with the Livingston, Fulton, Ogden, and Gibbons clans, I have learned to appreciate the importance of family. My own has been very supportive of my passion for history. William and Johanna Horton, Beth Hilleke, the Reverend Dr. Marion C. and Theodora Stapf Cox, the Reverend Jasper and Georgia Cox, Dr. Jonathan and Darcy Cox, Walter and Esther Meyer, Thomas and Kay Meyer, Judy Cox, and Matt Cox have supported my career in many ways. I dedicate this book to my father, the Reverend Dr. L. Hughes Cox, professor of philosophy, Centenary College of Louisiana.

CHAPTER 1

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 fifty miles a day for six consecutive days without repairs.²⁰ Riding a wave of success, Rumsey successfully lobbied the Virginia, Maryland, and Pennsylvania state legislatures for monopolies on steam travel. Nonetheless, he faced considerable opposition in Virginia and won a steamboat monopoly in the Old Dominion only with Washington’s timely support.²¹

Desperate to make up for lost time, Fitch attempted to imitate Rumsey’s methods in securing wealthy patrons and federal protection for his steamboat experiments. In 1785, he presented his steamboat plans to the American Philosophical Society. Fitch