axle-beam were connected with a frame, from which paddles. were suspended perpendicularly, acting 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 Fulton, 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 United 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 rejected in the

senate. The state grantees, nevertheless, offered terms of compromise to Mr. Ogden, almost as advantageous as those which had been ceded to their first antagonists. This new treaty of partition was not however acceded to by Mr. Ogden, until he had been pursued and vanquished on his own territory; a similar triumph having been obtained over him in New Jersey, where his opponents succeeded in procuring the repeal of the prohibitory acts passed by its legislature, in retaliation of those which existed in this state; and, notwithstanding the high ground upon which he had been the first to combat their grant, that gentleman was silenced, and, as was observed by the chairman of the committee, in a subsequent publication, in defence of his report, "consented to navigate his boat upon his ancient and accustomed ferry,' under the banner of the monopoly - the virtus negata tentat iter via, is followed in Horace, by est et fideli tula silentio, merces; and I hope," he continues, "for the sake of Mr. Ogden, that the connexion is not merely poetical."*

About three years after the report on Mr. Ogden's memorial to the New York legislature, the late Cadwallader D. Colden, who was not less eminent as a lawyer than estimable as a man, and who was as zealous in the causes of his clients as he was ardent in his attachment to his friends, published a biographical memoir of his friend Mr. Fulton, then recently deceased. In this publication, Mr. Colden, with a warmth and indiscretion which not even his devotion to the memory of his friend-much less regard to his own interest-could justify, undertook to censure the conduct of the committee, and impeach the accuracy and correctness of their report. The chairman of that committee, though then young and little known to the world, was not the person to sit silent under such an attack. He met his assailant, and repelled his onset in the "Answer," from which we have just given an instance of his mode of wielding one of the weapons at his command. In this pamphlet both the motives and conduct of the committee, and the truth of the facts, and the soundness of the principles set forth in their report, were resolutely defended.

A "Vindication" of the state grant followed from Mr. Colden, to which a " Reply" was made in due season by Mr. Duer. In the course of this controversy, it was explicitly contended by the latter, that the power vested in congress to promote the progress of science and the useful arts, was not only paramount to

* Letter addressed to C. D. Cclden, Esq. by W. A. Duer, Albany, 1817, p. 83.

the state grant, but that it excluded the state from even a concurrent power of legislation on the subject.

The repugnancy of the state grant to this power of congress was the main point in controversy between Messrs. Colden and Duer. But in adverting to the objection arising from the power to regulate commerce, the latter, in his "reply" to the "vindication" of his adversary, observed, that "a state law may interfere with the provisions of the power to regulate commerce, either when it proposes such regulations as its end and object, or when in its natural effects and consequences it interferes with that power, which, in regard to the objects specified, is admitted to be necessarily exclusive. Quarantine laws, undoubtedly, affect the intercourse of foreign nations with particular states, or of one state with another; but the object and end of those laws are not 'to regulate commerce,' but to guard against infectious diseases. It is only by accident, and not in their natural results, that they regulate commerce, or interfere with its regulation. Neither do acts for granting ferries, turnpike roads, or toll bridges, aim to regulate commerce. That is not their end or object nor can they in their natural results be said to interfere with the power of congress; and if in any wise they do interfere, it is perchance. The object of the grants in question, is to promote easy and expeditious internal intercourse, and their accidental effects may be, to facilitate commercial intercourse. The exclusive privileges given, in these cases, to the grantees, were given to promote the end of the grant— and are the means which the legislature thought it most proper to resort to for taxing the public, in order to attain the object. It is from confounding the natural result with the accidental effects of a law, that the fallacy has arisen; by distinguishing the one from the other, we are guarded against the possibility of delusion. In truth, the accidental effects of every law for the regulation of trade, or the imposition of taxes on articles of home consumption, and for the inspection of those of domestic growth or manufacture, may, in the same loose and extended sense, be said to be regulations of commerce, because they affect it indirectly. But how different are such laws, in their aim and consequence, from a grant that directly, in its natural result, and by a foreseen consequence, monopolizes one grand method for the cheap and expeditious prosecution both of foreign and domestic trade !"*

With the publication from which the above extract is taken,

* Reply to Colden, pp. 156, 157.

the controversy between Messrs. Colden and Duer terminated. Public opinion declared itself very distinctly against the validity of the state grant, and new claimants appealed to the legislature for relief against the operation of those acts in favor of Livingston and Fulton, which, taken in their literal extent, and enforced, as they had been, without regard to the restrictions contemplated by the Court of Errors, absolutely prohibited the introduction and use, within the jurisdiction of this state, not only of all prior, but of all subsequent and future inventions and improvements in steam navigation, although secured by patent from the United States: and, by a still more violent stretch of authority, transferred, in effect, to the legislative favorites, both the common right of the public to use such inventions, where the patents obtained for them had expired— and the exclusive right of patentees, where they had not. The only limitation of this monopoly, was that steam or fire should be made use of as the propelling force, and the general terms of the grant comprehended every possible mode of producing and applying that force, in the navigation of vessels, which human ingenuity had discovered or could invent. Strange as it may now seem, the applications for relief against enactments thus rendering nugatory a constitutional power of a paramount legislature, and so far as this state was concerned, nullifying the laws passed in virtue of that power, were uniformly unsuccessful. And, as the petitioners had prayed merely for permission to bring the validity of the state grant to a judicial test, upon equal terms, in our own courts, it became, at length, evident, that the rights claimed under the state, were to be protected from judicial investigation, unless, at the risk imposed on those who sought it, of incurring heavy personal and pecuniary penalties, besides ultimately forfeiting the steamer, which they must, at all events, have subjected to seizure, before they could have obtained a hearing.

The jealousy of other states had now however been more intensely excited; and it was hardly to have been expected, when the questions at issue were more thoroughly understood, that those states in which steam navigation had been introduced, would submit to the exclusion of their citizens from waters to which, as citizens of the United States, they claimed an equal right of navigation with ourselves. Accordingly, the neighboring states of Connecticut and New Jersey passed retaliatory statutes, prohibiting in effect the use of those waters which they in their turn respectively claimed as their own, to all vessels navigated by steam under the exclusive privilege granted by New

York. Thus were the vast benefits of steam navigation on those waters where its utility was most evident and its profits most certain, rendered nugatory by a system of vindictive legislation, manifestly contrary to the whole scope and spirit, as well as to the letter of particular provisions of the federal constitution. This state of things could not long be endured. The mutual interdict of so extensive and fruitful a field of navigation, to citizens of the respective states, who as citizens of the union were entitled to equal privileges in each, operated as a practical reductio ad absurdum of the arguments by which the exclusive grant by New York had hitherto been maintained. Several important decisions of the supreme court of the United States upon questions bearing an analogy to those involved in this controversy contributed moreover to encourage and reassure the parties who had previously combatted the state right, and to induce them as well as others to enter the lists against it. Amongst the most redoubtable of these was the late Thomas Gibbons, who having been educated to the law, and long engaged in its successful practice in his native state of Georgia, had retired from that profession, and removed to Elizabethtown in New Jersey, where he had resided for some years in the enjoyment of the fruits of his industry and talents, and had invested a part of his fortune in the purchase of a ferry from Elizabethtown-point to the city of New York.

Upon this ferry he established two steam-boats; and armed with patents and coasting licenses, confident in the opinion which, as a lawyer, he had formed against the validity of the state grants, determined as a citizen of the United States to assert and vindicate his constitutional rights, he resolved at all hazards to embark in the contest; and with the boldness and perseverance for which he was distinguished, and the ample means at his command for entering upon an expensive and protracted litigation, no more formidable adversary could have been found to contend with the powerful association which possessed the monopoly given and secured under the still more powerful authority of the state. Mr. Gibbons had not however that overwhelming reliance on his own judgment, which prevented his seeking its confirmation by the opinions of others. He accordingly consulted counsel in this state upon those points of local law and information which could only be procured at the threshold of our halls of justice and legislation; and the result of this precaution demonstrated its wisdom and advantage. For he was advised that it was no longer important to obtain