A reply to Mr. Colden's Vindication of the steamboat monopoly : with an appendix, containing copies of the most important documents referred to in the argument
William Alexander Duer, Esq.
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WY, =. a ADVERTISEMENT. —D+e>— THE greater part of the following letter was written at intervals, during the summer and autumn of the last year; but a severe indisposition having prevented the author from completing it, he resolved (for reasons which will be obvious to the reader, ) to lay aside his work, until after the adjournment of the session of the State Legislature, then about to open. He doubts, however, whether he should even yet have found leisure, or felt the inclination to pre- pare these sheets for the press, if his adversary had not lately thought it expedient to print and circulate a second edition of the Pamphlet to which they are intended as a Reply. Albany, August 2d, 1819. A REPLY, &e. To CADWALLADER D. COLDEN, Ese. Sir, WHEN your unwarrantable attack on the Report of the Select Committee, upon Mr. Ogden’s Memorial, compelled me to step forward in de- fence of measures for which I felt myself responsi- ble, I was by no means unmindful of the invidious nature of the task. I was aware of the jealousy with which persons invested with exclusive privi- leges, regard those who scrutinize their claims, and I presumed, that in exact proportion as | should suc- ceed in vindicating the Committee from your asper- sions, and in establishing the facts and principles of their Report, I should hazard the resentment of every individual whose interest might be involved in the discussion. From the part [ had already taken in opposition to the powerful association, of which you are the champion, I knew, that I had awakened feelings by no means equivocal in their effects; and from the temper in which you had commenced the contro- versy, | had reason to conclude, that under whatso- ever circumstances I might be driven to engage in it, my motives would be impeached, my opinions re- probated, and my language perverted. Independ- ently of your Memoir, | had formed a previous » 1 4 i | 1 \~& i 4 | i j 4 f , } i 4 i { i ' } = oe a - — <2 6 Cal a 7 a — id se - Y, 3 estimate of your talents and disposition, which en- abled me, in some degree, to anticipate the character of your reply. For much bold assertion,—much confused reasoning,—much idle declamation,—much vehemence, and even much passion, I was prepared. But before the appearance of your “ ViypicaTion,” I had, after all, no adequate conception of the animosity I was fated to encounter. The odium theologicum, which had once been proverbial, appear- ed to have given place to the vindictive malice of the bafiled speculator; and the fastidious objector to ‘classical allusions,” seemed to claim for his ap- propriate motto— 7 ¢¢ OMNES HABENAS IRARUM EFFUDIT.” You have, indeed, poured yourself forth, Mr. Col- den, without restraint and without disguise. You have assailed me with every weapon of ridicule and detraction. You would devote me to public con- tempt and execration, as a childish reasoner,—an obscure and half learned pettifogger,—an ignorant and corrupt legislator ;—but fortunately, the attack is as impotent as it is violent ;—I feel, that it cannot hurt me. You may degrade yourself, Sir, but I know, you cannot degrade me. Your motives are too visi- ‘ble; and the reputation, which it has been the busi- ness of my life to establish, 1s proof, I flatter myself, against your aspersions. Believe me, therefore, | can smile, and pardon the exasperated vanity of the unlucky author; and if I cannot overlook, I do not fear, the malignant rage of the alarmed monopolisi. Whether those for whom you have displayed so much devoted, but intemperate zeal, may not have cause to deprecate your friendship, is not forme, Sir, to De AE EE a ER ¥ determine. I[t is enough, that I have found consola- tionin yourenmity. Tome, your vehemence is but the sign of false and wavering confidence in your strength. The virulence of your resentment is, of itself, proof of your own sense of its injustice; and the personal invective with which you labour to sup- port your cause, will probably be interpreted by others into a confession of its weakness. Your friends may indeed lament, that your “ en- deavour to refrain from any undue expression of your feelings,”* has not been successiul; but, under all circumstances, it was certainly too much for them to have expected. In acase lke yours, the influence of temperament, and the force of habit, are of them- selves almost irresistible. But the peculiar acrimony which distinguishes the new progeny of your wrath, is, moreover, to be ascribed to the accidental com- bination of “ deep personal interest in the contro- versy,”{ with a scientific perception of its merits, If you had not been a lawyer, Sir, you never could have seen so clearly, that you were wrong; and if the fruits of your successful practice had not been sup- posed to be at stake, you could never have been so much irritated by the discovery or exposure of your error. It is this happy union of personal feeling and pro- fessional skill, which gives to your malevolence its deliberate character—that “ in the very whirlwind of your passion, begets a temperance that gives smoothness” to misrepresentations, which the solici- tude of the party must have prompted; and enabled ® Vide Colden’s Vindication, p. 9. t Ibid. p. 9. » % f = ene am = -. Se ee sate one eee ge A ea Sie Oe ee et ee : a a — ee age ed a. Qe a Sa ae ia kind 10 you to resort to artifices which the experience of the advocate could only have suggested. Willingly would I have declined a controversy commenced in such a spirit, and continued at such fearful odds—a controversy, in which I have no private or professional concern, and which, as it threatened to encroach largely upon my time, must (on that account, if on no other) prove detrimental to my interests. But you had left me no alternative. The nature of your provocation rendered it impos- sible for me to yield, with honour, to the sugges- tions of prudence; and although you thus forced me into the discussion, you now affect to consider the “ vindication of the Committee,” as merely the os- tensible object of my former address to you. You attribute my letter, in the first place, to “ anxiety to subserve the views of those who have an interest in destroying the exclusive right of Messrs. Living- ston and Fulton ;”* and then, with equal consisten- cy and truth, you ascribe it to “hostility” to those against whom you charge me with having “ enlisted with so much zeal,”—an hostility, which you charac- terize as “ deadly,” and impute to “ some founda- tion deeper than the present controversy.” To those, Sir, to whom I have the honour to be known, a formal denial of such charges, would, I think, appear superfluous ; and those who are unac- quainted with me, would probably deem a contradic- tion useless, which necessarily depends for its efficacy, upon the value of my own assertion. If my life and character are not sufficient to repel your slanders, | must rely for their refutation upon those, } i } | |:. ta @ - : a. Penna ts Niwa io * Colden’s Vindication, p. 4. « t Ibid. p. 8.. il circumstances which rendered the public vindica- tion of my conduct, a proper and necessary act of self-defence, and shall rest contented in believing, that the intelligent and candid portion of the corn- munity, will not, in judging of my motives, be pre- vented by artful and uncharitable insinuations, from adverting to the nature of my provocations. IfI am not deceived, they will detect, throughout your latter publication, a fixed design to embarrass the real nh ae in dispute between us, by the intro- duction of topics foreign to the argument. By the same expedient by w Ries you hope to obviate all objections to your statements, upon the ground of youravowed interest inthe controversy—you attempt to divert the attention of the public from the manner in which you have conducted it ;—in excuse for epi- thets which grace your own composition, you allege that my language “ would justify in retaliation, al- mostany terms which you might apply to me:”*—and truly, Sir, there are none, however vile or low, that you have thought unworthy of your service, } That there are passages in my letter in which I intended to express myself with strong and pointed severity, | never shall deny ; but I insist, that in re- pelling your attacks, I was neither wanton nor inde- corous. I did not certainly go out of my way to wound you ; nor can I charge myself with a single remark which the subject of which I treated, did not properly suggest, or the provocation which I had received, amply justify. I felt, indeed, that [ had been misrepresented and traduced, but I knew too well what was due to the public, as well as to myself, to indulge in passionate recrimination, vulgar sarcasms, * Colden’s Vindication, p. 1}. ’ twee 12 and insolent expressions of contempt. And believe me, Sir, that your example can never tempt me to shew myself regardless of those motives. by which gentlemen are usually induced to restrain and mode- rate the public expressions of their feelings. On your part, you are compelled to acknow- ledge, that a “ zeal to vindicate the rights and inte- rests of your friends, has led you to express yourself indecorously towards the Committee ;” and you even condescend to assure the other members of that Committee that you had no intention of speaking of them with disrespect.* - You are careful, indeed, te exclude me, (for [ had the temerity to answer.you) from the benefit of this acknowledgment ; but. yet you repeat your former charges, without exception of persons, or qualification of terms, and appeal to my book to prove that what you had said of the com- mittee was correct.t To sustain, and reinforce your former allegations in regard to them, is, in fact, the avowed purpose of your latter publication. Your former charges are again set forth with every circumstance ofaggravation, and restated as the theses of your new discourse. You even avail yourself of that explanation of the views of the Committee which your own book had render- ed necessary for their defence, as an apology for enlarging the bounds of the discussion, and for em- bodying in your “ Vindication,” every thing that had ever “ been presented in support of the Blas Justice, Validity, and Constitutronahty” of your mono- poly :[—and after all this, you tell me, with rather more of frankness than consistency, “not to expect an * Colden’s Vindication, p. 13. + Ibid p. 13. t Ibid. p. 13. ee ; : Seed 13 answer to my letter.”* Believe me, Sir, the caution was unnecessary, my expectations were never im- moderate, and I have the consolation to perceive that, on this occasion, I have not been disappointed. The same motives, however, which induced me to repel your first attempts, now prompt me to resist your persevering efforts, to misrepresent and stigma- tize my conduct. And although there are many pas- sages in your “ Vindication,” which I may pass unno- ticed, it is still my design to answer every part of it that can be supposed to merit that attention, in as nearly your own order as a due regard to perspicu- ity may allow. | I. You propose, in the first place; to vindicate, on the ground of “ Poticy,” the grant, made by this State, to Messrs. Livingston and Fulton, (as the pos- sessors of a particular mode of propelling vessels by means of steam or fire,)—of the exclusive right to navigate the waters of this state, with boats so pro- pelled, upon any princtple, or in any manner, then known, or thereafter to be discovered. This extensive privilege [ had ventured to speak of as a Monorony, and for this you not only impute to me an invidious design in the use of that term, but deny the propriety of its application. * Mowo- POLIES,” you say, “are the offspring of despotism, and can have their birth and being only under arbi- trary government.” Indeed! Sir, do you seriously assert that a monopoly ‘cannot exist in a republic ? A respect to your station, and a recollection of your “ five-and-twenty years of unremitted and devoted * Colden’s Vindication, p.13. + Ibid. p.-17. k y ‘ae } | id application to your profession,”* forbid me to im- pute to you gross ignorance of the meaning of a technical term of common use and known import. You must intend, Sir, that the purity of republics is such, that in them a monopoly will not be endured. And pardon me, if I suggest a suspicion that your description is the offspring of a new faith: the first fruits of conversion, laid at the foot of the politi- eal altar to which you had recently been led by some sudden inspiration of hope, or lingering dis- gust of antiquated principles and unrewarded ser- vice. If this conjecture be not unfounded, I may fairly presume that your definition was not so much intended for the enunciation of a truth to aid your argument, as for a sacrifice to propitiate and strengthen your dubious connections. I can scarce- ly persuade myself that in the long course of your pro- fessional researches, the following trite description can have escaped your observation: “ Monopohes are sole grants of any trade or occupation, or of ex- clusive privileges, which ought to be common.” They are, then, from whatsoever source pro- ceeding, grants against common right, and equally at variance with the principles of political economy, and the liberal spirit of the common law; they are regarded with an evil eye by both, as unfriendly to the great rule of Public Utility, and are only to be justified when, by their introduction, some public good 1s to be procured, or some public evil to be avert- ed. Evena valuable consideration given for them cannot, in every case, indemnify the community ; for they are excusable upon the sole ground of their subservience to the Public Interest ; and it may be * Colden’s Vindication, p. 9. ~~. & re 15 doubted whether that great end is ever effectually served by laws, which philosophy disavows, and ex- perience condemns. Unless, therefore, Monopolies promote this interest, whether they be the gifts of a monarch or the fruits of a blind bargain with a re- pubic; whether conceded to court favourites, or | obtained by the management of intriguing dema- 5 gogues ; whether their object be the private emolu- ment of an iron crowned tyrant, or the gratification of a brawling tribune of the People : Pusxic Urinity is equally violated.* But all discussion upon this point was idle and irrelevant. 1 had expressly admitted, in my Letter, that the Legislature could not, upon considera- tions of mere policy, “ avoid or resume their own “ grants ; that they alone had authority to judge of a F \ alae at a a Rt ec cane atte i te a BE snare * © Tf the exclusive grant to Mr. Livingston be a Monopoly, “ why then,” it is demanded, “ are not all Ferries, Banks, Toll- * Bridges, and Turnpikes, Monopolies ?” To this I answer, that when altogether exclusive, they are. The right of Ferriage, “ or “that exclusive right of receiving certain rates for the carriage * by water of persons and goods, which is usually granted to the “ owners of the adjacent land, in consideration of providing and supporting, under established regulations, boats necessary for * the public accommodation,” is undoubtedly a species of Mono- poly, and a very useful and beneficial one to the public. The mere incorporation of a Banking Company, is not, I apprehend, the erection of a Monopoly ; for the Legislature, when it grants a Bank Charter, does not preclude itself from incorporating other Banks, even in the same place to which they may have confined the operations of the first. selling on commission, in case the Commission Company should suggest that measure. But the bank restraining Jaw has never been publicly defended, but upon the ground of its wtility in pre- venting the evils apprehended to the community from leaving the trade of Banking free. Toll Bridges are, or are not, Monopolies, according to circumstances. ‘They are generally the private pro- perty of Individuals, or of Corporations, who are authorised by law to erect them over public water courses, and to receive cer- tain tolls from all who find it convenient to pass them. Some- times the acts establishing them, contain a prohibitory clause, pre- venting the erection of any other Bridge, or of a Ferry, within a certain distance, and in these cases they are so far Monopolies, equally, if not, in general, more useful to the Public than Ferries. Turnpike Roads, are not, strictly speaking, Monopolies. Compa- nies are incorporated for the purpose of opening and constructing Turnpike Roads for the Public convenience ; and upon acquiring, by purchase, the right of property in the land over which the road passes, they have an exclusive right to erect gates and receive tolls from passengers. But the Legislature may, after- wards, incorporate other companies, to open other roads in the immediate vicinity ; and the towns through which a turnpike road passes, may, and they sometimes do, establish, public high- ways so near, as to divert the whole travelling from it. The “ attempt, therefore, to enlist against” me “ the prejudices con- nected with” Ferries, Banks, Toll-Bridges, and. Turnpikes, “1 can- * not but think—a want of candour.” Vide Colden’s Vindica- tron, p. 18. * Vide Letter to Colden. p. 8,9. i7 Il. Your attempt to defend the grant to Mr. Liv- ingston, upon the score of its “ Justice,” might, for similar reasons, also have been spared. T had informed you, in my Letter, that the Com- mittee refused to “ recommend a legislative decision ‘upon the objections which had been raised against ‘it, on account either of the prior subsisting grant to “John Fitch; the forfeiture of Fitch’s right, without: “proof of the facts upon which such forfeiture was “declared to have arisen; the unfounded suggestions “upon which it was alleged Mr. Livingston had ob- “ tained a transfer of that right to himself; or the non- “ performance of the condition upon which his title “was to have taken its effect :—because these were ‘‘ questions which the Courts of Law, in the ordinary “ exercise of their powers, would be competent to “ decide.”* And I should not now have felt myself bound. to follow you into this branch of the con- troversy, had you not rendered that large portion of your pamphlet, which you have devoted to its con- sideration, a vehicle for the most offensive impu- tations upon the Committee, and the most unjust recriminations upon me. However wide apart we are, in sentiment, as to the legitimate source of legislative power on the subject, there is one point, Sir, in which, I think, we are agreed; and that is, in acknowledging “ the effi- cacy of a positive statute,” (admitting it to emanate from constitutional authority) “ to secure an ex- “clusive property in the fruits of intellectual la- “bour.” By what strange perversity of moral sense, * Vide Letter to Colden, p. 27, 28. 3 : ié or obliquity of understanding, do you, then, mamtam, that it was right and just in the Legislature, to repeal the law securing to Jonn Fivren the sole right of em- ploying his invention of the Steam-boat, whilst, in the same breath, you contend that it would be un- rightcous and unjust to interfere with the act by which this grant to Fitch. was abrogated and annulled, and his privileges transferred to Mr. Livingston. You remark, in support of this position, that « Mr. “Fitch did not ask the interposition of the Legis- « Jature to enable him to pursue experiments,” but that “ he founded his claim to favour en his having ac- “ tually established a beneficial mode of Steam Na- “ vigation ;” and you allege, that “ the Legislature, “ to reward his success, and.to secure to wtself benefit “ from an invention of so much utihty, gave him an ex- “-clusive right.” You deem it, therefore, absurd to suppose, that “ he was to have the whole. fourteen “ years,” for which his privilege was to endure, “ to “ put bis plan into operation;” you argue, from this absurdity, that his grant actually “was upon condi- “ tion implied, if not expressed, that he should avail ’ and as- suming this to have been actually a condition an- nexed to Fitch’s law, you conclude that the State had a right, resting upon moral obligation, and mora! duty, to repeal that grant, when they gave similar privileges to Chancellor Livingston.* Unfortunately for your argament, the hypothesis upon which it rests, has no foundation in reality. A simple reference, Sir, to the act in favour of Fitch, will shew, that: no condition whatever was attached “ himself of it within some reasonable fime 2 * Colden’s Vindication, p. 25, 26. 19 to it. The preamble avers it to. have been, passed, “ in order to promete and encourage, so useful an “improvement and discovery, and as a reward for «his ingenuity, application, and diligence.”* And whatever may have been the just “ expectations” of individual members of the Legislature, of which you speak so familiarly, Mr. Fitch’s employment of his boat upon the waters of this State, was no “ part of “ the consideration” upon which his privileges were obtained. “ The very nature of the grant,” as you have yourself so well observed, * excludes the sup- * position:” For if, as you say, he was to derive a benefit from it; that benefit could only result from his using it, previous to its expiration.t Hence, it is evident, that the Legislature must have thought it unnecessary to insist upon éhat as a condition of their grant, which the stimulus of private interest would af all events have insured. The act in favour of Fitch having been passed before the adoption of the Federal Constitution, was» as you have accurately described it, * in effect a «“ Patent granted fora discovery, which it was repre- « sented, had not only been made, but had been ap- “ plied to a boat, that was then already built.” But,.when, Sir, let me ask, was it before pretended, that the grant of a Patent for a discovery or inven- tion in any art or science, rendered it obligatory upon the Patentee to erect his machine, publish his work, or carry his improvement into actual opera- tion? That you, Sir, should become the assertor of such a doctrine, does, I must confess, appear to me, * Vide Letter to Colden, p. 88. % Colden’s Vind. p. 54. + Colden’s Vind. p. 26. ¥ EO ee —_ 20 more inconsistent than any thing else to be met with in the history of this controversy. You admit with me, “ that authors and inventors have a natural or “ common law right in the fruits” as you express it, ‘of their mental labours.”* But whilst I have en- deavoured to shew, that the right of using and en- joying this species of property was a necessary in- cident to its acknowledgment, you have asserted, “that the right to property is very different from, “and indeed, entirely independent of the use or the “ right to use.”t On the one hand, I have regarded a Patent as the effect of a compromise, by which the eaclusive use and enjoyment of the productions of genius were secured to the authors for a limited time only, in order, that the public might afterwards enjoy a common right to use them ;—whilst you, on the other hand, have contended, that its only use and office was “to ascertain the property, afford the evidence of “ uutle, and enable the Patentee to maintain his suit, “ for the invasion of his rights.”{ Thus, Sir, in your zeal to justify the repeal of the State grant or Patent to Mr. Fitch, you lose sight of those principles upon which you afterwards re- ly, to prove the constitutionality of the grant to Mr. Livingston,—and without establishing the first point, not only admit, in contradiction to your doc- trine on the other, that a right of property secured by Patent, necessarily includes a right to its enjoy- ment ;—but insist, that, from the nature of such a grant, a condition is implied, which renders it obli- * Colden’s Vind.'p. 108-109. ¢ Colden’s Vind. p. 110. * Ibid. p. 104. 21 gatory upon the Patentee, actually to use his inven- tion, under the secrete of shyanltye in case of his neglect. So far, honea a as respects “ this part of the dis- “ cussion,” you admit, expressly, “ that there was no “reason to question the perfection of Mr. Fitch’s in- “ vention, orthe performance of his boat ;”*—and, for the purpose of the present argument, [also am dis- posed to consider his success or failure equally im- material. Jam, moreover, willing to allow, that the grounds upon which you justify the resumption and transfer to another, of his privileges, might have been urged in the first instance, as strong reasons against the original grant to Fitch himself ;—yet, had the condition which you merely imply from the terms of the law, been actually expressed, I should, not- withstanding the original impolicy of a grant so un- ‘bounded in operation, have denied, with the Council * It has nevertheless been deemed important to swell the “ Vin- dication” with “ all the evidence which could be collected, to raise some doubts, whether the construction and performance of ‘Mr. Fitch’s boat were such as have been represented.” It has not, however, been thought expedient to contradict or answer the tes- timony, which was adduced upon the subject in 1815, before the Legislature of New-J ersey. On that occasion, the most conclusive proof was afforded of Mr. Fitch’s success, from experiments made two years subsequent to the date of Dr. Thornton’s Letter to Dr. Lett- some; from certain expressions in which, a previous abandonment of the project has been inferred. If Fitch’s Answer to Rumsey’s Pamphlet, had not been removed from the “ archives” of the New- Yor Society Lisrary, the “Biographer of Mr. Fulton” might have ascertained, that Fitch had incontestibly established his prior claim to the invention, —the certificates and statements appealed toon behalf of Rumsey, to the contrary notwithstanding. Vide Colden’s “ Vindication,” p. 27-36, “ Letter to Colden,” p. 125, 126, Appendix—and ibid. p. 62. 22 of Bevision, that the Legislature had any “ right “resting upon moral obligation,” to declare, that the vested rights of Fitch or his representatives, had become forfeited, without “ proof of the facts upon which the ferfeitare was alleged to have arisen.” And, had Mr. Livingston made the representation to me, of that extreme case, which, to illustrate your argument you have so ingeniously supposed,* I should have answered him im precisely the same terms, in which I have rephed to those who have urged the total repeal of his own exclusive privilege, and told him, that the “ empohcy” or “ improvidence” of the grant would not excuse a violation of the pub- lic faith ;—that questions touching its validity were of judicial cognizance ;—and, in reference to the par- ticular grounds upon which he sought the inter- ference of the Legislature, I should have probably observed, that if “ the grant to Fitch must neces- “ sarily be understood, to have been upon condition, “ that he should, within a reasonable time, give the “ State the benefit of his invention,”}—the ordinary tribunals were competent so to expound it, as well as to adjudge, whether that condition had orhad not been performed. Ishould, moreover, have declared to Mr. Livingston, my utter inability to conceive, why the existence “of Fitch’s law should deter him from “ carrying his new and advantageous principles into “ effect,” when it had not prevented him from making the experiments by which their efficacy had been ascertained; and I should have inquired, with due submission, whether, in case the prior right had be- * Colden’s Vind. p. 38. + Colden’s Vind. p. 39. 23 come forfeited by non-user, he could not avail him- self of that circumstance in his defence ? _ If he had remained unsatisfied, and had still press- ed his application to the Legislature, I should have ventured to remind him, that the power of « granting “ and securing the exclusive right to new inventions “ and discoveries,” had, since the grant to Fitch, been transferred by the Federal Constitution to the Government of the Union. If he claimed any right, derived from the supreme authority of that Goyern- ment, and entertained well founded apprehensions of being interrupted in its enjoyment, by those who claimed under a State grant, 1 should then have acquiesced in a Legislative declaration of the para- mount nature of his privileges, so far as to exempt them from the operation of the cumulative remedies given by Statute, to protect the rights granted by the State :—and if he insisted, that those remedies were incompatible with rights secured by the Constitution to every Citizen, as his natural birth right and in- heritance, I should have promised him my feeble aid to procure the abrogation of such forfeitures and penalties, and to admit him upon equal terms to - substantiate or defend his claims in the Courts of Justice. But to obviate the force of that answer to your stated case, which you must have anticipated—you next argue upon the supposition, that “ there was injus- “ tice in repealing Fitch’s Law, and i conferring on “ Chancellor Livingston, the privileges which had “ been previously granted to another,”—but you con- tend, “that the injustice being towards Fitch or his “ representatives, no other person had a right to oe Mice J <a ee 9 ‘ 24 i complain.” * You admit, indeed, that “ if the Law “ in favour of Chancellor Livingston, interfered with. “the prior grant, the prior grantee or his representa- “tives, might, with great propriety maintain, that « the subsequent grant, so far as at had deprived them “ of any advantage, was unjust.” Now, where, and when, or to what purpose, Sir, were they to maintain that objection, if not before the Legislature, at the time of the meditated inter- ference with their grant, and to the end, that they might prevent such interference? It seems, that you would rather have wished them patiently to have submitted to injustice, and then have trusted to time and chance, or the favour ef a succeeding Le- gislature, to replace them in possession of their rights, in opposition to the powerful influence of Mr. Livingston and his connections: for you pretend, that “to authorize Mr. Fitch or his representatives to “ make this complaint, they must have shewn, that « he or they attempted, or at least intended to avail “ themselves, of the exclusive privileges conferred “by the act under which they claimed.” Thus, throwing upon them the burden of proof, in regard to that omission or neglect, which, according to your own notions, was to have operated a forfeiture against them. But, were this even incumbent upon the represen- tatives of Mr. Fitch, what opportunity was allowed to them to shew their intention of availing them- selves of their grant, before they were deprived of it? It is not pretended, that they had notice of Mr, Livingston’s application to the Legislature, and the 3 se 2 ~ * e t .¥ * _ ER ny = OF sang e : °. a < ‘ \. AN eS GR = * a ° ¢@ Se \ ag Z. . < ; 2 es * Colden’s Vind. p. 41. [rr ne rn te ane ry - a.) Peed a - in © = “ oJ > f ‘ / ™ — < Q5 objection of the Council of Revision to the repeal of Fitch’s Law, for want of « proof of the facts upon which the alleged forfeiture was said to have arisen, remains to this day unanswered. You remark, however, with no little self gratula- tion and complacency, that “ Governor Ogden un- “ derstood himself too well, not to foresee, that no “one but Fitch or his representatives, could com- “plain of the repeal; and, that in order to meet the “ objection, he procured from an administrator, “ created for that special purpose, an assignment of all Fitch’s right to employ his steam boat on the “waters of this State, or elsewhere, for the con- “ sideration of Ten potiars.” Whether you have correctly represented the circumstances under which Mr. Ogden obtained ‘that assignment, is a matter in which I have no interest or concern. It is an affair, indeed, which like some others, has probably been settled amicably between you; and although your sagacity may, for aught I know, have detected, and your lurking resentment have exposed, his motives for the production of the document in question. The Committee, in their report, barely state the fact of its having been exhibited before them. They de- duce no legal consequence from its existence, nor found one of their recommendations upon it;—on the contrary, they rather intimate an opinion ad- verse to its efficacy; for, they say expressly, “that “ after the expiration of Fitch’s Patent, the right to “ use his invention, became common to all the Citizens — * of the United States.” But, if Mr. Ogden really meant to avail himself of - his “ technical right,” with the intent of combatting 4 * n “ re . Sans Sa Sd EP OE TS Ce ae ace é : SS ~ a 26 your objection, he seems to me to have chosen a fii weapon for that purpose ;—and, considering, that at the time he thus “ armed himself,” Fitch’s Patent had expired,—that the privilege granted to him by this State, had been transferred to Mr. Livingston,— and the Courts of Justice shut against an inquiry into the validity of that transfer,—I am inclined to think, that ten dollars were the fult value of Mr. Ogden’s purchase. Be this as it may, it can have no bearing upon the question; nor do I conceive that to be varred by your suggestion, that Fitch or his representatives might, at a perrod long subsequent to the abrogation of their privileges, have had the opportunity of “ ex- “ hibitmg their claims.” ‘Phe very circumstances of the repeal, may have compelled them to forego the “intention of executing his plan;” and even i it were true, that “ no one has suffered injury by such “ repeal,” it would by no means follow, that “ there ‘““was no injustice in the act.”* In all such cases, the wrong and the injury are one and the same. The community has a right to complain of faithlessness m the Government. The State as well as the indi- vidual is interested, that the public engagements be inviolably performed, and the public integrity most “scrupulously preserved :—And although your moral sense may discriminate, the absolute revocation of Fitch’s privileges, without notice, investigation, or inquiry, froma similar interposition of Legislative authority in regard to your own rights, I must confess, Sir, I can perceive no distinction between them. In both cases, the character of the repeal must neces- * Letter to Colden, p. 88. Appendix B. 27 sarily be the same, and the arbitrary resumption by the Legislature of its own grant, an equal Veal of its Biith, lll. But the point which you labour with most as- siduity to establish, and upon which my opinions are misrepresented with the most perequening exertions ‘of malignant ingenuity, is the “ vatmity” of the grant to Mr. Aivinsaton under the Act of March, 1798, notwithstanding the suggestions upon which it pass- ed, were “ not true in fact.” | Now these suggestions, as appears by the pre- amble to the act, were distinctly two. Ist. That Mr. Livingston was “ possessor of a mode of applying “ the Steam Engine to propel a boat, on new and advan- _ * tageous ee re which he was deterred from «carrying into effect by the existence of the act in « favour of Fitch,” &c. 2d. That Fitch was “ either “dead or had withdrawn himself from this State, : « without having made any attempt in the space of more | + than ten years, for executing the plan, for which he so “claimed an exclusive PIES whereby the sume was “ justly forfeited.” In reference to this part of the shines, the Com- : mittee, after setting forth in their Report to the | ‘House, the substance of the various Statutes passed for the benefit both of Mr. Fitch and of Mr. Living- ston, and his different associates; and stating, as had appeared } in evidence before them, “ that Mr. Fitch “had, with great labour and perseverance, com- “ pleted a miei Boat on the river Delaware, which « worked against both wind and tide with a very a Guamdershle velocity, by the force of Steam only ; 26 + declare, that in their opinion, the suggestions con- ‘“ tained in the act of the 27th March, 1798, repeal- «“ ing the act, granting the exclusive privilege to use “ Steam-Boats, within this State, to John Fitch, were ‘“ not true in fact,—the said Robert R. * Life of Fulton, p. 242, 248, 29 You pretend, in the first place, that the words “ in * fact,” have no effect whatever in qualifying the meaning of the sentence of which they form a part ;* i. e. there is no material difference be- tween attributing to your opponent in an argu- ment, a mistake in point of fact, and imputing to him the wilful assertion of a falsehood ;—a distinction, Sir, which I must be permitted to say, that you, of all others, should have been the last to confound. Next you maintain, “ that the expression in the “ sense given to it, ought not to have had a place in “the Report at all;” because, you allege, “ the un- “truth of representations sufficient to annul a Patent or “affect a grant from the State, is not merely a technical “untruth, but one that was deceptive, and fraudulent, and ‘“anurvous to the Public.”t And is this really, Sir, your deliberate opinion? Do you, as a Lawyer, after “ five and twenty years of the most unremitted “ application to your profession,” seriously maintain, that where a person in perfect good faith obtains a Patent for an invention, which he believes to be ori- ginal, but afterwards appears to have been known for a century, he could enforce or defend his rights as a Patentee, even though he might be enabled to demonstrate his entire ignorance of the previous dis- covery, and vindicate his claim to the essential merit of an inventor? Or, where a grant of Land, for instance, were procured from the Legislature, upon suggestions confided in by all parties, that the tract thus to be ceded, had been excepted in all former alienations of the adjacent territory; and, that the person soliciting the grant, had for the pub- * Vide Colden’s Vind. p. 48. + Colden’s Vind, p. 49. 30 lic accommodation as well as for his private benefit, incurred great expenses in improvements, from which he had as yet derived no emolument, and which, of course, would be totaliy lost, unless he could obtain the fee simple of the soil. Suppose, Sir, it should afterwards be shewn, that the Land thus granted, had been previously disposed ef, or reserved by the State for a particular purpose ;—in other words, sup- pose the suggestions upon which the grant in ques- tion was procured, “not true in fact,” would you in that case contend, that those suggestions, though not « fraudulently” made, had not been “ deceptive” in their effect, and “ injurious to the Public ?” And, that the grant could not consistently, with a due ob- servance of the public faith be rescinded, if these facts were “ found in some. due course of Law?” If you were not so “ much embarrassed by necessary “ attention to other duties,”* as to deprive you of time and opportunity for reflection,—if your interests were not involved in the decision of these-questions, or your passions inflamed by their agitation,—i am convinced, that even you, Sir, would never hazard the absurdity of answering them in the nega- tive ;—and yet the case I have last supposed, is strictly analogous invall its material circumstances, to that which we are considering. Professing, afterwards, to proceed to the considera- tion of that part of the Report of the Committee, “in *‘ the sense in which they intended it should be under- * stood,” you are “ led,” as you express it, “into a “full discussion of the objection to the exclusive “ right, that the first act,” (meaning the act of 1798) * Colden’s Vind. p. 14. 