by T. J. Stiles
THEY WERE WINNING. In early 1822, Vanderbilt and Gibbons talked matters over with the Stevens brothers and their stagecoach partners, then slashed the Philadelphia fare yet again, to $2.50. The move diverted even more traffic to the Bellona—and drove Ogden to the edge of bankruptcy He pleaded vainly with Gibbons for a truce. In March, he put the Atalanta up for sale, though he found no buyers.50
Even the wealthy Livingstons began to panic. On one side, Gibbons squeezed John R. in business; on another, the monopoly right of the entire clan remained in danger as the appeals of Gibbons and Vanderbilt marched ominously toward the Supreme Court; on still another, the state constitution had been revised in 1821, peeling the aristocrats' last fingers off the wheel of power. In the face of fierce conservative opposition (headed by Chancellor James Kent, who wrote a decision upholding the steamboat grant), politician Martin Van Buren had led the Bucktail faction to triumph in the convention, expanding the electorate to 80 percent of white men and radically democratizing the institutions of government. (In 1826, the vote would be extended to all adult white males.) Real political parties could now emerge, with mass participation from people of all walks of life.51
The old order was collapsing on the aristocrats, following inexorably from the Revolution their fathers had helped lead. More and more, the scions of great families accepted their declining influence and devoted themselves to business. But the Livingstons clung desperately to their monopoly, that most lucrative relic of the age of privilege. In a telling moment, R. Montgomery Livingston appealed to Gibbons, his fellow patrician, for an accommodation in the face of all these challenges. “It has long been a matter of astonishment that you & the Mssrs Livingston have been so long at war,” he wrote. Gibbons brusquely rebuffed him.
Afterward R. Montgomery ran into Gibbons's son William on the streets of New York and began to rage about seeking “personal satisfaction.” As William related the conversation to his father, R. Montgomery declared that it was common knowledge that Thomas Gibbons had “declared you would ruin [John R. Livingston] as you had Col. Ogden and that you would have $200,000 to give means for that purpose if you could not succeed in your lifetime.” The outburst led the senior Gibbons to demand a duel with young Livingston—indoors at five paces, supporting himself with a cane behind his back, due to his poor health and failing eyesight. Livingston indignantly declined.52
This farce abruptly ended when William Gibbons disappeared amid a yellow fever epidemic that swept New York. “Well-founded alarm prevails through every part of this city,” the New York Evening Post reported on August 26, 1822, as hundreds grew sick and died. Though none knew it at the time, it was the natural scourge of a primitive city of backyard wells and privies, of filthy streets of standing water where mosquitoes bred and fed. Scores of businesses relocated outside the city and Vanderbilt began to run the Bellona to a dock far up the North River. Every day he went into town to search for William, who finally surfaced, sick but recovering, like the city itself.53
The epidemic threw more light on Vanderbilt's character in these changing times. During the outbreak, a new crewman named Willett died after a few days on duty “I want and will go to sea Mrs. Willit as quick as I can get Leasure,” Vanderbilt wrote to Gibbons. “I take it we owe Mrs. Willitt nothing. Yet we conceive it to be a generous act to help this Lone widdow through the winter and bestow uppon her something.” The crew collected $90 for her, a third of it Vanderbilt's.
This ambiguous act of charity reveals the captain as a revolutionary of the world within. Though he worked for a patrician, he himself was the ultimate anti-aristocrat, a man who never felt the tug of noblesse oblige. He was hypermasculine, yes—he might beat down a man who defied his will—but he would never think to defend his honor in a duel. Nor was he a man “of sentiment,” a man of feeling, a part of the Romanticism that was now replacing the culture of deference. Vanderbilt represented a far more radical departure than that. He was an early example of that most modern of characters: the economic man. His charity was real—a trace, perhaps, of his Moravian upbringing, even his fundamental sense of decency—but cold calculation also marked his thinking (“we owe Mrs. Willitt nothing”). That calculation extended even to his own family, with his insistence that his wife pay for his children's upkeep and education. Truly a creature of the market, Vanderbilt made the most intimate relationship a line in his ledger book.54
Law, rank, the traditional social bonds—these things meant nothing to him. Only power earned his respect, and he felt his own strength gathering with every modest investment, every scrap of legal knowledge, every business lesson taught by the irascible but brilliant Gibbons. He had little regard for legal formalities or public office, and bitterly resented any hint of condescension. After clashing with the Perth Amboy customs collector about registering the Bellona, for example, he declared that the man “puts on great airs.… I think if it was my case I would not get papers and let him stop her. I think it more than he dares to do.” The collector complained that Vanderbilt had treated his staff “with a kind of contempt.”55
Even Gibbons began to suspect that he had created a monster. By adding a broad and sophisticated vision to Vanderbilt's innate shrewdness and ferocious will, he feared that he had unlocked an unstoppable ambition. The young captain began to amass a stable full of thoroughbreds—the aristocrats' own hobby—and purchased a pair of exceptional gray mares for the astoundingly steep price of $220. He designed an elegant new steamboat of more than one hundred tons, named the Fanny—another speculative venture financed with the help of James P. Allaire. And yet, he deeply respected Gibbons. According to legend, the Livingstons offered to hire him, but he turned them down on the grounds of loyalty to his master. “He was a man that could not be led,” Vanderbilt admiringly described Gibbons, “but some persons had influence with him to a certain extent.” He added, with uncharacteristically modest pride, “I had some with him.”
The suspicious Gibbons took no comfort in Vanderbilt's respect. It was clear to him that his gladiator was outgrowing this arena, that he would not be content forever in his position. “He will do nothing for me in Winter,” Gibbons fretted to his son. “He is building a new steamboat the size of the Bellona before she was lengthened. Vanderbilt has commenced horse racing too. Tomorrow he runs his brown colt in a match race. He is striking at every thing. I am afraid of this man.”56
AT EIGHT O'CLOCK IN THE MORNING on March 30, 1823, snow began to pour over New York Bay like an avalanche. Branches snapped off; then entire trees crashed to the ground; even chimneys blew apart in the gale, scattering bricks. A flood tide tore across the Battery and the slips, “causing the most alarming apprehensions,” the Evening Post reported, “for the fate of vessels of all descriptions, either at sea or on the coast, in our rivers and harbors, or even at our wharves.”
The Bellona started from New Brunswick at six that morning. At nine o'clock, it reached the mouth of the Raritan, where the pilot began to have trouble. “The storm was tremendous,” Vanderbilt reported. In the roaring blizzard, faced with a flood tide, the Bellona “became unmanageable. She would not mind her helm at all.” As the boat began to drift out of control, he concluded that it was useless to fight the storm—they would have to run with it. Somehow he managed to come about and steam back to New Brunswick. There he found the waves crashing over the pier. He dropped anchor and sat out the storm all night. He finally returned his passengers to shore at four the next afternoon, ferrying them over in row-boats. Elsewhere four ships sank in the storm as the torrent drove scores of vessels ashore, including Ogden's Atalanta.57
Self-assured in the face of nature's fury he felt far less certain of himself with mercurial humanity. “Last evening New Brunswick wais in an uproar,” he wrote to William Gibbons, five days before the storm. Some passengers had been detained in town; Robert Letson, a stagecoach driver, “toald the passengers that retaining them their was all my falt, that all I did it for was to get their supper and lodging from them.”
The trouble left Vanderbilt deeply distressed. “Cannot you stop Letson mouth by a letter,” he begged. “I wish you would rite to Letson. I continuly beg of him to keep still.”58
His uncertainty may not be as uncharacteristic as it appears. The creature of a commercial, individualistic, competitive generation, he saw every relationship as a business transaction; he simply didn't know what to do with this very human entanglement with a man who was less a rival than a blowhard. He had made himself into a supreme man of force, but now he showed how vulnerable he could be to a simple social interaction—one that could not be solved with his fists. His only solution was financial: he suggested that they pay Letson to keep him away from the dock.
It was almost with relief that he returned to the clarity of battle. By now, all sides knew the Supreme Court would decide the fate of the monopoly. Ogden and John R. Livingston had good reason to expect success, for the steamboat grant had been upheld repeatedly by lower courts. But Livingston wanted to crush his enemies before the case reached the high bench. Starting on May 1, he renewed his legal assault in Marine Court against Vanderbilt and his crew. The damages were limited to $100, but he filed a fresh suit every day, dispatching an officer to arrest them when the Bellona docked.59
“I could not leave the boat as J. R. would take all the men if I am not their,” Vanderbilt wrote to Gibbons. “I now keep all my men out of the way so that they cannot take them and wile I am agoing in & out to the dock in NY I work the boat myself and let them take me but I will not let them take them as it is intended with some difficulty to get bail for the men.” According to anecdotes told later, he grew increasingly ingenious at avoiding the arrests. He built a secret compartment and hid on board until the deckhands had cast off again; when the officer found him, Vanderbilt offered the man a choice of leaping to the wharf or spending the day in New Jersey. At one point he trained a young woman to steer the boat into dock, and hid as the officer stormed aboard, only to be left stuttering and embarrassed in the face of a female pilot.
Gibbons, on the other hand, began to panic. Bedridden with gout, diabetes, and possibly cancer, he had had a stroke in April, leaving him isolated at home. “J. R. L. is waging a dreadful war against us, ruinous in the extreme,” he wrote. “Vanderbilt is not capable of defending such suits. I can't see him, he won't write. I am left like a dead man in the midst of a sanguinary war. I have submitted questions to V. Whether we must stop the Boat, run to Powlis Hook, or the Nautilus? I can get no answer.”60
In fact, the possibility of failure never occurred to Vanderbilt. When he wasn't dodging arrest, he gleefully plotted traps for Livingston. He secretly obtained the lease to the Olive Branch's dock, for instance, and waited until the season was under way to evict his foe. He had its crew arrested in New Jersey in a retaliatory lawsuit and taken “6 miles in the woods from N. B. before a magirstrate and make them give bail,” he bragged. “It will give them more trouble than I have in N. Y.” Far from fretting about the future, he brought his sixteen-year-old brother Jacob and his old partner, James Day, into the business.61 But Gibbons was a lawyer who understood very well the uncertainties of the courtroom. After all the expenditures on boats, docks, and inns, after the fare cuts and steamboat races, everything could be destroyed by a few words from the Supreme Court.
AT ELEVEN IN THE MORNING of February 4, 1824, six justices of the Supreme Court of the United States, led by Chief Justice John Marshall, filed into their basement chamber beneath the Capitol and settled under the high windows on the eastern wall of that dim, semicircular room. Even in the February chill the space must have been sweltering, for it was packed with bodies—lawyers and congressmen, men and women—crowded in to witness what everyone knew would be a most important case. Gibbons v. Ogden was about to be heard at last.
Two lawyers for each side sat at the single counsel table. Representing Ogden were Thomas Jackson Oakley and Thomas Addis Emmet. Emmet had long defended the monopoly; in 1815, Fulton had given his life to rescue him from the freezing waters of the Hudson. As Attorney General William Wirt noted, “Emmet's whole soul is in the cause, and he will stretch all his powers.” Wirt himself sat for Gibbons, alongside Daniel Webster. “Webster is as ambitious as Caesar,” Wirt had written a few days earlier. “He will not be outdone by any man.… It will be a combat worth witnessing.” With everyone in place, the marshal of the court intoned, “God save the United States and this honorable Court!” Then Webster rose to begin his argument.62
In far-off New York, the Livingstons were worried. For more than a decade they had fought off or bought off successive rivals; more recently, the New York Court of Errors had given them a resounding victory over Gibbons's challenge. Yet Gibbons had persevered, and Vanderbilt had his own case against them next on the docket. The Livingstons had decided to make one more appeal. After all, the political future looked grim; New York was no longer governed by factions of landed families, but by Martin Van Buren and his plebeian Albany Regency. And Gibbons and Vanderbilt had outmatched John R. Livingston, who warned his family of “an immense loss” if the court overturned the monopoly. It was a risk they could not afford to take.63
On January 27, 1824, the great clan had sent an emissary, Walter Livingston, to Elizabethtown on one last mission. I have “come on the old business,” he said to William Gibbons. The monopoly had a final offer: Thomas Gibbons would discontinue his case, in return for the Livingstons' “letting T. G. participate in their rights & throwing open the Jersey runs to him.”
William shook his head. “It was too late,” he replied. Livingston said it could be settled in an hour—did his father agree with him? William entered the darkened sickroom and spoke quietly to the suffering old man. Thomas Gibbons glared up at his son and tersely refused. Livingston said “he was very sorry nothing could be done,” William wrote, “& then immediately withdrew”64
The risk was at least as great on the other side. For Vanderbilt, defeat in the high court would virtually doom his future in shipping, forcing him to either buy an expensive steamboat license (assuming John R. Livingston would sell him one) or fall back on his far less lucrative sailboats. If he could avoid debtors' prison, that is: the Marine Court lawsuits had piled up remorselessly, threatening him with bankruptcy. His own case looked doubtful if Gibbons lost. And victory was far from certain. Chancellor Kent, the author of the New York decision upholding the steamboat grant, was one of the most highly regarded jurists in the country. And a new justice had just been appointed to the Supreme Court who had repeatedly ruled in favor of the monopoly: Smith Thompson, a relative of the late Chancellor Livingston.
But Thompson was so new to the Court that he had not yet arrived on February 4, when Webster rose to speak. “With Webster there was also a thin veil of hauteur,” writes biographer Robert V. Remini. “He was a snob about many things: his New England breeding, his education, his legal, linguistic, and literary talents, the fact that… he was the foremost constitutional authority in the United States.”65
The monopoly lawyers would argue, as they successfully had before, that the government of New York had created a valuable property right and the Court was bound to protect it. The public, on the other hand, grew ever more hostile to the idea that the state could carve up the economy and assign a portion to a prestigious family. By 1824, more and more Americans demanded a market open to any who dared to venture in, an economy as democratic as the political arena increasingly was.66 Ogden's attorneys were also to assert a state's authority to interfere with interstate commerce. The claim affronted both Webster's nationalism and his economic vision. If it prevailed, it would establish a constitutional rule that would turn the United States into a collection of feuding principalities, each erecting its own barriers to trade.
And there Webster struck, in one of the most important speeches of his long career. He pointed out the “extreme belligerent legislation” that New York, New Jersey, and Connecticut had enacted, barring each other's steamboats. “It would hardly be cont
ended,” he intoned, “that all these acts were consistent with the laws and Constitution of the United States.” The Constitution had been written to create a commercial “unit… complete, entire, and uniform. Its character was to be described in the flag which waved over it, E PLURIBUS UNUM.”
Webster's rivals responded over the next three days, until February 7. Their arguments reflected a social and economic vision that had not kept pace with the growth in domestic trade, the increasing economic integration of the country, the new American outlook. Commerce was the buying and selling of goods, they argued, not the transportation of passengers, and so the commerce clause did not apply; in any case, the states retained powers over commerce that they had had before the Constitution. Wirt concluded for Gibbons with an appeal to national unity warning of civil war.
For three weeks, they waited—Webster and Wirt in Washington, the Livingstons on their manors or the streets of New York, Ogden in Elizabethtown, Gibbons in his sickbed, Vanderbilt in his stables at Bellona Hall. The anticipation could be felt throughout the United States, for everyone sensed that this was a case that would help to define the age. Newspaper editors stood by, day after day, hoping to be the first to publish the result of the “celebrated Steam Boat controversy,” as the National Intelligencer called it. On February 19, Chief Justice Marshall dislocated his shoulder, further delaying a decision. On February 23, William Gibbons wrote to his father from Washington that Webster had told him “confidentially” that one of the justices had said that his argument had convinced them “that it is a broad constitutional question upon which scarcely any doubt exists.”