ABSTRACT Cadwallader D. Colden and Thomas Addis Emmet could not help but practice intellectual property law: Robert Fulton was their client. Yet their engagement with the subject went far beyond what professional expediency demanded. Their transatlantic backgrounds and careers encouraged their affinity for liberal political economy and for entrepreneurial adventure. On the frontier, in the shadowy zones between early-nineteenth-century empires and land speculations, the line between enterprise and piratical intrigue was easily leapt, and Colden and Emmet were involved in the era’s cross-border confusions. More typically, their work anticipated a world where private business and public improvement were managed in tandem, by interested franchisees, and underwritten by more sophisticated financial arrangements. The defense of Fulton’s patent privileges was an unabashed apology for banks, corporations, and wealth. These lawyers celebrated canals and steamboats and argued that such tangible achievements were impossible without a flexible understanding of property. Their practice was bound up in the franchise model of development and reconciled government patronage with what was then, and is still, a controversial and liberal vision of progress. Robert Fulton—and Fulton’s adversaries—kept his lawyers busy. His was an ambitious enterprise, and it provoked an aggressive understanding of intellectual property. Cadwallader D. Colden and Thomas Addis Emmet were Fulton’s counselors, good friends, and, in Colden’s case, sometime partners. They rose to the tasks Fulton presented and, indeed, often rose beyond them, though in such a way as to suggest the challenges and opportunities of the time rather than any extraordinary gifts or insights by which these were met. Ambition itself was subject to new styles of organization and articulation. Colden and Emmet were deeply involved in the schemes of the young republic’s promiscuously multiplying corporations. So, too, were most established lawyers. What distinguished these two was the ease with which they mixed their claims on behalf of intangible property rights (and, as a corollary, rights of priority and management to certain broadly beneficial but narrowly profitable processes) with a celebratory and thrusting approach to financial adventure, to the speculative and, yes, intellectual impulse at the core of capital formation. The very language of ambition was also important, and Colden and Emmet spoke the ascendant dialect fluently. Robert Fulton was a keen and appreciative reader of Adam Smith, and his lawyers were unabashed advocates of the same sensibility. Of course, the nature of that sensibility is controversial, and this essay tries to move the debate in a particular direction. Liberal political economy proclaimed the benefits of privately competitive behavior. This ideology became more significant, and more obtrusive, as business corporations assumed more responsibility for the commonweal. Yet this was also a period of intense public competition: partisanship within domestic politics always draws our attention, but much more captivating were the international contests that enlivened and embittered the Napoleonic era. Liberalism was the dominant vocabulary of Anglophones who wanted to open the Atlantic world to their advantage. Spain and its French hegemon stood in the way and offered their own contrary version of imperialism. Yet liberal attitudes also characterized those actors who did business in spite of political disputes and their violent wartime extrapolations. We should not be surprised that this was an age of filibusters and other intrigues, whereby financial speculation, ideological tub-thumping, and military adventure were mashed together. This was normal behavior, given the then-presiding conditions. Colden, Emmet, and a great many of their associates were caught up in these enterprises, though their careers also saw an undeniable re-orientation of American concerns. Transatlantic and domestic coastal capital was still devoted to controlling the interior, but that control was increasingly exercised by larger and better funded corporations—and by more capable governments, federal and state. These governments were sometimes cagey about markets and entrepreneurs; economic regulation was, after all, the business of government. But the regulatory instinct also began to align with market incentives. Liberal government need not be libertarian. The anxieties and sometimes armed ambitions of land speculators along the nation’s northern and southwestern borders were replaced by new projects. The great estates of the Genesee country were at last made valuable by increased commerce, for which the Erie Canal was the classic facility. Colden was one of the canal’s most eloquent champions. He and Emmet worked to see steamboats—or at least steamboats licensed under Fulton’s privileged but ever-widening franchise—plying not just the northern waters but the great system of southward and westward flowing rivers as well. These carriers would enlarge our liberal empire much more effectively than the battle-barges of Aaron Burr and other fortune-hunters. More to the point—and more than any physical structure, be it boat, bridge, or canal—the financial vehicles and instruments supported by the legal defense of patent rights were the prime movers of national and economic expansion. Colden and Emmet’s understanding of intellectual property anticipated an industrial and hyper-capitalist future, but it was still animated by the imperial, and sometimes buccaneering, spirit that recalled the colonial, revolutionary, and Napoleonic times just past. I. Liberalism and the entrepreneurial approach to intellectual property Livingston v. Van Ingen makes for a neat set piece in teaching anthologies of American case law. It demonstrates the industrial turn in the economy. It is a weighty opinion by a weighty judge: James Kent, the Blackstone of the early republic. And, of course, the student is flattered by knowing the rest of the story—indeed by knowing more than the august Kent—in that this New York decision will soon be trumped by federal law, courtesy of the Marshall Court in Gibbons v. Ogden (1824).1 This plot twist comforts by being so familiar, so expected of that period’s jurisprudence. Less familiar is this contribution from Thomas Addis Emmet, who defended the Livingston-Fulton steamboat monopoly, unsuccessfully in Gibbons, but with better luck in 1812: What would Great Britain have been, had she not wisely availed herself of the discoveries and improvements of other countries? By nature, less fertile than the islands of the Mediterranean, she has by the aid of foreign genius, by securing an exclusive right to imported improvements, fertilized her soil, extended the arts, enlarged commerce, and amassed wealth and power above all the isles of the ocean … Can this country [the United States] expect to take its eagle flight, and to reach its high destinies, by strength of its own genius alone, without the aid of foreign invention? If the states cannot protect and reward imported improvements, congress certainly cannot. It can only patronize inventions. But this power exists in every sovereignty. It must exist in the states. It is an attribute of sovereignty retained by them, that they might promote the welfare and happiness of the people, by conferring rewards on the authors of useful discoveries, and encouraging foreign genius to become domiciliated in the land.2 Excuse the indulgent quotation: Emmet was long-winded, in an age when that was no vice. His performances were recorded in nineteenth-century collections of oratory, but this speech and speaker addressed serious concerns in his times and ours.3 Emmet was a revolutionary—one jailed and then exiled by the British government—but here he was, recommending that his adopted, postcolonial country learn from the British experience. This wasn’t the experience of empire, per se, unless we sublimate (or recognize that many of Emmet’s contemporaries sublimated) empire into a less coercive cosmopolitan enterprise, a strategic openness in the service of material ambition and expanded influence. Cadwallader D. Colden, Emmet’s co-counsel in many of the steamboat cases, including Livingston, was perhaps more willing to lean on the colonial past. Was it he, the child of New York loyalists, who encouraged the Fulton legal team to suggest that the franchise’s claim to New Jersey as well as New York waters rested on the original lavish grants to the Duke of York?4 This was a bold aside, but bolder yet, and much more on point, was Colden’s and Emmet’s (and of course Robert Fulton’s) entrepreneurial approach. As we will see below, Colden linked Fulton’s development of his own intellectual property to capital formation: to the corporations, trusts, and other credit vehicles that were more impressive and influential because they were intangible—just as Fulton’s patent was more valuable than his boat. And Colden put his money where his mouth was, investing in ferries, canals, and banks. Emmet was less of an adventurer in this sense, but, as lawyers, both men welcomed a faster and, in most respects, freer market economy: where goods and services were easily priced and exchanged and where bankruptcy redeemed failure and returned assets to the market as soon as possible. To be sure, the liquid and liberal economy still put obstacles in the way of some, and Emmet and Colden guarded these obstacles when necessary. They spent years protecting the Livingston-Fulton monopoly; they weren’t shy about government patronage. Patent privileges and state interference played favorites, but the general outcomes were supposedly progressive and enriching for all. Liberalism, in its many varieties, is at issue here. Scholars have long known of the links between Hume and similar expositors of eighteenth-century liberalism and the Federalist project as articulated by Alexander Hamilton and James Madison in their early and amiable prime. More recently, the progressive, if occasionally cynical, social science of the Scottish Enlightenment has come to occupy a key role in the intellectual history of America’s transition from imperial constituency to postcolonial striver to early-nineteenth-century empire-builder in its own right.5 The political economy of Hume, his friend Adam Smith, and many others in their ever-extending circle worked out much of the vocabulary by which empire was imagined, before the American Revolution and after, by proud Britons and by Americans who were enthusiastic about their new nation’s independent destiny. For a time, Atlantic comity—among Anglophones particularly but not exclusively—was a byproduct of these liberal habits of mind, but it was easily set aside in a hostile season, to be revived when convenient. More distinguishing was liberalism’s encouragement of a perspective that was, at bottom, disrespectful of national commitments: politics was understood to be, in the long run, the servant of economic trends and market realities. Return to Emmet on the “eagle flight.” He is making an important constitutional point. The United States could award patents to original inventions only. The constituent states, however, could honor imported inventions. One might read this as old-fashioned, following British practice, but this is not how Emmet—and, as his opinion makes clear, Kent—saw it. The federal government was of course supreme, but, in matters where it was reticent, as in the patent clause of Article I, Section 8, the states had a crucial role. Society’s general advancement accrued from the advantages sought and won by particular individuals and groups. Who should win these privileges? Not just the original inventor, who might be a tinkering savant incapable of capitalizing on his innovation. Colden and Emmet were careful to claim Fulton’s rights as both inventor and “possessor,” but, under state law—and according to a liberal understanding of the public good—the “possessor” of innovative knowledge was more important. He was almost inevitably an entrepreneur: one acquired what Emmet called “patent property” in order to make the most of it.6 The defense of Fulton’s work and the intellectual disposition of the defenders suggest that notions of intellectual property were shifting to suit the economy of the early nineteenth century. Understanding these shifts will contribute to our early-21st-century reconsiderations of the pertinent legal history. For example, Thomas Merrill has shown how, by the principle of “accession,” ownership was assigned to the party best situated to exploit a resource. From this perspective, the right to improve an intellectual property, such as a patent, was much like the right of a commercial landlord to improve a nearby commons, or, for that matter, the right of a depositor to collect interest.7 Even more germane are Claire Priest’s insights about the distinctiveness of American property law. Priest argues that the easy alienability of real estate encouraged America’s entrepreneurial habits and social fluidity. That point is clear enough, but her argument about origins is subtly made. On the one hand, the monetization of land is the product of imperial conditions and the unequal arrangements of power within the British Empire. The merchant lobby, frustrated by the difficult collection of colonial debt, presses Parliament into passing a Debt Recovery Act (1732) that eliminates traditional protections of landed wealth. British and British-American laws diverge, at least in this particular. During the revolutionary crisis, Americans resent this naked expression of Parliament’s authority, but, when the political stakes are lower—before and after the revolution—they are evidently comfortable with, and benefit from, the resulting liquidity and freedom of action.8 In the early 1800s, this colonial legacy is fully invested within America’s national jurisprudence, by trustees friendly to the consequences of the British imperial past: James Kent and Alexander Hamilton, contemporaries and occasional colleagues of Colden.9 What Priest does not do is take this distinctive view of American property law beyond the traditional provinces of inheritance and the dissolution of estates. The essay that follows will argue that this less hide- (or earth-) bound understanding of property inflated the commercial and industrial ambitions of capital. A proper sketch of the Fulton lawyers will place their professional efforts against a dense background of business expansion (underwritten by increasingly sophisticated financial speculations), geopolitical competition, and the liberal attitudes associated with, and often apologizing for, these enterprises. The gravity of the Founding Era has shaped many studies of intellectual property. Benjamin Franklin is one of the heroes of Lewis Hyde’s recent elegy to the lost American cultural commons. Less polemical is Doron Ben-Atar’s work on trade secrets in early America, but his history is still very traditional in the sense that it is more concerned with nationhood and nation-builders—Hamilton, for example—than it is with economic trends and the evolution of property. The United States, a developing country, played fast and loose with the rules and borrowed shamelessly from older nations with more know-how. This is to be expected, even if the fat target for America’s technopirates was Great Britain, a nation admired, though never blindly so, by Hamilton and other early national financiers and industrialists.10 On the other hand, the attempt by Hamilton and Tench Coxe to patronize juvenile American industries through state patronage ran counter to a late-eighteenth-century constitutional bias that actually preferred a strict regime of patent law, one focused on the apparently singular breakthroughs of individual inventors. Brooke Hindle and Steven Lubar, in their history of the American industrial revolution, argue that the development of intellectual property was always a collective process, but that the young republic and its citizens were not inclined to see it that way. This essay sees its subjects taking a more knowing approach. Fulton’s lawyers certainly made claims on behalf of their client’s special merit, even genius, but they also argued that merit had to prove itself by achievements, which were the sum of many parts—indeed, as these enterprises became financial vehicles, more than the sum of their parts. Management, or a proprietary claim backed by activity, was just as important as—though often complementary to—those claims backed by priority (the “original idea,” the first capture of the object) or share size (of a large passive investment, for example). Eric Hilt, in his work on early-nineteenth-century corporate governance, shows how we might move beyond the distinction between tangible and intangible property. His economic analysis hints that the intellectual capital refined by a managerial class had begun to outweigh the raw (but still intangible) asset of money, as represented by shareholding.11 To strike the right balance between individual and collective accomplishments is to address the interplay of public and private interests. Any history of internal improvements must do this, and Brian Phillips Murphy’s recent book, Building the Empire State, does it very well, covering much of the same ground as the piece before you, though it is less attentive to the practice of law and to the connections between business, the knowledge economy, and frontier or even tropical intrigues (unwinding far from New York, but with New Yorkers often involved). Murphy is sensible and hard-headed about corporate influence in the post-revolutionary United States. He is right to worry about the tendency of historians and other twenty-first-century commentators to disparage that influence, a tendency that colors our understanding of the past. But in the end Murphy puts his finger on the scale, because he too fears that the balance between public and private has tipped too far in favor of the latter. This is why he celebrates the forthrightly state-sponsored nature of the Erie Canal. Yet C.D. Colden was just as enthusiastic about the canal, even if Murphy is determined to set him up as an old-fashioned monopolist, operating at cross-purposes to the new political economy. For Colden and his associates, the monopoly was just one means to the same ends pursued by their ostensible opponents, like Murphy’s hero, William Alexander Duer: the aggressive organization of physical and financial capital.12 Although Murphy’s work couldn’t be more different from Hyde’s, he shares Hyde’s concern about the impoverishment of the public sphere and the enclosure of what should be commonly held. That said, both authors acknowledge the role of a liberally understood economy in providing more goods, including intellectual goods, to more people. Hyde’s acknowledgement is, of course, the more grudging, but it is there nonetheless: the patent process lured inventors and entrepreneurs into publicizing their advances.13 We return, therefore, to the problem of liberalism, and to a significant recent controversy in American legal and intellectual history. One of the keenest scholars of early American patent law, Herbert Hovenkamp, emphasizes its instrumentality: economic development was the prime directive, putting all others—the recognition of individual merit and rights, for example—far behind. Intellectual property was not so carefully distinguished from other sorts; thus Hovenkamp observes, as this essay will, that the differences between land claims, transport monopolies, and technology patents (and, I would add, bank and corporate charters and even the claims on sovereignty made by frontier conspirators) were small, given the overriding concern for optimal exploitation of resources. But Hovenkamp goes awry when he pegs the decisive change in IP law—whereby patent and trademark privileges, once granted, are protected as a matter of right, without reference to socioeconomic consequences—to Jackson’s ascendancy, when liberalism at last becomes the dominant vocabulary of policy and jurisprudence.14 This essay’s perspective is otherwise. The long liberal moment began much earlier. Hovenkamp would align Fulton and Colden with a traditional (in his word, “pre-classical”) understanding of patents, yet these men were enthusiastically attuned to modernizing impulses and to the best articulations of these impulses. Their pronouncements revel in references to David Hume and Adam Smith.15 Naturally, Colden and Emmet appealed to the justice of individualism: merit deserved its reward. More interesting, however, are their efforts to project his dynamic vision of intellectual property and monetized knowledge onto an economy increasingly stimulated by banks and other business corporations—and, yes, by the state. These men were not at all troubled when private ambition was yoked to public design, so long as it hastened a liberal future of wealth and progress. Hovenkamp’s attention to a distinct regime of state patents is welcome indeed, and his reading of Livingston v. Van Ingen is acute, though finally acute to a fault. He is determined to see New York’s patent system as representing a past that is about to be left behind, not just by Gibbons, but by modernity. Thus the odd adjective, “pre-classical,” which he attaches to Livingston, Chancellor Kent, Alexander Hamilton, and all the habits of mind that held sway before the Jackson presidency.16 This approach ignores some inconveniences in the legal and historical record. His interpretation sees the typical pre-1830 patent as a means to an end rather than an end in itself. Forget for a moment that his argument tags the instrumental, the flexible, even the entrepreneurial as illiberal tendencies (he tries to avoid the nonsense of this by identifying the liberal as strictly private, that is, free from government interference—a problem of definition we are about to address). Even if we grant his assumptions, his inquiry must pull up short of what the evidence tells us. For Hovenkamp, a patent is not property, not a thing to be confidently held by an individual, until the late advent of liberalism in the second quarter of the nineteenth century. Thomas Addis Emmet argues differently in Livingston. That is why he speaks of “patent property.” That is why he and an apparently convinced or already agreeable Kent attend so eagerly to the significance and potential of “possession.”17 Hovenkamp’s interlocutor, Richard Epstein, opposes him on the strength and timing of liberalism’s influence, about which Epstein is notoriously confident. The political class of the revolutionary era and the early republic are already operating in the liberal mode. This essay seconds that view, though with different emphases. Epstein focuses on the restraint of government authority. Hovenkamp buys into this approach when he invokes Adam Smith, whose appeal he at once acknowledges and limits: the Smith he summons is the anti-monopolist, the free trader—Epstein’s Smith, in other words.18 This is an undeniably important part of the liberal phenomenon, but so too is the confidence of the middle classes, the commodification of social worth, the penetration of the market sensibility, the bending of private interests to public benefit, and, crucially, the animation of public institutions by those same private interests, robed in a language of general progress. Smith, Hume, and scores of other advocates did as much to promote this vision as to imagine better government by governors’ self-restraint. We never get a smaller state; instead, we get a larger state that thinks like a business. Morton Horwitz’s magisterial treatment of early-nineteenth-century American law remains very convincing.19 Let us return to those who walk along his trail. Epstein is not so interested in attitude; nevertheless, the liberal attitudes he admires colonize the law and other structures of government using the franchises so carefully described by Hovenkamp and so energetically constructed by R.R. Livingston, Robert Fulton, Thomas Addis Emmet, and Cadwallader D. Colden. Horwitz’s titular “transformation” may be too strong a word; it may, for example, compress the impact of liberal political economy within too small a timeframe. But one would be a fool to deny the many key changes experienced in the half-century that begins with the revolution. Many changes meant uncertainty—and improvisation. Consider patent law. The eighteenth-century British system of patents was largely self-policed by its users. After an abortive attempt to vet patents at Cabinet level, this looser policy was also adopted by the United States. Inventions were registered for a fee—in America a relatively low fee. Government clerks presented something of a supervisory bar, but it too was low. The priority or novelty of an invention was tested by private challenges in court. Litigation was a part of the process, a catalyst as well as a brake. It was intended to secure exclusive rights, whether enjoyed by the old patent holder or the new, but lawsuits effectively disseminated knowledge of innovative technologies.20 The law of intellectual property benefited society in the same fashion as modern medicine did, or modern economics: by courting danger. Doctors obeyed the logic of inoculation; the most up-to-date political economists appreciated the logic of private vices and public virtues. Patent privileges offered incentives to ambitious individuals. Governments dangled these privileges to the few so all might eventually profit by them. Patents were always subject to the market of opinion adjudicated in courts, and, in any case, patents expired, opening up the market of ideas to all comers. Hovenkamp is right: the goal was growth, but the arrangements were more open and grasping than he would have it. There was also unexpected cooperation. Litigation as advertising is one example. Another is the colonial nature of the franchise. The Livingston-Fulton monopoly, for instance, guarded its privileges, but these legal contests often turned out to be partnership negotiations. Formal rivals were drawn into the syndicate as the steamboating business spread across the map. As will be discussed below, Aaron Ogden tried to break the monopoly. Failing to beat it, he joined it, so that he was the face of the monopoly in Gibbons. His case is famous, but he was hardly alone in making such accommodations.21 The transitional character of the period is reflected in the venues and personnel of these franchising contests. Lawyers and entrepreneurs battled and compromised in the courts, but their efforts within the state legislatures were just as important. The instrumentality that Horwitz spies in jurisprudence was more brazen in politics, but the same actors were on the stage. Colden and Emmet personified transition. They were comfortable in an age riven by persistent conflict and yet so productive of developments in imperial, legal, and commercial practice—new developments, but ones rooted in the common law tradition, cultural commitments, and the geopolitical rivalries of a transatlantic Anglophone world. The imperial adventures continued, and Colden, Emmet, and their clients were a part of the era’s frontier and international intrigues even as they profited, or tried to profit, from other, more forthright speculations involving the innovative management of property and capital. These coincidences weren’t strange; for many lawyers, merchants, and politicians, this was business as usual. II. The Fulton lawyers and post-revolutionary ambition The early-national period was much concerned with borders, borders of all sorts. There were the transient and easily transgressed boundaries of empires old and new. Within the young empire called the United States, there was considerable disagreement about how federal, state, and private entrepreneurial influence would collaborate to organize American territory. And the borders at issue weren’t just geographical (or political impositions on the geography): they were categorical as well—competing legends of social, economic, and historical development. These ideological debates might never be resolved, but their satisfactory conclusion is in any case discouraged by other uncertainties, for the late eighteenth and very early nineteenth centuries are a contested historiographical borderland, now more so than ever. Atlantic and postcolonial approaches, though subject to splintering, revision, and generic exhaustion, have done much to bridge (or perhaps befog) the once clear divide between colonial America and the obsessive nationalism of the United States.22 Arguments about borders are necessarily about property as well. The law and lawyers should be key players, and they certainly are in the story that follows. C. D. Colden and Thomas Addis Emmet were at the leading edge of changes in jurisprudence and the American economy. Their practice heralded the industrial era; it also tracked the evolution of intellectual property law. But their careers are all the more instructive because they weren’t encompassed by the courtroom. Emmet was the more famous pleader and technician, but his contributions to legal history cannot be understood without coming to grips with his Irishness, which was as cosmopolitan as it was revolutionary. Colden was New York-born, but also transatlantic: his arch-loyalist family brought him—in chronological order and ascending importance—trouble, British training, and clients. He was a fine lawyer, well-liked by partners and adversaries, but he was just as devoted to commerce, charity, politics, and to crafting the narrative of his age: he was Fulton’s first biographer and the most enthusiastic booster, save DeWitt Clinton, of the just-birthed Erie Canal. Colden and Emmet’s careers demonstrate how easily the ambitions of those border-bounding times might intertwine. Colden, like Alexander Hamilton and Aaron Burr, was active in defending the claims of loyalist or foreign landowners. These controversial estates were found in city and country both, but they were, on paper, most imposing upstate. The northern counties saw rampant land speculation for decades. In Colden’s experience, the line between the old land-jobbery and the new tech-jobbery—the speculative investments provoked by steam, canal, and rail—was pencil thin. One led to the other, just as the often iffy business of northern land found its practitioners involved in southern intrigues: the flashy Burr again comes to mind first, but he wasn’t alone. Colden and Emmet defended New Yorkers tried for Latin American filibustering. The empires of capital and of Anglo-American influence tended to grow together. Both men were creatures of a transatlantic habitat, the children as well as heralds of empire. Their careers inscribed the continuities that crossed the revolutionary divide and remodeled British traditions for American usage. Their example, and the environment in which they, Fulton, and their peers operated, reveal the extent of Atlantic networks and gamesmanship well after the revolution. The intensity of Anglo-French competition would not have it otherwise. The speculative, enterprising world of Robert Fulton and company was the world of filibusters, British meddling, and Napoleonic intrigue. It was a smaller world than the map would suggest, and within it the English Channel flowed near the Gulf of Mexico, and the Panama and Erie Canals had their intermingled imaginative source. Thomas Addis Emmet was, at first glance, the most radical of Fulton’s New York circle. He was Irish, after all, and a United Irishman at that. The British jailed him and hanged his even more rebellious brother, Robert. He was a determined and noisy critic of Rufus King, the Federalist grandee who, as U.S. minister to the Court of St. James, had done all he could to prevent the immigration of the Emmets and their kind—preventing, in other words, what the Alien and Sedition Acts punished. When King headlined the Federalist slate in the New York assembly elections of 1807 Emmet attacked him with relish in the newspapers. The crusading arc of Emmet’s career came full circle in 1824, when he and his fellow Irish émigré, William Sampson, defended Catholics who had rioted in reaction to Orangist marches and provocations in Greenwich Village. Emmet the late-eighteenth-century rebel anticipated the communal pride of the mid-nineteenth.23 But Emmet was no barnburner; he was, instead, an ambitious and unusually articulate example of the provincial British bourgeoisie. He had the credentials and the lingo to match. Professional education was often the lever of such ambitions: Emmet began his ascent in Edinburgh, the seat of the Scottish Enlightenment and the Anglophone world’s physician factory. He took his M.D. there in 1784 and was active in the university’s debating societies. Then a brother died, leaving an opening at the bar that young Thomas was happy to fill. He studied at the Inns of Court and began his practice in his native Dublin. His vocation converged with politics, as he and so many other disaffected Irish Britons joined the revolt against London’s sovereignty at century’s end.24 His brother Robert would swing for his efforts. Thomas’s lot was imprisonment and exile. The former was prolonged and the latter delayed by Rufus King’s intervention; Emmet, as we’ve seen, waited for his opportunity. He arrived in New York in 1804, under a cloud. The Federalist bar was almost united against his admission; Chief Justice (later Chancellor) James Kent was particularly opposed—and soon particularly regretful, given the quality of Emmet’s lawyering. The one identifiably Federalist attorney to welcome Emmet was Cadwallader David Colden. The Clintons, Governor George and Mayor DeWitt, were of course hospitable. Their politics seemed to mesh more neatly with Emmet’s; they also suggested that this foreign upstart might fill the breach left by Hamilton’s very recent death-by-duel.25 Like Hamilton, and unlike fellow Irishmen, like William Sampson and William Duane, Emmet took comfort in the common-law tradition and in a broad construction of America’s Constitution. He was suspicious of labor’s early attempts at organization and protest and was friendlier, by far, to the rent-seeking of entrepreneurial capitalists. His advocacy on behalf of Fulton was characteristic. The Livingston and Fulton steamboat monopoly was defensible, indeed laudable, because it codified genuine accomplishment—it was merit properly banked. When defending Fulton’s privileges before New York’s legislature, he advised the inventor to “hoard” his wealth while he could. Schemers, their greed disguised as patriotism, would try to overthrow Fulton’s work. They would press legislatures to do the same. They would parrot Marat’s advice, to let “the scythe of equality move over the republic.”26 Emmet had broken with his revolutionary past all the more convincingly for having held tightly to the liberalism that was at the core of the revolutionary project. The liberalism was monetized; it was the creed of a newly entitled, intellectually propertied class. If Emmet’s career demonstrates how Atlantic radicalism could be reconciled to a Hamiltonian vision of government and business allied, his friend Cadwallader D. Colden found the same path using a different, but similarly imperial, perspective: that of British-American loyalism. His grandfather and namesake was one of Great Britain’s most dedicated servants in New York. No one was more aware of how America, his home, might stray from the empire; arguably no one worked harder to prevent the sundering. This first Cadwallader Colden died in 1776. He was buried at the family’s estate on Long Island, where his grandson, then seven years old, had been raised. The revolution was disastrous for the intervening generation; young C.D. Colden was caught in the wreck but wasn’t pulled under. For him a loyal heritage could pay dividends—and in the new republican currency. He went to London when his father filed the family’s claims to loyalist compensation. After a year of schooling there, his political and social connections took him to the tory refuge of New Brunswick, where he read law under William Wylly, King’s Counsel. Colden knew he would move on. By the early 1790s, he was practicing law in New York, at first hopping into the warm hole James Kent left in Poughkeepsie to begin his magisterial career in the city. Colden assumed the lease of Kent’s house and even replaced him as paymaster of the Dutchess County militia.27 Kent kept notes on his peers. Although not always bang accurate, they hit their mark. Alexander Hamilton and Thomas Addis Emmet make his shortlist of New York’s very best lawyers. Colden does not. His problem was not one of quality: he had, according to Kent, “Genius & Vivacity.” Colden’s trouble was application. He misdirected his talents into politics and speculations—steamboats and canals in particular. One might say the Chancellor protests too much; he had, after all, done his part to keep the Fulton gamble going in Livingston v. Van Ingen.28 And Hamilton was a gambler too, a precocious godfather in politics and finance. That doesn’t mean Kent’s strictures on Colden ring false. Hamilton had grand achievements to overshadow his excesses. Colden’s profile was modest, and his faults are more apparent, even if they still pale, as they do in Kent and every other account, before his virtues. To read Kent another way: C.D. Colden spread his many virtues a little thin. Perhaps he was a bit too game, but he was no less a New Yorker for being so. Colden took a European holiday in 1804. He went as far as Italy, where he burned his hand in the volcanic steam of Vesuvius. Yes, his cosmopolitanism—exhibit A: the midlife Grand Tour—was not typical, but his pursuits, and the ardor with which he took them up, put him right in the mainstream of America’s public men in the early national period. Kent’s comments about Colden’s politics invite a similar reading. Depending on whom you read, his affiliations are all over the map: Federalist, Clintonite, Tammany brave. But in New York—shifty, hyperactive, and fat with patronage—this sort of partisan ambiguity is less the exception than the rule.29 Colden’s early legal career depended on his broad appeal, his talent for carrying old wine in new skins. He was a cousin of the DeLanceys; that familiarity, plus the leverage he enjoyed as a district attorney in the late 1790s, encouraged Thomas Barclay, the British consul in New York (and a DeLancey in-law) to recommend Colden to Margaret, wife of James DeLancey and thus a claimant to whatever could be saved of his family’s impressive holdings (including what would become the Lower East Side of Manhattan). Colden had already convinced the state to honor, at least in part, the dower claims of other loyalist widows. He took her case to Albany: the estate was so large that a legislative committee was assigned to its adjudication. Indeed, the claim almost proved too large and too hot to handle. Fair compensation would have been politically impossible. Colden’s future ally, DeWitt Clinton, bullied his fellow senators into reviewing any favorable judgments for tory widows. The Jeffersonian ascendancy had pushed Colden from office, but he continued his labors for DeLancey. In 1803 he squeezed $34,000 out of the state. Margaret, stewing in her Bath exile, took the money but grumbled at Colden’s fee. Alexander Hamilton was brought in to mediate.30 Beginning his run with the DeLanceys, Colden ended it among Swartwouts. To the buttoned-down, like Chancellor Kent, this was a shame. John and Samuel Swartwout were devoted Burrites. It was as a Burr lieutenant that John took three bullets in a duel with DeWitt Clinton. Samuel was Burr’s advance-man in New Orleans. He survived the debacle to become Andrew Jackson’s appointed collector of customs in the port of New York. His abuse of office drove him to Paris, but he returned to America unindicted and died one of the city’s grand old men. He was also Colden’s nephew by marriage. But more than anything, the Swartwouts and Colden were business partners. They worked together to drain the New Jersey Meadowlands, and they ran the steamboat ferry between Hoboken and New York.31 Kent might be right: Colden’s speculations may have sunk his fortune, but one should take them seriously, even if they failed. There was mind atop the matter: Colden’s entanglements, and his representation of the Fulton monopoly, were gestures of his ideology, a liberalism that was quick to account for merit and extend the range of property rights. Such an extension marked the progress and refinement of society, but he knew that these positive signs were not welcomed or understood by all. These critics “cannot stretch their intellects so far as to associate the idea of property, with anything that is not tangible or visible.”32 Upon this new understanding, however, rested the entire edifice of modern life as Colden knew it: banks, insurance, manufacturing, and the “accumulation of wealth” that made all of it possible. Those who discriminated against intellectual property were as ridiculous as, pace Emmet, the Irish, who held potatoes sacrosanct but raided turnip fields with abandon.33 III. Property hotly pursued: foxes and filibusters Colden’s defense of merit and his more controversial defense of merit’s legacies (its corollary and continuing privileges, as in the Fulton-Livingston monopoly) were anticipated by his contributions to one of the best-known cases in American property law. Pierson v. Post is, indeed, a textbook case, a mainstay of professors explaining the foundations of property. Pierson confirms that possession, or “capture,” is at the bottom of it all.34 The case is also attractive to teachers and students alike because of its facts, its quirky backstory. Jesse Pierson and Lodowick Post disagreed about a fox. In December 1802, Post was riding to hounds along a beach near Bridgehampton, on Long Island. Post was, like almost all sporty residents of today’s Hamptons, “new money.” His father had made a fortune in trade, and the son had spent a bit of that fortune kenneling dogs and stabling horses. On that December day, dogs, horses, and their riders were in very close pursuit of a fox. The fox didn’t make it, but he wasn’t, as was traditional, ripped apart by the hounds; instead, Jesse Pierson, a local farmer with long roots in the neighborhood, cornered the weary animal and clubbed it dead. This was, from Post’s perspective, foul play, and he sued Pierson for malicious interference with his hunt. In other words, he was the injured party, not the fox. This was a tort case, but, because no such tort was recognized, it became a matter of property, with Post commencing an action of trespass-on-the-case. Post won before the justice-of-the-peace, but Pierson immediately appealed to the New York Supreme Court.35 A preeminent historian of property jurisprudence has expressed his surprise at the quality of counsel in this appeal. Pierson’s lawyer, Nathan Sanford, combined local knowledge with extensive political connections. He was, according to one antiquarian, Bridgehampton’s “most distinguished” native son.36 In 1799 Sanford joined the New York bar and began a career consistently blessed by official preferment and rich returns. His role in Pierson fell within his decade-long service as United States Attorney; in some of these years, his income was estimated at $30,000 to as much as $100,000. He was a stalwart of Democratic-Republican politics. After his turn as federal prosecutor, he moved into the state and U.S. senates. In 1823 he followed James Kent, who despised him, as New York’s Chancellor.37 Post’s lawyer was C.D. Colden. Did he muff the case, as is suggested by our property-law mandarin? Most of Sanford’s exceptions were dismissed, save one: Post could not seek legal relief, because he had not acquired an interest in the fox. It simply wasn’t his property. Colden might have stood his ground and argued that this fox’s case needed a weasel’s solution—and that the JP’s was as good as any: Pierson’s interference was a quasi-tort, an act of malice. Colden would have been gambling on a flexible bench, as this was a creative interpretation of law, but this was wiser than arguing the case on strict property grounds. Colden, according to this critic, kept matters simple by agreeing to frame the appeal as a property dispute, and the majority, also preferring simplicity, decided against Colden’s client. Grabbing and destroying a fox established a far better property right than chasing it.38 Yet this view misses something, something that can only be understood after Pierson is put where it belongs: squarely in the middle of Colden’s career, which began with the development of a practice that, while diverse, depended on the lawyer’s postcolonial connections, but which was about to focus on speculative enterprises like Robert Fulton’s. Colden’s defense of speculations involved a stretching or abstraction of property rights. Physical considerations lost ground to intellectual claims. A properly documented and capitalized scheme was possession. Lodowick Post had projected the hunt; he had prepared for it with notable outlay; he was seeing it through when Jesse Pierson seized and killed the hunt’s object. The appellate court held that this physical act conferred a firmer claim to ownership, but Colden was implying that the hunt, the process, was the thing worth owning. The fox was just a part of the process. Because Colden approached Pierson v. Post as a nascent IP lawyer, he saw little difference between tortious interference and a property claim. One did not need to hold a thing to have it. Recently discovered papers from the Pierson appeal show that Colden was keen on this point: “manucaption,” taking with one’s hands, was not enough to constitute legal possession; first pursuit, or projection, was more relevant.39 Students of American legal history not only value Pierson as precedent and as a charming puzzle-piece passed down from our rural heritage; they also wonder at the superfluous efforts of judges and counsel. What lawyers are often accused of they do here in spades: they over-do it. Colden’s argument about “manucaption” and its deficiencies was drawn from Barbeyrac and other natural-law theorists, and these references were hardly singular: the appellate record is replete with them. As delivered by Judge Daniel Tompkins, the opinion of the court dances with Pufendorf, his commentator Barbeyrac, and Hugo Grotius in turn. In his dissent, Brockholst Livingston does the same—mainly to poke fun, though in the end he agrees with Colden about the natural-law position and its modern application. One does not have to touch to possess. Pursuit was akin to a discovery, the means by which an “intention” became a property claim.40 Like Colden, the good son of the old empire and a champion of the new economy, Livingston was a curious mix. He was a grandee, and his opinion was marked by the grandee’s confidence and condescension. Why litigate such a matter, and with such excess verbiage, when it might have been settled by “the arbitration of sportsmen,” in other words, by men such as he, with brandy in their hands and dogs warming their feet? This seems the traditional way, and one that affirms the old hierarchies. Yet Livingston’s opinion, like Colden’s argument, was more advanced than it seems and more forward-looking than that of his colleagues. There’s a clue in his otherwise clubby reference to sportsmen: he had in mind the sort of arbitration that was more common in commercial disputes, wherein the problems of merchants were beyond the scope of common law.41 More to the point, Livingston understood that the natural law or “law of nations” approach might be suited to current, early-nineteenth-century priorities. De-emphasizing the physicality of a disputed object, as Barbeyrac (and now Colden) did, sets property in motion, the “prospect” or “intention”—what will happen to an object, how it will be used—is more significant than who has it in his palm. The day laborer does not own the corn he harvests, nor the teller the coins that he counts. Historians have noted the instrumentality of Livingston’s approach, in the sense that he saw Post’s methods, writ large, as more destructive of vermin. The law should encourage those, like Post, “who made it a business” to hunt foxes and punish those, like the “saucy intruder” Pierson, who interfered with that business and forestalled its efficiencies.42 This is a good point but literal. Hunting with hounds was never about a body count; it certainly wasn’t about profit. But Livingston was interested in motives and his own version of the bottom line. No one, even one with the means and the will, would undertake any large-scale, long-range enterprise without incentives and some measure of legal protection. Post was deserving of that protection in this case, and Colden would elaborate on that argument in the near future, when Fulton’s projects raised their own legal controversies. Before these came to a head, Colden and Sanford were again adverse counsel in a significant case; this time, Colden would be joined by Emmet. It was a preview of their Fulton collaboration, although the issues were ostensibly very different. In 1806, William Stephens Smith, John Adams’s son-in-law and an adventurer knee-deep in northern land speculations, and Samuel Ogden, a New York merchant from a prominent Jersey family, had combined to aid Francisco de Miranda’s revolutionary plans for South America. One of Ogden’s ships, the Leander, sailed out of New York loaded with volunteers—like William Steuben Smith, the former president’s grandson—and recruits gathered on false promises at butcher shops along the Bowery.43 Even as the filibuster came to grief in the tropical south, its New York patrons found themselves hauled into federal court, accused of abetting a military expedition against a nation, Spain, at peace with the United States. The misdemeanor was a creature of the 1790s, when the ascendant but anxious Federalists tried to thwart American cooperation with Edmond-Charles Genet and his kind: transatlantic carriers of radicalism. That was the recent past; in the immediate future, just one year ahead, Aaron Burr would be tried for violating the same statute—and for treason. Burr was another of Miranda’s correspondents and had a similar, if not always consonant, interest in the turbulent course of Spanish-American politics. Burr and Smith were notable citizens of a world thrown into shadow by the historical privilege granted by public affairs and achievements: the world of financial speculation, political skullduggery, and cross-border intrigue that provoked official disapproval even as it depended on official patronage and provided the unavoidable background to public life. The features of that life and of those who lived it lack definition without the chiaroscuro of private ambitions. On Smith and, of course, Burr, the shadows simply lay a bit deeper. Their careers demonstrate the many connections between northern and southern adventure—economic, political, and military. Smith and Burr (like Hamilton and Gouverneur Morris and the Livingstons) were players in the New York real-estate market that extended up to the Great Lakes and across to Ohio. Smith acted as agent to Sir William Pulteney, the Scottish millionaire who bought up much of the Genesee country.44 Pulteney’s chief lieutenant in New York was Charles Williamson, another Scot and a former British Army officer who took American citizenship after the Revolutionary War so he could front for foreign investors like Pulteney, whom New York law prevented from direct ownership. Hamilton and Burr worked hard to repeal those laws, just as they worked hard to plot the downfall of Franco-Spanish power in the Mississippi delta: Hamilton during the Quasi-War and the abortive muster of the “additional army”; Burr when defeat and the duel forced him to cast all his dice down the river. His quiet backers in this gamble included Williamson, who had resigned the Pulteney agency to focus on a more straightforward—if not entirely straight—imperialism: organizing a legion, composed largely of Atlantic-straddlers like himself, for possible action in the Americas; acting as liaison between Burr and the British government, and passing intelligence (as he had done since the 1780s) to Henry Dundas, who had risen from the Edinburgh bar and its salons—he was friendly with Adam Smith—to become the master of Scottish politics and William Pitt’s strong right hand in the Cabinet.45 The trials of William Stephens Smith and Samuel Ogden were cast in political terms from the beginning. Their lawyers, Colden and Emmet, were most particularly devoted to the idiom. Here again the Burr trial was anticipated. Just as Jefferson would push for a most aggressive prosecution of his former vice-president, in the New York Mirandista trial he and his seconds would push hard for Smith and Ogden’s convictions and push back when defense counsel inevitably tried to embarrass the administration. Emmet, Colden, and associates despaired of having a fair trial, though the despair was part of the show—and the defense. Sometimes they crossed the line. Sanford almost cited his Pierson adversary for contempt when Colden said that he “hoped to be able to convince even this court [my emphasis]” of his clients’ innocence.46 The chief problem was that the entire weight of the president’s ill-will was being brought to bear, but Colden and his peers and no doubt many spectators were aware that the prosecutor, Nathan Sanford, and one of the two presiding judges, Matthias Tallmadge, were political allies: the next few years would see Sanford’s fees balloon, as judge and U.S. Attorney worked hand-in-glove to enforce Jefferson’s embargo.47 Tallmadge’s senior colleague on the bench was William Paterson, riding circuit from the Supreme Court. This Jersey hero of the Constitutional Convention was at the end of his career and indeed his life; after ruling on preliminary motions he would retire for reasons of health and die soon after. His brief presence was bracing nonetheless. Paterson, though cautious, was much friendlier to defense motions concerning the limits of executive privilege and the obligations of government employees to show cause why they need not honor their subpoenas and appear. The flip side of the administration’s hostility was its acquiescence: Smith and Ogden were not guilty because the government was aware of their schemes and approved of them. The administration’s culpability proved the defendants’ case. Paterson didn’t balk when Colden and Emmet cited quite recent, almost contemporary, Irish cases to suggest the admissibility of character testimony in the heart of a criminal trial and not just during its punishment phase.48 During these arguments the Atlantic seemed a very narrow channel. A secret history of these events would also note Paterson’s affection for Aaron Burr, whom the judge had known at Princeton. Burr was the fallen angel—now exiled to the lower latitudes—at the 1806 trial. Political failure and manslaughter were in the past, but in a past too close to be forgotten. William Stephens Smith was a known Burrite, and Burr himself was suspected of untoward adventures in the southwest, intrigues that would bring him to book one year after the New York Mirandistas.49 Thomas Addis Emmet had his own links to the Burr picaresques. He was a childhood and then collegiate friend of Harman Blennerhassett, the Irish squire whose island in the Ohio River was Burr’s staging ground for his expedition to the lower Mississippi. After the Irish Rebellion, when Emmet first came to New York, he planned to farm in Ohio—an odd move for a thorough bourgeois, but Blennerhassett, a product of Westminister School and Trinity College, Dublin, had blazed the trail. When Blennerhassett and Burr were confined to quarters in Richmond, awaiting trial, the latter would implore the former to engage his friend, Emmet, in their cause. To his credit, the Irishman demurred, knowing that Emmet’s sacrifices would be hobbling to him and his large family.50 During the Smith and Ogden trials, Emmet felt his vulnerability. He admitted it in argument, when he hinted that some in the audience and in the wider public might regard his advocacy as a “dereliction” of his political principles. Here he was, an enthusiastic Republican, fighting a contest that would discomfort the president and his allies and succor the Federalists and Burrites arrayed against them. Emmet need not have apologized; he was, after all, a paid advocate. But he was anxious to declare his attachment to Miranda’s aims and, by extension, his clients’. Nathan Sanford claimed that Miranda was a dangerous radical, even a latter-day “Mahomet,” who moved too readily from belief to violent action. Emmet, for his part, was content to link his own revolutionary career to that of American Olympians—from North and South—who led “audacious, novel,” and even “dangerous” projects in the name of liberty and progress. Emmet’s shyness about Marat and violent idealism, so gratuitously evident in his representation of the Fulton-Livingston monopoly, had either not yet emerged or was usefully hidden. Emmet was also having fun: making an issue of his own fugitive career to vindicate Miranda’s; hinting at his Irish radicalism while Rufus King sat in the audience, as a possible defense witness; and inviting the courtroom to enjoy the most prominent of the case’s several ironies—that John Adams’s son-in-law would be prosecuted under a law written by Federalists to thwart Citizen Genet, and that the presiding judge, once Paterson had retired to his deathbed, was Matthias Tallmadge, Genet’s brother-in-law.51 Cadwallader Colden was also willing to be personal, as was evident in his early dust-up with Sanford about the trial’s fairness. Colden wasn’t just poking an old rival; he was playing a long game: suggesting the administration’s complicity in Smith and Ogden’s schemes and setting up a legal contest wherein particular members of Jefferson’s government would be challenged to appear in New York. Might not Robert Smith, the navy secretary, know something about Miranda’s amphibious filibuster? Surely James Madison would know much more. Naming Madison had an added benefit: he was party to the famous Marbury case of a few years’ past, which interested the court, and especially Colden, because Marshall’s decision had implied limits on a witness’s ability to excuse himself for reasons of national duty. Of course Colden had no hope of putting the secretary of state on the stand. The embarrassment—the suggestion that official reluctance meant official guilt—was almost enough. But Colden, having made his point, didn’t give up easily. He asked that at least the appropriate clerks in the executive departments could give evidence.52 Their job was in the details, and their absence from Washington would not cripple the government. A key figure, in his own small way, was William Thornton. His background was similar to Colden’s and Emmet’s: professional, eclectic, and British, broadly construed. He was born in the Caribbean and educated in Scotland; like Emmet, he was an Edinburgh M.D. He was sympathetic to the cause of Latin American independence, and his acquaintance with Miranda was more than casual: the two had collaborated on a prospective constitution for a free “Colombia.” He would have made an intriguing witness, but Smith and Ogden were acquitted without his help, forced though it may have been. Thornton did not disappear from the scene. He was an architect and inventor, and his learning, tinker’s instincts, and friendship with Thomas Jefferson, had put him in charge of the U.S. Patent Office. Thornton was a partner of and consistent advocate for John Fitch, America’s other, less famous but arguably first steamboat genius. Thornton was, therefore, well-placed and well-disposed to harry Fulton and his attorneys when they tried to establish their New York privileges elsewhere.53 IV. Robert Fulton, transatlantic entrepreneur Robert Fulton’s productive and contentious life ended 200 years ago, in the winter of 1815. Returning from a defense of his patents before the New Jersey legislature, Fulton and Emmet were walking across the frozen Hudson when his crack counsel fell through the ice. His client leapt in to save him. Within a few days pneumonia besieged Fulton’s already weak lungs and general constitution; within the month, throngs of New Yorkers turned out to mourn their great projector and patriot.54 His passing made a neat pair with the end of the War of 1812 and, in particular, with Andrew Jackson’s emphatic coda at New Orleans. John Quincy Adams and his British interlocutors made their becalmed, ambiguous peace in Europe, but Jackson, after the fact, had consummated the war’s promise properly. He had avenged the nation’s offended pride and his own decades-old resentments. Under his leadership, the United States made good their claim to the Mississippi delta and the more distant West, a claim soon improved and exploited by more military adventure, by slave labor, and by the steamboat. Fulton’s and Jackson’s achievements were those of red-blooded republicans, who had come to exemplify the westering and democratic instincts of early-nineteenth-century American nationalism. Yes, Fulton had done his time in Europe, hawking his inventions and attracting investors. The United States would continue to seek credit and attract venture capital from Europeans as it built its cities and railroads and moved across the continent. Its rivers and canals, real and imagined, drained into the Atlantic. Its first forays to the Pacific and into the China trade began in eastern ports. Still, a momentous shift had undeniably occurred. The United States was building its own empire. It had survived the Napoleonic storm without territorial loss or hobbling entanglements. The Atlantic dimension to American development was never lost—in dollar terms it became richer and richer—but, after 1815, America’s ambitions directed its resources in so many other directions as to discourage “Atlantic” explanations.55 Discourage, perhaps, but not wholly defeat. Before Britain was Fulton’s teller window—and well before it was the foil of Jackson’s western sallies—it was an inspiration. Its metropolitan culture and refinement drew the young Fulton when he was as much artist as craftsman, just as it had drawn his fellow Pennsylvanian and mentor Benjamin West, who rose from his provincial roots to become King George’s court painter. In matters of political economy, Fulton not only drew on republican sources, like Tom Paine, but also thinkers who fit much less comfortably in the Jeffersonian tradition: David Hume most notably.56 Other scholars have noted the ambivalence of Fulton’s career. Joseph Dorfman’s work, written during World War II—another high tide of Atlanticism—was especially astute. His Fulton was a republican, to be sure, but one whose entrepreneurial drive led to an implicit, instrumental Federalism whereby business sought official patronage. And he was as familiar with, and as attracted to, Hume’s political economy as Alexander Hamilton was. When he joined with Hamilton’s eulogist, Gouverneur Morris, to promote what eventually became the Erie Canal, Fulton again demonstrated what the Scots had divined: that interest is a more potent force than ideology, and that commerce creates the world that politics claims to rule.57 What Dorfman and his successors missed is that Fulton’s ambivalent character was very much in keeping with his milieu. Not just he, but his key friends and partners: all sought to advance the republican experiment, most saw that advance directed westward, into the interior, into the continent that Jackson’s heirs—intellectual, political, and military—would seize as the republic’s birthright and liberty’s empire. Yet this imperial future had a familiar, if occasionally resented, imperial past; the frontier had an Atlantic, British-American hinterland. Fulton’s life, works, and ideas are proof of this. So too are those of his attorneys, Colden and Emmet. Fulton’s own Atlantic phase, no secret, will reward close inspection. He began as a provincial prodigy, rising above a childhood troubled by his family’s insolvency and his father’s death to pursue a career as an artist. This aim led to Benjamin West, a fellow native of Pennsylvania whose talents and ambition took him across the ocean to a favored place in King George’s court. Thus elevated, West was in turn a kind patron, welcoming likely Americans to his workshop, whether they were of loyalist stock, like Gilbert Stuart, or firmly patriot, like John Trumbull, the Continental officer and Mirandista fellow-traveler.58 From eighteenth-century art and draughtsmanship it was a small leap to engineering. Fulton’s early efforts were in canals, the mania for which marked Britain’s entry into the industrial age. Fulton worked hard to perfect the inclined planes and other mechanisms that aided inland navigation. He worked just as hard to invite the patronage of canal-mad grandees like the Duke of Bridgewater and Lord Stanhope. As always with Fulton, technique and hustle blended with genuine, if also opportunistic, ideological enthusiasm, His 1796 treatise on canals quotes and then elaborates on Adam Smith at length. The goods individuals consume are the products of many thousands. Civilization depends on a blind, teeming reciprocity. Those processes that ease exchange and make it more transparent do the most good of all. For Fulton, canals fit the bill. And note the foundations of his political economy: liberal—cribbing as he does from Wealth of Nations; republican—interested in citizenship and the improvement of the mass; and, though he would never have put it this way, Federalist—for better citizens lose their “local prejudices” and enrich their lives through a commercial infrastructure that, yes, benefits all but benefits a few much more than the many.59 Moreover, this infrastructure demanded the interest and investment of the already powerful and fortunate. Fulton knew how his bread was buttered, and, in the years immediately after he published on canals, his butter and that of untold merchants and mechanics arrived on a gun carriage. Europe was at war. Fulton would return to canals and the best boats to travel them in peacetime, but the rest of his European sojourn was spent hawking other inventions, the submarine and the torpedo. His potential customers and investors were the richest imaginable: the governments of Great Britain and Napoleonic France. The interest of the former is perhaps harder to understand—and indeed many contemporaries thought it unfathomable: why would the master of the seas encourage a technology that degraded its advantage? The torpedo—really an underwater bomb towed by galleys—was like the assassin’s pistol: it gave the smaller man a chance against the high and mighty. William Pitt and company might well have thought that the best way to dispel a threat was to stay inside of it. They may have even bought into the technology to warehouse what others would deploy.60 On the other hand, Fulton’s torpedo years coincided with the build-up of French naval power in Boulogne and other Channel ports. From these bases would begin Napoleon’s invasion of England. At first Fulton offered his genius to the prospective invader. While living in triangular, Parisian bliss with Joel and Ruth Barlow, he peppered the French with plans for his submarine, the Nautilus, which would maximize their chances against the Royal Navy. Paris also hosted Fulton and Emmet’s first meeting. Emmet had at last been released from prison, but he had not abandoned his revolutionary cause. The American’s torpedoes promised to neutralize British power and give the United Irishmen and their French allies the opening they needed.61 Nothing came of this, of course, except the beginning of a successful partnership that would end only many years later, when Fulton caught his death pulling his fat Irish friend from the Hudson. Napoleon too gave up on submarines and similar tricks, and Fulton looked to his enemies for support. Henry Dundas, first Viscount Melville, oversaw—along with so much else—the defense of Britain against the French threat. This is why he reorganized and enlarged the militia. This is why his network of spies extended from the back alleys of London to the woody vastness of upstate New York, where Charles Williamson was his watchman. And, more to the point at hand, this is why his office was inundated with proposals from little Leonardos all over the kingdom, whose often intricate war machines promised, on paper, to destroy the French in their harbors. The weapons proposed were usually variations of the fire-ship: a dummy craft sent in to explode among men-of-war, docks, and bulwarks. Dundas’s correspondents showed a sometimes wacky inventiveness. One Georgian drone was sketched in loving detail: a round raft powered by two windmill-driven water wheels. Another correspondent, knowing of the government’s experiments with rockets, suggested underwater missiles. Encroaching further into Fultonian territory, he also recommended steam-powered rams (and to pay for these innovations, a tax on umbrellas).62 Fulton’s own torpedo was a more likely candidate, and, with the encouragement of Dundas, it at least reached the testing stage. Those who wish to understand the vigorous style by which Fulton and Robert R. Livingston sought official support for their steamboats would do well to study the system of prizes and partnerships by which Britain and France advanced their war aims, in the open and in secret. Fulton was trained in this system. He courted Bonaparte and Melville. When the first declined his services, Fulton cozied up to the second, telling Dundas that Napoleon did not want to liberalize South America so much as convert it into a “splendid asylum,” where he could intern the European crowned heads he had replaced with his kin.63 Fulton may have known that Dundas was deeply committed to Latin American intrigues. His projects there would soon suffer when he was tried in Parliament for embezzlement at Admiralty. Fulton would blame Dundas’s fall for declining British interest in his torpedoes. Still, he managed to float back to America in a golden balloon provided by Lord Castlereagh, the rising star in the Cabinet who would guide Britain’s foreign policy through Napoleon’s defeat, the Concert of Europe, and the collapse of Spain’s western empire. Castlereagh approved a fairly rich settlement for Fulton, £10,000—not, perhaps, his wisest decision, but then Castlereagh, like Melville and so many other wartime ministers, were adventurous with the nation’s resources. Castlereagh and Melville both sponsored a plan to send an army to Mexico, an army led by Castlereagh’s old mate from Ulster, Arthur Wellesley. When Spain rallied behind the Bourbons, the British chose a less revolutionary course, and the future Duke of Wellington began the Peninsular War instead. But the adventure was quite seriously contemplated; government tolerance for other, smaller innovations was generous. Cabinet-level patronage of new military technology was in this sense exemplary.64 This was the era and the attitude that introduced William Congreve’s rockets and Home Popham’s semaphore. Both men were asked to observe Fulton’s torpedoes when they were tested off the English coast, in one case within sight of the prime minister’s home at Walmer. Alexander Davison, Admiral Nelson’s prize agent and the man entrusted by Dundas and Nicholas Vansittart—Miranda’s sometime handler—to supply Popham’s expedition to the River Plate, was tapped to evaluate Fulton’s claims to official subsidy.65 With all of these men, the entrepreneurial instinct was fused to favor and privilege. Having acknowledged this, one must not reduce their characters and contributions to base opportunism. The race to win friends in Whitehall or the Elysee—or, in Fulton’s later career, the race to the courthouse or to a legislative committee—had to be run, but the means did not disqualify the motives, which, for some of these projectors—and for Fulton most articulately—coalesced into an ideology that bound together all the otherwise confusing and contrary entries on the resume of loyalties and services rendered. In part, this ideology apologized for opportunism, as it always gave priority to use, to dynamic application. Having an idea was much less important than being able to set it in motion. C.D. Colden would voice this perspective in legal argument, and, as we have seen in Pierson, he did so even before he began his long association with Fulton. But Fulton himself, made the case, in word and deed. He appreciated that Britain’s power might come armed and armored but was, at bottom, commercial. He encouraged Henry Dundas in his conspiratorial hopes that the independent Americas would prosper along with the British economy that supplied them. France’s policies were too backward, too obsessed with Napoleonic vendettas and nepotism. Thus “asylum” America: a zoo for kings. Soon, of course, the same republican spirit that animated Fulton’s complaints about Bonapartist excess would find their more natural object: the British Empire itself. Before he sought Whitehall’s favor and, after Dundas’s fall, when he was no longer angling for it, Fulton was a consistent critic of Britain’s military advantages and the jealous policy they served. British dominion on the seas threw the world out of balance. Free trade, a progressive force in Fulton’s view as much as in Adam Smith’s, was thereby distorted. By the physician’s logic of that age, the remedy must borrow from the disease and so British naval preeminence would be nullified by naval innovation: Fulton’s torpedo boats. Once he returned to America, Fulton could dream that Napoleon would recover his generosity and use these new weapons, not to invade and dominate England, but to neutralize Britain’s own unhealthy imperialism. Liberals worked through their disappointment with Napoleonic France in different ways and according to different timetables, but, by 1810, when he published Torpedo War, Fulton was living in the United States and quite focused on what his native country could do to frustrate British ambitions, make best use of American resources, and turn his own projects from mere inventions into profitable enterprises. Fulton had always meant to return to the U.S., with brass in pocket to be sure, but with advanced technology as well. While he was in London, hawking his war machines to the Tory government, Fulton was planning for future success at home. He wrote to George Hammond, once Britain’s first minister to the independent states and now undersecretary of state in the Foreign Office. In both capacities Hammond was a party to transatlantic intrigues, dispensing secret service money to fund Miranda and others in the post-revolutionary underground. This time it was Fulton, writing under the nom de plume of “Francis,” who was dealing in secret. He wanted Hammond to give safe passage to his disreputable friends the Barlows, Joel and Ruth, who were headed back to America after their Parisian sojourn. More importantly, he wanted the government’s permission to ship one of James Watt’s steam engines to New York, for purposes of maritime research.66 Fulton already had in mind the commercial use of the steamboat. This project would eventually make his name and embolden him and his partners to imagine a business empire stretching from the Hudson to the Mississippi delta. But one mustn’t set aside the military applications too quickly. Fulton certainly didn’t. He was then in the midst of his torpedo experiments in the channel, and he thought they would pay a considerable dividend, in war as well as peace, back in America. He might have designed the torpedo to fight a harbor war between Britain and France, but torpedo boats would come into their own protecting America’s coastline and port cities.67 Fulton’s torpedoes were best suited to the defense of Tom Paine’s (or Tom Jefferson’s) America, an America free to trade with the world without becoming embroiled in its wars or corrupt politics. The inventor’s own words are best: “if science and energy should sweep military marines from the ocean, America will be the garden of the world—an example for Europe to imitate.”68 Large military establishments were undemocratic; they almost always served the interests of hierarchies, privileged groups that were aristocratic in function if not in name. Fulton’s solution was also military, but in the same sense that an inoculant was toxic as well as tonic: a relatively cheap dose of danger that, in the long run, prevented the imposition of huge financial, social, and political costs. Torpedoes leveled the playing field. The war games favored by kings and bloody-minded gentry would be replaced by the more peaceful contests of entrepreneurs. V. The Fulton franchise and American capitalism Fulton had plans for the peace dividend. The capital wasted on navies in the Old World would find more profitable use in the New. Canals, for example. Fulton imagined twelve canals, each 1500 miles long, running north and south, and thirty more, 600 miles each, connecting the Atlantic to the interior. Thus did the Republican visionary demand public investments and internal improvements that might have made Hamilton and his heirs blush with excitement. In ostentatious flight from one sort of patronage, Fulton sketched projects that would need massive support from governments and the financial class. His vision also borrowed from nationalist vocabularies descended from, or easily reconciled to, Federalism: canals “… would bind a hundred millions of people in one inseparable compact—alike in habits, in language, and in interest; one homogeneous brotherhood.”69 The mounting tensions between the United States and Great Britain offered a decisive political advantage to Republicans: they were the better nationalists now. Federalists—or at least a noisy minority among them—were the laggards, their patriotism suspect … or at least suspiciously shrunk to within the borders of Yankeedom. There was a war to fight, and Fulton and friends knew where they stood. William Congreve, once the proctor of Fulton’s torpedo tests, was arranging for the “rockets’ red glare” over an embattled Chesapeake. Cadwallader D. Colden knew that New York’s harbor might see similar threats, and he threw himself into its defense. He did so as a general of the state militia and as a leader of metropolitan society. A senior warden of the city’s Freemasons, he helped his brothers strengthen the bulwark between the Gowanus Creek and Fort Greene, a redoubt named Fort Masonic. It was situated on the attack vector of the king’s troops in 1776, when—to the cheers of many Coldens—Britain came within an ace of crushing the rebellion and secured, as consolation, the tenancy of New York City for the rest of the war. Forty years later, C.D. Colden had long since invested his loyalties in the metropolis, the republic, and the entrepreneurial possibilities of both, even though these current investments drew on imperial legacies and transatlantic familiarities. Once the War of 1812 was won—or ended to popular satisfaction, with Adams and Castlereagh in Ghent, toasting a peaceful Yule, and Jackson’s men toasting their own bloody success at New Orleans—the disputes between Americans and America’s constituent parts grew more heated. Hartford was a showy episode, but in many ways it was mere play, designed not to upset the Constitution so much as to prepare Federalists for a new politics in which National Republicans would flatter the Jeffersonian electorate while incorporating Hamiltonian policy.70 No, the more telltale disputes were about steamboats. Livingston v. Van Ingen fascinates because it is about so much else besides. The discussion of states’ concurrent powers, summarized at this essay’s beginning, deserves closer attention here. The Fulton lawyers argued, and Judge Kent accepted, that nothing in the Constitution prevented New York from issuing its own patents. Quite the opposite, since the Constitution explicitly denied the federal government the power to encourage, by patent privilege, the application of imported knowledge, such a competence must reside elsewhere: in the states.71 Neither Emmet nor Colden nor Kent imagined that the power might lie dormant; these men assumed that resources must be maximized, and that patronage-by-patent was an appropriate means to that wholly necessary end. Emmet was a declared Republican, Kent a thorough Federalist: both respected the national government and national law, as ultimately adjudicated by the U.S. Supreme Court. Should the will of the nation make itself known in the matter of steamboat privileges, New York would toe the line. But that had not yet happened.72 Opposing counsel—John Wells, John Henry, and Abraham Van Vechten—argued, with some justice and prescience, that the Fulton monopoly was outrageously generous: it would prevent a Canadian steamboat from cruising on New York’s lakes or a New Jersey steamer from traveling to Connecticut. Emmet was calm, though characteristically verbose, in the face of these criticisms. If a patent-holder went so far as to offend the public, the state could use its police power to correct the patent’s abuse, as it could with any private property. If the United States granted Fulton a patent for his torpedoes—the War of 1812 was about to begin after all—couldn’t New York stop him from mining the City’s harbor? “What then,” asked Emmet, “becomes of the doctrine, that patent inventions may force themselves into our fields and habitations, and stride over the land as a blessing or a pestilence, while the states must bow in homage”? Emmet plainly believed that the development of “patent property” would respond to a market of ideas: “the good sense of the legislature, the interests of the people, and the force of public opinion.”73 Of course Emmet would persist in his defense of the Fulton monopoly when it was finally tested on federal grounds, and Kent remained a friendly audience. Neither man disputed federal supremacy; they took issue instead with its interpretation in smaller, peculiar instances, like the federal coasting license held by Thomas Gibbons.74 When the Supreme Court decided Gibbons v. Ogden, the sense of the people had moved on. Emmet and Colden had championed patents to promote commerce; in the 1820s and after, the national government achieved that liberal goal on different terms. We were not quite there in 1812. Given space to issue patents and pursue progress its own way, the Empire State showed its pride. The Livingston argument about state powers and privileges is constitutional first and foremost but notably cultural as well. To counter the argument that states could not regulate commerce, the Fulton legal team argued that New York could and did: it prohibited the importation of slaves, and did so independently of the Congressional ban. New York might prohibit the sale of a dangerous drug or “obscene” book—or allow the sale of a book banned elsewhere, like an antislavery tract. Cadwallader Colden’s hand is visible in these comments; he was one of the leaders of the New York Manumission Society.75 Alexander Hamilton had been active in this cause, but he appears in Livingston for other reasons, ostensibly because, in Federalist no. 32, he reassured states about the strength of their concurrent powers, but also because he was the apotheosis of New York’s vanguard role in national affairs and in the organization of capital. The Empire State, according to Colden and Emmet and company, was more advanced. It was progressive on the issue of slavery. Its patent system allowed for the leveraging of, in Emmet’s words, “foreign genius.” It was ahead of its peers and of the nation with its market-friendly legislation: the Fulton lawyers cited New York’s bankruptcy laws as an example of how states might take the lead in aiding commerce, without the prior guidance of the federal government.76 State pride would be humbled as the federal government extended its reach, but there was an Indian summer: the year after Gibbons undermined the steamboat monopoly, another project, also associated with Fulton, opened to great fanfare. The Erie Canal was a triumph for New York business and for the state government. As we’ll soon see, Colden was a chief celebrant. Between Livingston and the canal, however, there was still much to do. The New Jersey challenge that, ten years on, would produce Gibbons began in Trenton in the war-ending winter of 1814-15, when Thomas Addis Emmet, assisted by Colden, asked the New Jersey legislature to respect the Fulton-Livingston monopoly and withdraw its support for the rival steam-ferry franchise of Aaron Ogden and partners. Even though serious political issues, and serious money, were at stake, the proceedings had a festive air. The sleighing was particularly fine that year, but the sporting crowd found a different entertainment indoors, where the gallery filled with spectators, of both sexes, who were curious to hear Emmet’s celebrated oratory. He set to his task with gusto, pleading with Jersey’s lawmakers to honor the rights of property and genius. If they ignored Fulton’s claims, New Jersey would become “an asylum of thieves and robbers.” He waved his own Irishness as a battle standard; his own struggles and slights, he said, were like those of George Washington and other revolting colonials.77 Emmet and Colden had to fight hard: they were, after all, on hostile ground, and their adversaries had the wit and the evidence to meet their challenge. Chief counsel for the Ogden faction was Samuel Southard, who capably argued that the New York-based monopoly encroached on New Jersey’s sovereignty. The law of nations and America’s defense of its liberties from British interference seconded Jersey’s robust answer to Fulton’s, and New York’s, offensive ambition.78 Fulton also had to fend off rivals, like John Fitch, who anticipated “his” inventions but lacked his undeniable gift for attracting patronage and for putting together all the moving parts—not just the mechanics, mind you, but the politics, the money, the project in toto. These facts not only described his success; they were marshalled to support the arguments that consolidated this success. His lawyers often made the case: Fulton’s antecedents were ingenious, but they had not made good on their breakthroughs. Their patents, when rewarded at all, were imperfect, incomplete. Only Fulton, with Chancellor Livingston’s aid, of course, had arranged all the necessary elements in their proper “combination.”79 To achieve concrete results, one had to master more than the nuts and the bolts. Of course for Southard “combination” had a more sinister meaning: it hinted at the power of undue political or moneyed interest. Southard’s colleague, Joseph Hopkinson, degraded Fulton’s merits as “those of a successful and enterprising capitalist, practically bringing into public operation the labours of others—not that of an original inventor.”80 Hopkinson would go on, in the Dartmouth College and other cases to argue for an expansive understanding of contract friendly to private and corporate privilege. Hopkinson was a Federalist (he had defended Justice Chase from Jeffersonian impeachment); so too was C.D. Colden, though one a bit more open about his malleability. The language of “combination” has Colden written all over it. Property became worthy of its rights through the process of exploitation. Tangible gains depended on intangible contributions: the formation of capital, astute marketing, and, yes, the exercise of influence. The last gave this round to Fulton, Emmet, and Colden. Their cause was identified as Republican; Republicans had the majority in the New Jersey legislature. Aaron Ogden crossed the aisle, becoming a Fulton-Livingston franchisee. Emmet would defend him and his rights ten years later in Gibbons v. Ogden, but by then federal jurisprudence freely played its trumps against state competition, and it did so confident that commerce and corporate enterprise weren’t in the least retarded.81 Meanwhile, in 1815, Fulton and his advocates made their way back to New York, their success forgotten: the cold snap so good for sleighing froze the Hudson—or seemed to—and sealed the inventor’s fate. Emmet lived on, winning some and, as in Gibbons, losing some too. Through it all he remained devoted to the practice of law, and his reputation as an orator never dimmed. He died in 1827, in a New York courtroom, of apoplexy. His list of pallbearers was catholic, pulled from different factions of the legal and political elite: James Kent, DeWitt Clinton, Nathan Sanford, Martin van Buren, William Sampson, and C.D. Colden. He had diverse monuments as well, as if his memory, like his career, needed to have a round at every party. A service at Grace Church was followed by burial at St. Mark’s-in-the-Bowery. Some of his friends campaigned for a cenotaph on Bowling Green, but they met resistance: even Hamilton hadn’t rated such an honor. Instead, a tall obelisk stands by St. Paul’s Chapel, the oldest architectural remnant of an imperial past that Emmet did not exactly share but understood nonetheless.82 It was a past improved by—yet fundamental to—the republican present. His colleague Colden’s sympathies were much the same, though composed of different elements. He flitted between private and public commitments. Emmet helped Colden when he could. When President Monroe needed a new navy secretary, Emmet wrote on Colden’s behalf. He did not win the post, but Colden was too willing and too well liked to be kept from political office. He had turns as a district attorney, as assistant attorney general, and as a state and federal legislator. In 1818, he was named mayor of New York City, as the rare man acceptable to almost all: Federalist war hawk, the Clintonite, the Tammany sachem, and a gracious ornament of metropolitan society.83 Then as now, the mayor’s office combined practical and symbolic duties. One of Colden’s efforts to satisfy the latter was especially meaningful. At his urging, and with his son acting as courier, the city presented Andrew Jackson with a gold box commemorating his victory at New Orleans and, thereby, America’s secure hold on the Mississippi delta. Of course Colden wasn’t the only New Yorker to interest himself in the old Southwest. Hamilton had. Burr had infamously. Colden’s relations and business partners, the Swartwouts, had conspired in Burr’s designs. Edward Livingston, Colden’s mayoral predecessor and brother to Fulton’s patron, became one of Jackson’s chief lieutenants in Louisiana and re-wrote its legal code.84 The Fulton steamboat business had worked very hard to establish its primacy on northern as well as southern rivers. Colden’s flattery of Jackson’s achievements reminds us of the many strategic ties that bound New York to the Gulf South. Colden’s public engagements did not end with his mayoralty. The year 1825 found him in the state senate; it was a particularly active year. He led the judiciary committee, which interpreted its brief quite broadly. It commented on the capital base and technological promise of ferry companies. It considered petitions to reform New York’s laws. This was the age of codification, when Jacksonians pushed for democratic clarity and tried to put the common law—too confusing, too elite, too English—well into America’s past. Colden was an advocate for progressive change and an adept in the Atlantic legal tradition. His committee counseled moderation. Good reforms would render the legal process more efficient. Many antique practices deserved to go. Likewise many parasitic attorneys, thriving on technicalities, could go too, leaving the field clear for the “counsellor of learning and talents.” Reform would not democratize the law; it would allow merit to earn its just reward. And, in any case, these reforms would not be wholesale, not in the near term. Other states—and Louisiana first among them—had undertaken the brave work of legal renovation. Better to wait, wrote Colden, until the results could be examined and understood.85 The judiciary committee also attended to the claims of alien proprietors. This was an old issue for Colden; he had begun his New York career championing the property rights of displaced loyalist heirs. In those early days he had met resistance from the Clintons, George and DeWitt, who made political hay from the discomfiture of the revolution’s losers. Thirty years later, the old animosities had cooled. As a well-connected state senator, Colden was still chaperoning private bills through the legislature, including one to grant ownership of John Tabor Kempe’s Greenwich Village estate to his British connections. It was exactly the sort of measure Clinton opposed in the 1790s; Kempe, after all, was a rank tory, one of the last of provincial New York’s attorneys general and an industrious associate of Colden’s grandfather and namesake. In 1825, however, Kempe’s redemption was a minor matter for the committee. Much more important was Colden’s recommendation that the piecemeal satisfaction of individual foreign claimants give way to a general tolerance for alien ownership. Here he simply endorsed the proposal of a more important state official: Governor DeWitt Clinton.86 The great project of 1825 was the Erie Canal. To Clinton it owed much of its success and upon him reflected much subsequent glory. Colden, however, played a key supporting role. He was a link to the imperial past. The senior Cadwallader Colden may have been as notorious a king’s man as Kempe, but he had also foreseen that a canal cut between the Great Lakes and the Hudson would prosper New York and North America alike. C.D. Colden also linked the Erie gambit to Robert Fulton’s career and ambitions.87 Fulton had first begun to attract notice as an inventor with his English essay on canals, and canals were drawn into his steamboat and torpedo designs: in the first instance, as a facility to expand steam’s commercial empire; in the second, as the wisest investment the United States could make as it weaned itself off an expensive navy in favor of his ideologically sound and better-bang-for-your-buck torpedo. Fulton took part in the early planning stages of the Erie Canal project, though he died long before the digging. Colden, however, was there to see it through. Just as he was Fulton’s first official biographer, so too did he mythologize the canal’s opening—the city tapped him to record the pomps of 1825. Colden’s Memoir, published just after the event, was full of gilt flatteries, but it also hinted at the deep history of the enterprise. He described the celebratory flotilla off Coney Island, a spot chosen because Henry Hudson was thought to have made landfall there. Over 200 years later, as the waters of the Great Lakes—and of the Mississippi, the Plate, and many other great rivers—were poured into the Atlantic, Hudson’s dream of a Northwest Passage to Asia was nearly realized. He had given his life to that dream and his name to a key component, a mighty river made greater by the canal. Now, Colden eulogized, Americans and indeed all adventurous citizens of the world could enjoy internal navigation to the Rockies and, once over them, to the Pacific. From Astoria, a steamship—thus two more cheers for Fulton and New York—could reach China in under twenty days.88 The western trajectory of commerce and development was a long branch of something thicker and older, the Anglophone North’s portfolio of plans for the American South, near and far. Some of these plans were still in the prospectus stage: Colden pointed to a trans-Floridian canal, now a real possibility given the recent Spanish cession, a cession more or less forced by General Jackson’s licensed filibuster. Once Spain retreated from the rest of the Americas, another even more important canal was in the offing: the traverse of the Darien—or Panama—isthmus.89 By this example Colden not only joined together the Atlantic and the Pacific with the Americas North and South, he also connected the intellectual and imperial histories of the revolutionary age. The Darien scheme was old news, as the region’s significance was long understood by many parties, including the Scots who had once hoped to build a colony there. That hope came to naught, but from its failure a more enriching success was perversely won. Despairing of an independent empire, Scotland yoked its interests to those of its southern neighbor, and a reinvented British nation went about its imperial work. England was the senior partner and political hegemon, but Scots began to see, and theorize to increasingly broad effect, that politics might pretend to lead history but in fact served a master narrative of social and economic progress. David Hume was one of its chief authors, and it is telling that Hume makes an appearance in the concluding paragraphs of Colden’s Erie Memoir. Quoting his old friend Fulton, Colden remarked on how canals promised a new world of liberality, wherein open, easily accessed markets meant peace and prosperity for all: “This accords with the idea of Hume ‘that the Government of a wise people would be little more than a system of civil police: for the best interest of man is industry and a free exchange of the produce of his labor.’”90 As is so often the case when lawyers or politicians (or historians) cite philosophers, the general meaning sometimes transcends contrary instances of particular usage. (And the problem began at the source: Hume was no libertarian, in the contemporary, “sell-the-roads” sense.) Fulton and Colden could and did believe in “free exchange,” as long as the intellectual labor of the creative was, at least temporarily, encouraged and then guarded by patent privilege. The good government used its laws to create a richer market. Formal power mattered, but what mattered more was application, the clever projection of capital. So far, so true, but the dividends were slow to come, if at all. The Panama Canal’s own opening was a century distant. Speculation was the business of failure (or at least long-deferred and often unexpected success), and, as Chancellor James Kent suggested in his obituaries, it was a business that Colden pursued to a fault. The same year of the Erie Canal’s gala ribbon-cutting saw Colden become a principal in the Morris Canal and Banking Company. The Morris was a most ambitious undertaking, rising to a height of 900 feet before descending to sea level. It linked the Delaware River to the Hudson, and its route to the sea helps explain Colden’s interest. Fulton and his associates had many necessary dealings in New Jersey. Their contentious negotiations in Trenton aside, Fulton and Colden also looked to Jersey for its shipyards and ferry slips. Fulton owned land and based shipwrights in Paulus Hook, and Colden, originally in partnership with the Swartwout and Ogden families, owned a ferry terminus in Jersey City. This became the end of the Morris Canal. Fulton’s influence was also apparent in the canal’s engineering: in the 1790s, while in England, he had boosted the technology of inclined planes; these were the means by which the Morris architects planned to climb the high hills along its way.91 The results weren’t entirely happy. The chains and other mechanisms that drew barges up the artificial river were unreliable. Colden knew these devices, and, once he became responsible for the canal, he spent some time apologizing for them and promising better performance. Potential was paramount. Twinned to the Erie and built on the foundations of the steam-ferry business, the Morris looked ahead to the industrialized nineteenth century. The canal would bring coal and iron to metropolitan markets: Aaron Ogden, though smarting from his Supreme-Court defeat in Gibbons, toasted the Morris for its “alchymy,” converting baser metals to gold. The canal also anticipated the railroads: rail’s investors were interested in the waterway’s success. Colden published his defense of the Morris Canal in 1832, in the American Railroad Journal.92 Colden had spent much of his career defending new tricky technologies, but, here as before, he was looking past their immediate, material operation. After all, the fox, the club that smote him, the hand that held the club: all these hard facts mattered less than the apparatus of effort that was the hunt. Likewise, the canal—any canal really, but in this case the Morris—was so much more than the water or the inventive engineering that moved freight along it. Even the freight itself, and the profit derived from its successful delivery, took second place to the enterprise, the capital mustered by it, and future enterprises promised by the first. These projections shot through C.D. Colden’s New York. Many of his associates had been a part of the Manhattan Company’s attempts to found a bank—and the late-eighteenth-century version of a super PAC—on an iffy waterworks. Commodore Vanderbilt showed how the ferry captain’s hard graft, ambitiously channeled, could build railroads and vast modern fortunes.93 For the original visionaries behind the Morris Canal, the technical challenges were much more interesting than the anticipated profits. George McCulloch, for example, complained to Colden—who was not there at the creation but who came soon after—that the financiers had crowded out the builders. The investment became more important than what it accomplished. But Colden, though ever polite, was just as predatory. In the same prospectus wherein he apologized for the project’s technical difficulties, he pointed out that the canal’s real value depended on its corporate structure: the company was empowered to build a canal, run a bank, and—crucially, as Colden emphasized—function as a trust. The firm could serve as a repository of capital, and these activities were entirely distinguished from the success or failure of the canal itself.94 Canals, like the railroads after them, relied on land ownership and use. One might see this as the new inevitably crawling over the back of the old except that real estate, the primary investment vehicle of the eighteenth century, was always about the management of intangibles. It was an exercise in misdirection and abstraction. Legal title, though vigorously fabricated and defended, was often thin. Profit, if it was to be had at all, derived less from the genuine harvest of the land and more from speculative dealing or ancillary businesses—like transporting and supplying settlers recruited to improve the asset. These improvements were necessary, as they pumped up the land’s re-sale price and satisfied terms of ownership that, while uncertain in origin, were shakier still by their contingency. Property was not held absolutely; holdings were confirmed by proper use: clearing so many acres, building so many mills and dams. The mania for bridges, canals, and eventually railways underlined the instrumental character of real estate, but the links between land’s abstract value and the intellectual property developed by technology were always there in the legal history. Thus the shared language of “patents,” a prior claim—to soil, to water, to the minerals under them, to any process that allowed for their more efficient exploitation—that was realized by industry, capital, and the focused publicity of private ambition that clever marketing and good lawyering provided.95 Of course, given where and when the Coldens and Emmets of the world built their careers, one would expect them to see land, money, innovation, and the political and, yes, military measures that leveraged them as tools found in the same box. In the Atlantic world’s formative, Elizabethan phase, “adventurers” were businessmen, settlers, and pirates. The tangled meanings were taken for granted, and we should not be too quick to disentangle them as we move into the nineteenth century. Colonial officials, like the elder Cadwallader Colden, surveyed the northern counties to consolidate imperial control, to create a real estate market, and to plot infrastructural developments featuring natural and artificial rivers. At the end of the eighteenth century, many investors imagined that the abundant produce of upstate New York would find its outlet in the Chesapeake, through the Susquehanna watershed that had long been the object of transatlantic speculation. Charles Williamson, Sir William Pulteney’s steward in the Genesee, courted Maryland and Virginia buyers—Carrolls, Fitzhughs, and Catons—just as assiduously as he courted Aaron Burr, whose entrepreneurial interests, begun in the north but increasingly directed southward, meshed neatly with British-American schemes to disrupt the Spanish colonies and block the re-assertion of French power.96 The younger Cadwallader Colden was certainly not a double agent like Williamson, but his imperial heritage and his loyalist connections and clients served a rather forward view of corporate success and geopolitical influence. His service on behalf of tory heirs and foreign investors was of a piece: a less prejudiced market was also much richer. European capital could more easily enter American markets. British and other European immigrants would fill the comparatively empty United States. The northern interior needed protecting as much as the southern needed seizing. No one had been more accommodating to the loyalist squires of upstate New York than Aaron Burr, the presumptive baron of the lower Mississippi. Burr’s notorious efforts and Colden’s quiet, careful ones had this in common: they assumed that Britain’s patronage (or custom, in the business sense) underwrote the progress of the young republic’s western empire. On the other hand, Colden was no fool: he knew that Atlantic comity had its limits and that the U.S., a young republican empire, would need to hold its own against the old British one. This is why he played such an enthusiastic part in the War of 1812; it is also why he and Governor Clinton welcomed British migrants and money: better to integrate them and it than see both diverted to Canada.97 The Erie Canal did likewise: it won the north for America and New York, and the victory was all the more complete to the extent it made the most of British and other international sources of capital, like that poured into the Pulteney Patent. The imperial transition was smoother as empire and property became ever more fluid concepts. Yet as the course of national and economic power flowed more powerfully, it did not flow uncontrolled. Governments did not step back from capitalism; they took account of it. The Erie Canal was the most famous example of New York’s public entrepreneurship, but it was just one concatenation of the corporate boom within and beyond the Empire State. New York had been quite forward in passing laws of general incorporation; then, in the 1820s, it changed its tax code: to encourage capitalism, and to ensure that the public shared in capitalism’s success. Taxes on individual holdings in chartered businesses were withdrawn in favor of a corporate tax. Colden called on his peers in the state senate to make best use of this revenue by earmarking some of it for the support of charitable enterprises, such as a juvenile refuge.98 The good capitalist was the better humanitarian; the politician more effective for being entrepreneurial. Colden, an avid commercial booster, did not despise the new tax: it confirmed the partnership of business and government. The corporate and banking sector developed intangible properties from material resources and individual efforts—an inventor’s, for instance. As long as credit held, these intangibles were exponentially more valuable than the sum of the commodities or hours of labor engaged. The state legitimized this alchemy—and took its portion. Likewise, Robert Fulton and his lawyers advanced a dynamic approach to the concept of property and its uses—at first to enable the risky business of steamboats but also as a general project, so that the new technologies of industry and finance, aided by the state, might make the most of the entire American continent, from Atlantic to Pacific. Footnotes 1 See, e.g., American Legal History: Cases and Materials 151-67 (Kermit L. Hall et al. eds., 4th ed. 2010). 2 Livingston v. Van Ingen, 9 Johns. 507, 547 (N.Y. 1812). 3 Frank Moore, American Eloquence: A Collection of Speeches and Addresses by the most Eminent Orators of America 540-65 (New York, D. Appleton & Co. 1857). 4 Livingston, 9 Johns. at 527. 5 The breakthrough was Douglass Adair’s ‘That Politics May Be Reduced to a Science’: David Hume, James Madison, and the Tenth Federalist, 25 Wm. & Mary Q. 343 (1957). See also Morton White, Philosophy, The Federalist, and the Constitution 55-101 (1987); Stanley Elkins and Eric McKitrick, The Age of Federalism 106-13 (1993); Mark G. Spencer, David Hume and Eighteenth-Century America (2010); and, for a more parochial view, T.A. Milford, Boston’s Theater Controversy and Liberal Notions of Advantage, 72 New Eng. Q. 61 (1999). 6 Livingston, 9 Johns. at 546, 553-54, 583-84. 7 Thomas W. Merrill, Accession and Original Ownership, 1 J. Legal Analysis 459, 468-69, 485, 489 (2009). 8 Claire Priest, Creating an American Property Law: Alienability and Its Limits in American History, 120 Harv. L. Rev. 385 (2006). 9 Id. at 443-45. 10 Lewis Hyde, Common as Air: Revolution, Art, and Ownership (2010); Doron Ben-Atar, Alexander Hamilton’s Alternative: Technology Piracy and the Report on Manufactures, 59 Wm. & Mary Q. 389 (1995). 11 Eric Hilt, When Did Ownership Separate from Control? Corporate Governance in the Early Nineteenth Century 68 J. Econ. Hist. 645 (2008); Brooke Hindle & Steven Lubar, Engines of Change: The American Industrial Revolution, 1790-1860, at 75 (1986). See also the discussion infra, notes 11 and 20. See also Oren Bracha, Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790-1909, at 6-7, 29-30, 205-08 (2016). Bracha is intrigued by the conceptual links between intellectual property and capitalism, but he sees “entrepreneurial” or “artisanal” IP regimes as “traditional,” i.e., something to be surpassed as the economy and its legal structures matured. I would argue that the entrepreneurial character of “patent property” anticipated Bracha’s key development: the commodification and marketing of intangible goods. 12 Brian Phillips Murphy, Building the Empire State: Political Economy in the Early Republic 6-16, 147-58, 207-22 (2015). 13 Hyde, Common as Air, supra note 10, at 51-52, 121-22, 159. 14 Herbert Hovenkamp, Emergence of Classical American Patent Law, 58 Ariz. L. Rev. 263 (2016). His interlocutor is Richard A. Epstein, Rediscovering the Classical Liberal Constitution: A Reply to Professor Hovenkamp, 101 Iowa L. Rev. 55 (2015). See also Hovenkamp, Inventing the Classical Constitution, 101 Iowa L. Rev. 1 (2015). 15 I will cite examples infra. For “pre-classical,” see Hovenkamp, Emergence, supra note 14, at 265. 16 Hovenkamp, Emergence, supra note 14, at 280-83. For more on Livingston, state patents, and the immaturity of federal IP law, please see Camilla A. Hrdy, State Patent Laws in the Age of Laissez Faire, 28 Berkeley Tech. L.J. 45 (2013). 17 Livingston, 9 Johns. at 546, 553-54, 582-84; Hovenkamp, Emergence, supra note 14, at 275. On Kent’s liberal and entrepreneurial sympathies, see Joseph Dorfman, Chancellor Kent and the Developing American Economy, 61 Colum. L. Rev. 1290 (1961), and Gregory S. Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970, at 127-57 (1997). 18 Epstein, Rediscovering, supra note 14, at 58-59; Hovenkamp, Emergence, supra note 14, at 273-76. 19 Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977). For a classic study of public and private enterprise in this era, see Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy, 1774-1861 (rev. ed. 1969). On the history of early modern liberalism, see Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before its Triumph (1977). 20 Pamela O. Long, Invention, Authorship, ‘Intellectual Property,’ and the Origin of Patents: Notes toward a Conceptual History, 32 Tech. & Culture 846 (1991), and Christine MacLeod, The Paradoxes of Patenting: Invention and Its Diffusion in 18th and 19th Century Britain, France, and North America, 32 Tech. & Culture 885 (1991); B. Zorina Khan & Kenneth L. Sokoloff, History Lessons: The Early Development of Intellectual Property Institutions in the United States, 15 J. Econ. Perspectives 233 (2001); Khan, Property Rights and Patent Litigation in Early Nineteenth-Century America, 55 J. Econ. Hist. 58 (1995); Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Part 1), 83 J. Pat. & Trademark Off. Soc'y 763 (2001); Walterscheid, ‘Within the Limits of the Constitutional Grant’: Constitutional Limitations on the Patent Power, 9 J. Intell. Prop. L. 291 (2001); Daniel Preston, The Administration and Reform of the U.S. Patent Office, 1790-1836, 5 J. Early Republic 331 (1985). 21 Brian Phillips Murphy is excellent on these matters; see Building the Empire State, supra note 12, at 110-58 generally, 139 especially. I obviously disagree with Phillips’s too conservative view of Colden’s work (153-58). 22 The literature of liberal and republican ideologies is so voluminous and well known that it needs no recording here. Perhaps it would do to name just two works, from which the bibliography could be further mined: Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (1991) and T.H. Breen, The Marketplace of Revolution: How Consumer Politics Shaped American Independence (2004). For recent work of a postcolonial bent, see Kariann Yokota, Unbecoming British: How Revolutionary America Became a Postcolonial Nation (2011); P.J. Marshall, Remaking the British Atlantic: The United States and the British Empire after American Independence (2015); David M. Golove & Daniel J. Hulsebosch, Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932 (2010). 23 David A. Wilson, United Irishmen, United States: Immigrant Radicals in the Early Republic 64-68, 157 (1998); Thomas Addis Emmet, 1 Memoir of Thomas Addis and Robert Emmet 411-20, 464-65 (1915). 24 Samuel L. Mitchill, A Discourse on the Life and Character of Thomas Addis Emmet 5-11 (New York, E. Conrad 1828); Emmet, 1 Memoir, supra note 23, at 206; Richard Stockton Emmet, Thomas Addis Emmet 2-3 (privately printed, 1998). 25 Ludlow v. Heycraft, 2 Cai. R. 386 (N.Y. Sup. Ct. 1805); Charles Glidden Haines, Memoir of Thomas Addis Emmet 84-87 (N.Y.C., G. & C. & H. Carvill 1829); Emmet, 1 Memoir, supra note 23, at 395-406. 26 Cadwallader D. Colden, Life of Robert Fulton 249-50 (N.Y.C., Kirk & Mercein 1817). In the New York cordwainer’s cases of 1810 (wherein organized labor was indicted for criminal conspiracy), Emmet took the state’s part, arguing (contra his compatriot Sampson) that the common-law understanding of conspiracy was applicable in New York and, more to the point considered here, that individual rights could not claim class privilege, as a trade union. Emmet: “But no, individual rights are sufficiently secured by letting every man, according to his will, follow his own pursuits.” 3 A Documentary History of American Industrial Society 319-27, 328-29 (John R. Commons et al., eds. 10 vols., 1910). Successful individuals could secure their rights under the law (as Fulton did), but groups could not. C.D. Colden, Emmet’s once-and-future colleague in many a legal defense, was here Sampson’s co-counsel, arguing on behalf of the cordwainers. See also Johann N. Neem, Freedom of Association in the Early Republic: The Republican Party, the Whiskey Rebellion, and the Philadelphia and New York Cordwainers’ Cases, 127 Pa. Mag. Hist. & Biography 259 (2003); William Sampson, Trial of the Journeymen Cordwainers of the City of New York (N.Y.C., I. Riley 1810). On the cross-party appeal of liberal political economy, see Michael Durey, Thomas Paine’s Apostles: Radical Emigres and the Triumph of Jeffersonian Republicanism, 44 Wm. & Mary Q. 662-63 (1987). Emmet was one of Paine’s executors. 27 He did not, however, replace Kent as partner to Gilbert Livingston. That role was filled by Smith Thompson, who married Gilbert’s daughter; his merits and family ties would carry Thompson to the state’s top bench, to a cabinet position as Secretary of the Navy, and eventually to the U.S. Supreme Court. When Thompson left the Cabinet, Thomas Addis Emmet wrote him to recommend a substitute at Navy: Cadwallader D. Colden. This proved too high a mark, though, as we will see, Colden still had something to add to the nation’s maritime history. See Emmet, 1 Memoir, supra note 23, at 456-57; Donald M. Roper, The Elite of the New York Bar as seen from the Bench: James Kent’s Necrologies, 56 N.Y. Hist. Soc’y Q. 218 (1972); Donald M. Roper, Kent, James, in 5 American National Biography 200 (John A. Garraty & Mark C. Carnes eds., 1999); Donald M. Roper, Thompson, Smith, in 12 id. at 596-99; Paul David Nelson, Colden, Cadwallader David, in 21 id. at 578-80; 4 Dictionary of American Biography, 287-88 (Allen Johnson & Dumas Malone eds., 1928-58); 1 Military Minutes of the Council of Appointment of the State of New York, 1783-1821, at 242 (Hugh Hastings ed., 1901-02); Cadwallader D. Colden to Josiah Ogden Hoffman (Sept. 17, 1787), in Cadwallader Colden Papers (on file with New-York Historical Society). 28 Roper, Elite of the New York Bar, supra note 27, at 218. Kent’s shortlist numbers eleven, out of the scores who practiced law between the Constitution and the Bank Veto. On Kent and enterprise, see Dorfman, supra note 17. 29 Maria Hoffman to Josiah Ogden Hoffman (June 4, 1804), in Fenno-Hoffman Papers (on file with William Clements Library, University of Michigan); on the complexity of New York politics, see Patricia U. Bonomi, A Factious People: Politics and Society in Colonial New York (1971); Dixon Ryan Fox, The Decline of Aristocracy in the Politics of New York (1919); Alvin Kass, Politics in New York State, 1800-1830 (1965); Evan Cornog, The Birth of Empire: DeWitt Clinton and the American Experience, 1769-1828 (1998); Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (2005). Finally, one cannot do without Jabez Hammond’s classic work, which mixes history and recollection. I have used the fourth edition: Jabez D. Hammond, The History of Political Parties in the State of New York (Syracuse, Hall, Mills & Co. 1852). 30 Thomas Barclay, Selections from the Correspondence of Thomas Barclay 109-113, 113n, 121-23, 139-43, 143n (George Lockhart Rives ed., N.Y.C., Harper & Brothers Pub. 1894); on the DeLanceys’ estates, see Elizabeth Blackmar, Manhattan for Rent, 1785-1860, at 34-39 (1989). 31 Arthur James Weise, The Swartwout Chronicles, 1338-1899, at 274-80, 392-97, 484 (N.Y.C., Trow Directory, Printing & Bookbinding Co. 1899); Roper, Elite of the New York Bar, supra note 27, at 218. On Samuel Swartwout, see B.R. Brunson, The Adventures of Samuel Swartwout in the Age of Jefferson and Jackson (1989). 32 Cadwallader D. Colden, A Vindication by Cadwallader D. Colden of the Steam Boat Right Granted by the State of New York 19 (Albany, Webster & Skinner 1818). 33 Id. at 20-21. 34 Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805); Angela Fernandez, The Lost Record of Pierson v. Post, the Famous Fox Case, 27 L. & Hist. Rev. 149 (2009); Charles Donahue, Jr., Papyrology and 3 Caines 175, 27 L. & Hist. Rev. 179 (2009); Bethany R. Berger, It’s Not about the Fox: the Untold History of Pierson v. Post, 55 Duke L.J. 1089 (2006); Andrea McDowell, Legal Fictions in Pierson v. Post, 105 Mich. L. Rev. 735 (2007). 35 Fernandez, Lost Record, supra note 34, at 165-69; Berger, It’s Not about the Fox, supra note 34, at 1089-175, 1119-35; Donahue, Papyrology, supra note 34, at 179-84; McDowell, Legal Fictions, supra note 34, at 770-71. 36 Donahue, Papyrology, supra note 34, at 179-184; William Donaldson Halsey, Sketches from Local History 184-85 (1935). 37 Roper, Elite of the New York Bar, supra note 27, at 229-30; Hammond, 1 History of Political Parties, supra note 29, at 294; The First 100 Years (1789-1889): The United States Attorneys for the Southern District of New York 11, 16 (Second Circuit Historical Comm. & Fed. Bar Council eds., 1987); 16 Dictionary of American Biography, supra note 27, at 349-50. 38 Donahue, Papyrology, supra note 34, at 179-84; McDowell, Legal Fictions, supra note 34, at 736-42, 766-76. 39 Fernandez, Lost Record, supra note 34, at 151. 40 Pierson, 3 Cai. R. 175. 41 Pierson, 3 Cai. R. 175; James Oldham & Su Jin Kim, Arbitration in America, 31 L. & Hist. Rev. 241 (2013); Bruce H. Mann, The Formalization of Informal Law: Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443 (1984); Eben Moglen, Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law, 93 Yale L.J. 135 (1983). For a suggestive view of the lex mercatoria, see S. Todd Lowry, Lord Mansfield and the Law Merchant: Law and Economics in the Eighteenth Century, 7 J. Econ. Issues 605 (1973). 42 Pierson, 3 Cai. R. 175; McDowell, Legal Fictions, supra note 34, at 766-76; Berger, It’s Not about the Fox, supra note 34, at 1102, 1136-40. Other scholars have hinted at Pierson’s IP implications—my work is distinctive in that it sees these implications as contemporaneous, i.e., current and influential in the early nineteenth century. See Stuart Banner, 21st Century Fox: Pierson v. Post, Then and Now, 27 L. & Hist. Rev. 185-88 (2009); Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1875-89 (2007); Dhammika Dharmpala and Rohan Pitchford, An Economic Analysis of ‘Riding to Hounds’: Pierson v. Post Revisited, 18 J. L. Econ. & Org. 39 (2002). 43 The Leander was named for one of Miranda’s sons and is not to be confused—though the mistake is understandable—with the British vessel of the same name that caused so much trouble in New York’s harbor at almost exactly the same time. See William Spence Robertson, 2 The Life of Miranda 224-26 (1929); Evening Post (N.Y.C.), Apr. 29, 1806, at 2-3; id., May 7, 1806, at 2-3; id., June 4, 1806, at 2-3. 44 4 The Law Practice of Alexander Hamilton 135, 135n, 138, 141n, 145-46, 161, 165-70, 220, 223n, 225n (Julius Goebel, Jr. ed., 1964-1981); 5 id. at 54-55n. For general discussions of intrigue in the Gulf South, see David Weber, The Spanish Frontier in North America (1992); James E. Lewis, The American Union and the Problem of Neighborhood: The United States and the Collapse of the Spanish Empire, 1783-1829 (1998); J.C.A. Stagg, Borderlines in Borderlands: James Madison and the Spanish-American Frontier (2004); and Rafe Blaufarb, The Western Question: The Geopolitics of Latin American Independence, 112 Am. Hist. Rev. 742 (2007). 45 On Williamson see generally Helen I. Cowan, Charles Williamson: Genesee Promoter, Friend of Anglo-American Rapprochement (1941). For intrigues with Burr, see Charles Williamson to Henry Dundas (May 28, 1803), William Armstrong to Dundas (Dec. 7, 1803), Williamson to Alexander Hope (Mar. 26, 1804; Apr. 2, 1804; Nov. 20, 1805; Apr. 8, 1806), in National Archives of Scotland (Edinburgh). See also [Williamson,] The forming of a separate Government on the Western side of the Allegheny Mountains (c. 1806); Williamson to Charles Hope (Dec. 11, 1806), Williamson to David Williamson (Dec. 28, 1806), in Charles Williamson Papers (on file with Newberry Library Chicago). For his “legion” or “levy,” see Williamson to John Sullivan (July 20, 1803), Charles Yorke to Williamson (Aug. 3, 1803), Sullivan to George Hammond (Aug. 31, 1803), in Charles Williamson Papers. Read on for more of Dundas; for sources, see infra note 62. 46 Thomas Lloyd, The Trials of William S. Smith and Samuel G. Ogden for Misdemeanours, had in the Circuit Court of the United States for the New-York District in July, 1806, at xiv (N.Y.C., I Riley & Co. 1807). 47 Roper, Elite of the New York Bar, supra note 27, at 229-30. 48 This was the compelled testimony of government witnesses, confirming (defense counsel hoped) the administration’s complicity in the Mirandista filibuster. Smith and Ogden Trial Notes, in Matthias Tallmadge Papers (on file with New-York Historical Society); Lloyd, Trials, supra note 46, at 12-16, 51-52, 87-89, 99. On Paterson, see R.B. Bernstein, William Paterson: Conservative Revolutionary in an Age of Crisis, Garden State Legacy (Dec. 2011), http://gardenstatelegacy.com/files/William_Paterson_A_Conservative_Revolutionary_in_an_Age_of_Crisis_Bernstein_GSL14.pdf (last visited Sept. 5, 2017). 49 Nancy Isenberg, Fallen Founder: The Life of Aaron Burr 13-14, 16 (2007); Political 2 Correspondence and Public Papers of Aaron Burr 710, 762-63 (Mary-Jo Kline ed., 1983). 50 J.E. Fuller, The Career of Harman Blennerhassett, 4 Kerry Archaeological Mag. 16 (1916); William H. Safford, The Blennerhassett Papers: embodying the private journal of Harman Blennerhassett 108, 280, 309-310 (Cincinnati, Moore, Wilstach & Bladwin 1864); Breaking with Burr: Harman Blennerhassett’s Journal, 1807, at 8-9 (Raymond E. Fitch ed., 1988); Emmet, 1 Memoir, supra note 23, at 407. 51 Lloyd, Trials, supra note 46, at 147, 212; Emmet, 2 Memoir, supra note 23, at 497-508. Tallmadge and Genet had married daughters of Vice-President and former New York governor George Clinton. 52 Lloyd, Trials, supra note 46, at 12-15, 128-32, 148-52; Cadwallader D. Colden to Jacob Wagner (June 2, 1806), in Tallmadge Papers, supra note 48. 53 James Thomas Flexner, Steamboats Come True: American Inventors in Action 177-78, 180-81, 185-86, 338 (1978); Maurice G. Baxter, The Steamboat Monopoly: Gibbons v. Ogden, 1824, at 16 (1972); Papers of William Thornton. Volume One, 1781-1802, at xxi-liii (C.M. Harris ed., 1995); Andrew N. Cleven, Thornton’s Outlines of a Constitution for United North and South Columbia, 12 Hisp. Am. Hist. Rev. 198 (1932); William Thornton to Cadwallader D. Colden (June 4, 1806; July 1, 1806), in Tallmadge Papers, supra note 48. 54 Kirkpatrick Sale, The Fire of his Genius: Robert Fulton and the American Dream 169-70 (2002). 55 For an example of Atlantic history in transition, see Paul W. Mapp, Atlantic History from Imperial, Continental, and Pacific Perspectives, 63 Wm. & Mary Q. 713 (2006); for a recent collection of critiques, see Atlantic History: A Critical Appraisal (Jack P. Greene & Philip D. Morgan eds., 2009). On early American commercial contacts with East Asia, see John R. Haddad, America’s First Adventure in China: Trade, Treaties, Opium, and Salvation (2013); Susan S. Bean, Yankee India: American Commercial and Cultural Encounters with India in the Age of Sail, 1784-1860 (2001). And, for a classic example of British capital at work in nineteenth century America, see Dorothy Adler, British Investment in American Railways (1970). 56 Dorinda Evans, Benjamin West and his American Students 13-23, 116-20 (1980); Joseph Dorfman, Fulton and the Economics of Invention, 59 Pol. Sci. Q. 585-86 (1944); Sale, Fire of his Genius, supra note 54, at 82-84. 57 Dorfman, Fulton, supra note 56, at 578-93. 58 Sale, Fire of his Genius, supra note 54, at 42-48; Evans, Benjamin West, supra note 56; on Trumbull and Miranda, see Marshall Smelser, George Washington Declines the part of El Libertador, 11 Wm. & Mary Q. 42 (1954). 59 Robert Fulton, A Treatise on the Improvement of Canal Navigation 13-15, 19 (London, I. & J. Taylor 1796); Sale, Fire of his Genius, supra note 54, at 53-60; Hugh Malet, Bridgewater: The Canal Duke, 1736-1803, at 151-52 (1977). 60 William Barclay Parsons, Robert Fulton and the Submarine 101 (1922). 61 David Whittet Thomson, Robert Fulton and the French Invasion of England, 18 Mil. Aff. 57-63 (1954); Sale, Fire of his Genius, supra note 54, at 72-86; Emmet, 1 Memoir, supra note 23, at 357. 62 Joseph Scott to Henry Dundas (Oct. 19, 1804) [with accompanying illustration], J_____ H_____ to William Pitt (Sept. 10, 1805), in Melville Papers, (on file with National Maritime Museum (Greenwich, UK)). This collection contains many similar examples. On Dundas’s influence, see Michael Fry, The Dundas Despotism (1992) and Roger Knight, Britain Against Napoleon: The Organization of Victory, 1793-1815 passim (2013). 63 Robert “Francis” [Fulton] to Henry Dundas [Melville], (Jan. 20, 1805), in Robert Fulton Papers (on file with New York Public Library). Two days later—and perhaps with Melville’s blessing—Fulton repeated these assertions to the Prime Minister: see 5 Correspondence, Despatches, and Other Papers of Viscount Castlereagh 443-50 (Charles William Vane ed., London, William Shoberl 1848-53). 64 Robert “Francis” [Fulton] to Robert Stewart [Castlereagh] (Dec. 13, 1805), in Robert Fulton Papers, supra note 63; Sale, Fire of his Genius, supra note 54, at 103-05. On the American expedition, planned but then forestalled by the Peninsular War, see Castlereagh’s 6 Correspondence, supra note 63, at 375 and 7 id. at 314-24, 442-48; Arthur Wellesley, 1st Duke of Wellington, 6 Supplementary Despatches, Correspondence, and Memoranda 35-38, 45-47, 50-54, 56-66 (Arthur Wellesley [2nd Duke] ed., London, John Marble 1858-72); and John Lynch, British Policy and Spanish America, 1783-1808, 1 J. Latin Am. Stud. 1 (1969). For biographical detail, see John Bew, Castlereagh: Enlightenment, War, and Tyranny (2011) and Rory Muir, Wellington: The Path to Victory, 1769-1814 (2013). Bizarrely, the abortive expedition is briefly mentioned on the same numbered pages in both huge books: 229-30. 65 Alexander Davison to Horatio Nelson (Nov. 24, 1803; Dec. 3, 1803; and Dec. 23, 1803), in Phillipps-Croker Papers (on file with National Maritime Museum (Greenwich, UK)); Home Popham to Henry Dundas [Melville] (Nov. 26, 1803), in Melville Papers, supra note 62; Martyn Downer, Nelson’s Purse 250, 272-74, 278-79, 320-21 (2004). On Vansittart’s patronage and interests, see Robertson, 1 Life of Miranda, supra note 43, at 293-99; 7 Archivo del General Miranda, at 129 (Josefina Rodriguez de Alonso ed., 1978); Plan of N. Vansittart. Aug. 1796. Spanish Colonies, in Vansittart Papers (on file with British Library); Elizabeth Sparrow, Secret Service: British Agents in France 1792-1815, at 381, 413 (1999). For evidence of sustained collaboration in Latin American intrigues, see Dundas to Davison (Sept. 18, 1806), in Melville Papers, supra note 62, and Davison to Dundas (Feb. 5, 1808), in National Archives of Scotland, supra note 45. On Congreve, Popham, and Fulton’s torpedo trials, see James Earle, Commodore Squib: The Life, Times and Secretive Wars of England’s First Rocket Man, Sir William Congreve, 1772-1828, at 82-95 (2010); Hugh Popham, A Damned Cunning Fellow: The Eventful Life of Rear-Admiral Sir Home Popham 87, 92, 101n, 114, 123, 134 (1991). 66 Robert “Francis” [Fulton] to George Hammond (May 30, 1804), in Robert Fulton Papers, supra note 63; Fulton, Directions for Shipping a Steam Engine (Apr. 8, 1805), in [MSS/89/059] (on file with National Maritime Museum (Greenwich, UK)); Robert Liston to George Hammond (Sept. 7, 1797), Robert Liston Papers (on file with National Library of Scotland); Elizabeth Sparrow, The Alien Office, 1792-1805, 33 Hist. J. 382 (1990). 67 Robert Fulton to Thomas Mullett (May 4, 1807; Feb. 15, 1809), in [MSS/89/059], supra note 66; Fulton, Motives for inventing submarine Navigation and attack (Aug. 10, 1806), and Fulton to David Morris (June 6, 1807), in Robert Fulton Papers, supra note 63; Richard Sylla, ‘… the patent in contemplation will be the most lucrative that ever was obtained’: Robert Fulton to [Robert R. Livingston] on the Profit Potential of Steamboat Navigation, 19 OAH Mag. Hist. 44 (2005); Julia H. Macleod, Jefferson and the Navy: A Defense, 8 Huntington Libr. Q. 179-84 (1945). 68 Robert Fulton, Torpedo War, and Submarine Explosions 55 (N.Y.C., William Elliot 1810). See 41-42n for Fulton’s comments on aristocratic distortions. 69 Id. at 55-56. 70 James M. Banner, Jr., To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789-1815 (1970); on Colden’s masonic and martial activities, see Masonic, Alb. Gazette, June 17, 1813, at 3; Grand Lodge of the State of New York, Evening Post (N.Y.C.), Sept. 12, 1814, at 3; 2 Military Minutes of the Council of Appointment of the State of New York, supra note 27, at 1748, 3 id. at 2013. The war years also saw Colden elected President of the New York Manumission Society: Commercial Advertiser (N.Y.C.), Jan. 25, 1814, at 3. Along with other city luminaries—like the sons of John Jay—Colden would play a key role in passing the state’s gradual emancipation law. See Leo H. Hirsch, Jr., The Slave in New York, 16 J. Negro Hist. 394 (1931). 71 Livingston, 9 Johns. at 530-531, 546-550, 583-584. 72 Livingston, 9 Johns. at 554, 579. 73 Livingston, 9 Johns. at 542, 553-554. 74 Ogden v. Gibbons, 4 Johns. 156, 157 (N.Y. Ch. 1819); North River Steam Boat Co. v. Hoffman, 5 Johns. 302, 304 (N.Y. Ch. 1821). 75 Livingston, 9 Johns. at 528, 529, 553, 580-81. On Colden’s humanitarian efforts, see note 70 supra. 76 Livingston, 9 Johns. at 530, 547-48, 556, 576. On bankruptcy, see Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence (2002). 77 [Lucius Stockton,] A History of the Steam-Boat Case, Lately Discussed by Counsel Before the Legislature of New-Jersey 3, 10, 31-33 (Trenton, N.J, n.pub. 1815). 78 Id. at 3-5, 10-14. 79 Id. at 15-16. For a more recent, though similarly critical, judgment, see Flexner, Steamboats Come True, supra note 53, at 337. 80 [Stockton,] History of the Steam-Boat Case, supra note 77, at 15-16, 20, 25. 81 Id. at 33-34, 42-45; Maxwell Bloomfield, Hopkinson, Joseph, in 11 American National Biography, supra note 27, at 192-93; Baxter, Steamboat Monopoly, supra note 53, at 26-30; Norman R. Williams, Gibbons, 79 N.Y.U. L. Rev. 1398 (2004). 82 Emmet, 1 Memoir, supra note 23, at 486, 535-42; Emmet, Thomas Addis Emmet, supra note 24, at 19; Hammond, 2 History of Political Parties, supra note 29, at 261. 83 Emmet, 1 Memoir, supra note 23, at 456-57: the secretaryship was vacated by Smith Thompson, who had filled Kent’s place in Gilbert Livingston’s law practice, just as Colden took Kent’s bed and militia posting. Thompson left the Navy to replace Brockholst Livingston on the Supreme Court. On Colden’s mayoralty and other offices, see Columbian Register (New Haven), Mar. 7 1818, at 3; Hammond, 1 History of Political Parties, supra note 29, at 464-65; 5 American National Biography, supra note 27, at 200, 21 id. at 578-80. 84 Nashville, Cherry Valley Gazette (N.Y.C.), June 29, 1819, at 2; Alexander DeConde, Livingston, Edward, 13 American National Biography, supra note 27, at 763-64. 85 Journal of the Senate of the State of New-York; at their Forty-Eighth Session 23, 64-65, 320-21 (Albany, Leake & Croswell 1825). 86 Id. at 18, 75, 86. Kempe’s and old Colden’s activities are discussed most fruitfully in Hulsebosch, Constituting Empire, supra note 29, at 71-169. 87 Cornog’s Birth of Empire is devoted to Clinton, and the canal is necessarily another of its principal interests—for Cadwallader Colden’s anticipatory vision, see 4; Colden, Life of Robert Fulton, supra note 26, at 74-75. 88 Cadwallader D. Colden, Memoir, Prepared at the Request of a Committee of the Common Council of the City of New York, and Presented to the Mayor of the City, at the Celebration of the Completion of the New York Canals 4, 57, 74 (N.Y.C., W.A. Davis 1825). 89 Id. at 8-9. For more on the trans-Floridian project, see Charles E. Bennett, Early History of the Cross-Florida Barge Canal, 45 Fla. Hist. Q. 132 (1966) and see especially 138, for Colden, who clearly crafted his support for the Florida canal with the previous year’s Gibbons decision in mind: the national interest was paramount; there would be no federal dispute. 90 Colden, Memoir, supra note 88, at 95-97. On the Scots as scheming thinkers, see Nicholas Phillipson, The Scottish Enlightenment, in The Enlightenment in National Context 19-40 (Roy Porter & Mikulas Teich eds., 1991); … and as thinking schemers (about Darien), David Armitage, The Scottish Vision of Empire: Intellectual Origins of the Darien Venture, in A Union for Empire: Political Thought and the British Union of 1707, at 97-118 (John Robertson ed., 1995). In Colden’s time, Panama was still a centerpiece of Anglophone intrigues in the Latin South. See generally Martin Elliot Thomas, Creassy’s Plan for Seizing Panama, 22 Hisp. Am. Hist. Rev. 82 (1942); and, as examples, Sir John Dalrymple to Francis Rawdon-Hastings [Lord Moira] (Oct. 28, 1804), in Dalrymple Papers (on file with National Library of Scotland); Thomas Douglas [5th Earl of Selkirk] to Sir John Coxe Hippisley (Mar. 22, 1806), in Windham Papers (on file with British Library). Dalrymple may well have encouraged William Thornton—patent clerk, rival steamboater, and Mirandista—in his filibustering schemes: see Papers of William Thornton, supra note 53, at xxxviii; Cleven, Thornton’s Outlines, supra note 53, at 198-215; Charles F. Mullett, British Schemes Against Spanish America in 1806, 27 Hisp. Am. Hist. Rev. 269-78 (1947). 91 Barbara Kalata, A Hundred Years, A Hundred Miles: New Jersey’s Morris Canal 5, 107, 202-04 (1983). 92 Id. at vii-viii, 81; Report of a Joint Committee of the Directors and Stockholders of the Morris Canal and Banking Company, in American Railroad Journal, and Advocate of Internal Improvements 626-27 (N.Y.C., D.K. Minor 1832). 93 Beatrice G. Reubens, Burr, Hamilton, and the Manhattan Company, 72 Pol. Sci. Q. 578 (1957), Beatrice G. Reubens, Burr, Hamilton, and the Manhattan Company, 73 Pol. Sci. Q. 100 (1958); Brian Phillips Murray, ‘A Very Convenient Instrument’: The Manhattan Company, Aaron Burr, and the Election of 1800, 65 Wm. & Mary Q. 233 (2008); T.J. Stiles, The First Tycoon: The Epic Life of Cornelius Vanderbilt (2010). 94 Report of a Joint Committee, American Railroad Journal, supra note 92, at 626-27; Kalata, A Hundred Years, supra note 91, at 55-56. Colden assumed leadership of the Morris Canal after its involvement in one of the more notorious frauds of the mid-twenties: see Eric Hilt, Rogue Finance: The Life and Fire Insurance Company and the Panic of 1826, 83 Business History Review 107-111 (2009). 95 Hovenkamp, Emergence, supra note 14, at 266-67, 292-93; Long, Invention, supra note 20, at 880-81; MacLeod, Paradoxes of Patenting, supra note 20, at 907-08; Khan, Property Rights and Patent Litigation, passim, supra note 20; Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911, at 15-16, 22-23, 40-41, 48-50 (1999). My analysis of Colden’s aggressive IP approach is also informed by John R. Commons, Legal Foundations of Capitalism 52-54 (1924). For a classic study of a land speculation and its discontents, see Alan Taylor, Liberty Men and Great Proprietors: The Revolutionary Settlement on the Maine Frontier, 1760-1820 (1990). And for another, but much more urban, instance of public and private interests intermixed, see Hendrik Hartog, Property as Government in Eighteenth-Century America: The Case of New York City, 10 J. Legal Stud. 305 (1981). 96 Helen I. Cowan, Charles Williamson and the Southern Entrance to the Genesee Country, 23 N.Y. Hist. 260 (1942); Nell Adams McNall, The Landed Gentry of the Genesee, 26 N.Y. Hist. 162 (1945); Peter L. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation 63-76 (2005); Victor S. Clark, History of Manufactures in the United States: Volume I, 1607-1860, at 338 (1929); Hulsebosch, Constituting Empire, supra note 29, at 71-169. On “adventurers,” see Theodore K. Rabb, The Expansion of Europe and the Spirit of Capitalism, 17 Hist. J. 677 (1974). 97 Journal of the Senate of the State of New-York, supra note 85, at 18, 75. 98 Id. at 93-94. On corporations and their governance in early national New York, see Ronald E. Seavoy, Laws to Encourage Manufacturing: New York Policy and the 1811 General Incorporation Statute, 46 Bus. Hist. Rev. 85-95 (1972); Janet A. Riesman, Republican Revisions: Political Economy in New York after the Panic of 1819, in New York and the Rise of American Capitalism 1-44 (William Pencak & Conrad Edick Wright eds., 1989); Hilt, Rogue Finance, supra note 94, at 100-01, and Hilt, When Did Ownership Separate from Control?, supra note 11, at 645-52, 662-63, 679-81. The many charities that sprang up in the first quarter of the nineteenth century were, like their brothers in the for-profit sector, symptomatic of liberal political economy, undertaking their labors with a perspective informed by Adam Smith, Jeremy Bentham, and Patrick Colquhoun. The last is the least familiar, but Colquhoun’s work on cities and their welfare was widely read on both sides of the Atlantic; he was also a key investor in Sir William Pulteney’s New-York speculation. See Raymond A. Mohl, Humanitarianism in the Preindustrial City: The New York Society for the Prevention of Pauperism, 1817-1823, 57 J. Am. Hist. 576 (1970); M.J. Heale, Humanitarianism in the Early Republic: The Moral Reformers of New York, 1776-1825, 2 J. Am. Stud. 162-63, 174-75 (1968); William W. Cutler III, Status, Values, and the Education of the Poor: The Trustees of the New York Public School Society, 1805-1853, 24 Am. Q. 71 (1972); Cowan, Charles Williamson: Genesee Promoter, supra note 45, at 9-26. © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: firstname.lastname@example.org
American Journal of Legal History – Oxford University Press
Published: Mar 1, 2018
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