"at least twenty tons capacity, which is propelled by steam, and the mean of whose progress through "the water, with and against the ordinary current "of Hudson's River, taken together, shall not be "less than four miles an hour; and shall at no time "omit, for the space of one year, to have a boat of "such construction plying between the cities of "New-York and Albany. *

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Thus, then, it is manifest that the " expensive expe"riment," contemplated by Mr. Livingston," was the "construction of a Steam boat of at least twenty tons bur"den, to be propelled at the rate of four miles an hour; "which experiment, if successful, promised great advantage to the State," by the establishment of a regular packet-boat of such construction, to "ply "between the cities of New-York and Albany," although the benefit to Mr. Livingston from such an establishment might be " uncertain," and the experiment" hazardous, unless he could be assured of "the exclusive advantage of the same, if, on trial, "it should be found to succeed:" And this, it was supposed, could only be secured to him by the grant of the sole and exclusive right and privi"lege of constructing, making, using, employing, and "navigating, all or every species or kind of boats, or "water craft, urged or impelled by the force of fire ❝or steam, in all waters whatever within the terri"tory and jurisdiction of this State," which by virtue of an act passed before the adoption of the Federal Constitution, had been vested in John Fitch.

Vide Act of 27th March, 1798, "Letter to Colden," Appendix A.

Let me, now, once more "appeal to any unbiassed "and unprejudiced mind," to decide whether" the "words of the Law preclude the possibility of a

supposition that the Legislature passed the first "act in favour of Mr. Livingston, under the impres"sion that he had considered, or represented him"self, to be in possession of a mode of applying "Steam, which he had tried and ascertained beyond any doubt." Whether he did not assert that the principles in his possession were advantageous, in the same positive and unqualified terms, in which he stated them to be "new ?"-And whether it be more injurious to his character and memory, to say, that he was mistaken in that assertion, than to suppose that when he made it " he had neither ascertained or knew that his principles would be advantageous."†

So long, Sir, as the suggestions upon which that act was obtained, stand recorded in its preamble, it would not be safe to deny, that Mr. Livingston represented himself to be the actual "possessor of "a mode of applying a Steam engine to propel a "boat upon new and advantageous principles." These are his own words; adopted from the peti tion presented by him on that occasion-notwithstanding you now allege that " he had not then as"certained that the application of these principles "would be advantageous." Permit me, Sir, to ask, whether he had ascertained them to be "new ?" or whether he contemplated any experiment for that purpose? It will hardly be pretended that he did: yet he might have been as much deceived or mistaken in supposing they were "new," as in believing them

Colden's Vindication, p. 53.

+ Ibid.

p.

53.

to be advantageous." Whether, in point of fact, his principles were "new," or not, could be ascertained only by investigation and inquiry ;-never by experiment. But his assertion, in regard to both these qualities, is inseparably one: it is contained in the same conjunctive sentence; the same expressions are applicable to either of them, and co-extensive as to both.

Mr. Livingston may have made no pretensions to the original discovery of that mode of propelling boats by means of Steam, of which he said he was "possessed;" and certainly the Legislature did not profess to reward him as an inventor, but merely to encourage him to introduce his principles into practice. Yet the allegation of their novelty was as · positive as the representation of their usefulness: but the latter must have been the material inducement to the grant, and a certain test was therefore provided, by which Mr. Livingston was to prove that his principles were really" advantageous," whilst his suggestion as to their being "new," was, from the nature of the case, taken at his peril. As to the one, he failed in the proof required by the condition of his grant; and whether his representations as to the other, were correct, or not, was immaterial, the Committee felt themselves "warranted in concluding," that his suggestion was "not true in fact," because his principles were not " advantageous."

You repeat, nevertheless, in your pamphlet, what you had before asserted in your "Life of Fulton," "that upon this point the Committee had no sort of "testimony before them." To refute this assertion, I thought, Sir, that nothing more was requisite than to refer, in my letter, to the Statutes passed subse

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quently to the act of 1798, for extending, from time to time, the period within which the proof required of Mr. Livingston, was to be produced, until his plan was finally relinquished, and Mr. Fulton's adopted in its stead. But you now contend that these acts afford no evidence whatever, to justify the report; still you admit that the "Statute book proves that the Chancellor's attempts to construct "a boat which would go four miles an hour, were fruit"less; and that new hopes to accomplish this object, were succeeded by new disappointments."* This, Sir, I humbly conceive, is admitting all for which it is necessary for me to contend; for unless the principles of which Mr. Livingston was possessed, were such as would enable him, within the time limited, to propel a boat with that velocity, they were not "advantageous," within the meaning of the Statute, which had made that the test of their utility, and the condition precedent upon which the exclusive right to use them was to vest,

In the very case to which you appeal to shew, from the Statute book itself, its insufficiency to warrant the inferences of the Committee, you have, yourself, adopted this same construction of the Law. You state that "Mr. Fulton's experiments in France, in "1802, had determined that he was the possessor of "a mode of applying Steam to propel a boat, on "new and advantageous principles ;" and that an act was passed in 1803, giving him, in conjunction with Mr. Livingston, an exclusive right: Provided, they employed, within two years from the passing "of the act, on the waters of this State, a boat

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Colden's Vindication, p. 57.

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"whose progress should be four miles an hour.” You then observe, that "the condition of this act "not being fulfilled four years afterwards, that is, " in 1807, another act was passed, allowing Messrs. Livingston and Fulton two years from this date, "to fulfil the conditions on which the right depended." And you ask, whether " any one can doubt that Mr. "Fulton, in 1807, did possess a mode of propelling a "boat, whose progress would satisfy the condition of the "act."* Hence, it is evident, that you consider Mr. Fulton's possession of a mode of propelling a boat four miles an hour, synonymous with his possession of a mode of propelling it upon new and advantageous principles; for your argument would be without point or application, unless you meant that the efficacy of the mode he proposed in 1807, to fulfil the condition of this grant, was to be inferred from his having determined, by his previous experiments in France," that he was possessed of a mode of applying Steam to propel a boat on new and advantageous principles." To avoid the ultimate conclusion to which your argument was meant to lead, I have simply to remark, that, after the act of 1807, Mr. Fulton himself, as well as the rest of the world, would have had two years, at least, to " doubt" in, if he had not sooner proved the efficacy of his mode of propelling Steam boats, by an actual compliance with the conditions of that Law; and if Mr. Livingston had ever afforded similar proof in regard to the plan which he possessed in 1798, the Committee would

* Colden's Vindication, p. 58.

The same construction is again adopted in p. 90, of the "Vin"dication."