Chatham County GaArchives History .....Savannah Duels - Chapter V 1923
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CHAPTER V. 

A TRESPASS SUIT INSTEAD OF A DUEL.

HOW SAVANNAH'S FORMER MAYOR WAS MULCTED IN THE SUM OF $5,000 BY A NEW JERSEY
JURY—AN AMUSING OUTGROWTH OF HIS FAMOUS DISAGREEMENT AND LITIGATION WITH
EX-SENATOR OGDEN—GIBBONS' NAME PERPETUATED BY ONE OF CHIEF JUSTICE MARSHALL'S
GREAT NATIONALIZING OPINIONS—HIS EX-. PERIENCES WITH SOME POST-REVOLUTIONARY
ENEMIES—GROWTH OF SAVANNAH'S COMMERCIAL IMPORTANCE.

One of the peculiar and unexplained features of Mayor Thomas Gibbons' early life
is his failure to espouse the patriot cause, to which other members of his
family were attached. He was one of the Savannahians who took the oath of
allegiance to George III. As a result, he was among those attainted of high
treason by the legislature in 1782. Under the act those named were to be
arrested and held as prisoners until they could be transported to the "British
King's Dominions". If they persisted in returning, "death without benefit of
clergy" was to be their portion.

    Many of those who had not taken up arms on the British side, or otherwise
rendered themselves particularly obnoxious, sought to have the penalty of
banishment removed and their citizenship restored. Among them was Gibbons. The
records of the House of Assembly show that on January 11, 1783, a petition was
presented from "Thomas Gibbons, attorney-at-law, with a number of affidavits,
setting forth his humanity to the distressed inhabitants of this state while in
the power of the British, and praying to be admitted to the liberties of a
citizen of this state."

    Two members of the Gibbons family were in the General Assembly and the
family was one of high influence in Georgia. On July 24, 1783, at the meeting of
the House there was considered "Petition No. 35. From Thomas Gibbons,
attorney-at-law, praying to be taken off the Act of Confiscation." It was
"Resolved: That the said Thomas Gibbons be taken off the Act of Confiscation and
put on the Bill of Amercement." Others regarded as having been transgressors
against the patriot cause in a minor way were similarly favored, some of whom
became, like Gibbons, men of local standing and service to the community. They
were, however, not to be permitted to vote, or to hold public office, for
fourteen years, with a special provision in the case of Gibbons, that he "shall
not plead or practice in the courts of law of this state," for the same period.

    The efforts in behalf of Gibbons and others were bitterly resented by many
of the old American soldiers. "The Citizens Society" vehemently fought such
clemency and adopted resolutions thanking those members of the Assembly who "had
strenuously opposed" the resolution. The committee drafting the thanks included
Dr. John Waudin, Benjamin Lloyd, John Lindsay, Charles Odingsell and Joseph
Woodruff. A mass meeting of citizens held in October, attended "by a great
majority of the inhabitants of the county", protested against the return of any
of the banished, and appointed a committee composed of Maj. John Habersham,
Capt. John Morel, Mr. Samuel Stirk, Mr. Houly, Col. John Martin, Dr. John
Waudin, Mr. Charles Odingsell, to call on the State's officers to "order them to
depart the country in fifteen days". Then the "Association of the County of
Chatham", Maj. John Habersham, chairman, met every Thursday to receive
information as to such parties and to carry the resolution into effect.
Attorney-General Samuel Stirk held that the legislature's resolution did not
suspend the operation of the Act of Confiscation and Banishment, as no Bill of
Amercement was adopted after the passage of the resolution.

    The security that Thomas Gibbons felt, despite the violent protests against
all who had been attainted by the legislature, is shown in the appearance in the
"Georgia Gazette", under the very notice of the "Association", of an
advertisement signed by him requesting the owner of a negro taken up on his
mother's plantation to call on him. Some of Gibbons' lands were at the same time
being advertised for sale by the Commissioners of Confiscated Estates. Yet six
years later Gibbons was a member of the General Assembly and elected by it as
one of the State's Executive Committee. In February, 1787, he was readmitted to
"all the rights and privileges of a free citizen, any law to the contrary
notwithstanding", and quickly assumed a leading position in public affairs.

    The favor Thomas Gibbons met in after years from his fellow citizens clearly
indicates that extenuating circumstances satisfactorily explained his failure to
take up arms with his kinsmen in the revolt against the British. There were a
number of families in which similar cases occurred. In one or more instances,
though, it has been intimated that the family division was premeditated and
carefully conceived with a view to protection of property interests no matter
which side won in the arbitrament of war.

    Success in Savannah's political life did not lessen the animosity of some of
Gibbons' old enemies. The most damaging and damnable charge adroitly circulated
against him, without ostensible parentage, was that he had betrayed the
confidence of Gen. Benjamin Lincoln and disclosed the location of the American
forces to the British. The opportunity came in September, 1789, to forever
squelch this accusation. General Lincoln came to Savannah on his way to the
Creek country to negotiate a treaty with that tribe, and from his office in
Market Square Gibbons wrote him as follows:

    "My character has suffered exceedingly in this State by a number of men,
some of them industriously circulating that I had been in your camp when you
commanded the army at Purysburg, in the State of South Carolina, that I had
acted as Secretary, or was otherwise employed in your service; that I had
injured the cause of America by making known the situation of your army".

    He then appealed to Gen. Lincoln to sustain his statement that he was never
within the limits of his camp nor was it in his recollection "that he had ever
seen him."

    Gen. Lincoln was prompt and decisive in his reply:

    "I do not recollect that I have ever had the pleasure of seeing you;
certainly you were never employed by me in any capacity whatever. If these
observations shall remove any false impressions I shall be happy that an
opportunity has been given me of making them."

    For fifteen years or more Gibbons was a prominent figure in the political
affairs of Savannah and of Georgia. Then, while maintaining a home here, and
keeping his Georgia property intact, he located for the greater part of his time
in New Jersey, where he had a handsome country seat at Elizabethtown. There he
became interested in steamboat navigation, then in its infancy, and his name as
a result has become associated with the initial case in the Federal courts
involving transportation rights, establishing principles in opposition to
monopoly in interstate commerce, and confirming those powers of the general
government over trade between the states which have gathered power and momentum
from that day until this.

    The theories as to the constitutional rights of Congress as set forth in the
case of Ogden vs. Gibbons are said to be the base upon which all of the
subsequent American decisions regulatory of public transportation have been
built. And out of the causes of this suit came an effort on the part of Gibbons
to force one of the most prominent figures in the public life of New Jersey into
a duel—an effort that had a somewhat ludicrous denouement, viewed from the
perspective of to-day, and furnished probably the first, perhaps the only,
instance in American life where a would-be duellist was haled into court and
mulcted in heavy damages for the offence of posting an enemy on his own premises.

    Aaron Ogden was one of the big men of his state in that day. New Jersey had
delighted to honor him. As a young man he had served throughout the revolution
with distinction, winning the rank of major by hard and gallant service. It was
he who carried to the British the suggestion of Lafayette that Benedict Arnold
be exchanged for Maj. Andre, only to receive the reply from Clinton that the
British did not give up deserters. At the bar he became a prominent figure,
entered politics and was in the United States Senate, 1801-03. In 1812 he served
his state as governor. New York state had created a monopoly in the privilege of
using steamboats on its waters, a monopoly in favor of Robert Fulton and his
wife's uncle, Robert Livingston. This had been a joke when its only foundation
was the hope of Fulton that he could invent a steamboat of practical value, but
when the "Clermont" demonstrated the final success of his dream the exclusive
rights became of immense importance and similar rights were quickly created in
other states, including Georgia and South Carolina, by legislative enactment,
Fulton and Livingston selling their patent rights to the local monopolies thus
established.

    Ogden was one of those who foresaw the profits to be derived from steamboats
and with Daniel Dod started a line between Elizabethtown and New York, which was
speedily put out of commission by the action of the New York legislature. In
retaliation Ogden had the New Jersey legislature create a similar monopoly
within the waters of that state. In the end New Jersey rescinded its action and
Ogden secured from the Livingston monopoly the privilege of running into New York.

    "The Judicial and Civil History of New Jersey" says that Thomas Gibbons now
appeared on the scene. From then the former Savannah mayor figured as a trouble
maker on a large order. Gibbons, says the history referred to, "was a lawyer of
consummate ability, a man of large means, of untiring energy, of iron will, and
capable of employing means to attain an end which some honest men thought
questionable."

    Working arrangements were perfected between Ogden and Gibbons, who had been
operating a boat line between New Jersey points under a Federal coastwise
license. By this arrangement passengers were exchanged between their lines for
the points reached by them and a joint agent maintained in New York to book
traffic. Gibbons had originally denied the right of the monopoly to prevent his
boats from moving in New York waters. His arrangement with Ogden speedily
brought them into conflict with the Fulton-Livingston interests. Chancellor Kent
enjoined Gibbons but refused to enjoin Ogden, and Ogden then broke off his
connection with Gibbons. The former Savannahian, with every drop of his fighting
blood aroused, immediately established his own line as a direct communication
between Elizabethtown and New York City, with the future "Commodore" Cornelius
Vanderbilt as one of his steamboat employes, and soon gave to Ogden a taste of
genuine competition. Ogden sought to restrain him through the courts. Gibbons
had lost none of his ability as a lawyer, or of his aggressiveness, by his
removal from Savannah to the North. His characteristics had not altered between
1791 and 1818. The New York courts sustained Ogden and the Fulton-Livingston
monopoly rights. Gibbons promptly appealed to the Federal courts and in this
way, through the former mayor of Savannah, as Beveridge puts it, "Was John
Marshall given the opportunity to deliver the last but one of his greatest
nation-making opinions."

    The eyes of the country were centered on the case. Already the public, and
especially the expanding trading interests of the land, realized that the
steamboat was to be the great factor in the transportation of passengers and
freights, and that if held within the vise of a monopoly the development of the
country would thereby be seriously hampered and checked. Especially was this
true of the newer sections where good roads and canals did not exist and the
rivers formed the only highways for the easy movement of merchandise. Gibbons, a
rich man and endowed by nature with the fighting attributes, secured the
services of two of the greatest lawyers of the day, Daniel Webster, of
Massachusetts, and William Wirt, of Virginia, attorney general of the United
States. The monopoly employed the great Pinckney, of South Carolina, but ill
health prevented him from serving. Its attorneys before the court were Thomas J.
Oakley, attorney-general of New York, and Thomas Addis Emmet, the Irish patriot,
who had risen to a high place at the metropolitan bar.

    "Of all Webster's arguments," says Beveridge, "that in the steamboat case is
incontestably supreme." "Oakley, Emmet and Wirt exhausted the learning then
extant on every point involved in the controversy." To quote again from the
admirable "Life of John Marshall", by the former Indiana senator, "On March 2,
1824, Marshall delivered that opinion which has done more to knit the American
people into a nation than any other one force in our history excepting only war.
* * * * In Gibbons vs. Ogden he welded that people into a unit by the force of
their mutual interests. * * * The specific question to be decided was whether
the New York steamboat monopoly violated that provision of the national
constitution which bestowed on Congress the power to regulate commerce among the
several states. The earliest exposition of the commerce clause of the
constitution by any eminent national authority, therefore, came from John
Marshall. In his opinion in Gibbons vs. Ogden he spoke the first and last
authoritative word on that crucial subject. * * * * After almost a century
Marshall's nationalist theory of commerce is more potent than ever; and nothing
human is more certain than that it will gather new strength as far into the
future as forecast can puncture."

    This final verdict in the Supreme Court in favor of Gibbons dealt a death
blow to the steamboat monopoly, not only in New York but in Georgia and other
states. The former Savannahian had won not only a personal triumph over his
recent associate in the transportation business but had brought about a
declaration of the right of Congress to regulate commerce between the states
that has been the bed rock on which judicial decisions and congressional actions
along that line have ever since rested.

    Gibbons fully appreciated the vital importance of the case. Referring to it
in one of the footnotes to his "Miscellanies of Georgia," Chappell a half
century ago wrote:

    "The case throughout its long pendency was regarded as one of immense
public, political and commercial importance, and excited, consequently, a strong
and unusual interest, and Mr. Gibbons himself came to be everywhere viewed as
the champion of free trade between the States, and indeed somewhat in the light
of a great public benefactor by having taken upon himself the burden of the
magnificent, costly and finally victorious litigation.

    "In 1824, not long after Mr. Gibbons' triumph in the Supreme Court, I heard
Judge Berrien say in conversing with some gentlemen about it, that Mr. Gibbons,
whilst the case was yet pending, made his will and appropriated $40,000 to carry
on the suit in case it should not be ended before his death. Upon some one
present expressing surprise, Judge Berrien remarked that Mr. Gibbons was a very
able lawyer and felt great pride in having his opinion on the constitutional
question sustained."

    Chief Justice Marshall prepared and delivered an opinion in this noted case
and the name of the former Savannah mayor, politician and duellist may be said
to have become almost immortalized thereby. Day after day had been given up by
the court to the learned arguments of the attorneys in the case on the mooted
question of the scope of the power of Congress to regulate commerce. The Chief
Justice held that "This power, like all other powers vested in Congress, is
complete in itself, may be exercised to the fullest extent, and acknowledges no
limitations other than are prescribed by the constitution." The Court held that
"steamboats could no more be restrained from navigating waters and entering
ports which are free to vessels using sails than if they were wafted on their
voyage by the wind instead of being propelled by the agency of fire." And in his
memorable conclusion Marshall paid his respects to the attorneys who had sought
to deny or restrict the rights of the general government in the interest of the
authority of the states:

    "Powerful and ingenious minds, taking as postulates that the powers
expressly granted to the government of the Union are to be contracted by
construction into the narrowest possible compass, and that the original powers
of the state are retained, if any possible construction will retain them, may,
by a course of well digested, but refined and metaphysical reasoning, founded on
these premises, explain away the constitution of our country and leave it, a
magnificent structure, indeed, to look at, but totally unfit for use. They may
so entangle and perplex the understanding as to obscure principles which were
before thought quite plain, and induce doubts where, if the mind were to pursue
its own course, none would be perceived. In such a case it is peculiarly
necessary to recur to safe and fundamental principles, to sustain those
principles, and when sustained to make them the test of the arguments to be
examined." And judging from the fact that Marshall's opinion has prevailed for a
century it is evident that he "recurred to safe and fundamental principles" in
the preparation thereof.

    The greater part of the space of the Savannah "Georgian" for two days was
given up to the publication of Marshall's opinion. Interest in this city in the
case was twofold. There was the natural personal sympathy his fellow townsmen
felt for Gibbons in the long fight he had been making in the courts. Then there
was the even greater interest arising from the fact that Savannah's business was
being slowly throttled by just such a monopoly as Gibbons was contesting through
the courts. The legislature of Georgia in 1814 had created a similar monopoly in
the use of steamboats on the Savannah river, in the incorporation of The Georgia
Steamboat Company, $800,000 capital, in 1,600 shares of $500 each, with Samuel
Howard of Savannah as a chief incorporator, giving to it the exclusive right for
twenty years to transport merchandise upon Georgia waters on all vessels or
rafts towed by steam craft. The penalty for infringing on this right was a fine
of $500 for each offense and the forfeiture of the boat and its machinery. South
Carolina likewise imitated New York in conferring similar exclusive rights to
the company so far as the Savannah river was concerned. Savannah's general
commercial interests were adversely affected and there was intense opposition to
the existing conditions among those not directly affiliated with the monopoly.
Gibbons' fight against the New York monopoly was recognized as a gallant fight
to break the shackles elsewhere, and Savannah quickly benefited by the decision
of the Supreme Court. Steamboat navigation of all waters was thrown open to
healthful competition and the effect was soon apparent.

    Diversion of freights to Charleston, business men of which city had quietly
secured a controlling interest in the Georgia Steamboat Company, had been
"brought about by discriminating lower freight rates from Augusta and other
points to that city than to Savannah, the much nearer port. This discrimination
now ceased and the natural trade of Savannah came to Savannah once more. A
writer in the "Augusta Courier" in 1827 stated that a dozen steamboats then
"paddled between the cities of Savannah and Augusta, a new one is building in
Augusta, and in New York an elegant one is in prospect to ply by the side of the
George Washington and the Carolina so as to give us a steamboat passing up and
down the river every other day. The Washington goes down and comes up frequently
within the week, having gone down in twenty-four hours, its actual running time
a little over seventeen hours."

    Frequently a steamboat towed down five or six barges loaded with the
commodities of the upper part of the state and the importance of Savannah as a
port was not to be gauged by its small population. A few months later, in
December, a correspondent at Charleston wrote that he "perceived a great change
in the tone of the public in that city when speaking of Savannah from that
noticed last year. They are now convinced, by a somewhat dear bought experience,
that nature has been too bountiful to Savannah for it to fear Charleston or any
other city wresting from it a trade so long enjoyed." And in April, 1828, as new
and unmistakable evidence of the spirit of Savannah, the "Georgian" told of the
building at the upper yard, of the Georgia Steamboat Company, by John Cant, of a
steam packet to run between Savannah and Augusta, "the boat to be of two hundred
tons burthen and one hundred and twenty feet long." This was the first steamboat
built at Savannah, was completed in forty-five days, and the "Georgian"
expressed the feelings of all when it said:. "We are proud to find that this
first exercise of the art in Savannah has been productive of so fine, complete
and beautiful a craft." It is also interesting to note that at that time the
charge for bringing a bale of cotton from Augusta to Savannah by boat was 35
cents, with delivery in less than three days.

    Still further proof of the progressiveness of the Savannah of that period,
once the grip of the monopoly was torn away, is found in the fact that there was
built in the North the same year, for a local company, the steamboat John David
Mongin, named after the largest stockholder. This was designed especially for
the Savannah-Charleston route and to carry many passengers and considerable
freight. It was equipped with every comfort and luxury of the day, and is
described as "the most commodious and elegant boat yet seen in the South." Its
running time from its wharf here to its wharf at Charleston was fourteen and a
half hours, including an hour's stop at Beaufort, and on the outside run it made
eighteen miles an hour. Other steamboats were built at Savannah from year to
year and until the Civil War its shipyards had an enviable record for well
constructed craft of moderate size, steam and sail.

    The victory of Gibbons had not been effected, though, without the creation
of intense personal feeling between him and Ogden. From the very inception of
the trouble there was bitterness between them. This antagonism would have early
culminated in a duel if Gibbons could have brought it about. He tried no devious
ways to affront his enemy but resorted to the most direct method of letting him
and the public know his sentiments as regards Ogden. Invading the grounds of
Ogden's home at Elizabethtown, Gibbons deliberately posted him in language that
ordinarily would have meant a duel within as short a time as customary
preliminaries permitted.

    Instead of the usual challenge, though, Ogden countered with a suit for
trespass. It is needless to go through its course or furnish details. Suffice it
to say that "the long depending cause," as it was described, came on for its
final hearing before the Chief Justice of New Jersey in September, 1818. The
plaintiff had the most distinguished counsel of the state in his service, J. C.
Hornblower, TV Frelinghuysen, and Eichard Stockton. The attorney for Gibbons was
William Halsey, with Gibbons, of course, largely assisting. A verdict of $5,000
was returned against Gibbons and sustained.

    Commenting on the case the Newark, N. J., Centinel said:

    “One word more. The jurors of Essex spoke a caution to duellists in accents
as loud as thunder. Invitations to the bloody field shall not escape with
impunity—nor shall the crime of duelling, so offensive to God and odious to man,
go unpunished. High minded and honorable gentlemen may here learn to resist the
bloody combat, how to sustain a character worth a thousand honors of murdering a
fellow man. Instead of appealing to the sword, appeal to the laws of the land.
We have enlightened courts—we have independent jurors—and they will award
impartial-justice to the oppressor and the oppressed."

    Col. Ogden, his New Jersey biographer says, "was dogged and persevering in
his attempts to secure his rights. No aspersion could be justly made against his
character; that remained untarnished; but in the end he was defeated after a
most harassing conflict. He lost his fortune, his wife died, and he never
recovered the position he formerly held." In 1829 he was thrown into jail in New
York for debt, and his case is said to have been largely responsible for
legislation prohibiting imprisonment for debt of an officer or soldier of the
Revolution. It is remarkable that in our own country, nearly a hundred years
after Oglethorpe founded Georgia as a refuge for unfortunates imprisoned for
debt, veterans of the war that freed the colonies and constituted them into a
republic were cast into prison and held there indefinitely because of financial
embarrassment.

    Col. Ogden was one of the founders of the Society of the Cincinnati and at
his death in 1839 was the president of the General Society. In the last years of
his life he held the office of Collector of the Port of Jersey City, created for
him through the sympathy of Congress.

    Daniel Dod was interested with Ogden in his steamboat line. This Dod was the
noted engineer of his day, who built the engines for the famous steamship
Savannah, which sailed from this port for Liverpool in 1819. It was doubtless
through Gibbons that the designing and building of the engines for the steamship
was placed in Dod's hands. The Savannah's machinery was constructed and
installed at Elizabethtown, where Dod had built the engines for Gibbons' boats.

    Gibbons, whose plantation near Savannah, Whitehall, is still in the hands of
his descendants, never resumed his place in the life of this city, although he
held large property interests here and always manifested a keen interest in its
affairs. It was doubtless through him that Dr. Henry Kollock, described as
"profoundly distinguished for his remarkable eloquence, which was unsurpassed in
his day in the American pulpit," came to the Independent Presbyterian Church.
Kollock was ordained at Elizabethtown and served in the pastorate there. Another
man who uniquely connects with the story of Ogden and Gibbons is Eli Whitney,
who was a cousin of Ogden. It is clearly within the range of probabilities that
his removal to Savannah may have partly come about through knowledge of this
section that came to him through Gibbons' relationship with Ogden.

    Savannah's former mayor became so fat and unwieldy in his old age that it
was with difficulty he could stand for any length of time and in court he was
granted the privilege of being seated. This was so on one notable occasion in
the Supreme Court of New Jersey. Speaking of it, the author of the "Judicial
History" of that State says that Gibbons was remarkable for wit and sarcasm, in
the use of which, in cases where he appeared as counsel, he excelled the most of
men. "At the time of one of the many controversies between him and Gov. Ogden
his own son-in-law, John M. Trumbull, had been subpoenaed as a witness, but had
failed to appear. Gibbons, who had quarreled with Mr. Trumbull, as in fact, with
almost all the members of his family, seized the opportunity to wreak his
vengeance and applied to the Supreme Court for an attachment for contempt. He
appeared before that tribunal in support of the motion. Richard Stockton
representing Mr. Trumbull, injudiciously reflected upon the character and
motives of Gibbons. This opened the door for a witty and sarcastic reply.
Gibbons requested permission from the Court to remain seated, and poured out
volumes of invective which even the dignified Chief Justice Kirkpatrick and his
associates were unable to withstand. The court, the counsel and the spectators
indulged in roars of laughter until the court room resounded with the peals.
Joseph Warren Scott, then in the prime of his life, and a distinguished
counsellor, left his seat and ran to a place where he was concealed from the
view of the judges, danced up and down, and clapping his hands shook with
uncontrollable mirth. It was some time before the dignity of the court could be
restored."

    From this one might infer that the other New Jersey lawyers wished to
verbally castigate the great Stockton but that it took the Georgian to "trim
him" to their hearts' content.

    Gibbons died North in 1826. His estate is said to have been of the value of
over a million dollars, an enormous amount for that day. Indeed, he is reputed
to have been the wealthiest man in the South. He carried his pugnacious spirit
into his will, on file at the Chatham county court house, in his efforts to keep
certain parties from sharing in the estate.

    They were bitter haters, those Savannahians of a century ago, and no one
better illustrates this temperament than Gibbons. Every page of his will
bristles with intense hostility to Trumbull, who had married his daughter Ann.
Time after time he repeats that none of his valuable holdings in Georgia, South
Carolina, New Jersey and New York, shall ever become the property, by gift or
inheritance, of Trumbull, his children, or their descendants. And at the close,
to make assurance doubly sure, he compresses his wishes into a few almost
venomous lines:

    "And I do pray to God, before whom I am shortly to appear, that I have been
enabled to so devise and bequeath my whole estate, real and personal, that no
event may or possibly can arise in all the changes of this changing world, that
will enable John M. Trumbull, or any one of his children, or any person
descended from them, to be benefitted one cent, or the value thereof, from my
estate, meaning and intending that they shall be forever excluded to the end of
time."

    Gibbons furnishes a most interesting picture in the gallery of early
Savannah portraits of men of forceful action.


Additional Comments:
From:

ANNALS   OF   SAVANNAH

SAVANNAH DUELS AND DUELLISTS

1733-1877
BY

Thomas Gamble

COPYRIGHT 1923
REVIEW PUBLISHING & PRINTING COMPANY SAVANNAH, GEORGIA




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