In the discussion in the New York courts, no small reliance was placed on the law of that State prohibiting the importation of slaves, as an example of a commercial regulation enacted by State authority. That law may or may not be constitutional and valid. It has been referred to generally, but its particular provisions have not been stated. When they are more clearly seen, its character may be better determined.
It might further be argued, that the power of Congress over these high branches of commerce is exclusive, from the consideration that Congress possesses an exclusive admiralty jurisdiction. That it does possess such exclusive jurisdiction will hardly be contested. No State pretends to exercise any jurisdiction of that kind. The States abolished their courts of admiralty, when the Constitution went into operation. Over these waters, therefore, or at least some of them, which are the subject of this monopoly, New York has no jurisdiction whatever. They are a part of the high seas, and not within the body of any county. The authorities of that State could not punish for a murder, committed on board one of these boats, in some places within the range of this exclusive grant. This restraining of the States from all jurisdiction out of the body of their own counties, shows plainly enough that navigation on the high seas was understood to be a matter to be regulated only by Congress. It is not unreasonable to say, that what are called the waters of New York are, for purposes of navigation and commercial regulation, the waters of the United States. There is no cession, indeed, of the waters themselves, but their use for those purposes seems to be intrusted to the exclusive power of Congress. Several States have enacted laws which would appear to imply their conviction of the power of Congress over navigable waters to a greater extent.
If there be a concurrent power of regulating commerce on the high seas, there must be a concurrent admiralty jurisdiction, and a concurrent control of the waters. It is a common principle, that arms of the sea, including navigable rivers, belong to the sovereign, so far as navigation is concerned. Their use is navigation. The United States possess the general power over navigation, and, of course, ought to control, in general, the use of navigable waters. If it be admitted that, for purposes of trade and navigation, the North River and its bay are the river and bay of New York and the Chesapeake the bay of Virginia, very great inconveniences and much confusion might be the result.
It may now be well to take a nearer view of these laws, to see more exactly what their provisions are, what consequences have followed from them, and what would and might follow from other similar laws.
The first grant to John Fitch gave him the sole and exclusive right of making, employing, and navigating all boats impelled by fire or steam, "in all creeks, rivers, bays, and waters within the territory and jurisdiction of the State." Any other person navigating such boat, was to forfeit it, and to pay a penalty of a hundred pounds. The subsequent acts repeal this, and grant similar privileges to Livingston and Fulton; and the act of 1811 provides the extraordinary and summary remedy which has been already stated. The river, the bay, and the marine league along the shore, are all within the scope of this grant. Any vessel, therefore, of this description, coming into any of those waters, without a license, whether from another State or from abroad, whether it be a public or private vessel, is instantly forfeited to the grantees of the monopoly.
Now it must be remembered that this grant is made as an exercise of sovereign political power. It is not an inspection law, nor a health law, nor passed by any derivative authority; it is professedly an act of sovereign power. Of course, there is no limit to the power, to be derived from the purpose for which it is exercised. If exercised for one purpose, it may be also for another. No one can inquire into the motives which influence sovereign authority. It is enough that such power manifests its will. The motive alleged in this case is, to remunerate the grantees for a benefit conferred by them on the public. But there is no necessary connection between that benefit and this mode of rewarding it; and if the State could grant this monopoly for that purpose, it could also grant it for any other purpose. It could make the grant for money; and so make the monopoly of navigation over those waters a direct source of revenue. When this monopoly shall expire, in 1838, the State may continue it, for any pecuniary consideration which the holders may see fit to offer, and the State to receive.
If the State may grant this monopoly, it may also grant another, for other descriptions of vessels; for instance, for all sloops.
If it can grant these exclusive privileges to a few, it may grant them to many; that is, it may grant them to all its own citizens, to the exclusion of everybody else.
But the waters of New York are no more the subject of exclusive grants by that State, than the waters of other States are subjects of such grants by those other States. Virginia may well exercise, over the entrance of the Chesapeake, all the power that New York can exercise over the bay of New York, and the waters on her shores. The Chesapeake, therefore, upon the principle of these laws, may be the subject of State monopoly; and so may the bay of Massachusetts. But this is not all. It requires no greater power to grant a monopoly of trade, than a monopoly of navigation. Of course, New York, if these acts can be maintained, may give an exclusive right of entry of vessels into her ports; and the other States may do the same. These are not extreme cases. We have only to suppose that other States should do what New York has already done, and that the power should be carried to its full extent.
To all this, no answer is to be given but one, that the concurrent power of the States, concurrent though it be, is yet subordinate to the legislation of Congress; and that therefore Congress may, whenever it pleases, annul the State legislation; but until it does so annul it, the State legislation is valid and effectual. What is there to recommend a construction which leads to a result like this? Here would be a perpetual hostility; one legislature enacting laws, till another legislature should repeal them; one sovereign power giving the rule, till another sovereign power should abrogate it; and all this under the idea of concurrent legislation!