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.