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 sh.o.r.e, 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 pa.s.sed 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 sh.o.r.es. The Chesapeake, therefore, upon the principle of these laws, may be the subject of State monopoly; and so may the bay of Ma.s.sachusetts. 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!

But, further, under this concurrent power, the State does that which Congress cannot do; that is, it gives preferences to the citizens of some States over those of others. I do not mean here the advantages conferred by the grant on the grantees; but the disadvantages to which it subjects all the other citizens of New York. To impose an extraordinary tax on steam navigation visiting the ports of New York, and leaving it free everywhere else, is giving a preference to the citizens of other States over those of New York. This Congress could not do; and yet the State does it; so that this power, at first subordinate, then concurrent, now becomes paramount.

The people of New York have a right to be protected against this monopoly. It is one of the objects for which they agreed to this Const.i.tution, that they should stand on an equality in commercial regulations; and if the government should not insure them that, the promises made to them in its behalf would not be performed.

I contend, therefore, in conclusion on this point, that the power of Congress over these high branches of commercial regulation is shown to be exclusive, by considering what was wished and intended to be done, when the convention for forming the Const.i.tution was called; by what was understood, in the State conventions, to have been accomplished by the instrument; by the prohibitions on the States, and the express exception relative to inspection laws; by the nature of the power itself; by the terms used, as connected with the nature of the power; by the subsequent understanding and practice, both of Congress and the States; by the grant of exclusive admiralty jurisdiction to the federal government; by the manifest danger of the opposite doctrine, and the ruinous consequences to which it directly leads.

Little is now required to be said, to prove that this exclusive grant is a law regulating commerce; although, in some of the discussions elsewhere, it has been called a law of police. If it be not a regulation of commerce, then it follows, against the constant admission on the other side, that Congress, even by an express act, cannot annul or control it. For if it be not a regulation of commerce, Congress has no concern with it. But the granting of monopolies of this kind is always referred to the power over commerce. It was as arbiter of commerce that the king formerly granted such monopolies.[4] This is a law regulating commerce, inasmuch as it imposes new conditions and terms on the coasting trade, on foreign trade generally, and on foreign trade as regulated by treaties; and inasmuch as it interferes with the free navigation of navigable waters.

If, then, the power of commercial regulation possessed by Congress be, in regard to the great branches of it, exclusive; and if this grant of New York be a commercial regulation, affecting commerce in respect to these great branches, then the grant is void, whether any case of actual collision has happened or not.

But I contend, in the second place, that whether the grant were to be regarded as wholly void or not, it must, at least, be inoperative, when the rights claimed under it come in collision with other rights, enjoyed and secured under the laws of the United States; and such collision, I maintain, clearly exists in this case. It will not be denied that the law of Congress is paramount. The Const.i.tution has expressly provided for that. So that the only question in this part of the case is, whether the two rights be inconsistent with each other. The appellant has a right to go from New Jersey to New York, in a vessel owned by himself, of the proper legal description, and enrolled and licensed according to law. This right belongs to him as a citizen of the United States. It is derived under the laws of the United States, and no act of the legislature of New York can deprive him of it, any more than such act could deprive him of the right of holding lands in that State, or of suing in its courts. It appears from the record, that the boat in question was regularly enrolled at Perth Amboy, and properly licensed for carrying on the coasting trade. Under this enrolment, and with this license, she was proceeding to New York, when she was stopped by the injunction of the Chancellor, on the application of the New York grantees. There can be no doubt that here is a collision, in fact; that which the appellant claimed as a right, the respondent resisted; and there remains nothing now but to determine whether the appellant had, as he contends, a right to navigate these waters; because, if he had such right, it must prevail.

Now, this right is expressly conferred by the laws of the United States.

The first section of the act of February, 1793, ch. 8, regulating the coasting trade and fisheries, declares, that all ships and vessels, enrolled and licensed as that act provides, "and no others, shall be deemed ships or vessels of the United States, ent.i.tled to the privileges of ships or vessels employed in the coasting trade or fisheries." The fourth section of the same act declares, "that, in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries," bond shall be given, according to the provisions of the act.

And the same section declares, that, the owner having complied with the requisites of the law, "it shall be the duty of the collector to grant a license for carrying on the coasting trade"; and the act proceeds to give the form and words of the license, which is, therefore, of course, to be received as a part of the act; and the words of the license, after the necessary recitals, are, "License is hereby granted for the said vessel to be employed in carrying on the coasting trade." Words could not make this authority more express.

The court below seems to me, with great deference, to have mistaken the object and nature of the license. It seems to have been of opinion, that the license has no other intent or effect than to ascertain the ownership and character of the vessel. But this is the peculiar office and object of the enrolment. That doc.u.ment ascertains that the regular proof of ownership and character has been given; and the license is given to confer the right to which the party has shown himself ent.i.tled.

It is the authority which the master carries with him, to prove his right to navigate freely the waters of the United States, and to carry on the coasting trade.

In some of the discussions which have been had on this question, it has been said, that Congress has only provided for ascertaining the ownership and property of vessels, but has not prescribed to what use they may be applied. But this is an obvious error. The whole object of the act regulating the coasting trade is to declare what vessels shall enjoy the benefit of being employed in that trade. To secure this use to certain vessels, and to deny it to others, is precisely the purpose for which the act was pa.s.sed. The error, or what I humbly suppose to be the error, in the judgment of the court below, consists in that court's having thought, that, although Congress might act, it had not yet acted, in such a way as to confer a right on the appellant; whereas, if a right was not given by this law, it never could be given. No law can be more express. It has been admitted, that, supposing there is a provision in the act of Congress, that all vessels duly licensed shall be at liberty to navigate, for the purpose of trade and commerce, all the navigable harbors, bays, rivers, and lakes within the several States, any law of the States creating particular privileges as to any particular cla.s.s of vessels to the contrary notwithstanding, the only question that could arise, in such a case, would be, whether the law was const.i.tutional; and that, if that was to be granted or decided, it would certainly, in all courts and places, overrule and set aside the State grant.

Now, I do not see that such supposed case could be distinguished from the present. We show a provision in an act of Congress, that all vessels, duly licensed, may carry on the coasting trade; n.o.body doubts the const.i.tutional validity of that law; and we show that this vessel was duly licensed according to its provisions. This is all that is essential in the case supposed. The presence or absence of a _non obstante_ clause cannot affect the extent or operation of the act of Congress. Congress has no power of revoking State laws, as a distinct power. It legislates over subjects; and over those subjects which are within its power, its legislation is supreme, and necessarily overrules all inconsistent or repugnant State legislation. If Congress were to pa.s.s an act expressly revoking or annulling, in whole or in part, this New York grant, such an act would be wholly useless and inoperative. If the New York grant be opposed to, or inconsistent with, any const.i.tutional power which Congress has exercised, then, so far as the incompatibility exists, the grant is nugatory and void, necessarily, and by reason of the supremacy of the law of Congress. But if the grant be not inconsistent with any exercise of the powers of Congress, then, certainly, Congress has no authority to revoke or annul it. Such an act of Congress, therefore, would be either unconst.i.tutional or supererogatory. The laws of Congress need no _non obstante_ clause. The Const.i.tution makes them supreme, when State laws come into opposition to them. So that in these cases there is no question except this; whether there be, or be not, a repugnancy or hostility between the law of Congress and the law of the State. Nor is it at all material, in this view, whether the law of the State be a law regulating commerce, or a law of police, nor by what other name or character it may be designated.

If its provisions be inconsistent with an act of Congress, they are void, so far as that inconsistency extends. The whole argument, therefore, is substantially and effectually given up, when it is admitted that Congress might, by express terms, abrogate the State grant, or declare that it should not stand in the way of its own legislation; because such express terms would add nothing to the effect and operation of an act of Congress.

I contend, therefore, upon the whole of this point, that a case of actual collision has been made out between the State grant and the act of Congress; and as the act of Congress is entirely unexceptionable, and clearly in pursuance of its const.i.tutional powers, the State grant must yield.

There are other provisions of the Const.i.tution of the United States, which have more or less bearing on this question. "No State shall, without the consent of Congress, lay any duty of tonnage." Under color of grants like this, that prohibition might be wholly evaded. This grant authorizes Messrs. Livingston and Fulton to license navigation in the waters of New York. They, of course, license it on their own terms. They may require a pecuniary consideration, ascertained by the tonnage of the vessel, or in any other manner. Probably, in fact, they govern themselves, in this respect, by the size or tonnage of the vessels to which they grant licenses. Now, what is this but substantially a tonnage duty, under the law of the State? Or does it make any difference, whether the receipts go directly into her own treasury, or into the hands of those to whom she has made the grant?

There is, lastly, that provision of the Const.i.tution which gives Congress power to promote the progress of science and the useful arts, by securing to authors and inventors, for a limited time, an exclusive right to their own writings and discoveries. Congress has exercised this power, and made all the provisions which it deemed useful or necessary.

The States may, indeed, like munificent individuals, exercise their own bounty towards authors and inventors, at their own discretion. But to confer reward by exclusive grants, even if it were but a part of the use of the writing or invention, is not supposed to be a power properly to be exercised by the States. Much less can they, under the notion of conferring rewards in such cases, grant monopolies, the enjoyment of which is essentially incompatible with the exercise of rights possessed under the laws of the United States. I shall insist, however, the less on these points, as they are open to counsel who will come after me on the same side, and as I have said so much upon what appears to me the more important and interesting part of the argument.

[Footnote 1: 1 Laws U.S., p. 28, Bioren and Duane's ed.]

[Footnote 2: 1 Laws U.S., p. 50.]

[Footnote 3: Chancellor Livingston.]

[Footnote 4: 1 Black. Com. 273; 4 Black. Com. 160.]

THE BUNKER HILL MONUMENT.

AN ADDRESS DELIVERED AT THE LAYING OF THE CORNER-STONE OF THE BUNKER HILL MONUMENT AT CHARLESTOWN, Ma.s.sACHUSETTS, ON THE 17TH OF JUNE, 1825.

[As early as 1776, some steps were taken toward the commemoration of the battle of Bunker Hill and the fall of General Warren, who was buried upon the hill the day after the action. The Ma.s.sachusetts Lodge of Masons, over which he presided, applied to the provisional government of Ma.s.sachusetts, for permission to take up his remains and to bury them with the usual solemnities. The Council granted this request, on condition that it should be carried into effect in such a manner that the government of _the Colony_ might have an opportunity to erect a monument to his memory. A funeral procession was had, and a Eulogy on General Warren was delivered by Perez Morton, but no measures were taken toward building a monument.

A resolution was adopted by the Congress of the United States on the 8th of April, 1777, directing that monuments should be erected to the memory of General Warren, in Boston, and of General Mercer, at Fredericksburg; but this resolution has remained to the present time unexecuted.

On the 11th of November, 1794, a committee was appointed by King Solomon's Lodge, at Charlestown,[1] to take measures for the erection of a monument to the memory of General Joseph Warren at the expense of the Lodge. This resolution was promptly carried into effect. The land for this purpose was presented to the Lodge by the Hon. James Russell, of Charlestown, and it was dedicated with appropriate ceremonies on the 2d of December, 1794. It was a wooden pillar of the Tuscan order, eighteen feet in height, raised on a pedestal eight feet square, and of an elevation of ten feet from the ground. The pillar was surmounted by a gilt urn. An appropriate inscription was placed on the south side of the pedestal.

In February, 1818, a committee of the legislature of Ma.s.sachusetts was appointed to consider the expediency of building a monument of American marble of the memory of General Warren, but this proposal was not carried into effect.

As the half-century from the date of the battle drew toward a close, a stronger feeling of the duty of commemorating it began to be awakened in the community. Among those who from the first manifested the greatest interest in the subject, was the late William Tudor, Esq. He expressed the wish, in a letter still preserved, to see upon the battle-ground "the n.o.blest monument in the world," and he was so ardent and persevering in urging the project, that it has been stated that he first conceived the idea of it. The steps taken in execution of the project, from the earliest private conferences among the gentlemen first engaged in it to its final completion, are accurately sketched by Mr. Richard Frothingham, Jr., in his valuable History of the Siege of Boston. All the material facts contained in this note are derived from his chapter on the Bunker Hill Monument. After giving an account of the organization of the society, the measures adopted for the collection of funds, and the deliberations on the form of the monument, Mr. Frothingham proceeds as follows:--

"It was at this stage of the enterprise that the directors proposed to lay the corner-stone of the monument, and ground was broken (June 7th) for this purpose. As a mark of respect to the liberality and patriotism of King Solomon's Lodge, they invited the Grand Master of the Grand Lodge of Ma.s.sachusetts to perform the ceremony.

They also invited General Lafayette to accompany the President of the a.s.sociation, Hon. Daniel Webster, and a.s.sist in it.

"This celebration was unequalled in magnificence by any thing of the kind that had been seen in New England. The morning proved propitious. The air was cool, the sky was clear, and timely showers the previous day had brightened the vesture of nature into its loveliest hue. Delighted thousands flocked into Boston to bear a part in the proceedings, or to witness the spectacle. At about ten o'clock a procession moved from the State House towards Bunker Hill. The military, in their fine uniforms, formed the van. About two hundred veterans of the Revolution, of whom forty were survivors of the battle, rode in barouches next to the escort.

These venerable men, the relics of a past generation, with emaciated frames, tottering limbs, and trembling voices, const.i.tuted a touching spectacle. Some wore, as honorable decorations, their old fighting equipments, and some bore the scars of still more honorable wounds. Glistening eyes const.i.tuted their answer to the enthusiastic cheers of the grateful mult.i.tudes who lined their pathway and cheered their progress. To this patriot band succeeded the Bunker Hill Monument a.s.sociation. Then the Masonic fraternity, in their splendid regalia, thousands in number.

Then Lafayette, continually welcomed by tokens of love and grat.i.tude, and the invited guests. Then a long array of societies, with their various badges and banners. It was a splendid procession, and of such length that the front nearly reached Charlestown Bridge ere the rear had left Boston Common. It proceeded to Breed's Hill, where the Grand Master of the Freemasons, the President of the Monument a.s.sociation, and General Lafayette, performed the ceremony of laying the corner-stone, in the presence of a vast concourse of people."

The procession then moved to a s.p.a.cious amphitheatre on the northern declivity of the hill, when the following address was delivered by Mr.

Webster, in the presence of as great a mult.i.tude as was ever perhaps a.s.sembled within the sound of a human voice.]

This uncounted mult.i.tude before me and around me proves the feeling which the occasion has excited. These thousands of human faces, glowing with sympathy and joy, and from the impulses of a common grat.i.tude turned reverently to heaven in this s.p.a.cious temple of the firmament, proclaim that the day, the place, and the purpose of our a.s.sembling have made a deep impression on our hearts.

If, indeed, there be any thing in local a.s.sociation fit to affect the mind of man, we need not strive to repress the emotions which agitate us here. We are among the sepulchres of our fathers. We are on ground, distinguished by their valor, their constancy, and the shedding of their blood. We are here, not to fix an uncertain date in our annals, nor to draw into notice an obscure and unknown spot. If our humble purpose had never been conceived, if we ourselves had never been born, the 17th of June, 1775, would have been a day on which all subsequent history would have poured its light, and the eminence where we stand a point of attraction to the eyes of successive generations. But we are Americans.

We live in what may be called the early age of this great continent; and we know that our posterity, through all time, are here to enjoy and suffer the allotments of humanity. We see before us a probable train of great events; we know that our own fortunes have been happily cast; and it is natural, therefore, that we should be moved by the contemplation of occurrences which have guided our destiny before many of us were born, and settled the condition in which we should pa.s.s that portion of our existence which G.o.d allows to men on earth.

We do not read even of the discovery of this continent, without feeling something of a personal interest in the event; without being reminded how much it has affected our own fortunes and our own existence. It would be still more unnatural for us, therefore, than for others, to contemplate with unaffected minds that interesting, I may say that most touching and pathetic scene, when the great discoverer of America stood on the deck of his shattered bark, the shades of night falling on the sea, yet no man sleeping; tossed on the billows of an unknown ocean, yet the stronger billows of alternate hope and despair tossing his own troubled thoughts; extending forward his hara.s.sed frame, straining westward his anxious and eager eyes, till Heaven at last granted him a moment of rapture and ecstasy, in blessing his vision with the sight of the unknown world.

Nearer to our times, more closely connected with our fates, and therefore still more interesting to our feelings and affections, is the settlement of our own country by colonists from England. We cherish every memorial of these worthy ancestors; we celebrate their patience and fort.i.tude; we admire their daring enterprise; we teach our children to venerate their piety; and we are justly proud of being descended from men who have set the world an example of founding civil inst.i.tutions on the great and united principles of human freedom and human knowledge. To us, their children, the story of their labors and sufferings can never be without its interest. We shall not stand unmoved on the sh.o.r.e of Plymouth, while the sea continues to wash it; nor will our brethren in another early and ancient Colony forget the place of its first establishment, till their river shall cease to flow by it.[2] No vigor of youth, no maturity of manhood, will lead the nation to forget the spots where its infancy was cradled and defended.

But the great event in the history of the continent, which we are now met here to commemorate, that prodigy of modern times, at once the wonder and the blessing of the world, is the American Revolution. In a day of extraordinary prosperity and happiness, of high national honor, distinction, and power, we are brought together, in this place, by our love of country, by our admiration of exalted character, by our grat.i.tude for signal services and patriotic devotion.

The Society whose organ I am[3] was formed for the purpose of rearing some honorable and durable monument to the memory of the early friends of American Independence. They have thought, that for this object no time could be more propitious than the present prosperous and peaceful period; that no place could claim preference over this memorable spot; and that no day could be more auspicious to the undertaking, than the anniversary of the battle which was here fought. The foundation of that monument we have now laid. With solemnities suited to the occasion, with prayers to Almighty G.o.d for his blessing, and in the midst of this cloud of witnesses, we have begun the work. We trust it will be prosecuted, and that, springing from a broad foundation, rising high in ma.s.sive solidity and unadorned grandeur, it may remain as long as Heaven permits the works of man to last, a fit emblem, both of the events in memory of which it is raised, and of the grat.i.tude of those who have reared it.

We know, indeed, that the record of ill.u.s.trious actions is most safely deposited in the universal remembrance of mankind. We know, that if we could cause this structure to ascend, not only till it reached the skies, but till it pierced them, its broad surfaces could still contain but part of that which, in an age of knowledge, hath already been spread over the earth, and which history charges itself with making known to all future times. We know that no inscription on entablatures less broad than the earth itself can carry information of the events we commemorate where it has not already gone; and that no structure, which shall not outlive the duration of letters and knowledge among men, can prolong the memorial. But our object is, by this edifice, to show our own deep sense of the value and importance of the achievements of our ancestors; and, by presenting this work of grat.i.tude to the eye, to keep alive similar sentiments, and to foster a constant regard for the principles of the Revolution. Human beings are composed, not of reason only, but of imagination also, and sentiment; and that is neither wasted nor misapplied which is appropriated to the purpose of giving right direction to sentiments, and opening proper springs of feeling in the heart. Let it not be supposed that our object is to perpetuate national hostility, or even to cherish a mere military spirit. It is higher, purer, n.o.bler. We consecrate our work to the spirit of national independence, and we wish that the light of peace may rest upon it for ever. We rear a memorial of our conviction of that unmeasured benefit which has been conferred on our own land, and of the happy influences which have been produced, by the same events, on the general interests of mankind. We come, as Americans, to mark a spot which must for ever be dear to us and our posterity. We wish that whosoever, in all coming time, shall turn his eye hither, may behold that the place is not undistinguished where the first great battle of the Revolution was fought. We wish that this structure may proclaim the magnitude and importance of that event to every cla.s.s and every age. We wish that infancy may learn the purpose of its erection from maternal lips, and that weary and withered age may behold it, and be solaced by the recollections which it suggests. We wish that labor may look up here, and be proud, in the midst of its toil. We wish that, in those days of disaster, which, as they come upon all nations, must be expected to come upon us also, desponding patriotism may turn its eyes. .h.i.therward, and be a.s.sured that the foundations of our national power are still strong. We wish that this column, rising towards heaven among the pointed spires of so many temples dedicated to G.o.d, may contribute also to produce, in all minds, a pious feeling of dependence and grat.i.tude. We wish, finally, that the last object to the sight of him who leaves his native sh.o.r.e, and the first to gladden his who revisits it, may be something which shall remind him of the liberty and the glory of his country. Let it rise! let it rise, till it meet the sun in his coming; let the earliest light of the morning gild it, and parting day linger and play on its summit.

We live in a most extraordinary age. Events so various and so important that they might crowd and distinguish centuries are, in our times, compressed within the compa.s.s of a single life. When has it happened that history has had so much to record, in the same term of years, as since the 17th of June, 1775? Our own Revolution, which, under other circ.u.mstances, might itself have been expected to occasion a war of half a century, has been achieved; twenty-four sovereign and independent States erected; and a general government established over them, so safe, so wise, so free, so practical, that we might well wonder its establishment should have been accomplished so soon, were it not for the greater wonder that it should have been established at all. Two or three millions of people have been augmented to twelve, the great forests of the West prostrated beneath the arm of successful industry, and the dwellers on the banks of the Ohio and the Mississippi become the fellow-citizens and neighbors of those who cultivate the hills of New England.[4] We have a commerce, that leaves no sea unexplored; navies, which take no law from superior force; revenues, adequate to all the exigencies of government, almost without taxation; and peace with all nations, founded on equal rights and mutual respect.

Europe, within the same period, has been agitated by a mighty revolution, which, while it has been felt in the individual condition and happiness of almost every man, has shaken to the centre her political fabric, and dashed against one another thrones which had stood tranquil for ages. On this, our continent, our own example has been followed, and colonies have sprung up to be nations.[5] Unaccustomed sounds of liberty and free government have reached us from beyond the track of the sun; and at this moment the dominion of European power in this continent, from the place where we stand to the south pole, is annihilated for ever.