Lead Opinion
delivered the opinion of the court.
Thеse cases are brought here by writs of error to the Supreme Court of the Commonwealth of Pennsylvania.
They are actions to recover half-pilotage fees under the 29th section of the act of the Legislature of Pennsylvania, passed on the second day of March, 1803. The plaintiff in error alleges that the highest court of the State has decided against a right claimed by him under the Constitution -of the United States. That right is to be exempted from the payment of the sums of money demanded, pursuant to the State law above referred to, because that law contravenes several provisions of the Constitution of the United States.
The particular section of the State law drawn in question is as follows:
“ That every ship or vessel arriving from or bound to any foreign port or place, and every ship or vessel of the burden of seventy-five tons or more, sailing from or bound to any .port not within the river Delaware, shall be obliged to receive a pilot. And it shall be the duty of the master of every such ship or vessel, within thirty-six hours next after the arrival of such ship - or vessel at the city of Philadelphia, to make report to the master-warden of the name of such ship or vessel, her draught of water, and the name of the pilot who shall, have conducted her to the port. And when any such vessel shall be outward-bound, the master of such vessel shall make known to the wardens the name of such vessel, and .of the pilot who is to conduct her to the capes, and her draught of water at that time., And it shall be the duty of the wardens to enter eveiy such vessel in a book to be by them kept for that purpose, without fee or reward. And if the master of any ship or vessel shall neglect to .make such report, he shall forfeit and pay the sum of sixty dpllars. And if the master of any such ship or vessel shall refuse or neglect to take a pilot, the master, owner or consignee of such vessel shall forfeit and pay to the warden aforesaid, a. sum equal, to the half-pilotage of súch ship or vessel, to the use of the Society for the Relief, &c., to be recovered as pilotage in the manner herein-, after directed: Provided always, that where it shall appear to the warden that, in case of an inward-bound vessel, a pilot did*312 not offer before she had reached Reedy Island; or, in case of an outward-bound vessel, that a pilot could not be obtained for twenty-four hours after such vessel was ready to depart, the penalty aforesaid, for not having a pilot, shall not be incurred.” It constitutes one. section of “ An act to establish'a Board of Wardens, for the port of Philadelphia, and for the regulation of Pilots and Pilotages, &c.,” and the scope of the act is in conformity with the- title to regulate the whole subject of the pilot-age of that port.
Í- We'think this particular regulation concerning half-pilotage fees, is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial States ,and countries legislating on this subject, we find it has usually been deemed necessary'to make similar provisions. Numerous laws of this kind are cited in the learned argument of the counsel for the defendant in error; and their fitness, as a part of a system of pilotage, in many places, may be inferred from their existence in so many different States and countries. Like other laws they are framed to meet the most usual cases, quce frequentius accidwit; they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation, by taking, on board a person peculiarly skilled to encounter or avoid them; upon the policy of discouraging the commanders of vessels from refusing tor receive such persons on board at the proper times and places; and upon the' expediency, and even intrinsic justice, of not suffering those who have incurred labor, and expense, and danger, to place themselves in a position to render important service generally necessary, to go unrewarded, because the "master of a particular vessel either rashly refuses' their proffered assistance, or, contrary to the general experience, does not need it. There are many cases, in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial States and countries have made an offer of pilotage-service one offthose cases; and we cannot pronounce a law which does this, to-be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage, as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one.
- It is urged that the second section of the act of the Legislature of Pennsylvania, of the 11th of June, 183á, proves that the State had other objects in view than the regulation of pilotage. That section is as follows:
“ And be it further enacted, by the authority aforesaid, that from and after the first day of July next, no health-fee or halfpilotage shall be charged on any vessel engaged in the Pennsylvania coal trade-”.
We do not perceive any thing in the nature or extent of this partiсular , discrimination in favor of vessels engaged in the coal trade, which would enable us to declare it to be other than a fair exercise of legislative' discretion, acting upon the subject of the regulation of the pilotage of this port of Philadelphia, with a view to operate upon the masters of those vessels, who, as a general rule, ought to take a pilot, and' with the further view of relieving from the charge of half-pilotage, such vessels as from their size, or the nature of their employment, should be exempted from contributing to the support of pilots, except .so far as they actually receive their services. In our judgment, though this law of 1832 has undoubtedly modified the 29th section of the act of 1803, and both are to be taken together as giving the rule on this subject of half-pilotage, yet this change in the ■rule has not changed the nature of- the law, nor deprived it of .the character and attributеs of a law for the regulation of pilotage.
Nor do we consider- that the appropriation of the sums received under this section of the act, to the use of the society for the relief of distressed and decayed pilots, their widows and children, has any legitimate tendency to impress on it the character of a revenue law. Whether these sums .shall go directly to the use of tfie individual pilots by whom the service is tendered, or shall form a common fund, to be administered by trustees for the benefit of such pilots and their families as may stand in peculiar need of it, is a matter resting in legislative discretion, in the proper exercise of which the pilots alone are interested.
For these reasons, we cannot yield our assent to the argument, that this provision of law is in conflict with the second
It is further objected, that this law is repugnant to the fifth clause of the ninth section of the first article of the Constitution, viz. — “No preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels, to or from one State, be obliged to enter, clear, or pay duties in another.”
But, as already stated, pilotage-fees are not duties within .the meaning of the Constitution; and, certainly, Pennsylvania does not give a preference to the port of Philadelphia, by requiring
In addition to what has been said respecting each of these constitutional objections to this law, it may be observed, that similar laws have existed and been practised on in the States since the' adoption of the federal Constitution; that, by the act of the 7th of August, 1789, (1 Stat. at Large, 54,) Congress declared that all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States, &c.; and that this contemporaneous construction of the Constitution since acted on with such uniformity in a matter of much public interest and importance, is entitled to great weiglit, in determining whether such a law is repugnant to the Constitution, as levying a duty-not uniform throughout the United States, or, as giving a preference to the ports of one State over those of another, or, as obliging vessels to or from one State to enter, clear, or pay duties in anotlier. Stuart v. Laird,
The opinion of the court is, that thе law now in question is not repugnant to either of the above-mentioned clauses of the Constitution.
It remains to consider. the objection, that it is repugnant to the third clause of the eighth section of the first article. “ Tire Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.”
That the power to regulate commerce includes the regulation of navigation, we consider settled. And when we look, to the
The power to regulate navigation is the power to prescribe rules in conformity with which navigation must be carried on. It extends to the persons who conduct it, as well as to the instruments used. Accordingly, the first Congress assembled under the Constitution passed laws, requiring the masters of ships and vessels of the United States to be citizens of the United States, and established many rules for the government and regulation of officers and seamen. 1 Stat. at Large, 55, 131. These have been from time to time added to and changed, and we are not aware that their validity has been questioned.
New, a pilot, so far as respects the navigation of the vessel in that part of the voyage which is his pilotage-ground, is the temporary master charged' with ■ the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew.- He is not only one of the persons engaged in navigation, but he occupies a most important and responsible place among those thus engaged. And if Congress has power to regulate the seamen who assist the pilot in the management of the vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power. It is true that, according to the usages of modem commercé on the ocean, the pilot is on board only during a part of the voyage between ports of different States, or between .ports of the United States and foreign countries; but if he is on board for such a purpose and during so much of the voyage as to be engaged in' navigatiоn, the power to regulate navigation extends to him while thus engaged, as clearly as it would if h.e were to remain on board throughout the whole passage, from port to port. For it is a power which extends to every part of the voyage, and may regulate those who conduct or assist in conducting navigation in one part of a voyage as much as in another part, or during the whole voyage.
Nor should it be lqst sight of, that this subject of the regulation of pilots and pilotage has am intimate connection with, and an important relation to. the general subject of commerce with
. “ Be it enacted, that it shall and may be lawful for the master or- commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, to employ any pilot. duly licensed or authorized, by the laws of either of the States bounded .on the said waters, to pilot said vessel to or from said port, any law, usage, or custom, to the contrary, notwithstanding.”
The act of 1789, (1 Stat. at Large, 54,) already referred to, contains a clear legislative exposition of the Constitution by the first Congress,.to the effect that the power to regulate pilots •was conferred on Congress by the Constitution; as does also the act of March the 2d, 1837, the terms of which have just been given. The weight to be allowed to this contemporaneous construction, and the practice of Congress under it, has, in- another connection, been adverted to. And a majority of the court are of opinion, that a regulation of pilots is a regulation of commerce, within the grant to Congress of the commercial .power,' contained in the third clause of the eighth section of. the first article of the Constitution.
It becomes necessary, therefore, to consider whether this law of Pennsylvania, being a regulаtion of commerce, is valid.
’ The act of Congress of the 7th of August, 1789, sect. 4, is as follows:
“ That all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States may re- ■ spectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.”
■ If the law of Pennsylvania, now in question, had been in existence at the date of this act of Congress, we might hold it to
But the law on which these actions are founded'was not enacted till 1803. What effect then can be attributed to sо much of the act of 1789, as declares, that pilots shall continue to be regulated in conformity, “ with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress ” ?
If the States were divested of the power to legislate on this subject by the grant of the. commercial power to Congress, it is plain this act could not confer upon them power thus to legislate. If the Constitution excluded the States from making any law regulating commerce, certainly Congress cannot regrant, or in any manner reconvey to the States that power. And yet this act of 1789 gives its sanction only to laws enacted by the States. This necessarily implies a constitutional power to legislate; for only a rule created by the sovereign power of a State acting in its, legislative capacity, can be deemed a law, enacted by a State; and if the Statе has so limited its sovereign power that it no longer extends to a particular subject, manifestly it cannot, in any proper sense, be said to enact laws thereon. Entertaining these views we are brought directly and unavoidably to the consideration of the question, whether the grant of the commercial power to Congress, did per se deprive the States of all power to regulate pilots.. This question has never been decided by this court, nor, in our judgment, has any case depending upon all the considerations which must govern this one, come before this court. The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject-matter. If they are excluded it must be because the nature of the power, thus granted to Congress,- requires that a similar authority should not exist in the States. If it were conceded on the one side, that the nature of this power, .like that to legislate for the District of Columbia, is absolutely and totally repugnant to the existence of similar power in the States, probably no one would deny that the grant of the power to Congress, as effectually and perfectly excludes the States from all future legislation on the subject, as if express words had been used to exclude’them, And on the other hand, if it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence of a similar-power in the States, then it would be in conformity with the contemporary.exposition of the Constitution, (Federalist, No. 32,)
The diversities of opinion, therefore, which have existed on this subject, have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress', it ■must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.
Either absolutely to affirm, or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them,'what is really applicable but to,a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the States; that it is local and not national; that it is likеly to be the best, provided , for, not by one system, or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits.
Viewed in this light, so much of this act of 1789 as declares that pilots shall continue to be regulated “ by such laws as the States may respectively hereafter enact for that purpose,” instead of being held to be inoperative, as an attempt to confer on the States a power to legislate, of which the Constitution had de
It is the opinion of a majority of the court that the mere grant to ■ Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots, and that although Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To these precise questiоns, which are all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question what other subjects, under the commercial power, are within the exclusive control of Congress, or may be regulated by the States in the absence of all congressional legislation; nor to the general question how far any regulation of a subject by Congress, may bé deemed to operate as an exclusion of all legislation by the States upon the same subject.- We decide the precise questions before us, upon what we deem sound principles, applicable to this particular subject in the state in which the legislation of Congress has left it. We go no further.
If the grant of commercial power in the Constitution has deprived the States of all power to legislate for the regulation of pilots, if their laws on this subjeсt are mere usurpations upon the exclusive power of the general government, and utterly void,. it may be doubted whether Congress could,, with propriety, recognize them as laws, and adopt them as its own acts; and how are the legislatures of the States to proceed in future, to watch over and amend these laws, as the progressive wants of a growing commerce will require, when the members of those legislatures are made aware that they cannot legislate on this subject without violating the oaths they have taken to support the Constitution of the United States 1
We are of opinion that this State law was enacted by virtue of a power, residing in the State to legislate; that it is not in conflict with any law of Congress; that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action ; that this law is therefore valid, and the judgment of the Supreme Court оf Pennsylvania in each case must be affirmed.
Dissenting Opinion
It is with regret that I feel myself obliged to dissent from the opinion of a majority of my brethren in this case.
As expressing my views on the question involved, I will copy a few sentences from the opinion of Chief Justice Marshall in the opinion in Gibbons v. Ogden. “ It has been said,” says that
“ Although Congress,” he continues,“cannot enable a State to, legislate, Congress may adopt the provisions of a State on any subject. When the government of the Union was brought into existence, it found a system for the rеgulation of its pilots in.full force in every State. The act which has been mentioned, adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the act, it may be said, is prospectivé also, and the adoption of laws to be in future presupposes the right in the maker to legislate on the subject.”
“ The act unquestionably manifests an intention to leave this subject entirely to the States, until Congress should think proper to interpose; but the very enactment of such a law indicates -an opinion that it was necessary; that the existing system would not be applicable to, the new state,of things, unless expressly applied to it by Congress. But this section is confined to pilots within the bays, inlets, rivers, harbors, and ports of the United States, which are, of course, in whole or in part, also within the limits of some particular State. The acknowledged power of a State to regulate its police, its domestiс trade, and to govern its own citizens, may enable it to legislate on this subject, to a considerable' extent; and the adoption of its system by Congress, and the application of it to the whole subject of commerce, does not seem to the court to imply a right in the States so to apply it of their own authority. But the adoption of the State system being temporary, being only, “ until further legislative provision shall be made by Congress,” shows conclusively, an opinion that Congress could control the whole subject, .and might adopt the system of the States or provide one of its own.”
Wiry did Congress pass the act of 1789, adopting the pilot-laws of the respective States ? Laws they unquestionably were, having been enacted by the States before the adoption of the Constitution. But were they laws under the Constitution ? If they had been so considered 'by Congress, they would not have been adopted by a special act. There is believed to be no instance in the legislation of Congress, where a State law has been adopted, which,'“before its adoption, applied to federal powers. To suppose such .a ease, would be an imputation of ignorance as to federal powers, least of all chargeable againstthe men who formed the Constitution and who best understood it.
Congress adopted the pilot-laws of the States, because it was
Each State regulates the commerce within its limits; which is not within the range of federal powers.- So far, and no farther could éffect have been given to the pilot laws of the States, under the Constitution. But those laws were only adopted“ until further legislative provisions shall be made by Congress.”
This shows that Congress claiméd the whole commercial power on. this subject, by adopting the pilot laws of the States, making them acts of Congress; and also by declaring that the adoption was only until some further legislative provision could be made by Congress.
Can Congress annul the acts of a State passed within its admitted sovereignty? . No one, I suppose, could sustain such a proposition. State sovereignty cap neither be enlarged nor 'diminished' by an act of Congress. It is not known that Congress has ever claimed such a power.
If the States had not the. power to enact pilot laws, as connected with foreign commerce, in 1789, when did theyget.it? It is an exercise of sovereign power to legislate. In this respect -the Constitution is the same now as in 1789, and also the power of a State is the same. Whence, then, this enlаrgement of State •power. Is it derived from the act of 1789, that pilots shall continue to be regulated “ in conformity with such laws as the States may respectively hereafter enact” ? In the opinion of] the Chief Justice, above cited, it is said, Congress may adopt thé laws of a State, but it cannot enable a State to legislate. In other words, it cannot transfer to a State legislative powers.' And the court also-say that the States canno't apply the pilot laws of their own authority. We have here, then, the deliberate action of Congress, showing that the States have no inherent power to pass these laws, which is affirmed by the opinion of this court.
Ought not this to be considered as settling this question? What more of authority can be brought to bear upon it ? But it is said that Congress is incompetent to legislate on this subject. Is-this so? Did not Congress, in 1789, legislate on the-subject by adopting the State laws, and may it not do so again ? Was not that а wise and politic-act of legislation ? This is admitted. But it’ is,- said that Congress cannot legislate on this matter in detail. The act of 1789 shows that it is unnecessary for Congress so to legislate.' A single section covers the whole legislation of the States, iii regard .to pilots. Where, then, is the necessity of recognizing this power to exist in’ the States ? There is no such necessity; and if there were, it would not make the
That a State may regulate foreign commerce, or commerce among the States, is a doctrine which has been advanced by individual judges of this court; but never before, I believe, has such a power been sanctioned by the decision of this court. In this case, the power to regulate pilots is admitted to belong to the commercial power of Congress; and yet it is held, that a State, by virtue of its inherent power, may regulate the subject, until such regulation shаll be annulled by Congress. This is the principle established by this decision. Its language is guarded, in order to apply the decision only to the case before the court. But such restrictions can never operate, so as to render the principle' inapplicable to other cases. And it is in this light that the decision is chiefly to be regretted. The power is recognized in the State, because the subject is more appropriate for State than Federal action; and consequently, it must be presumed the Constitution cannot have intended to inhibit State action. This is not a rule by which the Constitution is to be construed. It can receive but little support from the discussions which took place on the adoption of the Constitution, and none at all from the earlier decisions of this court.
It will be found that the principle in this case, if carried out, will deeply affect the commercial prosperity of the country. If a Stаte has power to regulate foreign commerce, such regulation must be held valid, until Congress shall repeal or annul it. But the present case goes further than this. Congréss regulated pilots by the act of 1789, whi.ch made the acts of .the State, on that subject, the acts of Congress. In 1803, Pennsylvania passed the law in question, which materially modified the act adopted by Congress; and this act of 1803 is held to be constitutional. This, then, asserts the right of a State, not only to regulate foreign commerce, but to modify, and, consequently, to repeal a prior regulation of Congress. Is there a mistake in this statement ? There is none, if an adopted act of a State is thereby made an act of Congress, and if the regulation of pilots, in regard to foreign commerce, be a regulation of commerce. The latter position is admitted in the opinion of the court, and no one will controvert the former. I speak of the princiрie of the opinion, and not of the restricted application given to it by the learned judge who delivered it.
The noted Blackbird Creek case shows what little influence the facts and circumstances of a case can have in restraining the principle it is supposed to embody.
How can the unconstitutional acts of Louisiana, or of any other State which has ports on the Mississippi, or the Ohio, or
From this race of legislation between Congress and the States, and between the States, if this principle be maintained, will arise a conflict similar to that which existed before the adoption of the Constitution. The States favorably situated, as Louisiana, may levy a contribution upon the commerce of other States, which shall, be sufficient to meet the expenditures of the States.
The applicаtion of the money exacted under this, act of Pennsylvania, it is said, shows that it is not raised for revenue. The application of the money cannot be relied on as showing an act of a State to be constitutional. If the State has power to pass the act it may apply the money raised in its discretion.
I think the charge of half-pilotage is correct under the circumstances, and I only object to the power of the State to pass the law. Congress, to whom the subject peculiarly belongs, should have been applied to, and no doubt it would have adopted the act of the State.
Mr. Justice DANIEL.
I agree with the majority in their decision, that the judgments of the Supreme Court of Pennsylvania in these cases, should be affirmed, though I cannot go with them in the process or argument by which their conclusion has been reached. The power, and the practice of enacting pilot-laws, which'has been exercised by the States from the very origin of their existence, although it is one in some degree connected with commercial intercourse, dees not come essentially and regularly within that power of commercial regulation vested by the Constitution' in Congress, and which by the Constitution must, when exercised by Congress, be enforced with perfect equality, and without any kind of dis
This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, for the Eastern District, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby,.affirmed, with costs.