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Mr. Justice
CURTIS delivered the opinion of the court.
These 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
every 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 dollars. 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 such
ship or vessel, to the use of the Society for the Relief, &c., to be
recovered as pilotage in the manner hereinafter directed: Provided
always, that where it shall appear to the warden that, in case of an
inward-bound vessel, a pilot did [p*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 pilotage of that
port.
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 the 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
quae frequentius accidunt; 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 to 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 of those 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, 1832, 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 half-pilotage shall
be charged on any vessel engaged in the Pennsylvania coal trade. [p*313]
It must be remembered that the fair objects of a law imposing
half-pilotage when a pilot is not received may be secured and at the
same time some classes of vessels exempted from such charge. Thus, the
very section of the act of 1803 now under consideration does not apply
to coasting vessels of less burden than seventy-five tons, not to those
bound to, or sailing from, a port in the river Delaware. The purpose of
the law being to cause masters of such vessels as generally need a pilot
to employ one, and to secure to the pilots a fair remuneration for
cruising in search of vessels or waiting for employment in port, there
is an obvious propriety in having reference to the number, size, and
nature of employment of vessels frequenting the port, and it will be
found by an examination of the different systems of these regulations
which have from time to time been made in this and other countries that
the legislative discretion has been constantly exercised in making
discriminations founded on differences both in the character of the
trade and the tonnage of vessels engaged therein.
We do not perceive anything in the nature or extent of this particular
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 attributes 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 the 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 [p*314] and third
clauses of the tenth section of the first article of the Constitution,
which prohibit a state, without the assent of Congress, from laying any
imposts or duties, on imports or exports or tonnage. This provision of
the Constitution was intended to operate upon subjects actually existing
and well understood when the Constitution was formed. Imposts and duties
on imports, exports, and tonnage were then known to the commerce of a
civilized world to be as distinct from fees and charges for pilotage,
and from the penalties by which commercial states enforced their
pilot-laws, as they were from charges for wharfage or towage, or any
other local port-charges for services rendered to vessels or cargoes,
and to declare that such pilot fees or penalties are embraced within the
words imposts or duties on imports, exports, or tonnage would be to
confound things essentially different, and which must have been known to
be actually different by those who used this language. It cannot be
denied that a tonnage duty or an impost on imports or exports may be
levied under the name of pilot dues or penalties, and certainly it is
the thing, and not the name, which is to be considered. But, having
previously stated that, in this instance, the law complained of does not
pass the appropriate line which limits laws for the regulation of pilots
and pilotage, the suggestion that this law levies a duty on tonnage or
on imports or exports is not admissible, and, if so, it also follows
that this law is not repugnant to the first clause of the eighth section
of the first article of the Constitution, which declares that all
duties, imposts, and excises shall be uniform throughout the United
States, for if it is not to be deemed a law levying a duty, impost, or
excise, the want of uniformity throughout the United States is not
objectionable. Indeed, the necessity of conforming regulations of
pilotage to the local peculiarities of each port, and the consequent
impossibility of having its charges uniform throughout the United
States, would be sufficient of itself to prove that they could not have
been intended to be embraced within this clause of the Constitution, for
it cannot be supposed uniformity was required when it must have been
known to be impracticable.
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 [p*315] the masters,
owners, or consigness of vessels sailing to or from that port to pay the
charges imposed by the twenty-ninth section of the act of 1803. It is an
objection to, and not a ground of preference of, a port that a charge of
this kind must be borne by vessels entering it, and, accordingly, the
interests of the port require, and generally produce, such alleviations
of these charges as its growing commerce from time to time renders
consistent with the general policy of the pilot laws. This state, by its
act of the 24th of March, 1851, has essentially modified the law of
1803, and further exempted many vessels from the charge now in question.
Similar changes may be observed in the laws of New York, Massachusetts,
and other commercial states, and they undoubtedly spring from the
conviction that burdens of this kind, instead of operating to give a
preference to a port, tend to check its commerce, and that sound policy
requires them to be lessened and removed as early as the necessities of
the system will allow.
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 L. 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 weight 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 another. Stuart v. Laird,
1 Cranch 299; Martin v. Hunter, 1 Wheat. 304; Cohens v. The
Commonwealth of Virginia, 6 id. 264 ; Prigg v. The Commonwealth
of Pennsylvania, 16 Pet. 621.
The opinion of the court is that the 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: "The 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 [p*316] nature
of the service performed by pilots, to the relations which that service
and its compensations bear to navigation between the several states and
between the ports of the United States and foreign countries, we are
brought to the conclusion that the regulation of the qualifications of
pilots, of the modes and times of offering and rendering their services,
of the responsibilities which shall rest upon them, of the powers they
shall possess, of the compensation they may demand, and of the penalties
by which their rights and duties may be enforced, do constitute
regulations of navigation, and consequently of commerce, within the just
meaning of this clause of the Constitution.
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 L. 55, 131.
These have been from time to time added to and changed, and we are not
aware that their validity has been questioned.
Now 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 modern commerce 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 navigation, the power to regulate
navigation extends to him while thus engaged as clearly as it would if
he 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 lost sight of that this subject of the regulation of
pilots and pilotage has an intimate connection with, and an important
relation to, the general subject of commerce with [p*317] foreign
nations and among the several states over which it was one main object
of the Constitution to create a national control. Conflicts between the
laws of neighboring states and discriminations favorable or adverse to
commerce with particular foreign nations might be created by state laws
regulating pilotage, deeply affecting that equality of commercial rights
and that freedom from state interference which those who formed the
Constitution were so anxious to secure and which the experience of more
than half a century has taught us to value so highly. The apprehension
of this danger is not speculative merely. For, in 1837, Congress
actually interposed to relieve the commerce of the country from serious
embarrassment arising from the laws of different states situate upon
waters which are the boundary between them. This was done by an
enactment of the 2d of March, 1837, in the following words:
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 L. 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,
have, 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 regulation 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 respectively 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 [p*318] have been
adopted by Congress, and thus made a law of the United States, and so
valid. Because this act does, in effect, give the force of an act of
Congress, to the then existing state laws on this subject, so long as
they should continue unrepealed by the state which enacted them.
But the law on which these actions are founded was not enacted till
1803. What effect then can be attributed to so 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 re-grant, or in any manner re-convey 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 state 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), [p*319] and with
the judicial construction given from time to time by this court, after
the most deliberate consideration, to hold that the mere grant of such a
power to Congress did not imply a prohibition on the states to exercise
the same power, that it is not the mere existence of such a power, but
its exercise by Congress, which may be incompatible with the exercise of
the same power by the states, and that the states may legislate in the
absence of congressional regulations. Sturges v. Crowninshield,
4 Wheat. 193; Moore v. Houston, 5 id. 1; Wilson v. Blackbird
Creek Co., 2 Pet. 251.
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
likely 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 deprived [p*320] them,
is allowed an appropriate and important signification. It manifests the
understanding of Congress, at the outset of the government, that the
nature of this subject is not such as to require its exclusive
legislation. The practice of the states and of the national government
has been in conformity with this declaration from the origin of the
national government to this time, and the nature of the subject, when
examined, is such as to leave no doubt of the superior fitness and
propriety, not to say the absolute necessity, of different systems of
regulation, drawn from local knowledge and experience and conformed to
local wants. How then can we say that, by the mere grant of power to
regulate commerce, the states are deprived of all the power to legislate
on this subject because, from the nature of the power, the legislation
of Congress must be exclusive. This would be to affirm that the nature
of the power is, in any case, something different from the nature of the
subject to which, in such case, the power extends, and that the nature
of the power necessarily demands, in all cases, exclusive legislation by
Congress, while the nature of one of the subjects of that power not only
does not require such exclusive legislation, but may be best provided
for by many different systems enacted by the states, in conformity with
the circumstances of the ports within their limits. In construing an
instrument designed for the formation of a government, and in
determining the extent of one of its important grants of power to
legislate, we can make no such distinction between the nature of the
power and the nature of the subject on which that power was intended
practically to operate, nor consider the grant more extensive by
affirming of the power what is not true of its subject now in question.
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 questions, 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 be 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. [p*321]
We have not adverted to the practical consequences of holding that the
states possess no power to legislate for the regulation of pilots,
though, in our apprehension, these would be of the most serious
importance. For more than sixty years, this subject has been acted on by
the states, and the systems of some of them created and of others
essentially modified during that period. To hold that pilotage fees and
penalties demanded and received during that time have been illegally
exacted under color of void laws would work an amount of mischief which
a clear conviction of constitutional duty, if entertained, must force us
to occasion, but which could be viewed by no just mind without deep
regret. Nor would the mischief be limited to the past. If Congress were
now to pass a law adopting the existing state laws, if enacted without
authority, and in violation of the Constitution, it would seem to us to
be a new and questionable mode of legislation.
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 subject 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?
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 of Pennsylvania
in each case must be affirmed.
Mr. Justice McLean and Mr. Justice Wayne dissented, and Mr. Justice
Daniel, although he concurred in the judgment of the court, yet
dissented from its reasoning. | |
|
Mr. Justice
McLEAN.
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 [p*322] illustrious judge, that the act of August 7th, 1789,
acknowledges a concurrent power in the states to regulate the conduct of
pilots, and hence is inferred an admission of their concurrent right
with Congress to regulate commerce with foreign nations and amongst the
states.
But this inference is not, we think, justified by the fact.
"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 regulation 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 prospective
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 domestic 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.
Why 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 case would be an imputation of ignorance as to federal
powers least of all chargeable against the men who formed the
Constitution and who best understood it.
Congress adopted the pilot laws of the states because it was [p*323]
well understood they could have had no force, as regulations of foreign
commerce or of commerce among the states, if not so adopted. By their
adoption, they were made acts of Congress, and ever since they have been
so considered and enforced.
Each state regulates the commerce within its limits, which is not within
the range of federal powers. So far, and no farther, could effect 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 claimed 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 can 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 they get 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 enlargement 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
the 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 cannot 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 a 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 in 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 [p*324] act of
the state constitutional, for it is admitted that the power is in
Congress.
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 shall 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
restriction 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 recognised 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 state 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. Congress regulated pilots by the act of 1789, which
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 principle 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 [p*325] on any of our
other rivers, be corrected without the action of Congress? And when
Congress shall act, the state has only to change its ground in order to
enact and enforce its regulations. Louisiana now imposes a duty upon
vessels for mooring in the river opposite the city of New Orleans, which
is called a levee tax and which, on some boats performing weekly trips
to that city, amounts to from $3,000 to $4,000 annually. What is there
to prevent the thirteen or fourteen states bordering upon the two rivers
first-named from regulating navigation on those rivers, although
Congress may have regulated the same at some prior period? I speak not
of the effect of this doctrine theoretically in this matter, but
practically. And if the doctrine be true, how can this court say that
such regulations of commerce are invalid? If this doctrine be sound, the
passenger cases were erroneously decided. In those cases, there was no
direct conflict between the acts of the states taxing passengers and the
acts of Congress.
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 application 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. |
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