U.S. Supreme Court Cooley v. Board of Wardens, 53 U.S. 12
How. 299 299 (1851) Cooley v. Board of
Wardens 53 U.S. (12 How.) 299 Syllabus A law of the State of Pennsylvania that a vessel which neglects
or refuses to take a pilot shall forfeit and pay to the master
warden of the pilots, for the use of the Society for the Relief of
Distressed and Decayed Pilots, their widows and children, one-half
the regular amount of pilotage, is an appropriate part of a general
system of regulations on the subject of pilotage, and cannot be
considered as a covert attempt to legislate upon another subject
under the appearance of legislating on this one.

															Nor can the exemption of American vessels engaged in the
Pennsylvania coal trade from the necessity of paying half pilotage
be declared to be other than a fair exercise of legislative
discretion acting upon the subject of the regulation of the
pilotage of the port of Philadelphia.

															The law of Pennsylvania is therefore not inconsistent with the
second and third clauses of the tenth section of the first article
of the Constitution of the United States, Imposts and duties on
imports, exports, and tonnage were understood, when the
Constitution was formed, to mean totally distinct things from fees
of pilotage.

															Nor is the law repugnant to the first clause of the eighth
section of the first article of the Constitution, because, as the
charge is not a duty, import, or excise, there is no necessity for
its being uniform throughout the United States.

															Neither is the law repugnant to the fifth clause of the ninth
section of the first article of the Constitution, because it
neither gives a preference of one port over another nor does it
require a vessel to pay duties.

															Upon this point, the act of Congress passed in 1789, 1 Stat. at
Large 54, recognizing the pilot laws of the States is entitled to
great weight as showing that these laws neither levied duties nor
gave a preference of one port over another.

															Moreover, the law is not inconsistent with the third clause of
the eighth section of the first article of the Constitution.

															It is true that the power to regulate commerce includes the
regulation of navigation, and that pilot laws are regulations of
navigation, and, therefore, of commerce, within the grant to
Congress of the commercial power.

															But the mere grant of the commercial power to Congress does not
forbid the States from passing laws to regulate pilotage. The power
to regulate commerce includes various subject, upon some of which
there should be a uniform rule and upon Page 53 U. S. 300 others different rules in different localities. The power is
exclusive in Congress in the former, but not so in the latter
class.

															Although Congress may legislate upon the subject of pilotage
throughout the United States, yet they have manifested an intention
not to overrule the State laws except in one instance. The law of
Pennsylvania, not being overruled, is not repugnant to the
Constitution of the United States.

															These two cases were brought up from the Supreme Court of
Pennsylvania by writs of error issued under the twenty-fifth
section of the Judiciary Act.

															They both depended upon the same principle, were argued and
decided together, and will be treated as one. The only difference
between them was that the pilotage was demanded from two different
vessels, the Undine and the Consel. Cooley was
the consignee of both vessels.

															The twenty-ninth section of the act passed by the Legislature of
Pennsylvania on the 2d of March, 1803, is set forth at length in
the opinion of the court, and need not be repeated.

															The board of wardens brought an action of debt before Alderman
Smith against Cooley for half-pilotage, due by a vessel which
sailed from Philadelphia without a pilot when one might have been
had. The magistrate gave judgment for the plaintiffs, and the
defendant appealed to the Court of Common Pleas.

															In that court, a declaration in debt was filed by the plaintiff
below. In the case of the Undine, the defendant demurred,
and upon the demurrer, judgment was given for the plaintiff.

															In the case of the Consul, the defendant put in two
pleas.

															1. That the Consul was engaged in the coasting trade, sailing
under a coasting license from the United States.

															2. That the said schooner was bound from the port of
Philadelphia, in the state of Pennsylvania, to the port of New
York, in the state of New York.

															To both of which pleas there was a demurrer and a joinder in
demurrer, and a judgment for the plaintiff.

															The case was then carried to the Supreme Court of Pennsylvania,
which, in January, 1850, passed the following judgment:

															That

															"the judgment of the Court of Common Pleas for the city and
county of Philadelphia be affirmed because this court is of opinion
that the twenty-ninth section of the act of the state of
Pennsylvania, of the 29th of March, A.D. 1803, entitled An act to
establish a Board of Wardens for the port of Philadelphia, and for
the regulation of pilots and pilotages, and for other purposes
therein mentioned, is not, in any of its provisions involved in
this cause, at variance with any of the provisions of the
Constitution or laws of the United States, but is a constitutional
and legal enactment."

															Cooley then brought the case up to this court. Page 53 U. S. 311 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 Page 53 U. S. 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. " Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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), Page 53 U. S. 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 Page 53 U. S. 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. Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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 Page 53 U. S. 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.

															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, does 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 discrimination, Page 53 U. S. 326 local or otherwise in its application. The power delegated to
Congress by the Constitution relates properly to the terms on which
commercial engagements may be prosecuted, the character of the
articles which they may embrace, the permission or terms according
to which they may be introduced, and do not necessarily nor even
naturally extend to the means of precaution and safety adopted
within the waters or limits of the states by the authority of the
latter for the preservation of vessels and cargoes and the lives of
navigators or passengers. These last subjects are essentially local
-- they must depend upon local necessities which call them into
existence, must differ according to the degrees of that necessity.
It is admitted on all hands that they cannot be uniform, or even
general, but must vary so as to meet the purposes to be
accomplished. They have no connection with contract, or traffic, or
with the permission to trade in any subject, or upon any
conditions. They belong to the same conservative power which
undertakes to guide the track of the vessel over the rocks or
shallows of a coast or river, which directs her mooring or her
position in port for the safety of life and property, whether in
reference to herself or to other vessels, their cargoes and crews,
which for security against pestilence subjects vessels to
quarantine, and may order the total destruction of the cargoes they
contain. This is a power which is deemed indispensable to the
safety and existence of every community. It may well be made a
question, therefore, whether it could, under any circumstances, be
surrendered, but certainly it is one which cannot be supposed to
have been given by mere implication, and as incidental to another
to the exercise of which it is not indispensable. It is not just
nor philosophical to argue from the possibility of abuse against
the rightful existence of this power in the states; such an
argument would, if permitted go to the overthrow of all power in
either the states or in the federal government, since there is no
power which may not be abused. The true question here is whether
the power to enact pilot laws is appropriate and necessary, or
rather most appropriate and necessary, to the state or the federal
governments. It being conceded that this power has been exercised
by the states from their very dawn of existence; that it can be
practically and beneficially applied by the local authorities only;
it being conceded, as it must be, that the power to pass pilot
laws, as such, has not been in any express terms delegated to
Congress, and does not necessarily conflict with the right to
establish commercial regulations, I am forced to conclude that this
is an original and inherent power in the states, and not one to be
merely tolerated, or held subject to the sanction of the federal
government. Page 53 U. S. 327 Order 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.

Summary: The Supreme Court upheld a Pennsylvania law requiring vessels to pay a fee to the master warden of pilots if they neglect or refuse pilot services, deeming it a valid exercise of the state's power to regulate pilotage and navigation within its waters. The Court found that the law was not a covert attempt to legislate on other subjects and did not violate the Constitution's provisions on imposts, duties, or tonnage. While recognizing Congress's power to regulate commerce and navigation, the Court held that states retain the authority to pass laws on local subjects like pilotage, which vary according to local necessities and are essential for community safety.