Wilson v. McNamee/Opinion of the Court

by Noah Haynes Swayne

United States Supreme Court

102 U.S. 572

Wilson  v.  McNamee

The only point argued here was the validity of the pilot law of New York with reference to the Constitution of the United States.

At the close of the opening argument of the learned counsel for the plaintiff in error, we announced that the affirmative of the question thus presented was so well settled by the repeated adjudications of this court, that we had no desire to hear the counsel for the defendant in error upon the subject.

Thereafter, the counsel who had been heard submitted a memorandum, in which he called our attention particularly 'to the tenth point of the brief of the plaintiff in error, namely, that the tender took place outside of the jurisdiction of the State of New York.' He added: 'This question has never yet been passed upon by this court in either of the other pilot cases.'

Our opinion will be confined to that subject.

There are several answers to the suggestion.

1. The objection does not appear to have been taken in the Circuit Court, and cannot, therefore, be considered here. Edwards v. Elliott, 21 Wall. 532.

2. A vessel at sea is considered as a part of the territory to which it belongs when at home. It carries with it the local legal rights and legal jurisdiction of such locality. All on board are endowed and subject accordingly. The pilot, upon his boat, had the same authority from the laws of New York to tender and demand employment, and the same legal consequences, under the circumstances, followed the refusal of the master as if both vessels had then been infra fauces terroe, where the municipal jurisdiction of the State was complete and exclusive. The jurisdiction of the local sovereign over a vessel, and over those belonging to her, in the home port and abroad on the sea, is, according to the law of nations, the same. Dana's Wheaton, p. 169, sect. 106; 1 Kent, Com. 27; Vattel, bk. 1, c. 19, sect. 216; 2 Rutherford's Inst., bl. 2, c. 9, sects. 8, 19.

The principle here recognized is, of course, subject to the paramount authority of the Constitution and laws of the United States over the foreign and inter-state commerce of the country, and the commercial marine of the country engaged in such commerce, and subject also to the like power of Congress 'to define and punish piracies and felonies committed on the high seas and offences against the law of nations.' See Ex parte McNiel, 13 Wall. 236.

Speaking of the universal law of reason, justice, and conscience, of which the law of nations is necessarily a part, Cicero said: 'Nor is it one thing at Rome and another at Athens, one now and another in future, but among all nations it is, and in all time will be, eternally and immutably the same.' Lactantius Inst. Div., bk. 7, c. 8.

3. Conceding that the pilot laws of the several States are regulations of commerce, Mr. Justice Story said, 'They have been adopted by Congress, and without question are controllable by it.' 2 Story, Const., sect. 1071.

Mr. Chief Justice Marshall, in Gibbons v. Ogden, said: 'When the government of the Union was brought into existence, it found a system for the regulation of pilots in 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.' 9 Wheat. 1, 207. The long-continued silence of Congress, with its plenary power, in the presence of such legislation by the States concerned, is itself an implied ratification and adoption, and is equivalent in its consequences to an express declaration to that effect. Atkins v. The Disintegrating Company, 18 Wall. 272.

The several acts of Congress bearing on the subject are fully referred to in Ex parte McNiel, supra. In that, and in the earlier and more elaborate case of Cooley v. Board of Wardens of Port of Philadelphia (12 How. 299), this subject, in all its aspects, was so fully considered that further remarks on the present occasion are deemed unnecessary.

Judgment affirmed.

Notes