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 apower, 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.

Messrs. Justices McLean and Wayne dissented. 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, 322*] says that *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.

66

Although Congress," he continues, "can not 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

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 *well understood, they [*323 could have had no force, as regulations of for eign 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 soverign 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 It is 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 324*] not make the 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 restrictions can never operate, so as to render the principle inapplicable to other cases. And it is in this light that the decision is chiefly to be regretted. The power is recognized in the State, because the subject is more appropriate for state than federal action; and consequently, it must be presumed the Constitution cannot have intended to inhibit state action. This is not a rule by which the Constitution is to be construed. It can receive but little support from the discussions which took place on the adoption of the Constitution, and none at all from the earlier decisions of this court.

It will be found that the principle in this case, if carried out, will deeply affect the commercial prosperity of the country. If a state has power to regulate foreign commerce, such regulation must be held valid, until Congress shail repeal or annul it. But the present case goes farther 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 ccmmerce, 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 retricted application given to it by the learned judge who delivered it.

The noted Black Bird 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 *on any [*325 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, *local or [*326 otherwise, in its application. The power del egated 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 per

HIS was an appeal from the District Court

or equitable demand. (Reimsdyk v. Kane, 1 Gall., 380, 381; Boyle v. Zacharie, 6 Pet., 659; Robinson v. Campbell, 3 Wheat.. 212; United States v. Howland, 4 Id., 108; Fletcher et al. v. Morey, 2 Story, 567; Gordon v. Hobart, 2 Sumn., 402; Flagg v. Mann, ld., 544; Thomas v. Hatch, 3 Id., 176; Bellows v. Peck, 3 Story,

Texas.

The facts are set fort in the opinion of the court, to which the reader is referred.

It was argued by Messrs. Hale and Coxe for the appellants, and Mr. Harris for the appellees.

The points made by the appellants' counsel were the following:

IV. The matters of defense set up by Mrs. Stafford are not sufficient to prevent this court from pronouncing a decree against her. The first of her defenses consists of the bar of the statute of limitations of Texas, passed Feb. 5, 1841, which provides that all actions of debt grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action accrued and not after," and "that if any person against whom there is or shall be cause of action, is or shall be without the limits of this Republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the Republic, and the time of such personal absence shall not be accounted, or taken as a part of the time limited by this Act." (Hartley's Dig.. secs. 2377, 2395.)

I. This plea is not applicable to an equitable demand of this nature. The debt may be barred, and yet the right to foreclose subsist Bank of Metropolis v. Guttschlick, 14 Pet., 20, 32; Thayer v. Mann, 19 Pick., 536; Baldwin v. Norton, 2 Conn. R., 163; Clark v. Bull's Er'r, 2 Root, 329; 1 Powell on Mort., 392 a. 396 b; Angell on Lim., 494. note 1; Elmendorf v. Taylor, 10 Wheat., 152; case of Cholmondeley v. Clinton, explained by Stewarts v. Nichols, 1 Tamlyn, 207.)

2. The fact that the bill was filed within four 329*] years after the *removal of the defendants to Texas is sufficient of itself to remove the bar; and the language of the 22d section of the Act has always hitherto been construed to apply to strangers. (Southerst v. Graeme, 3 Wills, 145; 5 Bac. Abr., 236; Dwight v. Clark, 7 Mass., 518; Bulger v. Roche, 11 Pick., 39, 40; Little v. Blunt, 16 Id., 363; Ruggles v. Keeler, 3 Johns., 257; Chomqua v. Mason, 1 Gall., 344, 346; Estis v. Rawlins, 5 How. Miss., 258; Hysinger v. Baltzell, 3 Gill & Johns., 158; Sissons v. Bicknell, 6 N. H., 557; Dunning v. Chamberlin, 6 Verm., 127; Case v. Cushman, 1 Penn. State R., 241; King v. Lane, 7 Miss. R., 241.)

3. The opposite construction given to the 1st and 22d sections of the Act by the Supreme Court of Texas, will not be followed by this court, because it would give the Act an extraterritorial effect, is contrary to reason, and cannot apply to cases within the chancery jurisdiction of the United States. And this court has never held a less period than twenty years as sufficient to bar the enforcement of a trust HOWARD 12. U. S., Book 13.

mendorf v. Taylor, 10 Id., 162; Prevost v. Gratz, 6 Id., 481; Michoud et al. v. Giroud et al., 4 How., 561; Dexter et al. v. Arnold, 1 Sumn., 110: Gordon et al. v. Hobart et al., 2 Id., 401; Gould v. Gould et al., 3 Story, 536; Piatt v. Vattier, 1 McLean, 160, 162; Rhode Island v. Massachusetts, 15 Pet., 233.)

4. The terms of the obligation and mortgage of 1841 show that a new cause of action accrued on the failure to pay each successive installment as it became due; and such a cause of action did therefore accrue within four years before filing the bill. (1 Pothier, Obl., Evans, 404; Baltimore Turnp. Co. v. Barnes, 6 Harr. & J., 57; Angell on Lim., 105.) And the running of the time was sufficiently interrupted by the proceedings upon the twelve months' bond of William M. Stafford against the mortgaged slaves, in February and March, 1845. (Print. R., 350, 354, 440, 441, 444.)

5. The complainants have used all the diligence in their power, under the circumstances of the case, to enforce their demand, and are not culpable for laches.

V. The defense of coverture is also insufficient, because by the laws of Louisiana, Mrs. Stafford was authorized to become surety for her husband's debts by renouncing her privileges; and by the charter of the bank, she was specially empowered to do so; and [*330 there is no satisfactory proof of her separate interest in the property.

(Beauregard's Ex'rs v. Piernas and Wife, 1 Mart., 294; Brognier v. Forstall, 3 Mart., 577; Chappellon and Wife v. St. Maxent's Heirs, 5 Mart., 167; Perry v. Grebeau, 7 Mart., 489; Banks v. Trudeua, 2 N. S., 39; Tremè v. Lan aux's Syndic, 4 N. S., 230; Drew v. His Creditors, 4 N. S., 659; Civ. Co. La., sec. 2412; Gasquet v. Dimitry, 9 La. R., 586; Act of La.. March 27, 1835; Bank of La. v. Farrar and Wife, 1 Ann. R., 49; Mechanics' and Traders' Bank v. Rowley, Ann. R., 1847, 373; Farrar v. N. O. Gas Light Co., Ann. R., 1847, 874; Bein v. Heath, 6 How., 223; Print. R., 309, 323, 324; Civ. Co. La., sec. 2403; Bertie v. Walker, Sheriff, 1 Rob., 431; Civ. Co. La., sec. 2355; Babin v. Brosset, 11 La. R., 59; Lasé v. Dimitry, 7 La. R., 479.)

VI. The defense resting on the ground that the order of seizure and sale on the mortgage of 1841 was a merger of the debt, is simply absurd; the mortgage itself being the judgment, and the order the mere mode of executing it. (Code Pr. La., sec. 732, 733, 734.)

VII. The defense set up in argument that the mortgage lien was discharged by the sale in 1843 to William M. Stafford, cannot be sustained; because, 1st, the facts are not pleaded as constituting such defense nor for that object. (2 Dan. Ch. Pr., 815; Cline v. Beaumont, 13 Jur., 326.)

2d. Because the sale is not proved, the sheriff's return being fatally defective in not showing a compliance with the Code of Practice of 64 1009