Property in Chattels,

contract; but not so where the subject is why, under the circumstances of the case, to be made." the property in an article made to order In Atkinson v. Bell, which has always should not pass upon its completion, as it been considered a leading case on this would have done if it had been in existsubject, the rule laid down is, that to sup-ence at the time of the original contract." port an action for goods bargained and sold, there must be either an actual sale of goods existing at the time of the contract, or a specific appropriation by the seller of goods, afterwards assented to by the buyer. In that case, Bayley, J., said: "Where goods are ordered to be made, whilst they are in progress the materials belong to the maker. The property does not vest in the party who gives the order until the thing ordered is completed; and although while the goods are in progress the maker may intend them for the person ordering, still he may afterwards deliver them to another, and thereby vest the property in that other. Although the maker may thereby render himself liable to an action for so doing, still a good title is given to the party to whom they are delivered."

Applying these principles to the case under consideration, it was argued, that although the bankrupts undoubtedly intended to appropriate the greenhouse to the plaintiff, his assent to such appropriation was wanting, inasmuch as he had not seen the greenhouse, nor by any act accepted it, so as to preclude himself from repudiating it when he saw it. Had the bankrupts sold the identical greenhouse after the remittance of the £50, it was asked, could the plaintiff maintain trover for it? or, had it been destroyed by fire whilst on the bankrupts' premises, on whom should the loss fall?

These arguments, however, though put with great force and perseverance by Sir Thomas Wilde and Mr. Serjeant Bompas, failed to satisfy the court. "The question," Tindal, C. J., said, “turned not upon the original contract, but upon the subsequent circumstances, viz., the payment by the plaintiff, after the greenhouse had been completed, of the stipulated price, the appropriation and setting apart by the bankrupts of the greenhouse for the plaintiff, and his assent to such appropriation." "It may be," said the learned Chief Justice, "that the original contract did not pass the property, but the parties may be said to have entered into a new contract; and I cannot conceive

The court thought all the cases cited on behalf of the defendants distinguishable from the principal case, and observed, that Atkinson v. Bell, which was chiefly relied on, did not apply, as the question there turned upon the absence of assent on the part of the purchaser, to the appropriation on the part of the vendor, whilst the facts in Wilkins v. Bromhead furnished com. plete evidence of assent on the part of the plaintiff to the appropriation made by the vendors. And Maule, J., in delivering his judgment observes: "It is not neces sary in these cases that the vendee should actually see the article when completed, provided that there is sufficient to show that the identical thing offered or appropriated by the one party is accepted and assented to by the other, as made in the performance of the contract."

Upon these considerations the rule for entering a nonsuit was discharged.

The determination of the court in Wilkins v. Bromhead cannot be said to be inconsistent with the decisions in any of the preceding cases, but it furnishes a favorable exposition of established principles, and defines the limit of their application with clearness and precision.

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WHEN I was Chief Justice of the common pleas," said Lord Eldon, 2 case was brought before, me for the recovery of a dog, which the defendant had stolen and detained from the plaintiff, its owner. It was a very fine dog, very large and very fierce, so much so that I ordered a muzzle to be put on it. Well, we could come to no decision; when a woman, all in rags, came forward, and said if I would allow her to get into the witness-box she thought she could say something that would decide the cause. Well, she was sworn, just as she was, all in rags, and leant forward towards the animal and said, 'Come Billy, come and kiss me!' The savage looking dog instantly raised itself on its hind-legs, put its immense paws around her neck and saluted her. She had brought it up from a puppy. Those words, Come Billy, come and kiss me!' decided the cause."-Eldon Anecdotes.

United States District Court.-The United States v. The Steamboat James Morrison.

United States Circuit Court.-The United States v. The Steamboat James Morrison.

But the provisions of the act of 1838 are evidently founded on the power of congress to "regulate commerce." The license required is "to carry on the coasting trade," and the power was claimed, in the argument at the bar, under the clause "to regulate commerce"-it was not claimed under the admiralty and maritime jurisdiction.

It is not uncommon for a case to come | case the jurisdiction would depend upon within the words of an act, yet not come the locality of the transaction. within the meaning of the act. It will be observed that the first section requires a "new enrolment" under the existing laws of the United States, and a new license to be taken out. The second section requires a license to be taken out under the existing laws. No license is spoken of, mentioned or described, other than that required theretofore. It is obvious that the license spoken of in the act, is that pre- The Constitution, in art. 1, § 8, clause scribed by other and former laws of the 3, declares that congress shall have power United States, and could only be "a li-" to regulate commerce with foreign nacense to carry on the coasting trade," no other license, known to the laws of the United States, being at all applicable. This was admitted by the District Attorney of the United States in the argument at the bar.

I will first inquire into the constitutional power of congress to require a license in this case; and then, secondly, to inquire whether, supposing the power to exist, it has been extended, by the act of 1838, to this case. Even if we were to confine our inquiries to the second branch of the subject, it would greatly aid us, in making those inquiries, to ascertain the power of congress over the subject.

It is said in Sergeant's Constitutional Law, p. 308, that "the general power of establishing regulations for the condemnation of vessels as unfit for sea or unworthy of repair, may, it would seem, be exercised by congress either as applicable to trade and commerce, or as within the admiralty jurisdiction." And the Supreme Court of the United States, in the case of Janney v. the Columbia Ins. Co., 10 Wheat. 418, said something, arguendo, to the same effect. The admiralty jurisdiction is a part of the jurisdiction of the courts, and is found in the 3d article, § 2, of the Constitution of the United States: "The judicial power shall extend to all cases of admiralty and maritime jurisdiction." But the Supreme Court decided, in the case of the United States v. Combs, 12 Pet. R. 76, that "in cases dependent on the locality of acts done, this power is limited to the sea and to tidewaters as far as the tide flows, and does not reach beyond high-water mark." Of course that jurisdiction could not reach a transaction, the locality of which was some thousands of miles above tide-water for in this

tions, and among the several states and with the Indian tribes" The authority of Congress, as it regards the case at bar, is claimed under the power to regulate commerce among the several states.”

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The power over navigation and intercourse is part of the power to regulate commerce, and is possessed by congress as fully as it possesses the power to regulate commerce; but, of course, not to a greater extent. There is no separate and distinct grant to regulate navigation or intercourse; they are incidents to, or part of, the power to regulate commerce. Wherever the right to regulate commerce does not extend, the right to regulate navigation or intercourse does not go The latter goes with the former, or follows it. The right to regulate commerce only extends to three descriptions of commerce: 1st, with foreign nations; 2d, among the several states; 3d, with the Indian tribes. It does not include the perfectly internal commerce of a state. The commerce, to be subject to such regulations, must be among-that is, intermingled with the several states. If confined to one state alone, congress has no power over it. It would have been strange, if it was intended that congress should have power to regulate every description of commerce, to enumerate only particular kinds in the grant. And such are the doctrines and opinions of the Supreme Court. In Gibbons v. Ogden, 9 Wheat. R. 194, that court says: "It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states; such a power would be inconvenient, and

United States District Court.-The United States v. The Steamboat James Morrison.

is certainly unnecessary." Again: "Com- | could regulate commerce; that is, as it

prehensive as the word " among" is, it regards this case, among the several

may

one.

Again: "The genius and character of the whole government seem to be, that its action is to be 'applied to all the external concerns of the nation, and to those internal concerns which affect the states generally."-Ibid. 195.

And, indeed, it is clear, that the

be properly restrained to that com- states." merce which concerns more states than supreme court must have intended to The phrase is not one which would convey this idea; for in another part of probably have been selected to indicate the same opinion, it says: "The power the completely internal traffic of a state, of congress, then, comprehends navigation because it is not an apt phrase for that within the limits of every state in the purpose, and enumeration of the particu- Union, so far as that navigation may be, lar classes of commerce to which the in any manner, connected with "compower was to be extended would not have merce with foreign nations, or among the been made, had the intention been to ex- several states, or with the Indian tribes." tend the power to every description."- And in the case of The United States v. lbid. 194-5. Combe, 12 Pet. R. 78, that court says: "The power to regulate commerce includes the power to regulate navigation as connected with the commerce with foreign nations and among the several states." The next matter of inquiry will be, what is that commerce or navigation which is completely internal, or within the limits of a state? To make a particular branch of commerce or trade within a state, a part of the commerce among the several states, it would not be sufficient that it was remotely connected with that commerce among the several states; for almost every thing and every occupation and employment in life are remotely connected with that commerce or navigation. And if congress has the right to regulate every employment or pursuit thus remotely connected with that commerce, of which they have the control, then it has the right to regulate nearly the entire business and employment of the citizens of the several states. Thus the cultivation and preparing of hemp, tobacco, cotton, rice, grain, &c., finding and preparing minerals, the manufacturing and retailing of goods, are all connected with

Again: "The completely internal commerce of a state, then, may be considered as reserved for the state itself."-Ibid. 195.

This, also, is the doctrine maintained by the highest court of the state of NewYork. See Steamboat Company v. Livingston, 3 Cowen's Rep. 754.

Is the right of congress to regulate navigation more extensive than the right to regulate commerce? Does it extend to the regulation of navigation, which is not connected with commerce with foreign nations, among the several states, and with the Indian tribes ?"

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The supreme court of the United States, in Gibbons v. Ogde, 9 Wheat. 193, said: "A power to regulate navigation is as expressly granted as if that term had been added to the word commerce." This sentence was commented on in the argument at the bar, as if the supreme court commerce with foreign nations, among intended thereby to convey the idea that the several states, or with the Indian congress had the right to regulate naviga- tribes ;" because they are the food of that tion in all cases. It could not have an commerce, without which it would soon application so extensive, because, if navi- dwindle into insignificance, if it did not gation be comprehended in the word altogether perish. Yet, if congress has commerce, it is limited with the limitations the power to regulate all these employon that word. But suppose we add the ments, and a thousand others equally conword "navigation" to the word com- nected with that commerce, then it can merce," as the court supposes may be regulate nearly all the concerns of life, done it will then read, : congress shall and nearly all the employments of the have power to regulate commerce and citizens of the several states; and the navigation with foreign nations, and among state governments might as well be abolthe several states, and with the Indian ished. It is not sufficient, then, that navtribes." So we see that still, congress igation, or trade, or business of any kind, could only regulate navigation, when it within a state, be remotely connected, or,

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United States District Court.-The United States v. The Steamboat James Morrison.

perhaps, connected at all with commerce dian tribes."
with foreign nations, or among the several
states, or with the Indian tribes ; it
should be a part of that commerce, to
authorize congress to regulate it.

The commerce is a whole,

parts of which are in several states. If congress cannot regulate it in one state, it cannot, for the same reason, regulate it in another state. And thus it could not be regulated by congress at all, although it is undeniably commerce among the several states. And in my opinion, it would be the destruction of this commerce, if each state in the Union through which it passed had the right to license vessels employed in carrying it on, and to exclude all except those thus licensed, merely because those vessels did not navigate beyond the limits of the state granting the license.

In Gibbons v. Ogden the supreme court says: "Commerce among the several states' cannot stop at the boundary line of each state." But although commerce with foreign nations, among the several states, and with the Indian tribes, will include commerce and navigation up and down the navigable rivers of the United States as part of the coasting trade, yet there is, undoubtedly, a description of commerce and navigation that is altogether and completely internal, which belongs exclusively to the states, respectively, and which congress has no right to regulate. In the case of Gibbons v. Ogden the supreme court says: "It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states."

The "coasting trade is a part of the commerce among the several states; and it is not the less a part of that commerce because the vessel navigates only from port to port in the same state, up and down a navigable river of the United States, and never goes beyond the state boundary. This will appear more plain upon looking at the course of trade in the United States upon its great navigable rivers. Goods are purchased at Philadelphia, are brought to Pittsburgh and there shipped: these goods come from parts beyond seas, or were manufactured in the United States, and were intended for sale in Mexico, or at Independence, or other places in this state. But the boat in which they are shipped only goes as far as St. Louis; there the goods are reshipped on boats more suitable for the Missouri, and are in those boats conveyed to Independence. There they are landed and taken in wagons, if intended for Mexico, across the prairies to that country. If intended for the valley of the Osage, they are landed at the mouth of that river, and reshipped on boats more suitable to its navigation, than those ordinarily navigating the Missouri. The same observations may be made in regard to goods or southern produce from New-Orleans. Very few boats engaged in the trade between that place and St. Louis ascend the Missouri, and very few that ascend the Missouri ascend Again, comprehensive as the word the Osage river. These remarks will also" among" is, it may properly be restrainapply to nearly all the navigation of the ed to that commerce which concerns more valley of the Mississippi, and will apply as states than one. The court of the last well to boats that carry off the produce of resort in New-York laid down the same the country as those which bring merchan- principles, as will be presently seen.— dize. The boats that navigate the Mis- Steamboat Co. v. Livingston, 3 Cow. R. souri and Osage rivers seldom go beyond 743. the limits of the state of Missouri; and The next matter of inquiry will be, is a yet they are as much and as altogether boat employed only in ferrying across the employed in commerce and navigation Missouri river, altogether within the limits among the several states, as if they made of the state of Missouri, engaged in comvoyages beyond the limits of the state. merce or navigation, the instrument of The circumstance that several boats are commerce with foreign nations, among the employed, some without and some alto- several states, or with the Indian tribes? gether within a state, does not make it If this be answered in the negative, then the less "commerce" among the several congress has no right to regulate any comstates, or less " commerce with foreign merce or navigation it may be employed nations," or, in many cases, "with the In-in, or to require it to take out a license