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 the 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 Stats. at Large, 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 reman 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 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 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 Large 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 prac

tice of Congress under it, has, in another construction, 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, sec. 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 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 legisla'e 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 regrant in any manner or reconvey 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 any 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 execludes 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 contempory exposition of the Constitution, (Federalist No. 32,) 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. Sturgis vs. Crowinshield, 4 Whea. 193, Houston vs. Moore, 5 Whea. 1, Wilson vs. Blackbird Creek Co., 2 Peters, 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 navi gation.

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 of only 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 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 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 or 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 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 constructing 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 the majority of the court that the mere grant to Congress of the power to regulate Commerce, did not deprive the States of power to

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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 ques-
tions, 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.

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 subjeet 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 legis latures 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 subjeet 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.

LOSS OF A BAGGAGE CHECK BY A PASSENGER

DOES NOT RELIEVE A RAILROAD

COMPANY FROM LIABILITY.

In the First District Court, (New York City, 1852.) Judge Green presiding. Patrick Cass rs. The New York and New Haven Railroad Company.

This was an action to recover $100 00, the value of a trunk and contents placed in possession of the baggage-keeper, in June last, but not delivered. It appears that Bedura Ann Kelley took the cars at Stamford, Connecticut, for New York, gave her trunk to the agent of the cars and received a check for it, but lost the check on the road; and the agent on the arrival of the cars at Canal street, refused to deliver the trunk to her, although she pointed it out to him and told him she had lost the ticket; also, that she could not read and did not know the number of the ticket. She again demanded the trunk, but he refused, and she asked him to keep it for her till she called for it. She being sick was subsequently taken to Bellevue Hospital, and did not leave there for five months. When she came out she sold and assigned the trunk and contents to plaintiff, who went with her to the depot and demanded the trunk of the managing agent, but on search being made it could not be found.

The Judge held that in common law, the railroad company is liable for the loss of baggage intrusted to their care, and the giving a check to a passenger designating the number of the baggage was intended to furnish the passenger with additional security, and the loss of the check does not relieve the company from liability, unless some other person presents the check, and in good faith and without notice the baggage is delivered to the party so offering the check. Nothing of the kind was shown here, and the plaintiff is entitled to judgment for $100 (being amount of claim) and costs.

ACTION FOR BREACH OF CONTRACT TO DELIVER PART OF A CARgo of gum. When a contract is made between two firms to purchase goods on joint account, but bought in the name of only one of them, the original terms of purchase cannot be varied without consent-and the silent party is entitled to his proportion of the gross bulk, at the price and upon the terms originally contracted for.

Court of Common Pleas, New York, before Judge Woodruff, May, 1852, Davenport vs. Tilden and Blodgett, in action for a breach of contract to deliver to plaintiff part of a cargo of gum copal.

The transaction occurred in September, 1850, at which time a cargo of gum copal, belonging to Grinnell, Minturn & Co., was on board the ship Emily, lying at this port. The defendants and a Mr. Gillespie, agent for the plaintiff, both wished to purchase it, and thinking it might be got on better terms if but one of the parties offered for it, the defendants entered into a written contract with the plaintiff, through his agent, Gillespie, by which they agreed that, if they bought the cargo, they would sell to Davenport & Co. from 30,000 lbs. to 40,000 lbs. of it, at the same price, and on the same terms and proportion, as they would pay for it themselves. From the evidence for the defendants, it appeared that when Gillespie was negotiating the contract for the plaintiff, he informed the defendants that Davenport & Co. were a house in this city, which was not the fact, Mr. Davenport having no partner, nor ever intimated that he had one. As the par ties did not wish Grinnell & Co. to know that the cargo was purchased on their joint account, it was agreed that the plaintiff should not be delivered his part of it on shipboard, and the whole cargo was brought on shore and stored by the defendants. From the time the purchase was thus consummated by the defendants, until early in the following December, various interviews took place between the plaintiff and defendants in relation to his claim for half the cargo, which the defendants would not deliver, except on terms which the plaintiff would not accede to. The defendants alleged that they had contracted to sell the gum not to the plaintiff alone, or on his credit only, but to the firm of Davenport & Co., and that they would not take his paper for it. The defendants also alleged that in their bargain with Grinnell, Minturn & Co., although they were to have a credit of six months, they also had the option of paying cash and receiving a discount, and that they would pay cash, and the plaintiff must do so also. After various negotiations on the subject, the defendants, early in December, notified Davenport & Co., that they were ready to deliver the gum on received approved paper for it, and if Davenport & Co. did not comply with this offer, they would consider the contract at an end. The defendants purchased the gum at 10 cents, and it appeared that from September to February good gum could be purchased for 9 cents, at six and eight months, but shortly after it rose 10 per cent.

The Court charged the jury. The first question which they had to determine was whether the defendants made the contract as set forth in the complaint. It was not denied by defendants that they had signed the paper which was read in evidence. But it is denied that by this writing the defendants entered into a contract with plaintiff alone. On the contrary, it is said that it was made with two persons at least, and on the credit of more than one individual.

If the contract was made with Davenport and another, the plaintiff cannot maintain his action in his own sole name, in the absence of a transfer to him of the interest of his co-contractor. On this part of the case, the court had to let in evidence in order to see if Davenport & Co. meant only J. D. Davenport and no one else; add whether J. D. Davenport was in fact the only party for whom