will be found, generally, to restrain state legislation on subjects entrusted to the government of the union, in which the citizens of all the states are interested. In these alone were the whole people concerned. The question of their application to states is not left to construction. It is averred in positive words.

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the states; if, in every inhibition intended to act on state power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed. We search in vain for that reason.

Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and would have been applied by themselves. A convention would have been assembled by the discontented state, and the required improvements would have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of congress, and the assent of threefourths of their sister states, could never have occurred to any human being as a mode of doing that which might be effected by the state itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution

of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers, which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government, not against those of the local governments.

In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are, therefore, of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause in the court of that state, and the constitution of of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.

7 Pet. 250.

THE BRIG WILSON v. THE UNITED STATES.

C. C. DISTR. VA. AND N. C., MAY TERM, 1820.

[1 Brockenbrough's Reports, 423–439.]

THE Wilson, a South American privateer, brought into Norfolk, Virginia, (whither she came to refit,) certain cases of spirits taken from a prize she had captured, which spirits she had kept as stores, but did not enter them according to law. She also landed some colored sailors, though the laws of the United States forbade it. She was libelled by the United States for breaking the laws, and was adjudged to be forfeited by the district court. Her commander appealed to the circuit court, the opinion of which was given by Chief Justice Marshall as follows:

THE four first counts of this case present, for the consideration of the court, a general question of considerable importance. It is this: Does the act "to regulate the collection of duties on imports and tonnage" apply to privateers, not engaged in the importation of goods?

The thirty-first section enacts "that it shall not be necessary for the master, or person having the command of any ship or vessel of war, &c., to make such report and entry as aforesaid."

If the words, "ship or vessel of war," be construed to comprehend a privateer, there is an end of this part of the case; because, if no report or entry is required, it cannot be pretended that any of the provisions of the act extend to a privateer, demeaning herself in her military character, and not performing the office of a merchant vessel.

The counsel for the appellant has certainly urged many reasons, which have great weight in favor of the construction for

which he contends. The term, "ship or vessel of war," has been considered, and, I think, properly considered, as a generic term, including both national ships and private armed ships. When it is used generally, it comprehends both, unless the context, or the subject-matter, should exclude the one or the other. The authorities cited at the bar show that courts and writers on public law have used the term in this general sense.

If either the language or the objects of this law be consulted, I think they strengthen this natural and comprehensive construction of these words.

The object of the law is, professedly and obviously, to raise a revenue from commerce and consumption, not to regulate the conduct of the ships of war, whether public or private, of foreign nations. All the regulations are obviously calculated for merchant vessels, and not one calculated for privateers, who might come into our ports, although a totally distinct provision for them would certainly be necessary.

The language of the law applies it to vessels destined for the United States, not to vessels destined for a cruise on the high seas. The form of the manifest requires that the importer should state to what port the vessel is bound, and to whom the goods are consigned: regulations not adapted to goods captured at sea by a cruiser.

If this act applies to privateers, the tonnage duty would be demandable. But it cannot be supposed that this duty is imposed on privateers, employed in cruising, and not in the conveyance of merchandise.

It is also an argument which deserves consideration, that the policy of the United States has been unfriendly to the sale, in our ports, of prizes made by foreign privateers on nations with whom we are at peace. Some of our treaties contain express stipulations against it; and the course of the government has been to prohibit the practice, even where no specific engagements bind us to do so. Were the revenue laws applicable to privateers, and to their prizes and prize goods, they would give

a right to introduce those goods, in opposition to the avowed and uniform policy of the government. The doctrine, that the validity of prizes could not be adjudged in our ports, would be of little importance, if they could be brought in and sold.

I think, then, that our revenue laws do not apply to privateers, unless they take up the character of merchantmen, by attempting to import goods. When they do so, they attempt, under the garb of their military character, to conceal real commercial transactions. This would be fraud on the revenue laws, which no nation will or ought to tolerate. The privateer which acts as a merchant vessel must be treated and considered as a merchant vessel.

In this case there is no evidence that any goods were landed, or that more were brought in, than were intended to be carried out. The only evidence, which I think at all important, is that of the pilot. His testimony, certainly, excited suspicion. Opposed to it, however, is the testimony of the witnesses belonging to the vessel, who say that the spirits were designed for the crew, to be used as stores.

I proceed, now, to the fifth count in the libel.

The first question which will be considered in this part of the case will be the constitutionality of the act of congress under which this condemnation has been made.

It will readily be admitted that the power of the legislature of the union, on this subject, is derived entirely from the third clause of the eighth section of the first article of the constitution. That clause enables congress "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

What is the extent of this power to regulate commerce? Does it not comprehend the navigation of the country? May not the vessels, as well as the articles they bring, be regulated? Upon what principle is it that the ships of any foreign nation have been forbidden, under pain of forfeiture, to enter our ports? The authority to make such laws has never been questioned; and yet it can be sustained by no other clause in the constitu