[Barron v. The Mayor and City Council of Baltimore.] governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest.

The counsel for the plaintiff in error insists that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. In support of this argument he relies on the inhibitions contained in the tenth section of the first article.

We think that section affords a strong if not a conclusive argument in support of the opinion already indicated by the

court..

ment.

The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general governSome of them use language applicable only to congress others are expressed in general terms. The third clause, for example, declares that "no bill of attainder or ex post facto law shall be passed." No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares that

no state shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehen- . sive its language, contains no restriction on state legislation.

The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures. These restrictions are brought together in the same section, and are by express words applied to the states. "No state shall enter into any treaty," &c. Perceiving that in a constitution framed by the people of the United States for the government of all, no limitation of the action of government on

[Barron v. The Mayor and City Council of Baltimore.]

the people would apply to the state government, unless expressed in terms; the restrictions contained in the tenth section are in direct words so applied to the states.

It is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects entrusted to the general government, or in which the people of all the states feel an interest.

A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution. To grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to congress. To coin money is also the exercise of a power conferred on congress. It would be tedious to recapitulate the several limitations on the powers of the states which are contained in this section. They 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 conVOL. VII.-2 G

[Barron v. The Mayor and City Council of Baltimore.] vention 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 three-fourths 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 govern

[Barron v. The Mayor and City Council of Baltimore.]

ment 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 the United States. This court, therefore, has no jurisdiction. of the cause; and it is dismissed.

This cause came on to be heard on the transcript of the record from the court of appeals for the western shore of the state of Maryland, and was argued by counsel: on consideration whereof, it is the opinion of this court 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 the United States; whereupon, it is ordered and adjudged by this court that this writ of error be, and the same is hereby dismissed for the want of jurisdiction.

harles Vattier, appellant v. THOMAS S. HINde, James B. HINDE, MARTHA HINDE, AND JOHN M. HINDE, INFANTS. &c.

bill was filed in the circuit court of Ohio, claiming a conveyance of cer tain real estate in Cincinnati from the defendants, and after a decree in favour of the complainants, and an appeal to the supreme court, the de cree of the circuit court was reversed, because a certain Abraham Garrison, through whom one of the defendants claimed to have derived title, had not been made a party to the proceedings, and who was, at the time of the institution of the same, a citizen of the state of Illinois, although the fact of such citizenship did not then appear on the record. Afterwards, a supplemental bill was filed in the circuit court, and Abraham Garrison appeared and answered, and disclaimed all interest in the case: whereupon the circuit court, with the consent of the complainants, dismissed the bill as to him. By the court. If the defendants have distinct interests, so that substantial justice can be done by decreeing for or against one or more of them, over whom the court has jurisdiction, without affecting the interests of others, its jurisdiction may be exercised as to them. If, when the cause came on for hearing, Abraham Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants, and the bill have been dismissed as to him, if such decree could have been pronounced as to them without affecting his interests. No principle or law is perceived which opposes this course. The incapacity of the court to exercise jurisdiction over Abraham Garrison, could not affect their jurisdiction over other defendants, whose interests were not connected with his, and from whom he was separated, by dismissing the bill as to him.

The cases of Nollan et al. v. Torrance, 9 Wheat. Rep. 537; Connolly et al. v. Taylor, 2 Peters, 556; and Cameron v. M'Roberts, 3 Wheat. Rep. 591, cited and affirmed.

It is the settled practice in the courts of the United States, if the case can be decided on its merits, between those who are regularly before them, although other persons, not within their jurisdiction, may be collaterally or incidentally concerned, who must have been made parties if they had been amenable to its process, that these circumstances shall not expel other suitors who have a constitutional and legal right to submit their case to a court of the United States; provided the decree may be made without affecting their interests. This rule has also been adopted by the court of chancery in England.

Where the new parties to a proceeding in chancery are the legal representatives of an original party, and the proceedings have been revived in their names, by the order of the court on a bill of revivor; the settled practice is to use all the testimony which might have been used if no abatement