U.S. Supreme Court Lessee of Ewing v. Burnet, 36 U.S. 11
Pet. 41 41 (1837) Lessee of Ewing v.
Burnet 36 U.S. (11 Pet.) 41 ERROR TO THE CIRCUIT
COURT OF THE DISTRICT OF
OHIO Syllabus Ejectment. Ohio. It is the exclusive province of the jury to
decide what facts are proved by competent evidence. It is its
province to judge of the weight of testimony as tending, in a
greater or less degree, to prove the facts relied upon.

															An elder legal title to a lot of ground gives a right of
possession, as well as the legal seizure and possession thereof,
coextensive with the right, which continues until there shall be an
ouster by actual adverse possession or the right of possession
becomes in some other way barred.

															An entry by one on the land of another is or is not an ouster of
the legal possession arising from the title according to the
intention with which it is done. If made under claim or color of
right, it is an ouster; otherwise it is a mere trespass. In legal
language, the intention guides the entry, and fixes its
character.

															It is well settled that to constitute an adverse possession,
there need not be a fence, a building, or other improvement made;
it suffices for this purpose that visible notorious acts are
exercised over the premises in controversy for twenty-one years
after an entry under a claim and color of title.

															Where acts of ownership have been done upon land which from
their nature indicate a notorious claim of property in it, and are
continued for twenty-one years with the knowledge of an adverse
claimant without interruption or an adverse entry by him for
twenty-one years, such acts are evidence of an ouster of the former
owner and of an actual adverse possession against him if the jury
shall think that the property was not susceptible of a more strict
and definite possession than had been so taken and held. Neither
actual occupation or cultivation is necessary to constitute actual
possession when the property is so situated as not to admit of any
permanent useful improvement and the continued claim of the party
has been evidenced by public acts of ownership, such as he would
exercise over property which he claimed in his own right, and could
not exercise over property which he did not claim.

															Punctuation is a most fallible standard by which to interpret a
writing; it may be resorted to when all other means fail, but the
court will first take the instrument by its four corners in order
to ascertain its true meaning. If that is apparent on judicially
inspecting it, the punctuation will not be suffered to change
it.

															An adverse possession far twenty-one years under claim or color
of title merely void is a bar to a recovery under an elder title by
deed, although the adverse holder may have had notice of the
deed.

															The plaintiff in error instituted an action of ejectment in the
Circuit Court of Ohio at December term, 1834, against the defendant
to recover a lot of ground in the City of Cincinnati. Both the
plaintiff and the defendant claimed title under deeds from John
Cleves Page 36 U. S. 42 Symmes, the original grantee of the United States, for all the
land on which the City of Cincinnati is erected. The deed from
Symmes, under which the plaintiff asserted his title, was executed
June 11, 1798, to Samuel Forman; the deed from Symmes to the
defendant for the same lot was dated May 21, 1803. An adverse
possession for twenty-one years and upwards was relied on as
constituting a sufficient legal title under the statute of
limitations of Ohio. The case and the evidence are fully stated in
the opinion of the Court.

															The cause was tried at July term 1835, and a verdict, under the
instructions of the court, was found for the defendant, on which a
judgment was rendered. The plaintiff tendered a bill of
exceptions.

															The charge of the court was as follows:

															"The plaintiff having shown a deed for the premises in
controversy older in date than that which was given in evidence by
the defendant, on the prayer of the defendant, the court instructed
the jury that his actual possession of the lot, to protect his
title, under the statute of limitations, must have been twenty-one
years before the commencement of this suit. That suing for trespass
on the lot, paying the taxes, and speaking publicly of his claim
were not sufficient to constitute an adverse possession. That any
possession short of an exclusive appropriation of the property by
an actual occupancy of it so as to give notice to the public and
all concerned that he not only claimed the lot, but enjoyed the
profits arising out of it, was such an adverse possession as the
statute requires. That to constitute an adverse possession, it is
not essential that the property should be enclosed by a fence, or
have a dwelling house upon it. If it were so situated as to admit
of cultivation as a garden or for any other purpose without an
enclosure, and it was so cultivated by the defendant during the
above period, it would be sufficient, or if the lot contained a
coal mine or marble or stone quarry and it was worked the above
period by the defendant, he having entered under a deed for the
whole lot, such an occupancy would be an adverse possession, though
the lot had no dwelling house upon it and was not enclosed by a
fence. And also if the lot contained a valuable sand bank which was
exclusively possessed and used by the defendant for his own benefit
by using the sand himself and selling it to others, and his
occupancy of the lot in this manner was notorious to the public and
all concerned, and if the defendant paid the taxes for the same,
ejected and prosecuted trespasses on the lot, it being Page 36 U. S. 43 situated adjoining to the lots on which the defendant actually
resided, except the intervention of a street which had not been
graduated and opened so as to be used by she public, and said lot
preserved the view of the defendant from his residence
unobstructed, and such possession was continued the time required
by the statute, it would constitute an adverse possession for the
whole lot, the defendant having entered under a deed as aforesaid.
The court also said to the jury the law had been settled in
Kentucky that if a person residing on a tract of land should
purchase by deed another tract adjoining to it, his possession
would be extended over the tract thus purchased, and that this
seemed to be reasonable and was sustained by the doctrine of
possession as generally recognized. That had the lot in controversy
adjoined the premises on which the defendant resided, the case
would come within the rule, but that a street intervened between
the residence of the defendant and the lot in controversy, which
would prevent an application of the rule. " Page 36 U. S. 49 MR. JUSTICE BALDWIN delivered the opinion of the Court.

															In the court below, this was an action of ejectment brought in
November 1834, by the lessor of the plaintiff to recover possession
of lot No. 209 in the City of Cincinnati, the legal title to which
is admitted to have been in John Cleves Symmes, under whom both
parties claimed, the plaintiff by a deed dated 11 June 1798, to
Samuel Foreman, who on the next day conveyed to Samuel Williams,
whose right after his death became vested in the plaintiff; the
defendant claimed by a deed to himself dated 21 May, 1803, and an
adverse possession of twenty-one years before the bringing of the
suit.

															It was in evidence that the lot in controversy is situated on
the corner of Third and Vine Streets, fronting on the former 198,
on the latter 98, feet; the part on Third Street is level for a
short distance, but descends towards the south along a steep bank
from forty to fifty feet to its south line; the side of it was
washed in gullies over and around which the people of the place
passed and repassed at pleasure. The bed of the lot was principally
sand and gravel, with but little loam or soil; the lot was not
fenced, nor had any building or improvement been erected or made
upon it until within a few years before suit brought; a fence could
have been kept up on the level ground on the top of the hill on
Third Street, but not on its declivity, on account of the deep
gullies washed in the bank, and its principal use and value was in
the convenience of digging sand and gravel for the inhabitants.
Third Street separated this lot from the one on which the defendant
resided from 1804, for many years, his mansion fronting on that
street; he paid the taxes upon this lot from 1810 until 1834,
inclusive, and from the date of the deed from Symmes until the
trial claimed it as his own. During this time he also claimed the
exclusive right of digging and removing sand and gravel from the
lot, giving permission to some, refusing it to others; he brought
actions of trespass against those who had done it, and at different
times made leases to different persons for the purpose of taking
sand and gravel therefrom, besides taking it for his own use as he
pleased. This had been done by others without his permission, but
there was no evidence of his acquiescence in the claim of any
person to take or remove the sand or gravel or that he had ever
intermitted his claim to the exclusive right of doing so; on the
contrary, several witnesses testified to his continued assertion of
right to the lot, their knowledge of his exclusive claim, and their
ignorance of any adverse claim for more than twenty-one years Page 36 U. S. 50 before the present suit was brought. They further stated as
their conclusion from these facts that the defendant had, from
1806, or 1807, in the words of one witness, "had possession of the
lot;" of another that since 1804, "he was as perfectly and
exclusively in possession as any person could possibly be of a lot
not built on or enclosed;" and of a third "that since 1811, he had
always been in the most rigid possession of the lot in dispute; a
similar possession to other possessions on the hill lot." It was
further in evidence that Samuel Williams, under whom the plaintiff
claimed, lived in Cincinnati from 1803, until his death in 1824;
was informed of defendant's having obtained a deed from Symmes in
1803, soon after it was obtained, and knew of his claim to the lot;
but there was no evidence that he ever made an entry upon it,
demanded possession, or exercised or assumed any exercise of
ownership over it, though he declared to one witness, produced by
plaintiff, that the lot was his and he intended to claim and
improve it when he was able. This declaration was repeated often
from 1803 till the time of his death, and on his death bed, and it
appeared that he was during all this time very poor; it also
appeared in evidence by the plaintiff's witness that the defendant
was informed that Williams owned the lot before the deed from
Symmes in 1803 and after he had made the purchase.

															This is the substance of the evidence given at the trial and
returned with the record and a bill of exceptions, stating that it
contains all the evidence offered in the cause; whereupon the
plaintiff's counsel moved the court to instruct the jury that on
this evidence the plaintiff was entitled to a verdict; also that
the evidence offered by the plaintiff and defendant was not
sufficient in law to establish an adverse possession by the
defendant, which motions the court overruled. This forms the first
ground of exception by the plaintiff to the overruling his motions:
1. the refusal of the court to instruct the jury that he was
entitled to recover; 2. that the defendant had made out an adverse
possession.

															Before the court could have granted the first motion, it must
have been satisfied that there was nothing in the evidence or any
fact which the jury could lawfully infer therefrom which could in
any way prevent the plaintiff's recovery; if there was any evidence
which conduced to prove any fact that could produce such effect,
the court must assume such fact to have been proved, for it is the
exclusive province of the jury to decide what facts are proved
by Page 36 U. S. 51 competent evidence. It was also its province to judge of the
credibility of the witnesses and the weight of their testimony as
tending, in a greater or less degree, to prove the facts relied on;
as these were matters with which the court could not interfere, the
plaintiff's right to the instruction asked must depend upon the
opinion of the court, on a finding by the jury in favor of the
defendant, on every matter which the evidence conducted to prove,
giving full credence to the witnesses produced by him and
discrediting the witness for the plaintiff.

															Now as the jury might have refused credence to the only witness
who testifies to the notice given to the defendant of Williams'
ownership of the lot in 1803 and of his subsequent assertion of
claim and intention to improve it, the testimony of this witness
must be thrown out of the case in testing the correctness of the
court in overruling this motion; otherwise we should hold the court
below to have erred in not instructing the jury on a matter
exclusively for its consideration -- the credibility of a witness
or how far his evidence tended to prove a fact if it deemed him
credible. This view of the case throws the plaintiff back to his
deed as the only evidence of title, on the legal effect of which
the court was bound to instruct the jury as a matter of law, which
is the only question to be considered on this exception.

															It is clear that the plaintiff had the elder legal title to the
lot in dispute, and that it gave him a right of possession, as well
as the legal seizin and possession thereof, coextensively with his
right, which continued till he was ousted by an actual adverse
possession, 31 U. S. 6 Pet.
743, or his right of possession had been in some other way barred.
It cannot be doubted that from the evidence adduced by the
defendant it was competent for the jury to infer these facts --
that he had claimed this lot under color and claim of title from
1804 until 1834; had exercised acts of ownership on and over it
during this whole period; that his claim was known to Williams and
to the plaintiff; was visible, of public notoriety, for twenty
years previous to the death of Williams. And if the jury did not
credit the plaintiff's witness, they might also find that the
defendant had no actual notice of Williams' claim; that it was
unknown to the inhabitants of the place, while that of the
defendants was known, and that Williams never did claim the lot, to
assert a right to it from 1803 until his death in 1824. The jury
might also draw the same conclusion from these facts as the
witnesses did; that the Page 36 U. S. 52 defendant was during the whole time in possession of the lot as
strictly, perfectly, and exclusively as any person could be of a
lot not enclosed or built upon or as the situation of the lot would
admit of. The plaintiff must therefore rely on a deed of which he
had given no notice, and in opposition to all the evidence of the
defendant, and every fact which a jury could find, that would show
a right of possession in him, either by the presumption of a
release or conveyance of the elder legal title or by an adverse
possession. On the evidence in the cause, the jury might have
presumed a release, a conveyance, or abandonment of the claim or
right of Williams under a deed in virtue of which he had made no
assertion of right from 1798 in favor of a possession, such as the
defendant held from 1804, though it may not have been strictly such
an adverse possession, as would have been a legal bar, under the
act of limitations. There may be circumstances which would justify
such a presumption in less than twenty-one years, 31 U. S. 6 Pet.
513, and we think that the evidence in this case was in law
sufficient to authorize the jury to have made the presumption, to
protect a possession, of the nature testified, for thirty years,
and if the jury could so presume, there is no error in overruling
the first motion of the plaintiff.

															On the next motion the only question presented is on the legal
sufficiency of the evidence to make out an ouster of the legal
seizin and possession of Williams by the defendant, and a continued
adverse possession for twenty-one years before suit brought. An
entry by one man on the land of another is an ouster of the legal
possession arising from the title or not according to the intention
with which it is done; if made under claim and color of right, it
is an ouster, otherwise it is a mere trespass; in legal language,
the intention guides the entry and fixes its character. That the
evidence in this case justified the jury in finding an entry by the
defendant on this lot as early as 1804 cannot be doubted, nor that
he claimed the exclusive right to it under color of title from that
time until suit brought. There was abundant evidence of the
intention with which the first entry was made, as well as of the
subsequent acts related by the witnesses, to justify a finding that
they were in assertion of a right in himself, so that the only
inquiry is as to the nature of the possession kept up.

															It is well settled that to constitute an adverse possession,
there need not be a fence, building, or other improvement made, 35 U. S. 10 Pet. 442; it suffices for this purpose that visible and notorious
acts of ownership are exercised over the premises in Page 36 U. S. 53 controversy for twenty-one years after an entry under claim and
color of title. So much depends on the nature and situation of the
property, the uses to which it can be applied or to which the owner
or claimant may choose to apply it, that it is difficult to lay
down any precise rule adapted to all cases. But it may with safety
be said that where acts of ownership have been done upon land which
from their nature indicate a notorious claim of property in it and
are continued for twenty-one years with the knowledge of an adverse
claimant, without interruption, or an adverse entry by him for
twenty-one years, such acts are evidence of an ouster of a former
owner and an actual adverse possession against him if the jury
shall think that the property was not susceptible of a more strict
or definite possession than had been so taken and held. Neither
actual occupation, cultivation, nor residence is necessary to
constitute actual possession, 31 U. S. 6 Pet.
513, when the property is so situated as not to admit of any
permanent useful improvement and the continued claim of the party
has been evidenced by public acts of ownership such as he would
exercise over property which he claimed in his own right and would
not exercise over property which he did not claim. Whether this was
the situation of the lot in question or such was the nature of the
acts done was the peculiar province of the jury; the evidence, in
our opinion, was legally sufficient to draw the inference that such
were the facts of the case, and if found specially, would have
entitled the defendant to the judgment of the court in his favor;
it of course did not err in refusing to instruct the jury that the
evidence was not sufficient to make out an adverse possession.

															The remaining exceptions are to the charge of the court, in
which we can receive no departure from established principles. The
learned judge was very explicit in stating the requisites of an
adverse possession; the plaintiff had no cause of complaint to a
charge stating that exclusive appropriation, by an actual
occupancy, notice to the public and all concerned of the claim, and
enjoyment of profits by defendant were all necessary. No
adjudication of this Court has established stricter rules than
these, and if any doubts could arise as to their entire
correctness, it would be on an exception by the defendant. In
applying them in the subsequent part of the charge to the evidence,
there seems to have been no relaxation of these rules. The case put
by the court as one of adverse possession is of a valuable sand
bank, exclusively possessed and used by the defendant for his Page 36 U. S. 54 own benefit by using and selling the sand, and this occupancy,
notorious to the public and all concerned, which fully meets all
the requisites before stated to constitute adverse possession. If
we take the residue of the charge literally, it would seem to
superadd other requisites, as the payment of taxes, ejecting and
prosecuting trespassers on the lot, its contiguity to the
defendant's residence, &c., but such is not the fair
construction of the charge nor the apparent meaning of the court.
These circumstances would seem to have been alluded to to show the
intention with which the acts previously referred to were done, in
which view they were important, especially the uninterrupted
payment of taxes on the lot for twenty-four successive years, which
is powerful evidence of a claim of right to the whole lot. The
plaintiff's counsel has considered these circumstances making a
distinct case, in the opinion of the court, for the operation of
the statute, and has referred to the punctuation of the sentence in
support of this view of the charge. Its obvious meaning is,
however, to state these as matters additional or cumulative to the
preceding facts, not as another distinct case, made out by the
evidence, on which alone the jury could find an adverse possession.
Punctuation is a most fallible standard by which to interpret a
writing; it may be resorted to when all other means fail, but the
court will first take the instrument by its four corners in order
to ascertain its true meaning; if that is apparent, on judicially
inspecting the whole, the punctuation will not be suffered to
change it.

															It has also been urged in argument that as the defendant had
notice of the claim of Williams, his possession was not fair and
honest, and so not protected by the statute. This admits of two
answers: 1. the jury were authorized to negative any notice; 2.
though there was such notice of a prior deed, as would make a
subsequent one inoperative to pass any title, yet an adverse
possession for twenty-one years, under claim and color of title,
merely void, is a bar; the statutory protection being necessary
only where the defendant has no other title but possession during
the period prescribed. The judgment of the circuit court is
therefore affirmed. Judgment affirmed.


U.S. Supreme Court Barron v. Mayor & City Council of
Baltimore, 32 U.S. 7 Pet. 243 243 (1833) Barron v. Mayor & City Council
of Baltimore 32 U.S. (7 Pet.) 243 ON WRIT OF ERROR TO THE COURT OF
APPEALS FOR THE WESTERN SHORE OF THE STATE
OF MARYLAND Syllabus The provision in the Fifth Amendment to the Constitution of the
United States 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.

															The Constitution was ordained and established by the people of
the United States for themselves, for their own government, and not
for the government of individual States. Each State established a
constitution for itself, and in that constitution provided such
limitations and restrictions on the powers of its particular
government as its judgment dictated. The people of the United
States framed such a government for the United States as they
supposed best adapted to their situation, and best calculated to
promote their interests. The powers they conferred on this
government were to be exercised by itself, and the limitations on
power, if expressed in general terms, are naturally and necessarily
applicable to the government created by the instrument. They are
limitations of power granted in the instrument itself, not of
distinct governments framed by different persons and for different
purposes.

															This case was instituted by the plaintiff in error, against the
City of Baltimore, under its corporate title of "The Mayor and City
Council of Baltimore," to recover damages for injuries to the wharf
property of the plaintiff, arising from the acts of the
corporation. Craig & Barron, of whom the plaintiff was
survivor, were owners of an extensive and highly productive wharf
in the eastern section of Baltimore, enjoying, at the period of
their purchase of it, the deepest water in the harbor. The city, in
the asserted exercise of its corporate authority over the harbor,
the paving of streets, and regulating grades for paving, and over
the health of Baltimore, diverted from their accustomed and natural
course certain streams of water which flow from the range of hills
bordering the city, and diverted them, partly by adopting new
grades of streets, and partly by the necessary results of paving,
and partly by mounds, Page 32 U. S. 244 embankments and other artificial means purposely adapted to bend
the course of the water to the wharf in question. These streams
becoming very full and violent in rains, carried down with them
from the hills and the soil over which they ran large masses of
sand and earth, which they deposited along, and widely in front of
the wharf of the plaintiff. The alleged consequence was that the
water was rendered so shallow that it ceased to be useful for
vessels of an important burden, lost its income, and became of
little or no value as a wharf. This injury was asserted to have
been inflicted by a series of ordinances of the corporation,
between the years 1815 and 1821; and that the evil was progressive;
and that it was active and increasing even at the institution of
this suit in 1822.

															At the trial of the cause in the Baltimore county court, the
plaintiff gave evidence tending to prove the original and natural
course of the streams, the various works of the corporation from
time to time to turn them in the direction of this wharf, and the
ruinous consequences of these measures to the interests of the
plaintiff. It was not asserted by the defendants, that any
compensation for the injury was ever made or proffered, but they
justified under the authority they deduced from the charter of the
city, granted by the legislature of Maryland, and under several
acts of the legislature conferring powers on the corporation in
regard to the grading and paving of streets, the regulation of the
harbor and its waters, and to the health of the city. They also
denied, that the plaintiff had shown any cause of action in the
declaration, asserting that the injury complained of was a matter
of public nuisance, and not of special or individual grievance in
the eye of the law. This latter ground was taken on exception, and
was also urged as a reason for a motion in arrest of judgment. On
all points, the decision of Baltimore county court was against the
defendants, and a verdict for $4,500 was rendered for the
plaintiff. An appeal was taken to the court of appeals, which
reversed the judgment of Baltimore county court, and did not remand
the case to that court for a further trial. From this judgment, the
defendant in the court of appeals prosecuted a writ of error to
this court. Page 32 U. S. 245 The counsel for the plaintiff presented the following points:
the plaintiff in error will contend that apart from the legislative
sanctions of the state of Maryland, and the acts of the corporation
of Baltimore, holding out special encouragement and protection to
interests in wharves constructed on the shores of the Patapsco
river, and particularly of the wharf erected by Craig and the
plaintiff, Barron; the right and profit of wharfage, and use of the
water at the wharf, for the objects of navigation, was a vested
interest and incorporeal hereditament, inviolable even by the state
except on just compensation for the privation; but the act of
assembly and the ordinance of the City are relied on as enforcing
the claim to the undisturbed enjoyment of the right.

															This right was interfered with, and the benefit of this property
taken away from the plaintiff by the corporation avowedly, as the
defence showed, for public use, for an object of public interest --
the benefit more immediately of the community of Baltimore, the
individuals, part of the population of Maryland, known by the
corporate title of the Mayor and City Council of Baltimore. The
"inhabitants" of Baltimore are thus incorporated by the Acts of
1796, ch. 68. As a corporation, they are made liable to be sued,
and authorized to sue, to acquire and hold and dispose of property
and, within the scope of the powers conferred by the charter, are
allowed to pass ordinance and legislative acts, which it is
declared by the charter shall have the same effect as acts of
assembly, and be operative, provided they be not repugnant to the
laws of the state, or the constitution of the state, or of the
United States. The plaintiff will contend accordingly:

															1. That the Mayor and City Council of Baltimore, though viewed
even as a municipal corporation, is liable for tort and actual
misfeasance, and that it is a tort, and would be so even in the
state, acting in her immediate sovereignty to deprive a citizen of
his property, though for public uses, without indemnification;
that, regarding the corporation as acting with the delegated power
of the state, the act complained of is not the less an actionable
tort.

															2. That this is the case of an authority exercised under a Page 32 U. S. 246 State, the corporation appealing to the legislative acts of
Maryland for the discretional power which it has exercised.

															3. That this exercise of authority was repugnant to the
constitution of the United States, contravening the fifth article
of the amendments to the constitution, which declares that "private
property shall not be taken for public use, without just
compensation," the plaintiff contending, that this article declares
principles which regulate the legislation of the states for the
protection of the people in each and all the states, regarded as
citizens of the United States or as inhabitants subject to the laws
of the Union.

															4. That under the evidence, prayers, and pleadings in the case,
the constitutionality of this authority exercised under the state
must have been drawn in question, and that this court has appellate
jurisdiction of the point, from the judgment of the Court of
Appeals of Maryland, the highest court of that state, that point
being the essential ground of the plaintiff's pretention in
opposition to the power and discussion of the corporation.

															5. That this court, in such appellate cognisance, is not
confined to the establishment of an abstract point of construction,
but is empowered to pass upon the right or title of either party,
and may therefore determine all points incidental or preliminary to
the question of title and necessary in the course to that inquiry;
that consequently, the question is for this court's determination
whether the declaration avers actionable matter, or whether the
complaint is only of a public nuisance, and on that head, the
plaintiff will contend, that special damage is fully shown here,
within the principle of the cases where an individual injury
resulting from a public nuisance is deemed actionable, the wrong
being merely public only so long as the law suffered in the
particular case is no more than all members of the community
suffer.

															Upon these views, the plaintiff contends that the judgment of
the court of appeals ought to be reversed. Page 32 U. S. 247 Mr. Chief Justice MARSHALL delivered the opinion of the
court.

															The judgment brought up by this writ of error having been
rendered by the court of a State, this tribunal can exercise no
jurisdiction over it unless it be shown to come within the
provisions of the 25th section of the Judiciary Act. The plaintiff
in error contends that it comes within that clause in the Fifth
Amendment to the Constitution which inhibits the taking of private
property for public use without just compensation. He insists that
this amendment, being in favor of the liberty of the citizen, ought
to be so construed as to restrain the legislative power of a state,
as well as that of the United States. If this proposition be
untrue, the court can take no jurisdiction of the cause.

															The question thus presented is, we think, of great importance,
but not of much difficulty. The Constitution was ordained and
established by the people of the United States for themselves, for
their own government, and not for the government of the individual
States. Each State established a constitution for itself, and in
that constitution provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The
people of the United States framed such a government for the United
States as they supposed best adapted to their situation and best
calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself, and the limitations
on power, if expressed in general terms, are naturally, and we
think necessarily, applicable to the government created by the
instrument. They are limitations of power granted in the instrument
itself, not of distinct governments framed by different persons and
for different purposes.

															If these propositions be correct, the fifth amendment must be
understood as restraining the power of the General Government, not
as applicable to the States. In their several Constitutions, they
have imposed such restrictions on their respective Page 32 U. S. 248 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 further 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. It 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. 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 Government.
Some 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 comprehensive 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 Page 32 U. S. 249 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 intrusted 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 intrusted 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 State; 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
could have been applied by themselves. A Page 32 U. S. 250 convention could have been assembled by the discontented State,
and the required improvements could 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 Page 32 U. S. 251 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 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.