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

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 *249] government on the people would apply to the state govern

ment, 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 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.

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

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 [*250 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 twothirds 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 government of [*251 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 Q 2

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

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.

186

CHARLES VATTIER, APPELLANT, V. THOMAS S. HINDE, JAMES B. HINDE, MARTHA HINDE, AND JOHN M. HINDE, INFANTS, &c.

A bill was filed in the circuit court of Ohio, claiming a conveyance of certain real estate in Cincinnati from the defendants, and after a decree in favour of the complainants, and an appeal to the supreme court, the decree 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 *had occurred.

The representatives take the place of those which they represent, and [*253

the suit proceeds in a new form, unaffected by the change of name. Agreements had been made, under which depositions taken in other cases where the same questions of title were involved, should be read in evidence, and on the hearing in the circuit court these depositions were read: afterwards, on an appeal to this court, the decree of the circuit court was reversed, and by the decree of reversal the parties were permitted to proceed de novo. When the case was again heard in the circuit court the defendant objected to the reading of the depositions, asserting that the decree of reversal annulled the written certificate of the parties for the admission of testimony. By the court. The consent to the depositions was not limited to the first hearing, but was co-extensive with the cause. The words in the decree of reversal, that the parties may proceed de novo, are not equivalent to a dismission of the bill without prejudice; nor could the court have understood them as affecting the testimony in the cause; or setting aside the solemn agreement of the parties. The testimony is still admissible to the extent of the agreement.

The rules of law respecting a purchaser without notice, are formed for the protection of him who purchases a legal estate, and pays the purchase money without a knowledge of the outstanding equity. They do not protect a person who

[Vattier v. Hinde.]

acquires no semblance of title. They apply fully, only, to the purchaser of the legal estate. Even the purchaser of an equity is bound to take notice of any prior equity.

The bill set forth a title in B. H., the wife of T. H., by direct descent from her brother to herself, and insisted on this title to certain real estate. The answer of the defendants resisted the claim, because the land had been conveyed by the complainants before the institution of the suit to A. C. The complainant in his replication admitted the execution of the deed to A. C., but averred that it was made in trust to reconvey the lot to T. H., to be held by him for the use and benefit of B. H., his wife and her heirs, and to enable T. H. to manage and liti gate the said rights; and that A. H., in execution of the trust, made a deed to T. H. The deed was recorded, and was exhibited, but it did not state the trust. The rules of the court of chancery will not permit this departure in the replication from the statements of the bill.

The act for regulating processes in the courts of the United States, provides that the forms and modes of proceeding in courts of equity, and in those of admiralty and maritime jurisdiction, shall be according to the principles, rules and usages which belong to courts of equity and to courts of admiralty, respectively, as contradistinguished from courts of common law, subject, however, to alterations by the courts, &c. This act has been generally understood to adopt the principles, rules and usages of the court of chancery of England.

APPEAL from the circuit court of the United States for the district of Ohio.

*254]

This case was before the court at January term, 1828, 1 Peters, 241, on an appeal by the parties who are now appellants. The court, at that term, reversed the decree of the circuit court of Ohio, because a certain Abraham Garrison had not been made a party in that court; and the cause was remanded "with instructions to permit the complainants, the appellees, to amend their bill and to make proper parties, and to proceed de novo in the cause from the filing of such amended bill, as law and equity might require."

In the circuit court an amended bill was filed, making Abraham Garrison a party, and the parties proceeding to a final hearing, a decree was rendered in favour of the complainants, from which decree the defendants appealed to this court.

The case was argued by Mr. Caswell for the appellant; and by Mr. Ewing and Mr. Clay for the appellee.

Mr. Chief Justice MARSHALL delivered the opinion of the court. This suit was originally brought in the court of the United States for the seventh circuit and district of Ohio, sitting in chancery, by Thomas S. Hinde and Belinda his wife, for the conveyance of a lot of ground in the town of Cincinnati, designated in the plan of the town by number 86.

The bill alleges that Abraham Garrison, under whom all parties claim, sold and conveyed the said lot of ground to William and Michael Jones, as is proved by his receipt in the following words. "Received, Cincinnati, 10th September, 1790, of William and Michael Jones, fifty pounds thirteen shillings and three pence, in part, of a lot opposite Mr. Coun's in Cincinnati, for two hundred