ready determined that the same testimony | ezuelan republic, signed, as others were, by which would be sufficient to prove that a cruis- Bolivar. Although the court, in another case, ing vessel is in the service of an acknowledged has said that the seal of a government unacstate, is sufficient to prove that it is in the knowledged cannot be permitted to prove itself; service of a newly-created government, like that it has, in the same case, said that the fact of a of Venezuela.1 vessel being so employed may be established without proving the seal.3 But if the constileged that the same was issued or delivered within the waters of the United States, with intent that she should be employed in the service of Venezuela, to commit hostilities, at sea, against the subjects of the King of Spain, with This allegation is not supported by any evidence; on the contrary, the same witnesses [*305 who declare that the Constitution was a commissioned vessel, and whose testimony has already been adverted to, establish, beyond controversy, that the same was obtained abroad, and not issued or delivered within the United States. Mr. Sergeant, contra, argued, upon the facts, that the right of the original Spanish owner totution had a commission on board, it is next alrestitution was established by satisfactory proof both of the increase of the armament and crew of the privateer within the United States. He insisted, that the act of 1794, c. 226, was not repealed by that of 1817, c. 58; and that, even if it were, the right to restitution depend-whom the United States were at peace. ed upon the general law of nations, and treaties. The claimant having proved the facts of 303*] *an increase of the crew in New Orleans, the onus probandi of showing that the persons enlisted were citizens of Venezuela, transiently within the United States, was thrown upon the captors. The commission under which the capture was professedly made, being that of a new government, not yet acknowledged by the United States, its commission ought to have been produced, and the seal proved; and if actually lost with the privateer, an exemplified copy ought to have been obtained duly authenticated by the proper officers of that government. All the circumstances of the case combined to show that this was not a capture in the regular exercise of the rights of war; but a piratical seizure, in breach of our neutrality, aggravated by an intention to violate the revenue laws, which was evinced by the fact of the vessel having been found hovering on the coast of Louisiana, instead of being conducted to the ports of Venezuela for adjudication. The first allegation of the Spanish owner is, that the Constitution had no lawful commission from any sovereign state to commit hostilities at sea; and he contends that the commission in the present case, if any there was, being that of a government not acknowledged by the United States, ought to have been produced, and its seal proved; or that if the vessel carrying it had been lost, yet an exemplification of it ought to have been obtained from the proper depart304*] ment of the state which issued it. The court is satisfied with the proof which has been made, of the Constitution having had a commission at the time of making the capture, and that such commission was granted by the government of Venezuela; and also, that the same was lost with the privateer herself, a very short time after the prize crew took possession of the Estrella. The fact of the sinking of the Constitution is not disputed; and that she had, at the time she went down, a commission on board, is also fully made out, which commission there is no reason to believe was any other than the one which the collector of New Orleans says was on board when she arrived in that port from Carthagena. This was some time in the month of October, in the year 1816. Mr. Chew then saw the commission, and describes it as a very regular one from the Ven 1.-The United States v. Palmer, 3 Wheat. 610, 635. 2.-1 Wheat. 244, note c; 2 Sir L. Jenkins's Works, 727. Ib. 780. The libel next alleges that the Constitution, previous to her last cruise, had been fitted out and armed, or that her force had been increased or augmented, within the jurisdiction and waters of the United States, and also that she had there been manned by sundry citizens or residents of the United States with the same intent. Whatever doubt there may be as to the augmenation of the armament of the Constitution within the United States, the court is satisfied that a very considerable addition was made to her crew, at New Orleans, after her arrival at that port; one of the custom-house officers declares that, at that time, she had only from twenty to twenty-five men. Another of these officers, who went on board on her first arrival, states the number of her crew at about twenty; and a witness by the name of Guzman, totally unconnected with this transaction, mentions by name two persons who entered on board while she was lying there. Several of the original crew of the Estrella have also been examined to this point, who state, that after the capture, they had many conversations with the officers and seamen who composed the prize crew, by whom they were informed that the Constitution, when she left Carthagena, had but few hands on board; that at New *Orleans [*306 she shipped almost the whole of her crew, which, at the time of the Estrella's capture. amounted to sixty or seventy men. This species of testimony has been objected to as being hearsay, and proceeding from a source entitled to no great credit; although there may be something in this objection, it is no reason for rejecting the evidence altogether. If the testimony be hearsay, it must be recollected that the declarations proceeded from persons very much interested in giving a different representation of the transaction; and as to the witnesses themselves, although they formed a part of the Estrella's crew, and may have felt some little interest in the question, they were the only persons who could give any account of the armament or crew of the Constitution at the time of her making the capture. It may be also remarked that the testimony of these men is in this respect corroborated by that of other witnesses, who are liable to no objection, and that their declarations, if untrue, might have 8. The United States v. Palmer, 3 Wheat. 635. been disproved by the claimant, by showing where and when the crew of the Constitution had been entered. But if any of the crew of the Constitution were enlisted or entered within the jurisdiction of the United States, they may, it is said, have been citizens or subjects of the republic of Venezuela, who were transiently in the United States at the time of her arrival, and had, therefore, a right, within one of the provisos of the second section of the act of Congress, of the 7th of June, 1794, c. 226, to enlist or enter themselves on board of her; and it is insisted, that the libellant should have shown that they were not persons of this de307*] scription. *The court is not of this opinion. On the libelant, in the first instance, lay the onus of showing that the crew of the Constitution had been increased within the United States; having done this, it became incumbent on the captors, if they wanted to establish their innocence, to show, as was in their power, if the fact was so, that they had done nothing contrary to law, by bringing their case within the proviso that has been mentioned. The allegation, then, in the libel being made out, that the Constitution, being a privateer commissioned by the republic of Venezuela, was manned within the United States, previous to the cruise on which she captured the Estrella, by sundry citizens or residents of the United States; it remains to see whether the libellant has not made out a case for restitution. It has been attempted, but without success, to distinguish this case in principle from several which have already been decided in this court. We have been told, as heretofore, that to the courts of the nation to which the captor belongs, and from which his commission issues, exclusively appertains the right of adjudicating on all captures and questions of prize. This is not denied; nor has the court ever felt any disposition to intrench on this rule; but, on the contrary, whenever an occasion has occurred, as in the case of the Invincible,' it has been governed by it. Not only is it a rule well established by the customary and conventional law 308*] of nations, but it is *founded in good sense, and is the only one which is salutary and safe in practice. It secures to a belligerent the independence to which every sovereign state is entitled, and which would be somewhat abridged, were he to condescend so far as to permit those who bear his commission to appear before the tribunals of any other country, and submit to their interpretation, or control, the orders and instructions under which they have acted. It ensures, also, not only to the belligerent himself, but to the world at large, a great degree of caution and responsibility, on the part of the agents whom he appoints; who not only give security to him for their good behavior, but will sometimes be checked in a lawless career, by the consideration that their conduct is to be investigated by the courts of their own nation, and under the very eye of the sovereign under whose sanction they are committing hostilities. In this way, also, is a foundation laid for a claim by other nations, of an indemnity against the belligerent, for the injuries which their subjects may sustain, by 1.-1 Wheat. 238. the operation of any unjust or improper rule, which he may think proper to prescribe for those who act under his authority. But general, and firmly established as this rule is, it is not more so than some of the exceptions which have grown out of it. A neutral nation which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law which may arise in the prog- [*309 ress of such discussion. But it is no departure from this obligation, if, in a case in which a captured vessel be brought, or voluntarily comes, infra præsidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on it own neutrality by the vessel which has made the capture. So long as a nation does not interfere in the war, but professes an exact impartiality toward both parties, it is its duty, as well as right-and its safety, good faith, and honor demand of it-to be vigilant in preventing its neutrality from being abused, for the purposes of. hostility against either of them. This may be done, not only by guarding, in the first instance, as far as it can, against all warlike preparations and equipments in its own waters, but, also, by restoring to the original owner such property as has been wrested from him by vessels which have been thus illegally fitted out. In the performance of this duty, and the belligerents must be supposed to have an equal interest, and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and tothejustdissatisfaction and complaints of the beligerent. the property of whose subjects should not, under such circumstances, be restored. The United States, instead of opening their ports to all the contending parties, when at peace themselves (as may be done, if not prevented by antecedent treaties), have always thought it the wisest and safest course to interdict them all from fitting out or furnishing vessels of war within their limits, and to punish those who may contribute to such equipments. *To enforce a general and strict observ- [*310 ance of this neutrality, on the part of our own citizens, and of others who reside among us, a law passed, as early as the year 1794, making it penal, among other things, for anyone, within the jurisdiction of the United States, to enlist in the service of any foreign prince or state, as a soldier, marine, or seaman on board of any vessel of war, letter of marque, or privateer. This law, it is supposed, was not in force at the time when the crew of the Constitution was increased at New Orleans, having been repealed, as is alleged, by the act of the 3d of March, 1817, c. 58. But this act contains no repealing. clause of this or any other section of the former law; and having made no provision on the subject of enlistment, it must have been the intention of the legislature to leave in full force all those parts of the first law which had undergone no alteration, in the one which was then passing, and we therefore find no repeal of the act in question, until the 20th of April. 1818, when all the provisions respecting our neutral relations were embraced by one act, and all former laws on the same subject were re- [Practice.] MILLER (for the use of the United States) V. NICHOLLS. Where a cause is brought to this court, by writ of error, or appeal, from the highest court of law or equity of a state, under the 25th section of the judiciary act of 1789, c. 20, upon the ground that the validity of a statute of the United States was drawn in question, and that the decision of the state court was against its validity, etc., or that the validity of a statute of the state was drawn in question, as repugnant to the constitution of the United States, and the decision was in favor of its validity; it must appear, from the record, that the act of Congress, or the constitutionality of the state law, was drawn into question. But it is not required that the record should, in 312*] terms, state a misconstruction of the act of Congress, or that it was drawn into question. It is sufficient to give this court jurisdiction of the cause, that the record should show that an act of Congress was applicable to the case. E RROR to the Supreme Court of the State of the same being sold to the highest bidder, forthe sum of $14,530, the same was brought into court, and is now deposited in the hands of the prothonotary of said court, subject to the orders of the same court. That, on the 22d of December, 1797, the accounts of the said William Nicholls with the commonwealth of Pennsylvania were settled by the comptroller and register-general of the commonwealth. (Prout account and settlement.) That an appeal from said settlement was filed in the office of *the prothonotary of the said Supreme [*313 Court on the 6th day of March, 1798, and judg ment thereupon entered in favor of the commonwealth against the said William Nicholls, in the said Supreme Court, on the 6th of September, 1798, for the sum of $9,987.15. Upon the preceding statement, the following question is submitted to the consideration of the court: Whether the said settlement of the said pub. lic accounts of the said William Nicholls, as aforesaid, on the 22d of December, 1797, was, and is, a lien, from the date thereof, upon the real estate of the said William Nicholls, and which has since been sold as aforesaid. A. J. Dallas, for the United States. December 2d, 1803. The Supreme Court of Pennsylvania, on the 21st of March, 1805, on motion of Mr. M'Kean, Attorney-General of the said commonwealth, made a rule on the plaintiff in error, to show cause why the amount of the debt due to the said commonwealth should not be taken out of court. And on the 22d of March, 1805, Alexander James Dallas, the attorney of the United States, for the district of Pennsylvania, came into court and suggested, "that the commonwealth of Pennsylvania ought not to be permitted to have and receive the money levied and produced by virtue of the execution in the suit, because the said *attorney, on behalf of [*314 the United States saith, that as well by virtue of the said execution as of divers acts of Congress, and particularly of an act of Congress entitled 'an act to provide more effectually for the settlement of accounts between the United States and receivers of public moneys,' approved the 3d of March, 1797, the said United States are entitled to have and receive the money aforesaid, and not the said commonwealth of Pennsylvania. A. J. Dallas." The record then proceeds as follows: "And now, to wit, this 13th day of September, 1805, the motion of the Attorney-General, to take the money out of court, was granted by the unanimous opinion of the court." The proceedings were afterwards brought before this court by writ of error. The case agreed in the court below, stated that William Nicholls, collector, etc., being indebted to the United States of America, on the 9th of June, 1798, executed a mortgage to Henry Miller, for the use of the United States, in the sum of $59,444, conditioned for the pay- Mr. Sergeant, for the defendant in error, ment of $29,271, payable, $9,757 on or before moved to dismiss the writ of error in this cause, the 1st of January, 1799, $9,757 on or before for want of jurisdiction, under the judiciary act the 9th of June, 1799; and $9,757 on or before of the 24th of September, 1789, c. 20, s. 25; it the 9th of September. 1799. A scire facias was nowhere appearing upon the face of the record issued upon the said mortgage, returnable to that any question arose respecting the validity September term of the said Supreme Court of of any treaty or statute of the United States. Pennsylvania, in the year 1800, and judgment or of any statute of the state, upon the ground. thereupon entered up, in the said Supreme of its repugnancy to the constitution or laws of Court, on the 6th of March, 1802, and there- the United States.1 upon a levari facias issued, and was levied upon the property of the said William Nicholls, and 1. Martin v. Hunter's lessee, 1 Wheat. 304; Inglee v. Coolidge, 2 Wheat. 363. The Attorney-General, contra. 215*] *Marshall, Ch. J., delivered the opinion of the court: The question decided in the Supreme Court for the state of Pennsylvania respect only the construction of a law of that state. It does not appear, from the record, that either the constitutionality of the law of Pennsylvania, or any act of Congress was drawn into question. It would not be required that the record should, in terms, state a misconstruction of an act of Congress, or that an act of Congress was drawn into question.. It would have been sufficient to give this court jurisdiction of the cause, that the record should show that an act of Congress was applicable to the case. That is not shown by this record. The act of Congress which is supposed to have been disregarded, and which, probably, was disregarded by the state court, is that which gives the United States priority in cases of insolvency. Had the fact of insolvency appeared upon the record, that would have enabled this court to revise government of the Union, be an appropriate meas ure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. The act of the 10th April, 1816, c. 44, to "incor porate the subscribers to the Bank of the United States," is a law made in pursuance of the constitution. The Bank of the United States has, constitution ally, a right to establish its branches or offices of discount and deposit within any state. The state, within which such branch may be es tablished, cannot, without violating the constitu tion, tax that branch. The state governments have no right to tax any of the constitutional means employed by the gov ernment of the Union to execute its constitutional powers. *The states have no power, by taxation, [*317 • or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress, to carry into effect the powers vested in the national government. This principle does not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular state, nor to a tax imposed on the proprietary interest which the citizens of that state may hold in this institution, in common with other property of the same description throughout the state. RROR to the Court of Appeals of the state the judgment of the Supreme Court of Pennsy of Maryland. Νο vania. But that fact does not appear. The writ of error must be dismissed. V. THE STATE OF MARYLAND et al. Congress has power to incorporate a bank. The government of the Union is a government of the people; it emanates from them; its powers are granted by them; and are to be exercised di rectly on them, and for their benefit. This was an action of debt brought by the defendant in error, John James, who sued as well for himself as for the state of Maryland, in the County Court of Baltimore county, in the said state, against the plaintiff in error, M'Culloch, to recover certain penalties under the act of the legislature of Maryland, hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement of facts, agreed and submitted to the court by the parties, was affirmed by the Court of Appeals of the state of Maryland, the highest court of law of said state, and the cause was brought, by writ of error, to this court: It is admitted by the parties in this cause, by their counsel, that there was passed on the 10th day of April, 1816, by the Congress of the United States, an act, entitled, "An act to incorporate the subscribers to the Bank of the United States;" and that there was passed, on the 11th day of February, 1818, by the general Assembly of Maryland, an act, entitled, "An The government of the Union, though limited in act to impose a tax on all banks, or branches its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the conthereof, in the state of Maryland, not chartered stitution, form the supreme law of the land. by the legislature," *which said acts are [*318 There is nothing in the constitution of the Unit-made part of this statement, and it is agreed ed States, similar to the articles of confederation, which exclude incidental or implied powers. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. The power of establishing a corporation is not a distinct sovereign power or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the Union, it may be exercised by that government. If a certain means to carry into effect any of the powers, expressly given by the constitution to the NOTE. As to the power of Congress to charter a United States Bank, see 2 Story on the constitution, sees. 1.259 to 1,271, and the notes thereto, especially Hamilton's argument at pages 143, et seq.; 1 Kent's Comm. 248 to 255; Osborne v. Bank of U. S. 9 Wheat. 738. may be read from the statute books in which they are respectively printed. It is further admitted, that the president, directors and company of the Bank of the United States, incorporated by the act of Congress aforesaid, did organize themselves, and go into full operation in the city of Philadelphia, in the state of Pennsylvania, in pursuance of the said act, and that they did on the day of eighteen hundred and seventeen, establish a branch of the said bank, or an office of discount and deposit in the city of Baltimore, in the state of Maryland, which has from that time until the first day of May, ever since eighteen hundred and eighteen, transacted and carried on business as a bank, or office of discount and deposit, and as a branch of the said Bank of the United States, by issuing bank notes and discounting promissory notes, and performing other operations usual and customary for banks to do and perform, under the authority and by the direction of the said president, directors and company of the Bank of the United States, established at Philadelphia as aforesaid. It is further admitted, that the said president, directors and company of the said bank, had no authority to establish the said branch or office of discount and deposit at the city of Baltimore, from the state of Maryland, otherwise than the said state having adopted the constitution of the United States and composing one of the states of the Union. It is further admitted, that James William M'Culloch, the defendant below, being the cashier of the said branch or office of 319*] discount and *deposit, did, on the several days set forth in the declaration in this cause, issue the said respective bank notes therein described, from the said branch or office, to a certain George Williams, in the city of Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or office, which said respective bank notes were not, nor was either of them, so issued on stamped paper in the manner prescribed by the act of assembly aforesaid. It is further admitted, that the said president, directors and company of the Bank of the United States, and the said branch or office of discount and deposit have not, nor has either of them, paid in advance, or otherwise, the sum of fifteen thousand dollars, to the treasurer of the Western Shore for the use of the state of Maryland, before the issuing of the said notes, or any of them, nor since those periods. And it is further admitted, that the treasurer of the Western Shore of Maryland, under the direction of the governor and council of the said state, was ready, and offered to deliver to the said president, directors and company of the said bank, and to the said branch, or office of discount and deposit, stamped paper of the kind and denomination required and described in the said act of assembly. An act to impose a tax on all banks.or branches thereof in the state of Maryland, not chartered by the legislature. Be it enacted by the General Assembly of Maryland, That if any bank has established or shall, without authority from the state first had and obtained, establish any branch, office of discount and deposit, or office of pay [*321 and receipt, in any part of this state, it shall not be lawful for the said branch, office of discount and deposit, or office of pay and receipt, to issue notes in any manner, of any other denomination than five, ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and no note shall be issued except upon stamped paper of the following denominations; that is to say, every five dollar note shall be upon a stamp of ten cents; every ten dollar note upon a stamp of twenty cents; every twenty dollar note upon a stamp of thirty cents; every fifty dollar note upon a stamp of fifty cents; every one hundred dollar note upon a stamp of one dollar; every five hundred dollar note upon a stamp of ten dollars; and every thousand dollar note upon a stamp of twenty dollars; which paper shall be furnished by the treasurer of the Western Shore, under the direction of the governor and council, to be paid for upon delivery. Provided always, That any institution of the above description may relieve itself from the operation of the provisions aforesaid, by paying annually, in advance, to the treasurer of the Western Shore, for the use of the state, the sum of fifteen thousand dollars. And be it enacted, That the president, cashier, each of the directors and officers of every institution established, or to be established as The question submitted to the court for their aforesaid, offending against the provisions decision in this case, is as to the validity of the aforesaid, shall forfeit a sum of five hundred said act of the general assembly of Maryland, dollars for each and every offense, and every on the ground of its being repugnant to the person having any agency in circulating any constitution of the United States, and the act note aforesaid, not stamped as aforesaid directof Congress aforesaid, or to one of them. Upon ed, shall forfeit a sum not exceeding one hunthe foregoing statement of facts, and the plead-dred dollars; every penalty aforesaid [*322 320*] ings in this cause (all errors in *which are hereby agreed to be mutually released), if the court should be of opinion that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs for twenty-five hundred dollars, and costs of suit. But if the court should be of opinion that the plaintiff's are not entitled to recover upon the statement and pleadings aforesaid, then judg ment of non pros shall be entered, with costs to the defendant. It is agreed that either party may appeal from the decision of the County Court, to the Court of Appeals, and from the decision of the Court of Appeals to the Supreme Court of the United States according to the modes and usages of law, and have the same benefit of this statement of facts, in the same manner as could be had if a jury had been sworn and empaneled in this cause, and a special verdict had been found, or these facts had appeared to be recovered by indictment, or action of debt, in the county court of the county where the offense shall be committed, one-half to the informer, and the other half to the use of the state. And be it enacted, That this act shall be in full force and effect from and after the first day of May next. Mr. Webster, for the plaintiff in error, 1. Stated, that the question whether Congress constitutionally possesses the power to incorporate a bank, might be raised upon this record; and it was in the discretion of the defendant's counsel to agitate it. But it might have been hoped 1. This case involving a constitutional ques tion of great public importance, and the sovereign rights of the United States and the state of Maryland. and the government of the United States having directed their Attorney-General to appear for the plaintiff in error, the court dispensed with argue for each party. its general rule, permitting only two counsel to |