warrants every act of national sovereignty which any other sovereign nation may exercise over vessels, foreign or domestic, which enter our ports. But there is a portion of this power, so far as respects foreign vessels, which it is unusual for any nation to exercise, and the exercise of which would be deemed an unfriendly interference with the just rights of foreign powers. An example of this would be an attempt to regulate the manner in which a foreign vessel should be navigated in order to be admitted into our ports; and to subject such vessel to forfeiture, if not so navigated. I will not say that this is beyond the power of a government, but I will say that no act ought to have this effect given to it, unless the words be such as to admit of no other rational construction.

I will now take some notice of that part of the act which has a reference to the state law.

The language both of the constitution and of the act of congress shows that the forfeiture was not intended to be inflicted in any case but where the state law was violated. In addition to the words, in the first and second sections of the act, which confine its operation to importations into "a state which, by law, has prohibited, or shall prohibit, the importation of such negro," &c.; the third section enjoins it on the officers of the United States, in the states having laws containing such prohibition, "to notice and be governed by the provisions of the laws, now existing, of the several states, prohibiting the admission or importation of any negro, mulatto, or any person of color, as aforesaid." This is not inflicting a penalty for the violation of a state law, but is limiting the operation of the penal law of the United States by a temporary demarcation given in the constitution. The power of congress to prevent migration or importation was not to be exercised, prior to the year 1808, on any person whom any of the states might think proper to admit. All were admissible who were not prohibited. It was proper, therefore, that the act of congress should make the prohibitory act of the state the limit of its own operation. The act of congress does not, necessarily, extend to every

object comprehended in the state law, but neither its terms, nor the constitution, will permit it to be extended farther than the state law.

The first section of the act "to prevent the migration of free negroes and mulattoes" into this commonwealth prohibits their coming voluntarily, or being imported. The second section imposes a penalty on any master of a vessel who shall bring any free negro or mulatto. The third section provides that "the act shall not extend to any masters of vessels who shall bring into this state any free negro or mulatto employed on board and belonging to such vessel, and who shall therewith depart." The act, then, does not prohibit the master of a vessel, navigated by free negroes or mulattoes, from coming into port, and setting only part of his crew on shore, provided they depart with the vessel. The state prohibition, then, does not commence, until the vessel departs without the negro or mulatto seaman. No probability, however strong, that the vessel will depart without the seaman, can extend the act to such a case, until the vessel has actually departed. If this be true, neither does the act of congress extend to such a case.

But this is not all. The act of assembly prohibits the admission of free negroes and mulattoes only, not of other persons of color. Other persons of color were admissible into Virginia.

The act of congress makes a clear distinction between free negroes and mulattoes, and other persons of color. But so much of the act of congress as respects other persons of color does not apply to Virginia, because such persons were admissible into this state.

The libel charges the sailors landed to have been persons of color, not negroes or mulattoes. If, under this libel, it were allowable to prove that the sailors landed were, in fact, negroes or mulattoes, it is not proved. Mr. Bush does not prove that any were landed but says that those discharged were "of different colors and nations." Andrew Johnson says, "that, on the twenty-ninth of October, the people of color received their

prize tickets, went on shore, and, of course, took their own discharge."

There is, then, no evidence that these people were negroes or mulattoes. Upon these grounds, I am of opinion that no forfeiture of the vessel has been incurred, and that so much of the sentence as condemns the Brig Wilson ought to be reversed, and restitution awarded.

1 Br. 439.

THE UNITED STATES v. MAURICE AND OTHERS.

C. C. DISTR. VA. AND N. C., MAY TERM, 1823.

[2 Brockenbrough's Reports, 96-118.]

THE following opinion, as delivered by Chief Justice Marshall, contains a full narrative of the facts and pleadings in the

cause:

THIS is an action of debt brought upon a bond executed on the 18th day of August, 1818, in the penalty of twenty thousand dollars, with the following condition: "Whereas the said James Maurice has been appointed agent for fortifications on the part of the United States, now, therefore, if the said James Maurice shall truly and faithfully execute and discharge all the duties appertaining to the said office of agent, as aforesaid, then the above obligation to be void," &c. The breach assigned in the declaration is, that large sums of money came to the hands of the said Maurice, as agent of fortifications, which he was bound, by the duties of his office, faithfully to disburse and account for, a part of which, namely, forty thousand dollars, he has, in violation of his said duty, utterly failed to disburse to the use of the United States, or account for; wherefore, &c.

The defendants, the sureties in the said obligation, prayed oyer of the bond, and of the condition, and then demurred to the declaration. The plaintiff joined in the demurrer.

The defendants also pleaded several pleas, on some of which issue has been made up, and on others demurrer has been joined.

The first point to be considered is the demurrer to the declaration.

The defendants insist that the declaration cannot be sus

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tained, because the bond is void in law, it being taken for the performance of duties of an office, which office has no legal existence, and, consequently, no legal duties. No violation of duty, it is said, can take place, when no duty exists.

Since the demurrer admits all the facts alleged in the declaration which are properly charged, and denies that those facts create any obligation in law, it must be taken as true that James Maurice was in fact appointed an agent of fortification on the part of the United States; that he received large sums of money in virtue of that appointment, and has failed to apply it to the purpose for which he received it, or to account for it to the United States.

As the securities certainly intended to undertake that Maurice should perform the very acts which he has failed to perform, and as the money of the nation has come into his hands on the faith of this undertaking, it is the duty of the court to hold them responsible, to the extent of this undertaking, unless the law shall plainly interpose its protecting power for their relief, upon the principle that the bond creates no legal obligation. Is this such a bond? The first step in this inquiry is, the character of the bond. Does it, on its face, purport to be a mere official bond, or to be in the nature of a contract? This question is to be answered by a reference to the terms in which its condition is expressed. These leave no shadow of doubt on the mind. The condition refers to no contract, states no undertaking to perform any specific act, refers to nothing, describes nothing which the obligor was bound to do, except to perform the duties of an officer. It recites that he was appointed to an office, and declares that the obligation is to be void if he "shall truly and faithfully execute and discharge all the duties appertaining to the said office." Of the nature of those duties no information whatever is given. Whether the disbursement of public money does or does not constitute a part of them is a subject on which the instrument is entirely silent.

The bond, then, is, on its face, completely an official bond,