tion than that which enables congress to regulate commerce. If this power over vessels is not in congress, where does it reside? Certainly it is not annihilated; and if not, it must reside somewhere. Does it reside in the states? No American politician has ever been so extravagant as to contend for this. No man has been wild enough to maintain, that, although the power to regulate commerce gives congress an unlimited power over the cargoes, it does not enable that body to control the vehicle in which they are imported; that, while the whole power of commerce is vested in congress, the state legislatures may confiscate every vessel which enters their ports, and congress is unable to prevent their entry. Let it be admitted, for the sake of argument, that a law forbidding a free man of any color to come into the United States would be void, and that no penalty imposed on him by congress could be enforced; still, the vessel which should bring him into the United States might be forfeited, and that forfeiture enforced; since even an empty vessel, or a packet employed solely in the conveyance of passengers and letters, may be regulated and forfeited. There is not, in the constitution, one syllable on the subject of navigation. And yet every power that pertains to navigation has been uniformly exercised, and, in the opinion of all, been rightfully exercised, by congress. From the adoption of the constitution till this time, the universal sense of America has been that the word, "commerce," as used in that instrument, is to be considered a generic term, comprehending navigation, or, that a control over navigation is necessarily incidental to the power to regulate commerce.

I could feel no difficulty in saying that the power to regulate commerce clearly comprehended the case, were there no other clauses in the constitution, showing the sense of the convention on that subject. But there is a clause which would remove the doubt, if any could exist.

The first clause of the ninth section declares that "the migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited

by the congress, prior to the year 1808." This has been truly said to be a limitation of the power of congress to regulate commerce, and it will not be pretended that a limitation of a power is to be construed into a grant of power. But though such a limitation be not a grant, it is certainly evidence of the extent which those who made both the grant and limitation attributed to the grant. The framers of our constitution could never have declared that a given power should not, for a limited time, be exercised on a particular object, if, in their opinion, it could never be exercised on that object.

Suppose the grant and the limitation be brought together, the clause would read thus: "Congress shall have power to regulate commerce, &c., but this power shall not be so exercised as to prohibit the migration or importation of such persons as any of the states now existing may think proper to admit, prior to the year 1808." Would it be possible to doubt that the power to regulate commerce, in the sense in which those words were used in the constitution, included the power to prohibit the migration or importation of any persons whatever into the states, except so far as this power might be restrained by other clauses of the constitution? I think it would be impossible. It appears to me, then, that the power of congress over vessels, which might bring in persons of any description whatever, was complete before the year 1808, except that it could not be so exercised as to prohibit the importation or migration of any persons whom any state, in existence at the formation of the constitution, might think proper to admit. The act of congress, then, is to be construed with a view to this restriction on the power of the legislature; and the only question will be, whether it comprehends this case.

The case is, that the Brig Wilson, a private armed cruiser, commissioned by the government of Buenos Ayres, came into Norfolk, navigated by a crew some of whom were people of color. They were, however, all free men, and all of them sailors composing a part of the crew. While in port some of them were discharged and came on shore.

The libel charges that three persons of color were landed from the vessel, whose admission or importation was prohibited by the laws of Virginia, contrary to the act of congress, by which the vessel was forfeited.

Is this case within the act of congress, passed the 28th of February, 1803 ?

The first section, which is the prohibiting part of the act, is in these words: "From and after the first day of April next, no master or captain of any ship or vessel, or any other persons, shall import or bring, or cause to be imported or brought, any negro, mulatto, or any person of color," &c. There are nice shades or gradations in language, which are more readily perceived than described, and the mind impressed with a particular idea readily employs those words which express it most appropriately. Words which have a direct and common meaning may also be used in a less common sense, but we do not understand them in the less common sense, unless the context, or the clear design of the person using them, requires them to be so understood. Now the verbs, "to import," or "to bring in," seem to me to indicate, and are most commonly employed as indicating, the action of a person on anything, animate or inanimate, which is itself passive. The agent, or those who are concerned in the agency or importation, are not, in common language, said to be imported or brought in. It is true that a vessel coming into port is the vehicle which brings in her crew, but we do not, in common language, say that the mariners are "imported,” or "brought in" by a particular vessel; we rather say they bring in the vessel. So, too, if the legislature intended to punish the captain of a vessel, for employing seamen of a particular description, or for allowing these seamen to come on shore, we should expect that this intention would be expressed by more appropriate words than "to import" or "bring in." These words are peculiarly applicable to persons not concerned in navigating the vessel. It is not probable, then, that, in making this provision, a regulation respecting the crew of a vessel was in the mind of congress. But it is contended, on the part of

the prosecution, that the succeeding words of the sentence, exempting certain descriptions of persons from the general prohibition, show that the prohibition itself was intended to comprehend the crew, as well as those who did not belong to the vessel. Those words are, "not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope."

That this limitation proves the prohibition to have been intended to comprehend freemen, as well as slaves, must, I think, be admitted. But it does not follow that it was, also, intended to comprehend the crew of a vessel, actually employed in her navigation, and not put on board in fraud of the law. A person of color, who is a registered seaman of the United States, may be imported or brought into the United States in a vessel in which he is not employed as a mariner. The construction, therefore, which would extend the prohibitory part of the sentence to the crew of the vessel, in consequence of the language of the exception, is not a necessary construction, though I must admit that it derives much strength from that language.

The forfeiture of the vessel is not in this section of the act, but I have noticed its construction, because it is not reasonable to suppose that it was intended to forfeit a vessel for an act which was not prohibited. The second section enacts "that no ship or vessel, arriving in any of the said ports or places of the United States, and having on board any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope, as aforesaid, shall be admitted to an entry."

It is obvious that this clause was intended to refuse an entry to every vessel which had violated the prohibition contained in the first section; and that the words, "having on board," were used as coëxtensive with the words, "import" or "bring in." We had, at that time, a treaty with the emperor of Morocco, and with several other Barbary powers. Their subjects are all people of color. It is true they are not so engaged in commerce as to

send ships abroad. But the arrival of a Moorish vessel in our ports is not an impossibility; and can it be believed that this law was intended to refuse an entry to such a vessel? It may be said that an occurrence which has never taken place, and which, in all probability, never will take place, was not in the mind of congress; and, consequently, the omission to provide for it ought not to influence the construction of their acts. But there are many nations, with whom we have regular commerce, who employ colored seamen. Could it be intended by congress to refuse an entry to a French, a Spanish, an English, or a Portuguese merchant vessel, in whose crew there was a man of color? I think this construction could never be given to the act. The words, "having on board a negro, mulatto, or other person of color," would not, I think, be applied to a vessel one of whose crew was a person of color.

The section then proceeds: "And if any such negro, &c., shall be landed from on board any ship or vessel, &c., the said ship or vessel, &c., shall be forfeited."

The words," shall be landed," seem peculiarly applicable to a person, or thing, which is imported, or brought in, and which is landed, not by its own act, but by the authority of the importer; not to a mariner, going on shore voluntarily, or on the business of the ship. The words, "such negro," &c., refer to the preceding passages, describing those whom a captain of a vessel is forbidden to import, and whose being on board a vessel excludes such vessel from an entry, and no others. If, then, the commentary which has been made on those passages is correct, the forfeiture is not incurred by a person of color coming in as part of a ship's crew, and going on shore.

Although the powers of Barbary do not send merchant ships across the Atlantic, yet their treaties with us contemplate the possibility of their cruisers entering our ports. Would the cruiser be forfeited, should one of the crew come on shore ?

I have contended that the power of congress to regulate commerce comprehends, necessarily, a power over navigation, and