Brown v. Maryland.

multiplied and increased, as entirely to stop all importations. If this argument presents any serious objection to the law in question, the answer to it, in my judgment, has already been given that the limitation, as contended for, of state power, will not effect the objects proposed. Whether this additional burden is imposed upon the wholesale or retail dealer, it will equally affect the importation; and nothing short of a total exemption from all taxation and charges of every description, will take from the states the power of legislating, so as in some way may indirectly affect the importation.

But arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions. And this is emphatically so, when applied to our system of government. It supposes the interest of the people, under the general and state governments, to be in hostility with each other, instead of considering the two governments as parts only of the same system, and forming but one government for the same people, having for its objects the same common interest and welfare of all. If the supposed abuse of a power is a satisfactory objection to its existence, it will equally apply to many of the powers of the general government; and it is as reasonable to suppose, that the people would wish to injure or destroy themselves, through the instrumentality of the one government as the other.

The doctrine of the court in the case of Mc Culloch v. State of Mary*458] land, 4 Wheat. 316, has been urged *as having a bearing upon this question, unfavorable to the validity of the law. But it appears to me, that that case warrants no such conclusion. It is there admitted, that the power of taxation is an incident of sovereignty, and is co-extensive with that to which it is an incident. And that all subjects, over which the sovereign power of a state extends, are objects of taxation. The bank of the United States could not be taxed by the states, because it was an instrument employed by the government in the execution of its powers. It was called into existence, under the authority of the United States, and of course, could not have previously existed as an object of taxation by the states. Not so, however, with respect to imports; they were in existence, and under the absolute jurisdiction and control of the states, before the adoption of the constitution. And it is, therefore, as to them, a question of surrender of power by the states, and to what extent this has been given up to the United States. And it is expressly admitted in that case, that the opinion did not deprive the states of any resources they originally possessed; nor to any tax paid by the real property of the bank, in common with the other real property within the state; nor to a tax imposed on the interest which the citizens of Maryland may hold in the institution, in common with other property of the same description throughout the state. But the tax was held unconstitutional, because laid on the operation of the bank, and consequently a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution-and this instrument, created by the government of the Union. But these objections do not apply to the law in question. The government of the Union found the states in the full exercise of sovereign power over imports. It was one of the sources of revenue originally possessed by the states. The law does not purport to act directly upon anything which has been surrendered to the general govern

Brown v. Maryland.

ment, viz., the external commerce of the state. It may operate indirectly upon it, to some extent; but cannot be made essentially to impede or retard the operations of the government; not more so than might be effected by a tax on the stock held by individuals in the bank of the United States. And indeed, the power of crippling the operations of the government, in [*459 the former case, would not be so practicable as in the latter; for it has the whole range of the property of its citizens for taxation, and to provide the means for carrying on its measures. So that it would be beyond the reach of the states, materially to affect the operations of the general government, by taxing foreign merchandise, should they be disposed so to do.

I am, accordingly, of opinion, that the judgment of the court of appeals of the state of Maryland ought to be affirmed.

JUDGMENT.-This cause came on, &c.: On consideration whereof, this court is of opinion, that there is error in the judgment rendered by the said court of appeals in this, that the judgment of the city court of Baltimore, condemning the said Alexander Brown, George Brown, John A. Brown and James Brown, to pay the penalty therein mentioned, ought not to have been so rendered against them, because the act of the legislature of the state of Maryland, entitled, "an act supplementary to the act laying duties on licenses to the retailers of dry goods, and for other purposes," on which the indictment on which the said judgment was rendered is founded, so far as it enacts, "that all importers of foreign articles, of dry goods, wares or merchandise, by bale or package, or of wine, rum, brandy, whiskey, or other distilled spirituous liquors, &c., selling the same by wholesale, bale or package, hogs. head, barrel or tierce, shall, before they are authorized to sell, take out a license as by the original act is directed, for which they shall pay fifty dollars; and in case of neglect or refusal to take out such license, shall be subject to the same penalties and forfeitures as are prescribed by the original act to which this is a supplement," is repugnant to the constitution of the United States, and void; wherefore, the said court of appeals, before whom the said judgment of the said city court of Baltimore was brought by appeal, ought not to have affirmed, but should have reversed, the same: Wherefore, it is considered by this court, that the said judgment of the said court of appeals, affirming the said judgment of the city court of Baltimore, *be reversed and annulled, and that the cause be remanded to the said [*460 court of appeals, with directions to reverse the same.

291

UNITED STATES v. GOODING.

Slave-trade.-Indictment.-Burden of proof.

Upon an indictment under the slave-trade act of the 20th of April 1818, ch. 373, against the owner of the ship, testimony of the declarations of the master, being a part of the res gesta, connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner, in the conduct of the guilty enterprise, is admissible in evidence against the owner.1 Upon such an indictment against the owner, charging him with fitting out the ship, with intent to employ her in the illegal voyage, evidence is admissible, that he commanded, authorized and superintended the fitment, through the instrumentality of his agents, without being personally present.

It is not essential, to constitute a fitting out, under the acts of congress, that every equipment, necessary for a slave-voyage, or any equipment peculiarly adapted to such a voyage, should be taken on board; it is sufficient, if the vessel is actually fitted out, with intent to be employed in the illegal voyage.

In such an indictment, it is not necessary to specify the particulars of the fitting out; it is sufficient, to allege the offence in the words of the statute.

Nor is it necessary, that there should be any principal offender to whom the defendant might be aiding and abetting; these terms in the statute do not refer to the relation of principal and accessory in cases of felony; both the actor, and he who aids and abets the act, are considered as principals.

It is necessary, that the indictment should aver, that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States.

An averment that the ship was fitted out, &c., "with intent that the said vessel should be employed" in the slave-trade, is fatally defective, the words of the statute being, "with intent to employ" the vessel in the slave-trade, and exclusively referring to the intent of the party causing the act.

*461]

*Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed and decided, during the trial before the jury; but, generally speaking, they ought regularly to be considered only upon a motion to quash the indictment, or in arrest of judgment, or on demurrer.

In criminal proceedings, the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute.2

CERTIFICATE of Division from the Circuit Court of Maryland. This was a prosecution in the circuit court of Maryland, against the defendant, Gooding, under the slave-trade act of the 20th of April 1818, ch. 373. The indictment alleged:

1. That the said Gooding, being a citizen of the United States, after the passing of the act of the congress of the United States, entitled, "an act in addition to an act to prohibit the introduction of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord 1808, and to repeal certain parts of the same," that is to say, after the 20th of April 1818, to wit, on the 30th day of September, in the year 1824, at the district of Maryland, did fit out, for himself, as owner, in the port of Baltimore, within the jurisdiction of the United States, and within the jurisdiction of this court, a certain vessel called the General Winder, with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country, to wit, from the

See The Kate, 2 Wall. 350; The Sarah, Id. 366; The Weathergage, Id. 375; The Reindeer, Id. 383.

2 Pauli v. Commonwealth, 89 Penn. St. 432. In criminal cases, the burden of proof never shifts; so that, if from any part of the testi

mony, as, circumstantial evidence of an alibi, there arose a reasonable doubt of the defendant's guilt, he should be acquitted. Tanner v. Commonwealth, 86 Id. 54; Watson v. Commonwealth, 95 Id. 418.

United States v. Gooding.

continent of Africa, to be transported to another place, to wit, to the Island of Cuba, in the West Indies, to be sold as slaves, contrary to the true. intent and meaning of the act of congress in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

2. That the said Gooding, a citizen of the said United States, and residing therein, to wit, at the district aforesaid, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, within the jurisdiction of this court, at the district aforesaid, did, for himself, as owner, send away from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the General Winder, with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country, *to wit, from the continent of Africa, to be [*462 transported to another place, to wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided; to the evil example of all others in like case. offending, and against the peace, government and dignity of the United States.

3. That the said Gooding, a citizen of the said United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did aid in fitting out, for himself, as owner, in the port of Baltimore, within the jurisdiction of the United States, to wit, at the district aforesaid, a certain other vessel, called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to wit, from the continent. of Africa, to be transported to another place, to wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

4. That the said Gooding, a citizen of the said United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did abet the taking on board, from one of the coasts of Africa, divers negroes, to wit, 290, not being inhabitants, nor held to service by the laws of either of the states or territories of the United States, of a certain other vessel, called the General Winder, for the purpose of selling such negroes as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

5. That the said Gooding, a citizen of the United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, *did, for himself, as owner, cause to sail from the port [*463 of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to another

United States v. Gooding.

place, to wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

6. That the said Gooding, a citizen of the United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction. of this court, did, for himself, as owner, cause to be sent away from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to a certain other place, to wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress, in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

7. That the said Gooding, a citizen of the United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did, for himself, as owner, or for other persons, as factor, fit out, equip, load or otherwise prepare, a certain other ship or vessel, called the General Winder, in the port of Baltimore, within the jurisdiction of the United States, to wit, at the district aforesaid, or did cause the same ship or vessel, the General Winder, to be so fitted out, equipped, loaded or otherwise prepared, with intent that the said ship or vessel, the General Winder, should be employed in procuring negroes, mulattoes or persons of color, from a foreign kingdom, place or country, to wit, from the continent of Africa, *464] to be transported to another port or place, to wit, to *the Island of Cuba, in the West Indies, to be there sold, or otherwise disposed of as slaves, or held to labor or service, contrary to the true intend and meaning of the act of congress in such case made and provided; to the evil example of all others in like case offending, and against the peace, government and dignity of the said United States.

At the trial in the circuit court, the United States offered evidence that the defendant purchased of one McElderry, the vessel called the General Winder, in the indictment mentioned, and that said vessel was built in the port of Baltimore, also in the said indictment mentioned. They further offered in evidence, that at the time said purchase was made, the said vessel was not completely finished, and that the same was finished, under the superintendence of a certain Captain John Hill, who was appointed by the defendant, master of said vessel, on her then intended voyage. They also offered in evidence, that the defendant was, at the time when the offence laid in the indictment was charged to have been committed, and at the time of his purchase of the said vessel, and ever since had been, a citizen of the United States, and had constantly, from the time of the purchase of the said vessel, till the present period, been an actual resident of the said port of Baltimore.

They further offered evidence, that after the said purchase, and after the appointment of the said Captain Hill as master, as aforesaid, the said Hill ordered various fitments for the said vessel, at the said port of Balti