A DISSERTATION
ON THE
NATURE AND EXTENT
OF
THE JURISDICTION
OF THE
COURTS OF THE UNITED STATES,

BEING A VALEDICTORY ADDRESS
DELIVERED TO THE STUDENTS OP THE LAW ACADEMY OF PHILADELPHIA, AT THE CLOSE OF THE ACADEMICAL YEAR, ON THE 22D APRIL, 1824,
BY PETER S. DU PONCEAU, LL.D.
PROVOST OF THE ACADEMY.

TO WHICH ARE ADDED,
A BRIEF SKETCH OF THE NATIONAL JUDICIARY POWERS EXERCISED IN THE UNITED STATES PRIOR TO THE ADOPTION OF THE PRESENT FEDERAL CONSTITUTION,
BY THOMAS SERGEANT. ESQ. VICE PROVOST.

AND THE AUTHOR'S
DISCOURSE ON LEGAL EDUCATION,

DELIVERED AT THE OPENING OF THE LAW ACADEMY, IN FEBRUARY, 1821.

WITH AN APPENDIX AND NOTES.

The great system of jurisprudence, like that of the universe, consists of many subordinate systems, all of which are connected by nice links and beautiful dependencies, and each of them, as I have fully persuaded myself, is reducible to a few plain elements. — JONES. Law of Bailments.

PHILADELPHIA:
PUBLISHED BY ABRAHAM SMALL. 1824.

Eastern District of Pennsylvania, to wit:

BE IT REMEMBERED, That on the seventh day of June, in the forty-eighth year of the independence of the United States of America, A. D. 1824, Peter Stephen Du Ponceau, of the said District, hath deposited in this office the Title of a book, the right whereof he claims as Author, in the words following, to wit:

"A Dissertation on the nature and extent of the Jurisdiction of the Courts of the United States, being a Valedictory Address delivered to the students of the Law Academy of Philadelphia, at the close of the academical year, on the 22d April, 1824, by Peter S. Du Ponceau, LL.D. Provost of the Academy. To which are added, A brief sketch of the National Judiciary Powers exercised in the United States prior to the adoption of the present Federal Constitution, by Thomas Sergeant, Esq. Vice Provost. And the author's Discourse on Legal Education, delivered at the opening of the Law Academy in February, 1821. With an Appendix and Notes. The great system of jurisprudence; like that of the universe, consists of many subordinate systems, all of which are connected by nice links and beautiful dependencies, and each of them, as I have fully persuaded myself, is reducible to a few plain elements. Jones, Law of Bailments."

In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned." — And also to the Act, entitled, "An Act supplementary to An Act, entitled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies during the Times therein mentioned." and extending the Benefits thereof to the Arts of designing, engraving, and etching historical and other Prints."

D. CALDWELL, Clerk of the Eastern District of Pennsylvania.


TO
THE HONOURABLE WILLIAM TILGHMAN, LL.D.
CHIEF JUSTICE OF THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA,
AND PATRON OF THE
LAW ACADEMY OF PHILADELPHIA.
RESPECTFULLY INSCRIBED BY
THE AUTHOR.


PREFACE.

THE questions which are the subject of the following Discourse, are some of the most important that have been agitated under the Constitution of the United States. In whatever way they may he finally determined by the competent authorities, the decision will have considerable influence on our general jurisprudence, and even on the ultimate shape which our federal Constitution may be destined to assume.

That there are implied, as well as express, powers granted by the Constitution of the United States to the national government, is what it is at this day impossible to deny or even to doubt. Some of those have already been acted upon, and are in the full course of actual exercise; others are preparing to be carried into execution. It is too late now to controvert the doctrine of implied constitutional authority.

But while these implied powers are admitted on all hands to exist in the federal government to a greater or lesser extent, a question has arisen, whether it is competent for the judicial department, whose sphere of action the Constitution has been peculiarly careful to limit and define, to assume rights to themselves by their decisions à priori, and to carry them provisionally, as it were, into effect, before the legislature has made any law upon the subject, or has given them the special authority which seems to be required. In other words, the inquiry is, whether the Federal Courts have a right independent of the people of the United States or their representatives, by virtue of some occult power supposed to be derived from the common law, to mould the Constitution as they please, and to ex end their own jurisdiction beyond the limits prescribed by the national compact?

There would have been but little difficulty in solving this simple question, if, by a carelessness of expression unfortunately too common in our legal language, it had not been clothed in the ambiguous words common law jurisdiction, which have been the source of all the doubts and all the hesitation that it has produced, because it was not considered that these words are susceptible of a double interpretation, implying in the one sense, a jurisdiction perfectly lawful, and in the other a power in direct opposition to the letter and spirit of our national charter; so that the controversy has been to maintain or reject altogether, and in every sense, this common law jurisdiction, while a proper distinction would probably have reconciled all conflicting opinions upon the subject.

In order that this may be clearly understood, it is necessary to enter into some preliminary explanations. In England, the country from whence we have derived, not only our system of jurisprudence, but most of our civil and political institutions, there is a metaphysical being; called common law, which originally was a code of feudal customs, similar to the coutumes which, until lately, governed the different provinces of the neighbouring kingdom of France, but which, by gradual steps, and by the force of circumstances has become incorporated and in a manner identified not only with the national jurisprudence, but, under the name of Constitution, with the political government of the country. The king's prerogative and the rights of the subject are alike defined and limited by the common law. The various and often conflicting jurisdictions of the different tribunals in which justice is administered are also said to be derived from it, although in many instances they are known to be founded on gradual and successive assumptions of power; but those having been established and consolidated by time are now become common law. This ens rationis is a part of every civil and political institution, and every thing connected with the government of the country, is said to be a part of it. Thus the law of nations, the law merchant, the maritime law, the constitution and even the religion of the kingdom, are considered to be parts and parcels of the common law. It pervades everything, and everything is interwoven with it. Its extent is unlimited, its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the Judges. It has experienced great changes at different periods, and is destined to experience more. It is from its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary. Under the Tudors and the first Stuarts forced loans, wardships, purveyance, monopolies, legislation by royal proclamations, and even the Star Chamber and High Commission Courts, and slavery itself, under the name of villenage, were parts of the common law. At the revolution it shook off those unworthy fetters, and assumed the character of manly freedom for which it is now so eminently distinguished.

Twelve Judges, who hold their offices during good behaviour, are the oracles of this mystical science. In a monarchy like England, which has no written constitution, but in which all the rights of the sovereign as well as the privileges of the people are to be deduced from the common law, those Judges are an useful check against the encroachments of the monarch or his ministers; hence the common law and the judicial power are in that country almost objects of idolatrous worship. While the United States were colonies, they partook of this national feeling. The grievances which induced them to separate from the mother country were considered as violations of the common law, and at the very moment when independence was declared, the common law was claimed by an unanimous voice as the birth right of American citizens; for it was then considered as synonymous to the British Constitution, with which their political rights and civil liberties were considered to be identified. In the dissentions that arose between the colonies and Great Britain, the Constitution, or the common law, which was the same thing, was appealed to in favour of the doctrines which the contending parties respectively maintained. It was, therefore, held by all in equal veneration, and by all cherished as their most precious inheritance.

The revolution has produced a different state of things in this country. Our political institutions no longer depend on uncertain traditions, but on the more solid foundation of express written compacts; the common law is only occasionally referred to for the interpretation of passages in our textual constitutions and the statutes made in aid of them, which have been expressed in its well known phraseology; but there ends its political empire: it is no longer to it that our constituted authorities look to for the source of their delegated powers, which are only to be found in the letter or spirit of the instruments by which they have been granted.

The common law, therefore, is to be considered in the United States in no other light than that of a system of jurisprudence, venerable, indeed, for its antiquity, valuable for the principles of freedom which it cherishes and inculcates, and justly dear to us for the benefits that we have received from it; but still in the happier state to which the revolution has raised us, it is a SYSTEM OF JURISPRUDENCE and nothing more. It is no longer the source of power or jurisdiction, but the means or instrument through which it is exercised. Therefore, whatever meaning the words common law jurisdiction may have in England, with us they have none; in our legal phraseology they may be said to be insensible. To them may be applied the language in which the common lawyer of old spoke of a title of the civil law: In ceulx parolx n'y ad pas entendment.*

(* 1 Blac. Com. 22.)

But this immense change in the existing state of things has not been immediately perceived, nor its effects clearly understood. Therefore our tribunals have been vexed with questions and arguments about the extent of their common law jurisdiction, because it was not observed that all jurisdiction in the sense above explained was irrevocably gone. But old habits of thinking are not easily laid aside; we might have gone on for many years longer confounding the English with the American common law, if cases had not been brought before the federal Courts, so serious in their nature, and apparently fraught with such dangerous consequences, that hesitation was produced, and the public attention was at last drawn to this important subject.

These were criminal prosecutions for offences in which the peace and dignity of the United States seemed to be involved, but the jurisdiction of which was not given to the federal tribunals, either by the Constitution or by any of the statutes made in pursuance of it. These offences, however, were known to the common law, which had defined them and had provided for their punishment. It was, therefore, contended that the Courts could here exercise over them what was called a "common law jurisdiction." The Constitution, it was admitted, had not expressly provided for the preservation of the national peace and dignity by criminal prosecutions in such cases, nor had it vested any authority in the tribunals for that purpose; but it was insisted that that power was indispensable to our national existence, and therefore must be considered as necessarily implied. The federal Courts had a right to interpret the doubtful parts of the Constitution, they were the expounders of the common law, the common law had provided for the punishment of such offences, the safety of the country required that they should be punished, the Courts were, therefore, not only authorised but bound to execute the common law. On the other side, it was easily perceived that if the federal Judges were to assume this power, there was no knowing where they might stop, that they would not only have an almost unlimited authority over the lives and fortunes of the citizens, but might, in a great degree, impair, if not destroy, the sovereignty of the States, which the Constitution had meant to preserve, and even had guaranteed. Great were the embarrassments which these questions produced; sometimes it was said that the common law was not the law of the United States in their national capacity, at other times that it was so in civil, but not in criminal cases; but no one seemed fully aware of the distinction between the common law considered as a source of jurisdiction, and as a means for exercising it. The Judges, however, unwilling to extend the limits of their authority, generally declined to assume this jurisdiction, justly considering that they were only to look for the extent of their powers to the Constitution and the laws made under it. But this opinion, correct as it was, was not unanimous, nor was it satisfactory to the profession, because in consequence of some obiter dicta of the Judges, it was understood in too wide a sense, and its application was carried to an extent which the Court had not probably contemplated: a case of which they had full and complete jurisdiction given to them in the most express terms by the Constitution and the acts of the national legislature, was by the consent of all parties considered as out of the limits of their authority, and this exclusion was confirmed by the improvident sanction of a solemn judicial decree. On the whole, after so many decisions, this question of common law jurisdiction has remained and still remains as unsettled as before, several of the Judges in the last case of this description which came before them, having expressed a wish that it should be fully and solemnly discussed.

I have endeavoured in the following essay to sift to the bottom this complicated question, and to establish sound and legal principles which may lead to the solution of all similar ones that may hereafter arise. I do not flatter myself to have fully succeeded in this arduous undertaking; I hope, however, that I have opened the way for its further and more successful investigation. The distinction which I have assumed between the common law as a source of power and as a means for its exercise is the foundation of my argument. From the common law considered in the first point of view, I contend that in this country no jurisdiction can arise, while in the second every lawful jurisdiction may be exercised through its instrumentality, and by means of its proper application.

Having thus, as I conceive, disarmed the common law of its only dangerous attribute, the power giving capacity, I have no hesitation in asserting that as a system of jurisprudence it is the national law of this Union, as well as that of the individual States. In this respect I consider it as perfectly harmless in a political point of view and as beneficial in all others. I shall not here anticipate the reasons which I have given for this opinion.

At the same time that I have bestowed upon the common law all the praise to which I think it justly entitled, I have been very free in my observations on the points in which I think it deficient. I have done so because I think it susceptible of being carried to the highest degree of perfection, and because I believe that the honor of producing this result is reserved to the jurists of the United States, and is an object well worthy of being pursued by them. Being no longer so intimately connected with our political existence, we are more at liberty to examine into the merits of this system and to correct its defects.

In the observations that I have made on the defects of the common law I have not touched upon what I consider as mere inconveniencies, such, for instance, as the numerous fictions with which it abounds. I consider it as of very little consequence whether an ejectment suit is brought in the fictitious names of John Doe and Richard Roe, or in the real names of the plaintiff and defendant, provided justice is done to the parties in the end. But what I think is not to be tolerated in any system of law, is actual injustice: it is in vain to say that the law is so established and that it is better that it should be certain than that it should be just; I answer that no laws can be certain that are not founded on the eternal and immutable principles of right and wrong; that false theories and false logic lead to absurdities, which being perceived, lead to endless exceptions and to numerous contradictions, and that from the whole results that very uncertainty which is so much wished to be avoided. I have instanced the law of merchants as the part of the common law the defects of which in this respect are the most glaring, because while we profess to be ruled in those matters by the general law of the commercial world we are more and more every day receding from its principles, and falling into fanciful notions which in the end may produce at least inconvenient results; nevertheless, I have expressed no wish, because I do not entertain any, to see rash and sudden changes introduced into our jurisprudence. Its improvement must be gradual, as we advance more and more in the knowledge of those general principles on which all sound jurisprudence rests. These must be studied in the common law itself, which abounds with sound doctrines, though not always correctly applied, and in the works of the immortal ancients, and of those eminent modern writers who have followed their foot steps. I need not name Cicero, the authors of the Roman Imperial Digests. Bacon, Puffendorff, Pothier. and many others. The works of the last of these writers were warmly recommended by Sir William Jones to his countrymen, but without success.

Of all systems of jurisprudence the common law is the best adapted for improvement, therefore I rejoice to see it established in (his country. It is more malleable, if I may use the expression, than written codes or statutes. In this point of view, it is admirably described by the late Judge Wilson. "The accommodating principle," says that able and learned jurist, of a system of common law, will adjust itself to every grade and species of improvement, by practice, commerce, observation, study, or refinement. Willing to avail itself of experience, it receives additional improvement from every new situation to which it arrives, and in this manner attains in the progress of time, higher and higher degrees of perfection resulting from the accumulated wisdom of ages."* This cannot be said of written law, which must be implicitly obeyed. Hoc quidem perdurum est, sed ita lex scripta est.†

(* Judge WILSON'S charge to the grand jury, specially summoned for the trial of John Singleterry and Gideon Henfield, delivered on the 22d July, 1.793. See Dunlap's Daily Advertiser of the 25th of July of that year, in the Philadelphia City Library.

ff. L. 40. tit. 9. 1.12. § 1.)

I am not, therefore, of the opinion of those, although there are several among them whom I highly respect, who think that we ought immediately to set about making codes, and to substitute written for unwritten laws. Those gentlemen are not aware, perhaps, that the codes would be formed from the same elements which compose the common law, and would exhibit the same defects, no longer susceptible of the accommodating principle mentioned by Judge Wilson, but possessing all the unbending imperative force of statutory enactments. It is much better that things should remain as they are until the common law shall by successive improvements have attained its highest degree of perfection; then it will be time to reduce its principal provisions to a text; for the details must always be left to the sound application of the principles of the system, as it is impossible for any legislator to foresee all the cases that may possibly arise. I think, however, that we are sufficiently ripe for a national system of commercial law, and therefore I have ventured to express a hope that Congress will exercise the powers which the Constitution has given them upon that subject. There is among the members of the legal profession in this country a disposition to extend the bounds of our science, and to improve our jurisprudence by the study of that of other nations, ancient and modern, which has not been sufficiently observed. We have a Law Journal, of which seven volumes have already been published in this city by JOHN E. HALL, Esq. the contents of which bear ample testimony to this fact. Mr. WHEATON, the official reporter of the decisions of the Supreme Court of the United States, has placed at the end of each of the eight volumes that have hitherto appeared of his Reports, an appendix of learned notes, giving comparative views of the laws of different countries on the various subjects which are treated of in the body of the work. We understand that his ninth volume is to contain an epitome of the laws of Spain. A great number of the works of eminent foreign authors, such as Roccus, Bynkershoek, Martens. Schlegel, Pothier, Emerigon, Valin, Jacobsen, and others have been translated by our jurists from various languages, and published, some of them with valuable notes. Two different translations have appeared of the French commercial code, and one of the criminal code, all with copious notes by different authors. Judge COOPER has published Justinian's Institutes, with a translation, and a large body of annotations, in which he ably compares the Roman system of jurisprudence with our own. All these things are hardly known, except by a few, even in this country. They nevertheless shew the inclination of our professional men to cultivate jurisprudence as a philosophical science, and the result may be easily anticipated.

As a farther evidence of this spirit, I must not omit to observe that Law schools, within these two or three years have been increasing in this country in an astonishing degree, and the most exalted characters do not disdain to fill the professors chairs. In my first Address on the opening of the Law Academy of this city, I had occasion to mention the two professorships in the University of Cambridge in Massachusetts, and the school which had been established at Litchfield in Connecticut by the late Judge REEVES. These were at that time the only institutions of the kind known out of this State. They continue to flourish, the latter under the care of Judge GOULD, successor of Judge REEVES. Since then other similar establishments have arisen, from which the greatest benefits may be expected to our profession and to our science. In the Transylvania University at Lexington, in the State of Kentucky, I am informed that there is a chair of civil law, now or lately filled by Dr. BARRY, and one of common and statute law, under Mr. BLEDSOE. In the University of New York, the Hon. JAMES KENT, who, during so many years, distinguished himself as Chancellor of that State, and whose name and talents are and will be long in veneration among us, fills the lately established chair of Jurisprudence. At Baltimore, Professor HOFFMAN, and at Northampton, in the State of Massachusetts, Judge HOWE and Mr. MILLS, member of Congress, lecture with success to considerable numbers of students. There may be other similar institutions which are not known to me; no doubt there will be several more in the course of a few years, such is the rapid course that this country is taking in the pursuit of elegant and useful knowledge.

The. opinions of English jurists and the decisions of English Judges so long regarded among us with implicit deference, are now scanned with greater freedom and with the spirit becoming an independent nation. Before the late revolution that spirit prevailed in a great degree in the colonial tribunals, particularly in the provinces that were under charter and proprietary governments, and the Judges shewed a disposition to accommodate the law to the local circumstances of the country. In the royal governments, for obvious reasons, the English system was more strictly adhered to. After the revolution, things went on much in the same course, until the adoption of the federal Constitution, when a Supreme Court was established, the Judges of which were indiscriminately taken from the States which had been under a royal government, and from those which had been governed under their charters and their proprietaries.

From that time there was perceived in the State as well as in the federal Courts a much more rigid adherence to English precedents. Perhaps the vain wish to introduce by that means uniformity throughout the Union, did not a little contribute to it. It was felt, however, and complained of by the people, and the consequence was that some of the States, as Pennsylvania Ohio, and New Jersey, prohibited by law the citing of British authorities posterior to the revolution. This was applying the axe to the root of the tree; it was an ill judged and inefficient remedy, but at the same time a solemn warning to Judges and an indication of the manner in which the people wished the law to be administered, giving them to understand that the spirit of our own statute books, our national feelings, opinions, habits, manners and customs, were as much to be taken into consideration in their decisions as the letter of the English law. Indeed, when it is evident that our statutes, particularly ancient ones, have meant to make some radical alteration in the system of the common law, it seems that they should be construed with a view to the effect which they were intended to produce. The doctrine that statutes altering the common law are to be construed strictly, has, I believe, been carried so far as in some cases to counteract the views of our legislatures, and the principles which they meant to establish.

This evil is gradually correcting itself, and the common law appears more and mote dignified with American features. It is observed with pleasure that the opinions of Mr Chief Justice MARSHALL, are more generally founded upon principle than upon authority, and with the same satisfaction we see that Judge WASHINGTON, while he pays proper respect to modern English decisions, does not hesitate to reject those doctrines which to his discriminating mind do not appear consonant to our American system of jurisprudence, and thus proves himself to have inherited the spirit as well as the name and worldly estate of the father of the independence of his native land.

Thus, the law in this country, as every other science, tends to improvement. This laudable spirit requires only to receive a proper direction, which will, no doubt, be given by those who are more adequate than I am to this important task. In the mean time I have ventured to give a few hints to shew the importance of sound principles in a branch of knowledge on which our lives, our characters, and our fortunes depend. The peculiar situation in which we are placed appeared to me to require it, as, unless we rally under the standard of principle, we shall be reduced to choose between a perpetual dependence on foreign opinions, and plunging into an inextricable labyrinth of confusion and uncertainty.

The common law contains within itself almost every thing that is requisite to raise it to the highest degree of perfection. It is fraught with excellent principles which only require to be methodised and properly applied. They are the foundation upon which authority rests, and unless they are constantly recurred to, the law will soon cease to be a science, and will not even be entitled to the name of a system.

This opinion might be supported by the authority of the greatest men that England, has produced, among whom it would be sufficient to name the illustrious BACON. But I wish only to be permitted to quote a few lines from the excellent Sir WILLIAM JONES, which are so peculiarly applicable, that I cannot forbear inserting them here in his own words:

"If law be a science, and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason; but if it be merely an unconnected series of decrees and ordinances, its use may remain, though its dignity be lessened, and he will become the greatest lawyer who has the strongest habitual or artificial memory.* I shall say no more upon this subject; for

"'Tis enough — advent'rous to have touch'd
Light on the numbers of the British sage."†

(* Law of Bailments. † Thomson.)

The day may come, however, and I hope it will come, when his voice will be responded to from one end of this vast continent to the other.

A few words more will conclude this preface.

I am under great obligations to my friend, THOMAS SERGEANT, Esquire, late Attorney General of the State of Pennsylvania, and who shares with me in the labours of this institution, for his excellent sketch of the national administration of justice prior to the adoption of the present federal Constitution, which he has kindly permitted me to subjoin to this Essay. It will be found in the Addenda. I am also much indebted to his valuable work on Constitutional law.‡ It enabled me to take that comprehensive view of our Constitutional jurisprudence, which I could not otherwise have obtained without much laborious research. This book in my opinion, ought to be found in the library of every American lawyer.

(‡ Constitutional Law; being a collection of points arising upon the Constitution and jurisprudence of the United States, which have been settled by judicial decision and practice. By Thomas Sergeant, Esq. Philadelphia, Small. 1822. 415 pp. 8vo.)

Nor can I omit mentioning the Annual Law Register of the United States, lately published by the Hon. WILLIAM GRIFFITH.* The condensed view which it gives of the variations from the English law which now exist in the different States of this Union, is of immense value to the student of American Jurisprudence. It is time that the common law should gradually conform itself to the national spirit. When certain principles have acquired an undoubted ascendancy through the whole or a great majority of the States, they should give tone and colour to the national system, in preference to the maxims of the jurists of a distant and a foreign country. The knowledge of these principles can only be acquired by studying the common and statute law of the different States, for which purpose I consider such collections as that of Mr. Griffith to be invaluable.

(* Annual Register of the United States, by William Griffith, counsellor at law; vols. 3d and 4th. Burlington, New Jersey, 1822.)

At the request of several friends I have republished in the Addenda, the discourse which I delivered on the subject of legal education at the opening of the Law Academy in 1821. I hope it will not be thought here out of place.

Considering this Essay as a partial commentary on the Constitution of the United States, I have thought it necessary to insert in an Appendix the text of the instrument, for the sake of immediate reference. I have likewise inserted the decisions of the Judges in the five principal cases to which this dissertation refers, and a denunciation of the common law by the general assembly of Virginia, to which this Essay may be in part considered as an answer.

Before I conclude, I would observe, that whenever, in the course of the ensuing address, I make use of the familiar expression "common law jurisdiction" as appertaining to the Courts of the United States, I always mean jurisdiction of and not from the common law. In this sense I have said (page 70) that the Courts of the District of Columbia have common law jurisdiction, by which I only meant to say that they have a right to administer the common law in the exercise of their jurisdiction over the territory or a part of it.

I now commit this little work to the candour and indulgence of my professional brethren.


TABLE OF CONTENTS.

INTRODUCTION.

Cases which gave rise to the question of common law jurisdiction,

1. Worrall's Case, ... 1

2. Burr's Case, ... 5

3. Hudson & Goodwin's Case, ... 7

4. Coolidge's Case, .. 9

Observations on the decisions in these four cases, ...13

Object of this work, ... 16

THE ADDRESS.

Questions to be considered, ... 17

-----------how to be stated, ... 19

Jurisdiction, what it is, ... 21

----------------in locum, ... 23

----------------in personam, ... 24

----------------in subjectam materiam, ... 26

Laws are but the means through which jurisdiction is exercised, not the source from whence it springs, ... ibid.

The Courts of the United States may take cognisance of offences at common law, when they have jurisdiction over the place, person, or subject matter, ... 29

Illustrations of this doctrine —

SECT. I. Of the Courts of the United States when exercising their jurisdiction in or for the confederated States, ... 31

1. Cases at Common law, ... 35

Cases of the United States v. Worrall, and the United States v. Hudson & Goodwin, considered, ... 50

Has the federal government a right to protect its officers against insult and outrage? ... 51

Can the federal Legislature enact penal laws for that purpose? ... 53

Can the federal Courts protect them by the mere force of the common law? ...

Distinction between imperative and potential or permissive powers under the federal Constitution, ... 54

2. Cases of admiralty jurisdiction, ... 57

SECT. II. Jurisdiction exercised without the limits of the States. Of ceded countries and places, and what laws are in force within them, ... 65

1. District of Columbia, ... 69

2. Old Territory N. W. of the Ohio, ... 73

3. Old Territory S. W. of the Ohio, ... 74

4. Louisiana and Florida, ... 75

5. Forts, Arsenals, Dock Yards, &c... 83 SECT. III. Question whether the common law is the national law of the United States, considered, ... 85

Recapitulation of the principles attempted to be established in this dissertation, ... 101

Hostility to the common law, its origin and cause, ...102

Inconveniences in the common law, but none sufficient to induce its abolition, ... 104

Impossibility of abolishing the common law, ... 105

General view of the common law in England before the revolution of 1648, ... 106

Improvement of the common law since that time, in England, .... 111

In America, .... 112

Defects of the common law, ... 117

The commercial and maritime law in England different in many respects from the general law of the commercial world, and why? ... 119

The improvement of the common law reserved to the United States; how to be effected? ... 123

Effects produced in England by the writings of Americanjurists, ... 124

The study of general jurisprudence recommended. Law should be treated as a philosophical science. Consequences that it will produce. Conclusion, ...126

ADDENDA.

I. A brief sketch of the national jurisprudence exercised in the United States, from the first settlement of the Colonies to the time of the adoption of the federal Constitution. By Thomas Sergeant, Esq.. 133

II. An Address delivered at the opening of the Law Academy of Philadelphia, on the 21st February, 1821.

By Peter S. Du Ponceau, LL.D. ... 169

APPENDIX.

I. Constitution of the United States, ... 193

II. Extract from the Report of the case of the United States v. Worrall, (Circuit Court, Pennsylvania District,) .... 213

III. Instruction from the Assembly of Virginia, to their Senators in Congress, respecting the common law, ... 225

IV. Extract from the Report of the case of the United States v. Aaron Burr, (Circuit Court, Virginia District,) ... 227

V. Report of the case of the United States v. Hudson & Goodwin, (Supreme Court U. S.,) ... 233

VI. Judge Story's opinion in the case of the United States v. Coolidge, (Circuit Court, Massachusetts District,) .... 237

VII. Report of the same case on appeal, in the Supreme Court of the United States, ... 247

VIII. Extract from the opinion of Chief Justice Tilghman, in the case of the Commonwealth of Pennsylvania v. Kosloff, ... 249


A DISSERTATION
ON THE
NATURE AND EXTENT
OF
THE JURISDICTION
OF THE
COURTS OF THE UNITED STATES,

BEING A VALEDICTORY ADDRESS
DELIVERED TO THE STUDENTS OF THE LAW ACADEMY OF PHILADELPHIA, AT THE CLOSE OF THE ACADEMICAL YEAR, ON THE 22D APRIL, 1824,

BY PETER S. DU PONCEAU, LL.D.
PROVOST OF THE ACADEMY.

EX LEGE COMMUNI NON ORITUR JURISDICTIO.

IN GENERALIBUS, GENERALE: IN LOCALIBUS, LOCALE JUS PRÆVALEAT


A DISSERTATION, &c.

INTRODUCTION.

IN the year 1798, a bill of indictment was preferred and tried in the Circuit Court of the United States, for the Pennsylvania District, against one Worrall, for a fruitless attempt to bribe an officer of the federal government* The fact being fully proved, a verdict was found against the defendant, when Mr. Dallas, one of his counsel, submitted a motion in arrest of judgment.

(* 2 Dall. 384.)

In order to understand the grounds on which this motion was made, it ought to be observed that the framers of the Constitution of the United States thought proper to vest in the judiciary, certain specific powers, extending even beyond the authority of the national legislature. They were empowered to decide all controversies "between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different States, and between a state or the citizens thereof, and foreign states, citizens or subjects." These are all understood to be matters of merely civil jurisdiction.

Other specific powers were also granted, including cases of a criminal as well as civil nature. Those were to take cognisance of "all cases of admiralty and maritime jurisdiction and all cases affecting ambassadors, other public ministers and consuls." The constitution did not provide in like manner for cases affecting officers of the government of the United States.

In addition to the above branches of jurisdiction thus specifically granted, the judicial power was declared by a general clause to extend "to all cases in law and equity, arising under the constitution, the laws of the United States, and treaties made or to be made under their authority."

Mr. Dallas contended that the offence of which the defendant stood convicted was not cognisable before this tribunal. It was not evidently within any of the specific powers granted to the judiciary of the United States, neither did it come within their general authority. It was not committed in violation of a treaty nor of a law of the United States, since Congress had passed no act applicable to this particular case. Nor could it be said to arise under the constitution; such a construction, if it were admitted, would lead to assumptions of power to which no bounds could be perceived. And were it even so, the common law, by which alone the act was made criminal, was not the law of the United States in their national capacity, and therefore, whatever it might be elsewhere, this offence was not here within the reach of justice.

Mr. Rawle, the attorney for the District in answer to Mr. Dallas's argument, insisted that the Court had a right to take cognisance of this offence, as of a case arising under the laws of the United States, because the officer whom the defendant had endeavoured to corrupt was appointed under an act of Congress, and that the Court being thus possessed of jurisdiction, the common law was to be looked to for the definition of the offence and the infliction of the punishment. In support of this last position, he cited the case of one Henfield,* who had been tried in the same court for a violation of the law of nations (a part of the common law,) and of the Genoese Consul Ravara, who had been convicted by the same tribunal of a mere common law offence.

(* This was an indictment for enlisting on board of a French privateer and aiding in the capture of British vessels, in violation of the neutrality and of the treaties of the United States. The defence was, that neither the neutrality nor the treaties had been violated in this particular instance. The defendant was acquitted.

Judge Wilson, who presided at this trial, in his charge to the jury, took the ground of its being also an offence at common law, of which the law of nations was a part, and maintained the doctrine that the common law was to be looked to for the definition and punishment of the offence. This ground had not been adverted to in argument, or at least very slightly. But it would seem that the common law, considered as a municipal system had nothing to do with this case. The law of nations, being the common law of the civilised world, may be said, indeed, to be a part of the law of every civilised nation; but it stands on other and higher grounds than municipal customs, statutes, edicts or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilisation, or involving the country in a war. Every branch of the national administration, each within its district and its particular jurisdiction is bound to administer it. It defines offences and affixes punishments, and acts every where proprio vigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental principles. Whether there is or not a national common law" in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state. Judge Wilson, therefore, in my opinion, rather weakened than strengthened the ground of the prosecution in placing the law of nations on the same footing with the municipal or local common law, and deriving its authority in a manner exclusively from the latter. It was considering the subject in its narrowest point of view.

On the trial of this cause, I was concerned fop the defendant.)

Thus, there appear to have been two distinct. and independent questions involved in this case; the one whether the federal Courts had cognisance of the particular offence? the other, whether admitting that they had such jurisdiction, the common law could be looked to for the definition and punishment of the crime? The first of these questions, Judge Chase, who presided at this trial, did not think it necessary to consider, but decided in favour of the defendant on the broad ground that there was no common law of the United States. The question, he said, was not about the power, but about the exercise of the power. It was whether the Courts of the United States could punish a man for any act, before it was declared by a law of the United States to be criminal. The common law could not be recurred to for the definition and punishment of the offence. The United States had no common law, though the States had, but the common law of one State was not the common law of another; nor was the common law of England the law of any of the States, except so far as they had adopted and modified it by their statutes and usages, from which had resulted an endless variety which could not be reconciled. On this ground therefore (leaving jurisdiction out of the question) he was for arresting the judgment; but the District Judge, Mr. Peters, differing from him in opinion, and the parties not agreeing to carry the case up to the Supreme Court, the judgment was not arrested, and the defendant was fined and imprisoned. Thus ended this celebrated case.

This decision of Judge Chase made a great noise at the time, and left vague but strong impressions, the more so as he was known to be a man of deep learning and considerable strength of mind and more disposed to extend than to limit power. Afterwards, in the year 1807, in the case of the UNITED STATES v. AARON BURR,* which was tried at Richmond in Virginia, Mr. Chief Justice Marshall, who presided at that trial in the federal Circuit Court on an incidental motion, in which this question was made, but which did not necessarily involve it, intimated an opinion that the laws of the several States, (including, of course, their common law) could not in any case be considered as rules of decision in trials for offences against the United States. This, however, he expressed upon the whole in the language of doubt, nor was his decision upon the point before him depending on this question. But the doubts of great men have often more influence than the settled opinions of men of inferior minds, which was the case in the present instance. From the opinion of Judge Chase and the doubt of Mr. Chief Justice Marshall, an unsettled notion was formed and spread abroad among the profession, that "the Courts of the United States had not jurisdiction of the common law." Such was the language in which the idea was expressed, in which no distinction was made between the common law as a source of jurisdiction, and as a rule or means for its exercise.**

(* Report of Burr's Trial, by David Robertson, 2 vol. 8vo. Richmond, 1808. Vol. 2, p. 481.

** I did not, any more than others, escape the genera! contagion. It was not until alter repeated discussions of these questions in the law academy, that I began to perceive that the words "common law jurisdiction," had no definite meaning, and was led to enter into this investigation of the subject.)

It is not astonishing that this confusion of ideas should have prevailed. In England, the jurisdiction of almost every tribunal is derived from the common law, that is to say from ancient usage. From the same source proceeds, at the same time, almost the whole of the English jurisprudence. Jurisdiction and law flow together in a mixed stream, which in that country there is little necessity to analyse in order to separate its component parts; while in this country, a phenomenon has suddenly appeared, of a national judiciary in a manner assimilated to municipal tribunals by the various limitations of its powers, not as between the different Courts of which it might be composed, and with a view to settle their respective bounds of authority, but as between them and the tribunals of component parts of the nation, which, though dependent to a certain extent on the national government in all its branches, are still sovereign to all other purposes within their respective limits. The common law, therefore, is not the source to be recurred to to unravel the intricacies of this system.

Things remained in this situation until the year 1812, when a case was brought up to the Supreme Court from Connecticut on a division of the Judges, in which the question of common law jurisdiction was propounded in terms for the decision of the superior tribunal. It was the well known case of the UNITED STATES v. HUDSON and GOODWIN.* The defendant, a citizen of Connecticut, had been indicted for publishing a libel against the President and Congress of the United States. Whether the Circuit Courts had common law jurisdiction in cases of libel? was the question submitted to the Supreme Court, and which it was called to decide upon.

(* 7 Cranch, 32.)

The manner in which this question was worded seemed to imply that the Court in that case derived no jurisdiction either from the Constitution or a Statute of the United States. Could they assume such a power as derived only from the common law? The Court, through Mr. Justice Johnson, decided in the negative. They did not think it material to inquire whether the general government possessed the power of protecting themselves by providing for the punishment of such acts as this, nor to what extent they might possess it, but if they had this power, it did not follow that it was concurrently vested in the judiciary; if the Constitution did convey certain implied powers to the government considered as a whole, it did not follow that the Courts of that government were vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. To this argument there seems to be no answer. It made at once an end of the case.

The Court, however, did not stop there, but proceeded to say that in order to vest jurisdiction in the federal judiciary in criminal cases, it was necessary that Congress should not only define the offence, but also affix the punishment. Of this I have taken the liberty to express doubts in the ensuing discourse. It is certain that Congress, in their penal statutes, have designated several offences merely by their technical names, without otherwise defining; them. Nor do I conceive that these matters are at all connected with jurisdiction, which may be conferred by simple words, such as are sufficient to describe the person or the subject matter over which authority is given. But I will not anticipate my argument.

The Court proceeded further, and in doing so, I must say, travelled, as the phrase is, extrà cancellos, or beyond the record. The question submitted to them simply was, whether the Courts of the United States had common law jurisdiction in cases of libel? The question which this case presents, said Mr. J. Johnson, "is whether the Circuit Court can exercise a common law jurisdiction in criminal cases? We state it thus broadly," continued the learned Judge, "because a decision in a case of libel will apply to every case, in which jurisdiction is not vested in those Courts by statute."

As the Court understood it, there can be no doubt of the correctness of this opinion. They spoke of jurisdiction only, properly so called. It is clear that it can be conferred on the federal tribunals only by the Constitution or by the statutes made in pursuance of it, and that setting aside the question whether those Courts may derive their rules of action from the common or any other law, yet they cannot derive from such a source their right to act; except where, as in cases of admiralty, and maritime jurisdiction, a general authority is given to them to administer in all cases a particular body of laws. But these words, and those of Judge Chase in the case of the United States v. Worrall, were taken by the profession in a much more extensive sense than the Court in this case appears to have had in contemplation.

This was made manifest in a case which presented itself in the following year (1813) before the Circuit Court of the United States for the District of Massachusetts. I allude to the case of the UNITED STATES v. COOLIDGE.* This was an indictment for forcibly rescuing on the high seas, a prize which had been captured and taken possession of by two American vessels, and was on her way, under the direction of a prize master, to the port of Salem, for adjudication. Whatever else it might be, it was clearly not a case of common law. It belonged to the admiralty jurisdiction, expressly committed by the Constitution to the federal judiciary, and distributed between the Circuit and District Courts by the statutes of the United States, made in pursuance of it.

(* 1 Gallison,488. 1 Wheaton, 415.)

It appears that the case of the United States v. Hudson and Goodwin, before mentioned, had been decided by the Supreme Court on an ex parte argument, the counsel for the defendant having declined the discussion of the point. This, Mr. Justice Story, who presided at the trial of the case we are now speaking of, very properly considered as leaving the whole question still open, and as by no means settling the law upon it; but as the learned Judge was well aware of the difference between that case and the one before him, and that the jurisdiction of the Court could be sustained in the latter on much stronger grounds than in the former, it is much to be regretted that he thought it necessary to travel out of his straight path, and to abandon an impregnable fortress to seek battle in the open field. I can only account for his taking that course by the strong desire which I suppose he felt that the general question of common law jurisdiction should be considered by the supreme tribunal with the solemnity due to its importance, and that it should be finally settled after a full re-hearing. For this purpose, it would seem, the two Judges divided, in order that it might be carried, (as in fact it was) up to the Supreme Court of the United States.

If this desire, which it seems was general among the profession, had not prevailed, it is probable that the difference between the case of the United States v. Hudson and Goodwin and the present one, would have been immediately perceived. The former was a case of libel of which no express cognisance is given by the Constitution to the federal Courts, while this was one of admiralty jurisdiction, committed exclusively to those tribunals in the most direct and explicit terms. The admiralty is governed by a peculiar law of its own, which may be called (as it is the fashion to call every thing) a part of the common law; still it is not the common law in its usual and more restricted acceptation. Whether or not the offence charged was indictable under the admiralty law, is the simple question which appeared to result from the state of the case; yet so much did ideas turn upon the common law and common law jurisdiction, that Mr. Gallison at the head of his report of this case, states the question to have been, Whether the Circuit Court of the United States has jurisdiction over common law offences against the United States? It is highly probable that this was the point of view in which it was considered by the counsel who argued the cause. Their argument is not in print.

Judge Story, however, did not express himself thus. "The simple question," said he "is whether the Circuit Court of the United States has jurisdiction to punish offences against the United States, which have not been previously defined, and a specific punishment affixed., by some statute of the United States." This was coming much nearer to the true point in controversy; but still, I shall, with due respect to the opinions of this learned and able Judge, endeavour to show, that it is stated in too general a manner, and that had it been confined to a Court sitting in the exercise of admiralty jurisdiction, it would have admitted of a more complete and more easy solution.

But it is evident, (to me at least) that Judge Story had the general question, which had so much and so long agitated the bar and the bench, always before his eyes.

This question the learned Judge decided in the affirmative. As applied to the case before him, there can be no doubt of the correctness of his decision, any more than of that of the Supreme Court of the United States, in the case of the United States v. Hudson and Goodwin, although they seem to be in direct opposition to each other. The reason is, in my opinion, that in both these cases, the Judges were led by the counsel into too wide a field of argument, and assumed as general principles, rules which, although correct, as applied to particular cases, were not so as applied to all. This is what I shall endeavour to demonstrate in the following address.

It is remarkable that the decisions of the Judges in each of the four above mentioned cases, although on general principles, they are apparently irreconcilable, yet are all perfectly correct as applied to each particular case. In the United States v. Worrall, Judge Chase, and in the United States v. Hudson and Goodwin, the Supreme Court were right in deciding that their respective tribunals had not jurisdiction of the particular case, while in the United States v. Coolidge Judge Story was also right in deciding the reverse. In like manner, in the case of the United States v. Burr, Mr. Chief Justice Marshall, decided with great propriety, in refusing to follow the course pointed out by the local law of Virginia. I shall not attempt to disturb any of these decisions.* The difficulty of the questions which I have undertaken to examine, will be found all to result from the obiter dicta of the Judges.

(* I do not consider the reversal of the judgment in the United States v. Coolidge, as a deliberate decision of the Supreme Court, as it was not given upon a full view of the facts, and was submitted to by counsel without argument.)

The case of the United States v. Coolidge was carried up by appeal to the Supreme Court. Richard Rush, Esq. then Attorney General of the United States, a gentleman whose talents do honour to his profession, being persuaded that the opinion of the majority of the Court was fixed on the general question, and that it would be in vain to attempt to discriminate between particular cases, gave up the cause without argument. The Court, therefore, did no more than confirm their former decision in the case of the United States v. Hudson and Goodwin, under the belief that the one submitted arose from similar facts. Several of the Judges, however, expressed a wish to hear an argument whenever a proper opportunity should offer.

That the bar and the bench should take a legal question in too general a point of view, and fix their minds so steadily upon it, as to be unwilling to believe that it may admit of distinctions in particular cases, is a thing not at all to be wondered at, or to be interpreted to the disparagement of their learning or sagacity. Similar things have happened in every country. How came the English bar and bench, and even thai truly great man, Lord Mansfield, in the case of BERNARDI v. MOTTEUX,* and in every subsequent case until very lately, to take it at once for granted, by an overstrained extension of the principle laid down by the Court, in the case of HUGHES v. CORNELIUS,† that the sentence of a foreign Court of admiralty, was conclusive against all the world, not only as to its effects, but as to every matter of fact which it professed to decide? By what strange hallucination did they persuade themselves that this doctrine was a settled principle of the law or comity of nations, while the opposite doctrine is laid down by all the foreign writers, who have taken the subject into their consideration?** How came they not to perceive that the moral character of their nation, was implicated in a principle which permitted English underwriters to receive high war premiums for insuring neutral property against capture by belligerents, and its attendant confiscation, and to refuse paying the loss when it happened, on the ground that the property was not neutral, because it had been condemned? This is not said with a view to depreciate the talents or impeach the rectitude of the English Judges, but to show that the best and the greatest men will sometimes receive impressions, which are afterwards difficult to be eradicated. Besides, this is not written with a view to Europe, but to this country, where the doctrine of conclusiveness of foreign sentences has still too many friends.

(* Douglas. 554.

† 2. Shower, 232.

** Regis et principis factum connumeratur inter casus fortuitos. Roccus, de assec. not. 65. Merces captæ à potestate, seu judice administrante in illo loco, — tenentur assecuratores. — Quod judex facit injustè, dicitur casus fortuitus, and in assecuratione pertinet ad illum qui in se suscepit casum fortuitum. Ibid. not. 54. quotes Straccha, and numerous other authors.

Le fait du Prince est mis dans la classe des cas fortuits, Scaccia, quest. 1, No. 136. Ibid. No. 137. Peu importe que l'injustice precède de la corruption du Juge ou de son ignorance. Quid refert sordibus judicis, an stultitia res perierit, ff. de evictionib. l. 51. — Il est donc certain que les assureurs répondent de la confiscation injuste prononcée par le tribunal du lieu où le navire pris a été conduit. Emérigon, sur les Assurances, Vol. 1. p. 457.

See also the opinion of this eminent jurist in the ease of Angles and others v, The Underwriters, in Valin's Commentary on the Marine Ordinance of Louis XIV. vol. 2. p. 120. in conformity to which the Parliament of Aix gave their sentence on the 28th of June 1759, on the report of M. de Coriolis, Valin. ibid.)

The distribution of powers under the Constitution of the United States is so entirely new, and involves so many nice, and difficult questions of jurisdiction, that it may be considered as a fact highly honourable to our judiciary and to our country, that our venerable Judges, whenever the case has been fairly stated to them, have decided right on the main point of every such question that has yet arisen under it. That they should have committed occasional mistakes, on points which it was not incumbent upon them to decide, is no more than what others have done, whose reputation overspreads the world.

I have endeavoured in the following sheets, to discover the true principles upon which the cases turn, which have given rise to so many, and so various opinions. I dare not flatter myself with having succeeded; but, at least, I shall have opened the way in which others, better qualified, may follow me with greater success.

The opinions of the Judges, in the four cases above mentioned, are inserted at large in the appendix.

THE ADDRESS.

MY FRIENDS AND FELLOW STUDENTS,

ON taking my affectionate leave of you at the close of this academical year, I have thought it my duty to address you on some of the most important subjects that have been discussed in the course of our exercises, I mean the nature and extent of the jurisdiction of the Courts of the United States, and the various laws by which they are governed. Twice, within these three years, you have debated the questions, whether the federal tribunals have jurisdiction or cognisance of crimes and offences at common law? and incidentally, whether there is a common national law in this country? These are weighty questions, which have called forth the exercise of the first abilities of the land, and yet at this moment are not completely settled. For, I do not consider them to be so by the decisions in the cases of the United States v. Hudson and Goodwin,* and the United States v. Coolidge.† I take no point to be settled by the first of these cases, but that the federal Courts can derive no jurisdiction from the common law, which doctrine has my full and unqualified assent; but it does not appear to me to follow that they cannot, in any case, take cognisance of offences at common law, nor that the common law is not in other respects than giving jurisdiction, the national law of these United States; the last case was given up by the counsel for the prosecution on a mistaken impression of the bearing and effect of the Court's decision in the first, and the Judges expressed a disposition to hear the question argued again whenever a proper opportunity should offer. I therefore consider the subjects which I have undertaken to treat of as still open to our modest and respectful inquiry.

(* 7 Cr. 32.

† 1 Wheat. 416.)

Although I have bestowed upon these interesting questions much anxious meditation and assiduous study, I nevertheless approach them with the greatest diffidence. I am aware of all their difficulties, much more than those who have paid but a transient attention to them. But I will not be deterred either by the difficulty of the subject or by the consciousness of the inadequacy of my abilities. I have studied and reflected for you; to you I owe the result of my meditations and studies. Accept it, therefore, such as it is, from your friendly preceptor, who has no pretention but that of being useful to you, and seconding your noble ardour for the attainment of legal knowledge. I shall consider these questions in their order, and endeavour to convince you, by this investigation, of the importance of the science of general jurisprudence, or LEX LEGUM, as Lord Bacon elegantly calls it; as I hope you will find that by recurring to its principles, the most difficult questions may be solved, even in a new and complicated system of constitutional law, which as it has not its equal in excellence, has not its like in the order and distribution of its powers.

The manner in which questions are stated is of the highest importance to their correct solution. In the first place, they should not be put in too general terms, for no one can foresee all the variety of cases that may arise, and in which perhaps, a different decision ought to be given. Thus, who can say, when he lays it down as a general rule, that the federal Courts cannot take cognisance of offences at common law, that there may not be cases where they must of necessity exercise that power? That there are such cases, I hope I shall be able to convince you in the course of this inquiry.

In the next place, questions ought not to be put in loose and vague terms, but in such as admit of a clear and definite answer. In the case of the United States v. Hudson and Goodwin, above cited, the question was as stated by the reporter, whether the federal tribunals could exercise common law jurisdiction in criminal cases? It appears to me to have been here ambiguously expressed, because the words common law jurisdiction, admit of different interpretations, and consequently of different answers. If it is meant by them to ask whether the Courts possess any jurisdiction derived from the common law, which seems to be the sense in which they were understood in that case by the Supreme Court, the answer is clearly to be given in the negative: because, the Courts of the United States, being the creatures of the Constitution, cannot have or exercise any powers but what they derive from or through it. Of this there can be no doubt. But, if this undeniable proposition is carried so far as to infer, that those Courts cannot in any case whatever, take cognisance of an offence which is only made such by the common law; and this is the sense in which it seems to be generally taken by the profession, in consequence of some obiter expressions fallen from the bench; then I am bound to say, that neither the Constitution nor the laws of the United States, nor yet the rules of sound logic, warrant such an application of the principle. Because the Courts have not jurisdiction from the common law, it does not follow that they have not jurisdiction of the common law. This is what I shall endeavour to prove to you in the present discourse.

The question which I shall consider is, whether an offence merely such at common law is indictable in the Courts of the United States? In these terms it assumes body and shape, and is sufficiently clear and intelligible. It cannot, however, be answered in the same general terms. It admits of many dictinctions produced by the complicated system of our judicial organisation. In certain cases it will require an affirmative, in others a negative answer. But I cannot make you understand this without a full development of the subject. I beg you will have the patience to follow me in this investigation.

I shall, in the first place, explain to you the. true meaning of the word jurisdiction, and the various subjects to which it may be applied. Then I shall endeavour to disentangle from it the question now before us, and examine it with you in its different aspects, and in the various points of view in which in my opinion it ought to be considered.

JURISDICTION, in its most general sense, is the power to make, declare, or apply the law; when confined to the judiciary department, it is what we denominate the judicial power. It is the right of administering justice through the laws, by the means which the laws have provided for that pur pose. In its more limited sense, which is that in which we are now viewing it, it is still the judicial power; but considered in relation to its extent and to the subjects which it embraces or upon which it acts.

Every human jurisdiction, without exception, rests on one of three foundations, or on several of them together.

1st. The place or territory over which it is exercised, and that is called jurisdiction over the place, in locum.

2d. The persons which are subjected to its action, and that is jurisdiction over the person, in personam.

3d. The subjects of which it takes cognisance. and that is jurisdiction over the subject matter, in subjectam materiam.

This last species of jurisdiction is sometimes limited by persons or places, by being restricted to cases in which certain persons are concerned, or to matters which arise or happen in certain localities. Thus the Constitution of the United States gives jurisdiction to the federal Courts of all suits between aliens and citizens, and between citizens of different states. This jurisdiction is general as respects the subjects of litigation; but is limited by the relative character of the litigant parties. It may therefore be considered as within the class of jurisdictional power over the subject matter, vesting only with respect to certain persons, ratione personarum. In like manner the Court of admiralty has cognisance of all things done on the high seas. This jurisdiction is also founded on the subject matter: it is not complete, however, until made so by the concurrent circumstance of locality; it is therefore jurisdictio in materiam, ratione loci rei actæ.

These are the only species of jurisdiction that exist, as I may say, in rerum naturâ,* none will be found on the strictest investigation to exist any where that does not fall within some one or other of the above divisions of place, person, and subject matter, either general, or limited by each other. All the powers vested in the federal Judges by our national Constitution belong to some one or other of these species; it would he wasting your time, and almost insulting your understanding, to attempt to demonstrate it. Permit me to say a few words on each of these branches separately.

(* It may be asked, perhaps, whether there is not also a jurisdiction in rem, as we are accustomed to speak in reference to the Court of admiralty. Res, is but another word for materia; therefore, jurisdiction in rem, means no more than jurisdiction over the subject matter. It matters not whether it be a physical or a moral subject. The words in rem, are more property applicable to the process than to the jurisdiction. Thus, in respect to ships, we may say that the admiralty has jurisdiction over the subject matter, and, in general, exercises it by a proceeding in rem.)

1. Jurisdiction over the place, or in locum. This is the most common kind of jurisdiction, and is sufficiently defined by its descriptive name. Under our particular forms of government, the state Courts alone possess it within the districts allotted to them by their own local laws; that of federal Courts is founded either on persons or subject matter, and although they exercise it within the state boundaries, yet it is not from the place that they derive their powers. It is otherwise in the forts, arsenals, and dock yards, in the District of Columbia, and in the territories belonging to the Union; there the jurisdiction of the federal Courts is strictly in locum, and there it is exclusive of every other authority not created by the national body. The admiralty, in common with those of other maritime nations, has a concurrent jurisdiction over the high seas, which must not be confounded with that of thing? done at sea, which I have above mentioned. This last is analogous to that which was anciently possessed by the Court of the constable and marshal in England. It took cognisance of things done in foreign countries, but had no jurisdiction whatever in or over the territory of the foreign country, or over its subjects.

2. Jurisdiction in personam. This species of jurisdiction is to be traced, in Europe, to the pride and ambition of the privileged orders. The ecclesiastics and nobles, disdaining to submit to the authority of the ordinary tribunals of their country, claimed the right of being amenable only to special Judges, generally taken from their own body Hence the ecclesiastical Courts, the right of Peers in England to be tried only by the House of Lords, and other similar institutions, which are found in every European country. Inferior bodies successively claimed, and obtained similar privileges; hence corporate towns had their municipal Judges, and the two English Universities had an extensive judicial authority given to them, which they still possess over their members. "They have authority," says Blackstone, "to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold, and also all criminal offences or misdemeanors, under the degree of treason, felony, or mayhem."* All these privileges are odious, except where they are confined to mere municipal police; because in every well regulated Commonwealth, every citizen ought to be amenable to the ordinary tribunals of his country. But it is otherwise with foreigners, and it is often a wise policy to establish a special jurisdiction to try their causes; because the government is responsible for every injustice done to them. Thus, in the kingdom of Scotland, all foreign matters were formerly heard, and decided on by the King in council; in later times a special jurisdiction has been vested for that purpose, in the Court of Session, who decide all such causes on general principles of equity.**

(* 4 Com. 276.

** Kaimes' Prin. of Eq. B. iii. c. 8.)

On the same principle, the. framers of our Constitution have, with great wisdom, granted to foreigners the personal privilege of suing, and being sued in the federal Courts, and with no less propriety have extended it to American citizens of different States in their controversies with each other, by this means securing in a great degree harmony at home, and giving to foreign nations a solid pledge of the national justice. Many are of opinion that this important branch of jurisdiction has been too much narrowed down by the early adjudications of the federal Courts, feeling their ground, as it were, and fearful of overstepping the barrier of their chartered rights. Later decisions however, evince a disposition to construe this jurisdiction in a less technical manner, and to consider this subject in a mere liberal, and national point of view. Indeed, it is difficult to reconcile with the feelings of the present times, a principle which should assimilate the Courts of the American Union to the inferior tribunals of the English monarchy. It is difficult also to reconcile with the rejection of the common law as a national system of jurisprudence, the searching into it with so much industrious care, for forced analogies to he applied to a state of things which it never contemplated, for rules which should rather be sought for in the spirit, and policy of our Constitution itself, and in the sound sense which dictated this admirable compact.

3. Jurisdiction in subjectam materiam. The subjects of this branch of jurisdiction are various as the law itself, since it embraces every thing which properly comes within the sphere of legislation. In general, they are crimes and punishments, natural and social relations, contracts, obligations, duties, rights and wrongs. In order to facilitate the administration of justice, the cognisance of these various matters is commonly distributed among different tribunals. Hence there are civil, criminal, ecclesiastical, military, maritime, commercial, matrimonial, and testamentary Courts, Courts of Equity, of revenue, and of international law. Some of these Courts take the civil, some the canon law, while others take the common or municipal law of the country as their general rule of decision; but it is not on the use of one or other of these codes that their right of jurisdiction rests. These are but the means or instruments, through which they exercise it, nor are they limited to the exclusive use of any one of them; for when proper cases present themselves, they expound, and decide on any system of jurisprudence, that may be found applicable. Thus, our Courts of common law often apply the rules and principles of equity, while our Courts of Equity are even bound by the decisions of the common law. Thus all Courts of justice, when called upon to decide on foreign contracts, take the law of the foreign country, the lex loci contractus as their guide, and decide according to its principles. The jurisdiction over the particular case being vested in them, on one of the three grounds that I have above mentioned, they become entitled to use all the means and instruments that are necessary to its correct exercise, and among those, unless there should be a special prohibition or exclusion, are the laws which are applicable to the subject matter before them.

Let us not be deceived, therefore, by those familiar expressions which are used at the bar, and sometimes even on the bench, to describe and designate certain tribunals, but not to define their jurisdiction. Thus, the admiralty is called a Court of civil law, and the ecclesiastical tribunals Courts of canon law; but these denominations have nothing to do with the nature or extent of their jurisdictional rights, which are generally founded on the subject matter. The admiralty has cognisance of things done at sea, and of certain contracts and other matters of a maritime nature, such as bottomry, mariner's wages, salvage, &c. and of crimes, and offences committed on the high seas. As a Court of prize, it entertains jurisdiction of captures jure belli and their incidents, and in the United States it is also a Court of revenue. The jurisdiction of the English ecclesiastical Courts comprehends various matters concerning the church establishment, such as substraction of tythes, oblations, mortuaries, and various other subjects relating to church discipline; also the probate of wills, granting letters of administration, marriage contracts, consanguinity, divorces, alimony, &c. but the parliament might forbid them the use of either the civil or the canon law, and their jurisdiction would still remain the same, their means of exercising it would only be narrowed, or in some cases, perhaps, entirely taken away, but their right over the subject matter would not be in the least diminished. Thus, when the Legislature of Pennsylvania prohibited our State Courts from taking certain adjudications of the English tribunals as their rule of decision, they did not mean to abridge their jurisdiction in the smallest degree, but left it unimpaired as it was before.

It may be said, however, that the various branches of jurisdiction may be limited and restricted in such manner as the legislator thinks proper, and it will be inferred as necessary consequence that jurisdiction of crimes, and offences ratione materiæ, may be limited to certain criminal acts, while others may be excluded, and these designated by the particular code of laws which constitutes them crimes or offences. I admit both the proposition and the inference. But the question is not whether such a thing may be done, but whether it has been done; it is so different from the usual course of legislation that it ought not to be presumed, but the intention of the law giver should be clear and manifest, which I take not to be the case in the present instance. There is no such distinction made in any part of the Constitution of United States; on the contrary, all the jurisdictions that it creates are founded on the natural, and legal grounds of person, place, and subject matter, without any, the least reference to any particular code, except that the common law is sometimes mentioned or referred to as the rule of derision in certain cases, but its exclusion is no where to be found. I undertake on the contrary to shew that such exclusion was never within the view of the framers of our Constitution, and that in those cases in which it has been laid down as a broad maxim, that the federal Courts have no jurisdiction of offences at common law, if the jurisdiction of those Courts was really deficient, it must have arisen from other causes, and the defect of jurisdiction must have been founded on other grounds than that which has been assumed.

In order to prove this position, I shall consider the Courts of the United States, in two different points of view:

I. As exercising their jurisdiction in or for the confederated States.

II. As exercising it for the territories belonging to the Union.

III. And in the third place, I shall incidentally consider whether there is a national common law in the United States.

The two above mentioned branches of jurisdiction are, in my opinion, extremely different. The one is unlimited, except by the acts of the federal legislature, where they apply, the other is restricted within precise limits by the Constitution itself: these limitations, it is evident, were expressly introduced for the purpose of guarding and protecting so much of the sovereignty of the States as they have thought proper to retain; but where the Constitution gives to the federal government an exclusive power over certain districts and territories, it could not mean to restrict their judiciary, where there was no sovereignty to protect but their own. In fact, the federal Courts when sitting in or for the United States, properly so called, are different tribunals from what they are when sitting in or for districts or territories, not within or under the separate jurisdiction of the State themselves. The Supreme Court, for instance, when sitting on an appeal or writ of error from Pennsylvania or Maryland, exercises its jurisdiction over one of the confederated States, and therefore is strictly to be considered as the Supreme Court of an union of independent Republics, limited and restricted by those branches of sovereignty which they have not parted with; when, on the contrary, it is sitting for the District of Columbia or the territory of Michigan, where there are no reserved rights that can be encroached upon, although still acting under the national authority, it is in those instances exercising the powers of the Supreme Court of the district or territory, which powers, I humbly conceive the Constitution never meant to limit. This distinction I consider to be all important for the understanding of what is to follow.

I shall then in the first instance consider the jurisdiction of the federal Courts as it relates to the States properly so called, that is to say, as exercised within or for their proper territory.

SECTION I. — Within the actual limits of the States properly so called from which I except forts, arsenals, &c. over which the United States, by a special provision of the Constitution, have exclusive jurisdiction, the federal Courts cannot be said to possess jurisdiction in locum, unless by way of limitation of the extent of their judicial action. The general jurisdiction over the territory is in fact vested in the States themselves, by virtue of their sovereignty, and that of the federal Courts, derived from the Constitution alone, is merely permissive and consequential on certain specific powers. It is given to them, not as connected with, or flowing from, any right that they have over the territory, but as a means necessary to the exercise of their jurisdiction over persons and subject matter. It is, therefore, from persons and subject matter only, that their whole jurisdiction is derived within these precincts, and they possess no judicial authority whatever, unless it vests in them from one or the other of these two sources.

I shall, therefore, in the consideration of this part of my subject confine myself to the jurisdiction that is derived from either person or subject matter.

I shall endeavour to prove to you, that it is not true as a general principle, that the judiciary whether in criminal or civil cases, have not jurisdiction of the common law, or cannot take cognisance of common law offences; that, on the contrary, whenever jurisdiction is completely vested in them from either of the sources above mentioned, they have cognisance of the law, whatever it may be, that is necessary to give effect to that jurisdiction, and they are not in all cases to wait until Congress have legislated upon the subject.

It must not be believed that our Constitution has given to the national legislature powers co-extensive with those that it has conferred upon the judiciary. There are many cases in which the judiciary can act, nay, when it must act, on subjects which the legislation of Congress cannot reach. Thus, in civil matters, the federal Courts have jurisdiction of all controversies between two or more states, between a state, plaintiff, and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens, or subjects.* It cannot be pretended that Congress have the power to legislate on all the various subjects that may give rise to those controversies, although the judiciary are authorised to decide on all and every of them, whenever properly brought within their jurisdiction. And it matters not whether the law which they dispense, be the common law, or any other applicable to the subject.

(* Const. U. S. art. 3. §. 2.)

In the same manner, the Constitution, by the same section, gives cognisance to the Judiciary of all cases affecting ambassadors, public ministers, and consuls, which is universally admitted to include criminal as well as civil jurisdiction, But it is clear that Congress have not the power given to them to legislate upon all matters that may affect those personages. Their legislative powers are confined within a circle traced by the Constitution itself, beyond which their authority ceases, while that of the Judiciary continues. Thus Congress may protect, by laws, the persons and property of ambassadors, public ministers, and consuls, and provide, as far as the law of nations permits, for their punishment, when guilty of certain offences; but the States also may bind consuls by their municipal laws, criminal as well as civil, in all cases in which the law of nations, or treaties, do not exempt them from the effects of ordinary legislation; and it cannot be imagined that the Constitution meant to give the power to Congress to interfere there, to make complete codes of civil and criminal law, and even police regulations, applicable only to that class of persons, and to release them from all subordination to the municipal laws of the States in which they reside. But the smallest as well as the greatest penalty incurred by a consul by the infringement of the municipal law of a State, is exclusively cognisable in the federal Courts, and the . State tribunals cannot exercise upon them even the least degree of jurisdiction.

If these principles are correct, it seems to me to follow as a natural consequence, that in all cases in which jurisdiction is vested in the federal Courts, either over the. person or subject matter, those tribunals must either take the law applying to the particular case, whatever it may be, as their rule of decision, or the jurisdiction cannot be exercised.

Proceeding now to illustrate this doctrine by examples, I shall first consider its application to cases of jurisdiction in personam. The Constitution has given to the Supreme Court, but not exclusively, cognisance of all cases affecting ambassadors, other public ministers, and consuls; and an Act of Congress has conferred the same authority, as far as respects the latter of those public characters, on certain inferior Courts; here is then a complete jurisdiction given by reason of the person. If a consul commits an offence against the common or statute law of the State where he resides, how is that jurisdiction to be carried into effect, but by means of those laws which have been violated? How is it to be in a case in which Congress cannot possibly legislate within the State's territorial limits, as if a consul offends against the health laws, against an Act forbidding clandestine marriages, lotteries, unlawful games, the violation of days set apart for religious worship, &c. I see no answer to be given, but that the federal tribunal is to stand precisely in the place of the State Judges, and to administer justice in the particular case, as these should have done, if the jurisdiction had not been taken from them, and vested elsewhere.* For the adjudicating power alone has been transferred from one tribunal to another, every other authority, as applying to the subject matter, remaining as it stood before, except where express or implied legislative powers are granted to Congress by the Constitution.

Three cases only have been decided (at least that have come to my knowledge) which bear upon this part of my argument. They are Mannhardt v. Soderstrom,† The United States v. Ravara,‡ and The Commonwealth of Pennsylvania v. KosIoff §The first was a civil action brought in the Supreme Court of Pennsylvania against the consul general of Sweden; after final judgment, the Court on a suggestion of the defendant's official situation, dismissed the proceedings, on the ground that they had not jurisdiction. No doubt can be entertained of the correctness of this opinion, nor can it be supposed, if the suit had been brought before a federal Court, that it would have proceeded by any other rule than the common or statute law of Pennsylvania, as applicable to the particular case. The two others were of a criminal nature; but I can see no difference in the principle.

(* I am well aware of an objection (hat may be made, and which is entirely technical in its nature. It will be asked, whether the Courts of (he United States have jurisdiction of offences against the peace and dignity of the individual States, and whether these can be said to be against the peace and dignity of the United States? But I see no difficulty in laying such an offence in an indictment, as against the peace and dignity of both; for it appears to me that in the political as in the physical body, whoever offends a part, offends the whole. But suppose this plain and obvious principle should not be deemed applicable to the case before us, the question then would be, whether this formidable objection is to prevent the execution of the powers exclusively vested by the Constitution in the federal Judiciary, and whether the Constitution is to bend to the technical forms of the common law, or these to be modified so as to suit the exigency of the case? I leave the answer to every sensible and rational jurist.

† 1 Binn. 138.

‡ 2 Dall. 97.

§ 5 Serg. & Rawle, 545.)

Ravara was consul of Genoa, and was indicted for writing sundry anonymous and threatening letters, with a view to extort money; Kosloff was consul of Russia, and his alleged offence was the heinous and horrible crime of rape. The former was an offence merely at common law, the latter was so likewise, but the punishment of it was affixed by the statute law of the State. One of these cases was brought before a federal tribunal, the other was not; but I see no reason, if both had been so tried, why the same course should not have been taken in the one that was in the other. Ravara was tried and convicted on the common law of the State of Pennsylvania; Kosloff might have been tried, convicted, and punished, according to my opinion, on the common and statute law combined, because they were the laws properly applicable to the case.

This appears to have been the sense of the national legislature, when they provided, in the 34th section of the Judiciary Act, "that the laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law, in the Courts of the United States, in cases where they apply." This statute goes the whole length of my argument, and I cannot consider it otherwise than as declaratory of what the law was before it was enacted.

It has been said, however, that this section of the Judiciary Act was only meant to be applied to civil, and not to criminal cases. But how has this been proved? In no way that I know of. The doctrine rests entirely on the obiter dictum of a single Judge, expressed in the modest language of doubt, in a case in which the decision of this point was not necessary to that of the question before him, I mean the case of The United States v. Aaron Burr, which will be presently adverted to, with all the respect due even to the doubts of the great character to whom I allude. In no other case do I find mention made of this construction of the statute, and there is no decision which bears directly upon it. This point, therefore, I think I have a right to consider as entirely open to investigation.

If we look attentively at this provision of the Judicial Act, we shall find abundant reason to believe that it was meant to include criminal as well as civil trials. For the section which it immediately fellows, which is comparatively long, and goes very much into detail, is entirely devoted to subjects which concern criminal jurisdiction. This is the last section bat one in the Act; the last one treats variously of subjects of civil and criminal law, and these two concluding sections appear to have been made with a view to both, and nut exclusively to either.*

(* The following are the sections above referred to. They are in the Act of Congress of the 24th of September, 1789, commonly called the Judiciary Act: —

SECT. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by any justice or Judge of the United States, or by any justice of the peace, or other magistrate of any of the United States, where he may be found, agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested, and imprisoned, or bailed, as the case may be, for trial before such Court of the United States, as by this Act has cognisance of the offence: And copies of the process shall be returned as speedily as may be into the clerk's office of such Court, together with the recognisances of the witnesses for their appearance to testify in the case; which recognisances the magistrate, before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the Judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal eases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the Supreme or a Circuit Court, or by a justice of the Supreme Court, or a Judge of a District Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a person committed by a justice of the Supreme, or a Judge of a District Court, for an offence not punishable with death, shall afterwards procure bail, and there be no Judge of the United States in the district to take the same, it may be taken by any Judge of the Supreme or Superior Court of law of such State.

SECT. 34. And be it further enacted, That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the Courts of the United States, in cases where they apply.

SECT. 35. And be it further enacted, That in all the Courts of the United States, the parties may plead and manage their own cases personally, or by the assistance of such counsel or attorneys at law, as by the rules of the said Courts, respectively, shall be permitted to manage and conduct causes therein.

And there shall be appointed, in each district, a meet person learned in the law, to act as attorney for the United States in such district, who shall be sworn, or affirmed, to the faithful execution of his office, whose duty it shall be to prosecute, in such district, all delinquents, for crimes and offences cognisable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the Supreme Court, in the district in which that Court shall be holden. And he shall receive, as a compensation for his services, such fees as shall be taxed therefor in the respective Courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as attorney general for the United States, who shall be sworn, or affirmed, to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court, in which the United States shall be concerned, and to give his advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation, for his services as shall, by law, be provided.)

Those who contend that the Legislature did not mean to include criminal trials within this section of the Judiciary Act, should prove that Congress have not a right to designate the laws of the particular States as the rule of decision in criminal cases. This would be very difficult, if I have sufficiently shewn that the federal Courts, in the case of consuls at least, cannot exercise the exclusive jurisdiction given to them by the Constitution over this description of persons, without the aid of those laws.

It seems best, therefore, to adhere to the plain and obvious sense of the section before us, and to follow the trite but true maxim, ubi lex non distinguit, ibi et nos non distinguere debemus.

I now venture to approach with the greatest diffidence the high authority which is generally, but, I think, too hastily, considered as bearing against my doctrine — an authority to which I have long been accustomed to bow with profound reverence, — in short, no less a one than that of the Chief Justice of the United States. In the case of The United States v. Aaron Burr, tried at Richmond, before the Circuit Court, where the learned Judge presided, in the year 1807, he is reported to have advanced the proposition, in the broadest terms, that the laws of the several States could not be regarded as rules of decision in trials for offences against the United States.*

(* 2 Robertson's Report of Burr's Trial, 482.)

In order to understand the true bearing of this expression, it ought to be taken in connection with the case then before the Court. The defendant, Burr, had just been acquitted of a charge of high treason, by the verdict of a petty jury, but was still in Court, not having been formally discharged from his commitment. At the same time, another bill of indictment had been found against him for a high misdemeanour, which remained to be tried. A question arose about holding him to bail to take his trial, and about the mode of process which should be employed. The counsel for the prosecution contended that a capias was the proper mode, according to the modern usage of the common law, while their opponents insisted that a summons only could be ordered, according to the coarse of the law of Virginia. In support of this opinion they cited the 34th section of the statute above mentioned.

It would have been sufficient to have answered that the statute directed the State laws to be the rule of decision in cases only where they applied, that consequently they did not apply to the present case, which was an offence alleged to have been committed in violation of the national law, and that the State law, when it applied was only to be the rule on the trial of the cause, and not to prescribe the forms of incidental proceedings. But the counsel thought proper to go into a wide field of argument, and to contend that the statute only intended to make the State laws the rule in civil cases, and that it could not be so in any case of a criminal nature. The Court neither awarded a summons nor a capias, but very properly conceiving that the statute gave them power by a necessary implication to devise the proper process in such case, they simply made an order on the defendant to give bail or stand committed; thus deciding in the true spirit of the American common law, which abhors unnecessary forms, and is averse to putting an accused party to unnecessary expense.

In delivering his opinion, the Chief Justice expressed himself in the terms above mentioned, that the laws of the several States cannot be regarded as rules of decision in trials for offences against the United States; so far I think he was perfectly correct. Taking his last expression according to what I conceive to be its true meaning, I do not find that it militates at all against my opinion, which extends no farther than the words of the statute, which makes the State laws the rule of decision only in cases where they apply. But those law? could not apply to an offence properly and solely against the United States, being a violation of the national Constitution and laws, and not of the local laws of any State. There, undoubtedly, the laws of the United States were exclusively to prevail, and that was a very different case from that of a consul violating the municipal laws of the place of his residence.

It is true that the learned Chief Justice, in giving his opinion on the same question, is also reported to have said "that no man can be condemned or prosecuted in the federal Courts on a State law." I think it is not treating a Judge fairly to bind him down to the unguarded generality of an expression which falls from him obiter in deciding suddenly on an incidental motion at the end of a long and tedious trial, and to which he is, perhaps, unnecessarily led by the devious course which counsel sometimes think proper to follow in their arguments. I will not do this injustice to the eminent magistrate whose opinion I have thus respectfully taken the liberty to advert to, I shall take these words in connexion with his opinion on the precise point before us, and observe, that he there does not speak in positive terms, but merely expresses a sudden thought then arising in his mind. His words are, "it seems to me" that this clause in the statute does not refer to criminal proceedings. It is evident that he did not mean to advance this position as positive law, but as one that might be re-considered at a future day.

I have often wondered how jurists will sometimes wander to a great distance in search of principles which are close at their hand, and thus involve simple questions in imaginary difficulties. If it should be asked, for instance, without reference to any particular system of jurisprudence, what is to be the rule of decision in civil cases? it seems the simple answer would be, "the law which governs the contract or the civil right or wrong which is the subject of controversy." What is to be the rule on the trial of criminal causes? The law which is alleged to have been violated. And again, what rule is to be followed in forms of proceeding, and other incidental matters in either case? The answer is at hand: the law of the nation or government whose Judges administer justice in the particular case. What difficulty is there now in applying these principles to the federal Courts? None. The law of the United States, in perfect accordance with them, has made the State laws the rule of decision in the trial of causes in cases where they apply, and in no others; as to the forms of proceedings in civil cases, it has adopted those which are in use in the different States, under certain restrictions, and reserving to itself the power of alteration and amendment. In criminal cases, the rule is not so precise, but no inconvenience has resulted from the practice which has been followed, and maybe now said to be established by usage.

Before I quit this part of our subject, I beg leave to refer you, gentlemen, to the able and luminous opinion of our venerable patron, Mr. Chief Justice Tilghman, in the case of The Commonwealth v. Kosloff. Although he only pronounced decisive judgment on the question immediately before him, I am much mistaken if, on the whole, his mind did not come precisely to the same conclusions which you have seen forced upon me. Permit me here to quote the concluding part of his argument, which confirms and illustrates the opinion with which I have been so far endeavouring to impress you. "I am," says he, "unable to deny that the Courts of the United States can take cognisance" (of this case) "when I find it written in the Constitution that the Supreme Court shall have jurisdiction in all cases affecting a consul. But how, or by what law is he to be punished? Shall he be punished by the law of Pennsylvania, where the offence was committed, inasmuch as there is no other express law which reaches his case? Does the 34th section of the Judiciary Act apply to the punishment of offences?" (Here the learned Judge expresses a doubt merely about the punishment, not about the trial of the crime.) "May a person convicted," (again admitting the right to convict,) "of a crime of the highest grade, concerning which Congress has made no provision, be punished, according to the opinion of Judge Story, by fine and imprisonment, on the principles of the common law? Or is the Constitution to be so construed as to exclude the jurisdiction of all inferior Courts, and yet suffer the authority of the Supreme Court to lie dormant, until called into action by a law which shall form a criminal code on the subject of consuls? These are questions which may embarrass those who have to answer them, but are not necessary to be answered here. NO EMBARRASSMENT, HOWEVER, COULD EQUAL THAT INTO WHICH THIS COURT WOULD BE THROWN, SHOULD IT DETERMINE THAT NO COURT OF THE UNITED STATES HAS JURISDICTION IN A CASE WHICH AFFECTS A CONSUL IN EVERY THING SHORT OF LIFE, WHEN THE CONSTITUTION DECLARES, THAT THE SUPREME COURT SHALL HAVE JURISDICTION IN ALL CASES AFFECTING CONSULS." Having shewn, as I think, in a satisfactory manner, that where jurisdiction is given in personam, every thing else that is necessary to its due exercise necessarily follows, I hope it will not be difficult to prove that the same principle applies where jurisdiction is given in subjectam materiam.

Suppose the federal Constitution had declared, in general terms, that the judiciary of the United States should have cognisance of all cases of violence upon the persons of aliens; it is evident that this jurisdiction could not have been exercised within the limits of the States, but by means of the law of the State where the crime was committed, unless Congress had at the same time power given to them to legislate upon those subjects, and then, until they had so legislated, the State law would still have been the rule of decision.

The only difference in the present state of the matter is, that the jurisdiction of the federal Courts in criminal cases, is not every where so precisely described as in the above hypothesis, but is left in many cases to inference from an authority generally given. The whole jurisdiction of the federal judiciary in criminal matters is to be deduced directly or by inference from the generality of the powers given in the second section of the third article in the following words:

"The judiciary power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority, to all cases affecting ambassadors, other public ministers and consuls, and to all cases of admiralty and maritime jurisdiction." In this enumeration of powers, not a word is said of the common law, either by way of inclusion or of exclusion; but frequent allusions and references are made to it in other parts of the Constitution and its amendments, which shew that the convention had this system in their contemplation, and it may be said constantly before their eyes. But this is not the place to touch upon this fact, and the inferences to which it leads, as it is to be adverted to in another part of this discourse; it is enough for me at present to have shewn that the Constitution contains no exclusion of the common law, either as a basis of jurisdiction, (if such it could be,) or as a rule or medium of judicial decision. From all that appears, the judiciary are not limited as to the use of any of the means that may be necessary to the exercise of the powers conferred upon them.*

(* This is in conformity to the maxim of the civil law: Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. ff. L. 2. tit. 1. I. 2.)

One of the arguments that are used in favour of this exclusion in the United States, that the common law of England is foreign to us as an united nation, and that as it has been adopted in the different States, it has suffered so many variations, that no uniform system can be made out of the whole; this reasoning will be considered in its proper place; but the common law which I speak of at present under the head of offences committed and tried within the limits of the individual State, is the common law of the State where the offence was committed, and where it is tried, and why that, the only means (where no other law exists applying to the case) of administering justice and executing the powers granted by the Constitution, and, as I shall presently shew, by the laws of the Union, to the judiciary, should be interdicted to them, is what I never could conceive, and for which I have heard as yet no satisfactory reason given.

The reason given for this exclusion by Mr. Justice Johnson in delivering the opinion of the Supreme Court in the case of the United States v. Hudson and Goodwin, is, that this common law jurisdiction, as it is called, has not been conferred by any legislative act on the federal tribunals inferior to the Supreme Courts. He admits that the Supreme Court may exercise the judicial powers granted to them by the Constitution, (which, by the bye, except in a few specified instances, are appellate powers,) without the aid of a legislative sanction; but whether the Supreme Court themselves possess this common law jurisdiction, or whether it is in the power of the Legislature to confer this authority by a legislative act, he leaves undetermined as unnecessary to his argument.

But nothing appears to me more easy than to prove, that if this common law jurisdiction is among the powers granted by the Constitution of the federal judiciary, and if the Supreme Court of the United States can exercise it by virtue of that instrument, the inferior Courts have the same authority vested in them by an express act of the national Legislature, and this may be done by shewing that the powers given by the Legislature to the inferior Courts in criminal cases are couched in terms sufficiently general to embrace all those granted by the Constitution to the judiciary at large.

By the 11th section of the Judiciary Act of the 24th September, 1789, it is provided: "That the Circuit Court shall have exclusive cognisance of all crimes and offences cognisable under the authority of the United States, except as this Act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offences cognisable therein."

The exceptions to which the above section refers, are no others than certain powers which the act confers on the District Courts; taking the whole together, a jurisdiction is given and distributed between these two tribunals which is co-extensive with that which the Constitution has bestowed on the judiciary branch of the government; if, therefore, any particular jurisdiction is not vested in the inferior tribunals, it cannot arise from a defect of legislation with respect to them; but it must be either because the power in question is not included within any of the grants of judicial authority which the Constitution contains, or because, if included here, it cannot be called into action without an act of the Legislature, without any distinction between superior and inferior Courts.

These would be important objects of discussion, if the question stood on the point of common law jurisdiction; but as I conceive that the common law has nothing to do with it, it would only mislead us to pursue this argument further; having shewn that the common law is only a means of administering justice, which follows of course when the end is granted, I must now explain in what manner men of highly gifted minds have been led to consider the subject in this point of view; for which purpose it is my duty to point it out in its proper and precise shape; but this cannot be so easily done by general principles and arguments, so various are the cases which (his subject involves, I shall take the course of examining separately each particular case in which a decision has been given, and pointing out the different points of view in which each of them should, in my opinion, have been considered in order to arrive at the precise questions on which they severally depended. It will be seen that they do not all turn on the same principle, nor give rise to the same points of controversy. It must be remembered at the same time that I am at present only considering the extent of the jurisdiction of the federal Courts when sitting within the limits of or for the United States pro. per, and that other views will be presented when treating of their jurisdiction elsewhere. I shall consider in its proper place whether the common law, generally taken, is or not to be considered as our national system of jurisprudence; at present I speak only of the common law of the individual States.

I shall divide the cases to be examined under this head into two classes: 1st. Those of common law 2d. Those of admiralty and maritime jurisdiction.

The most prominent cases under the first head are those of the United States v. Worrall,* and the United States v. Hudson and Goodwin.† They shall be considered together, as they are analogous, and appear to depend on the same principle.

(* 2 Dall.384

† 7 Cranch, 32.)

The first was the case of an attempt to bribe an officer of the government of the United States; the second, that of a libel against the President and Congress. Both offences were committed within the limits of a State by private citizens thereof, and both stated in the reports as offences at the common law.

The first question to be examined in these cases, is, whether jurisdiction of any kind was vested in the Circuit Courts before whom these indictments were brought to be tried, on any of the three grounds which I have above mentioned.

Over the place, as I have shewn before, the right of jurisdiction could not vest without some one of the other two ingredients; the States alone within whose limits the Courts sat having general jurisdiction within their territory. Over the person there was none, and as to the subject matter, it being a rape in the one case and a libel in the other, the Courts have clearly no jurisdiction in a general point of view. The only ground on which they could possibly claim it was. that the parties injured by the offences which were the subject of prosecution were officers of the government of the United States, in various stations. If this circumstance gave them jurisdiction, it was of that kind which I have called jurisdictio in materiam ratione personarum, or jurisdiction of the subject matter limited by the description of persons affected by the offence.

The first question, then, to have been considered after it was duly settled that the common law could not give jurisdiction in such cases, was, whether the federal government had a right under the Constitution to protect their officers against personal outrages of any and what description; whether this power was vested in the judiciary as well as in the Legislature; and whether the former could exercise it without a specific law by virtue of the general judicial authority granted to them by the Constitution, and apportioned in its full extent by the federal Legislature among the different tribunals. The common law had nothing to do with these questions; for if the Constitution or the judicial acts founded upon it, either expressly or by some necessary implication, gave the Courts a general jurisdiction in criminal cases affecting officers of the government, as they have in cases affecting public ministers and consuls, I think I have clearly shewn that they could not carry that jurisdiction into effect without availing themselves of the common or statute law of the State where the offence was committed, as a means without which their end could not be accomplished. No such power appears to have been given, in explicit terms; if given at all, it is to be implied from that clause in the Constitution which enumerates, among other judicial powers, all cases arising under it and under the laws of the United States. Can it be said that because the officers of the federal administration are all appointed under this Constitution, or some of the laws made in pursuance of it, therefore all cases in which they are concerned, or by which they are or may be affected, come under this general provision? This wide construction has often been attempted by counsel in argument, but it is evident that if it were adopted, the legislative power would be in a great degree transferred from Congress to the judiciary; for it would be sufficient to connect any act, in however distant a manner, with the Constitution or some of the laws of the United States, to vest an almost unlimited jurisdiction in the federal tribunals. There is no knowing how far this might lead, and therefore this construction cannot, in my opinion, be supported. This view of the subject is strengthened when we consider that the framers of the Constitution gave jurisdiction in terms to the judiciary of all cases affecting ambassadors, public ministers, and consuls, and might have done the same, if they had thought proper, of cases affecting officers of the general government, either generally or under limitations.

The next question is, whether protection may be afforded to those officers by the national Legislature?

This question is of the highest interest, and I may say of vital importance to the nation. That a government should exist which has not the power of protecting itself and its agents, while there is not a petty tribunal to which this power is denied, is such a solecism in politics, that it hardly seems to deserve a moment's attention. Yet we all know, and history will tell what disturbance its exercise, not by an inferior Court, but by the federal Legislature themselves, occasioned in the nation. I allude to the act passed by Congress on the 11th of July, 1798, commonly called the Sedition Act. This law was brought forward in troublesome times and in the most obnoxious shape to public feelings, as it seemed to intrench on the people's darling prerogative, the freedom of the press. The consequences are well known. The people imbibed the opinion that this law had been made for the support, not of the government, but of a party, and the party and the law met with the same fate. Thus, by an imprudent and ill-timed measure, prejudices have been raised in the public mind against an exercise of power which every impartial man must admit to be indispensable to the safety, and perhaps to the very existence of the national government.* But if, by a fair construction of the Constitution, this power of self-protection is given to the federal government considered as a whole, and if it may be exercised by the legislative authority, can it by any construction, on the same general principle, be considered as contemporaneously vested in the judiciary authorities or in any of them? The Supreme Court of the United States cannot have it, unless it be by way of appeal. Its original exercise, therefore, if any where, must be lodged with the inferior Courts. Can these, by any implication from the powers granted to them by either the Constitution or the laws, assume to take cognisance of offences of this nature, from the murder of a President travelling through a State to the seat of government, to an assault and battery on a tide waiter? Are they to designate the particular officers who are thus placed under the protection of the nation through its legitimate authorities, to define their crimes and offences, and graduate their punishment? Has the common law provided for such a state of things, and was it ever within its view? I shall not undertake to decide these questions, because I do not think it necessary for my purpose; I place the subject upon another and a different ground.

(* In like manner, towards the close of the presidency of the venerable John Adams, but, unfortunately, after it was known that Mr. Jefferson was to succeed him, and that a different party from that which at that time had the government in their hands had acquired the ascendancy, a wise law was enacted for the new organisation of the federal judiciary. Circuit Judges were created for every State, and the Supreme Court remained stationary at the seat of government. If Mr. Adams had been placed under circumstances in which he could, regardless of momentary considerations, and looking forward to futurity, have left the Judges under this law to be appointed by his successor, he would have conferred a lasting benefit upon the nation. But having filled the seats at the moment when he was about to retire from office, the measure was ascribed to party motives, and one of the first acts of the succeeding Legislature was to repeal this excellent law, and the former order of things was restored. Since that time, every effort has been making to improve the judiciary organisation, but without success.)

Among the powers given by the Constitution to the national government, without distinction of its branches, some are imperative, while others are merely potential or permissive. Thus, although Congress have the power expressly granted to them of making uniform laws on the subject of bankruptcy, they have only acted upon it temporarily, and ever since have abstained from its exercise. If this distinction is correct when applied to powers expressly given, it is so a fortiori as to those which are merely implied. The power of protecting the officers of government from violence and insult, is no where given in terms in the text of the Constitution, although it may be fairly infer red from its whole context. Nor is it given to any particular branch of the government. It is therefore, in the nation at large, and lies dormant until it shall be called into action by the national Legislature.

There is no absolute necessity for vesting immediately the judicial branch of this power in the federal Courts. The officers of the national government have long lived, and, it is to be hoped, will long live, under the safe protection of the laws of the States where they may permanently or transiently reside. When it will be necessary to give them a higher protection, it is not for the judiciary to decide; the Legislature alone is appointed to watch over the welfare of the nation and provide for its wants: when it shall think proper so to do. it will be the duty of the federal tribunals to execute the laws that it shall make.

On this ground my mind perfectly coincides with the decision of the Supreme Court in the case of the United States v. Hudson and Goodwin, although I do not concur in all the reasoning which is reported as forming the grounds of their decision. The question was not propounded to them in such clear and precise terms as to lead them directly to the essential point on which it turned. Yet this point did not escape their discriminating minds, and they have decided on it in such a manner as was to be expected from their judicial talents.

I shall now proceed to treat of cases which come within the scope of admiralty and maritime jurisdiction. It is necessary that I should speak somewhat at large upon this subject.

The admiralty jurisdiction in England is divided into two separate and distinct departments, proceeding by different laws and different forms of judicial inquiry. The original cognisance of civil matters is exclusively vested in the High Court of Admiralty, consisting of a single Judge, who is a Doctor of the civil law. All proceedings there are according to the forms prescribed by the Roman Imperial Code, which, together with the general maritime law and statutes of the realm, is the rule of decision. The criminal jurisdiction, on the contrary, belongs to what is called the Court of Admiralty Sessions, which consists of commissioners of Oyer and Terminer appointed under the great seal, consisting of the Judge of the Court of Admiralty, who presides, and three or four other persons, two of whom are to be common law Judges. In this Court all trials are by jury, and the proceedings according to the course of the common law. In ancient times, the Judge of Admiralty was possessed of criminal as well as civil jurisdiction in the fullest extent, but the civil law mode of trial which was practised in his Court, in criminal as well as in civil cases, being justly complained of as a grievance, the present system was established by statute 28 H. 8, c. 15, which to this day continues in force.*

(* 4 Blac. Com. 269.)

In the American colonies the whole admiralty power was vested in a single Judge, as it was formerly in England; in criminal causes, however, the trials were by jury, and the proceedings according to the forms of the common law. How this practice was introduced I cannot tell; probably in imitation of the usages of the mother country, possibly also the Judges were so directed in their commissions, or in the orders which they received from the Lords Commissioners. When the admiralty jurisdiction was transferred to the State Judges at the revolution, and subsequently to the federal tribunals, this mode of proceeding was so well established that it was, and is still, considered as inherent to the admiralty system, and as the law of the land in relation to this subject.

The result of this system is, that the criminal department of the admiralty jurisdiction in England and in this country, presents a singular mixture of the civil and common law, in which the latter, however, predominates. Although the statute of Henry VIII. introduced it merely for the purpose of regulating the. mode of trial and form of proceedings, its principles have gradually become interwoven with the whole criminal branch of the admiralty law. To this the common law definition of the crime of piracy has not a little contributed. It defines this offence to be "those acts of robbery and depredation committed at sea, which, if committed on land, would have amounted to felony."* This reference to the common law for the definition and qualification of particular acts, threw the law of nations and the civil law so much into the back ground that it was even doubted whether piracy by the law of nations only, and not coming precisely with the common law definition of this offence was cognisable by an admiralty Court. In crimes amounting to felony, therefore, the common law may be considered, if not as the exclusive, at least, as a legitimate and concurrent source of authority and rule of decision; but in offences of an inferior grade, the law civil and maritime, as contradistinguished from the common or municipal law, still governs in every thing but the forms of proceedings and mode of trial.

(* 4 Blac. Com. 71.)

Such is the jurisdiction which has been transferred by the people of the United States, and by the States, themselves, when they ratified the Constitution, to the national government, to be exercised by the judiciary branch of its administration. I do not and cannot consider it as one of those potential or permissive powers which I have above mentioned. It is of vital importance to the national safety and even existence, and it has been committed in its fullest extent to the federal judiciary by name, while the power of the Legislature over the subject was left, except in the specific cases of piracy and prize, to be collected from implication and as matter of inference. If, therefore, the Congress had done no more than to designate the particular Courts which should exercise that jurisdiction, I do not think that they should be bound to wait for particular laws defining their powers or the mode of executing them before they proceeded to its exercise, neither should they wait for laws defining maritime offences and affixing their punishment; for the admiralty law has provided for all these matters, and the administration of that law was committed to them when the jurisdiction was transferred; for whoever gives the end gives the means. Nor do I think that so much inconvenience can arise as some have imagined from the defect of legislative provisions in these matters, even as respects criminal jurisdiction. Maritime offences are divisible into two classes, felonies and misdemeanors. The former, under the general name of piracy, are sufficiently defined by the law of nations and the common law. The latter are classed and defined in a well known scientific code, and their punishment generally results in fine and imprisonment as at common law. Doubtful and difficult cases, no doubt would have arisen, as in every other branch of the judicial functions; but it would have been the duty of the Judges to solve them as in other cases, subject to the revision of the Supreme Court of the Union. In matters of life and death, they would have taken care not to convict, unless the law was clear, as well as the evidence. For, as Lord Bacon says, "De eapitalibus in quibuscunque curiis nisi ex lege notâ & certâ pronunciato. Indixit enim mortem Deus ipse priùs; posteà inflixit. Nee vita eripienda nisi ei qui se in suam vitam peccare priùs nosset."* Thus in the cases of the United States v. Gill,† United States v. Bevan,‡ and United States v. Wiltberger,§ where the law was not perfectly clear, and in some cases it even appeared that the Legislature of the United States had so restricted the locality of the crimes of which the parties were accused as not to include within their enactment the particular places in which they had been perpetrated, the Courts, with great propriety, either arrested the judgment after conviction or directed an acquittal.

(* De Jure univ. Aphor. 89.

† 4 Dall. 426.

‡ 3 Wheat. 336.

§ 5 Wheat. 76.)

I do not mean, therefore, to say that Congress have not a right to legislate on matters within the scope of admiralty and maritime jurisdiction. On the contrary, I think that they have a full and complete right so to do, and that when they have so done, their laws should be strictly and faithfully executed; but I think I am correct in asserting, that where they have not legislated, the Judges are nevertheless bound to execute the laws which apply to the subjects within their jurisdiction to the best of their judgment and understanding.

In cases of mere misdemeanour, I do not find reason for the same scruples as in questions of life and death. Therefore, I regret that the celebrated case of the United States v. Coolidge,* should have been given up without argument, It does not appear to me, in the first place, that it turned at all upon the question of common law jurisdiction, or that this question was in the least involved in it. It was the case of a rescue on the high seas of a prize ship from the hands of the captor. It was, therefore, a clear case of admiralty and maritime jurisdiction, to be tried and punished, although by a common law mode of proceeding, according to the rules of the civil and maritime law. To say the least of it, it was a contempt of the authority of the prize Court; as it was intercepting property on its way to the Court that was to adjudicate upon it, and which was at that time to be considered as in custodiâ legis.† In either way, it appears to me it was punishable, whether the Court of Admiralty had jurisdiction or not of common law offences. If the case had been exhibited to the Court in this point of view, I think I do not go too far in believing that the jurisdiction of the admiralty would have been sustained.

(* 1 Wheat. 416.

Smart v. Wolf, 3 Durnf. & East, 323.)

Having thus gone through the observations I had to make on the subject of the jurisdiction of the federal Courts, when exercising it within or for the territory of the individual States, I shall now consider its nature and extent when exercised without that territory. The field is new and ample, and leads to novel and interesting views; I shall, however, endeavour to condense what I have to say within those bounds beyond which I could not expect to receive your attention.

SECTION II. — The places without the jurisdictional boundaries of the confederated States over which the federal government has jurisdiction, are the following:

1st. The District of Columbia.

2d. The ceded Territories.

3d. The forts, arsenals, dock yards, &c.

All these dominions have been acquired by cession from the individual States or from foreign States, or purchased from individuals with the permission of the former. They are all subject to the exclusive jurisdiction of the national government. No judiciary power is exercised there but what is derived from federal authority.

We are, in the first place, to inquire whether there is in these territories, as well as in the States, a local law, which may be called the common law of the place, to be administered by the judiciary of the United States, and what that law is. We shall be guided in this inquiry by the law of nations and the common law of England, which profess the same doctrines upon this subject.

It will not be denied that the law of nations is a common law of the United States, or a law common to them in their federate and national character. It is with another law, which shall be mentioned in its place, the nexus which connects them together in their sovereign capacities in all cases which the Constitution has not foreseen or provided for. In their relations with their subordinate, or, if the word may he properly used, subject dominions, the law of nations still governs in all matters in which their mutual or reciprocal rights are concerned, and other laws do not supersede it. Ceded countries, particularly, have been at all times under the special protection of the law of nations. Let us see what it provides with respect to them.

"A State," says Montesquieu, "that has conquered another State, treats it in one of the four following manners: 1. It continues to govern it according to its laws, retaining only the administration of the civil and political government. 2. It gives it a new civil and political government. 3. It destroys the national society and disperses the people into other countries. 4. It exterminates all the citizens." ''The first mode is conformable to the law of nations that we follow at this day."* I do not, nor did this distinguished author, mean to say, that the conquering sovereign may not and does not sometimes alter or modify the system of laws of the conquered country, and even abolish it altogether and substitute a new one if he thinks proper so to do. This is not unfrequently done, and often it is for the good of the subject. Thus Great Britain abolished in Canada the criminal law of France, and introduced in lieu of it the more humane code of the English law; thus one of the first acts of Napoleon when he conquered Spain, was to abolish monachal institutions and the Holy Inquisition. But what I wish to shew is, that until the existing laws at the time of the conquest are thus abolished or altered, they remain in full force. We all remember the outcry that was not long since raised against a British governor of the island of Trinidad, for having inflicted the torture on a young woman accused of a capital crime. He pleaded the ancient law of the country, and was justified. Even at this day, notwithstanding the deadly hatred which the sovereigns of Europe maintained against the late Emperor of France, it is a fact that his civil and criminal codes are yet in force in the kingdom of the Netherlands and in the German provinces on the left bank of the Rhine ceded to Prussia, and the, codes of Joseph and of Joachim are still the law of the kingdom of Naples. Near us, in Lower Canada, the Coutume de Paris, and the old French law generally, so far as it is not modified by British or local statutes, have never ceased, since the conquest, to be the law of the land. But it may be said, that admitting these principles to be correct as relates to a conquered country, they may not be applicable to one that is transferred by a voluntary cession. This would be a distinction without a difference. In principle, the two cases are the same; and it may even be said that a conqueror has more power over a country that he has subdued, than a sovereign who acquires a territory by purchase or voluntary transfer. The uncontrolled rights of force are, in the first case, mitigated by a rule which the law of nations has established; a law founded on a principle of mutual convenience, which convenience is not less in the case of a cession than of a conquest. This principle, therefore, applies with greater force to the former than to the latter case. Besides, it is a well established maxim of the modern law of nations, that it is not the conquest of a country or the possession of it by force of arms that gives the conqueror a right to its quiet dominion, but the cession that is made of it to him by the treaty of peace. It is only the cession which makes the acquisition complete.** The military title which conquest gives is merged in the civil title obtained by this voluntary act, which alone gives to the conqueror a legal permanent dominion over the ceded country.

(* Spirit of Laws, B. 10. c. 3.

** Vattel's Law of Nations, B. 3. c. 13. § 197.)

Hence the learned Blackstone, when laying down the common law on this subject, which is no other than the law of nations interwoven into that system, makes no difference between countries acquired by conquest and those obtained by voluntary cession. "In conquered or CEDED countries," says that able writer, "that have already laws of their own, the King may, indeed, alter and change those laws; but till he does actually change them, the ancient laws of the country remain."† I. admit that the authorities he cites,‡ do not go the whole length of his position, as they only refer to countries acquired by conquest; but of this he was, no doubt, aware, and nevertheless did not hesitate to lay down the principle in its fullest extent; so that his opinion, though not supported by a direct adjudication at Westminster Hall, is nevertheless entitled to the the greatest respect as the deliberate and well considered sentiment of an enlightened common lawyer and general jurist.

(† 1 Blac. Com. 108.

‡ They are, 7 Rep. 17, Calvin's case; Shower's Parl. Cases, 31, and Lord Mansfield's argument in Campbell v. Hall, Cowp. 204.)

It is, indeed, difficult to reconcile to reason the opposite principle. If the laws in force in a ceded country at the time of the cession do not continue to operate until others are substituted in their place, one of two things must happen; either the laws of the new sovereign must immediately take effect, or there must be a period of anarchy or military despotism. The latter supposition cannot be for a moment entertained, and as to the former it will be asked whether the new laws are to be enforced from the moment of the cession, when the old sovereign has given up all his right, title, and jurisdiction over the country, or from the moment of possession delivered. If the cession avoids the laws of the ceding power, how is the country to be governed until the new sovereign comes into possession? If the latter epoch is to be the period of change, how can the new subjects be expected to obey laws that they are not acquainted with, and how can they be justly punished for their infraction? If a single day is allowed to give time for the promulgation of the new system, my whole principle is granted, which is that the old laws remain in force until new ones are introduced by some public act of the sovereign in possession.

On this interesting subject, I have been astonished to find none but vague and unsettled opinions among the gentlemen of the profession whom I have consulted, who candidly acknowledged that they had never had occasion to reflect upon it. I searched the writers on the Law of Nations and on the Common Law, and, except the passages which I have above cited from Montesquieu and Blackstone, which, however, are no where contradicted, found nothing that I could consider as directly in point, though much from whence the principle may fairly be inferred. The Acts of Congress, on taking possession of the District of Columbia and the territories of Louisiana and Florida, did not afford me more satisfaction. I found there the same uncertainty and indecision, the Legislature sometimes providing for the continuation of the ancient laws, at others seeming to take it for granted that they remained in force without the necessity of a legislative sanction. In fact, if we except Blackstone, this subject does not appear to have been much considered in Europe or in this country.

There is not much reason to he astonished. This is not an every day question, and lawyers are not likely to meet it often in their practice. As to governments, while they can settle every thing with a stroke of the pen, they will not be inclined to lose their time in inquiring about abstract principles.

In the despotic kingdoms of Europe, these matters are very easily arranged; but in this free and inquisitive country, where every man will not only know the law, but the reason of it, it cannot be expected that such an important subject should remain long undiscussed. I have therefore thought it my duty to bring it before you, and offer it as a subject for your earnest investigation. I believe I may venture to assert that you will not find the principle laid down by Blackstone any where contradicted, much less will you find another substituted in its place. It appears to me impossible to find one that will not be at once tyrannical and unjust.

I shall therefore proceed to its application to the subject before us, as respects the District of Columbia, and the other Territories under the dominion of the United States.

1. THE DISTRICT OF COLUMBIA. By the 17th paragraph of the 8th section of the 1st article of the Constitution of the United States, the Congress is authorised "to exercise exclusive legislation, in all cases whatsoever, over such District (not exceeding ten miles square) as may, by the cession of particular States, and the acceptance of Congress, become the seat of the government of the United States." The States of Maryland and Virginia, sometime after the adoption of the Constitution, offered to cede the Territory which is now the District of Columbia, and was then divided between their several jurisdictions. Congress by their act of the 16th July, 1790, accepted this offer, with a proviso that the operation of the State laws should not be affected by their acceptance, until the time fixed for the removal of the government thereto, and until Congress should otherwise by law provide." This proviso shews that at that time some doubt was entertained, as to the effect of the cession on the then existing laws, and it was probably inserted as a matter of precaution to avoid unnecessary discussion.

In the year 1800, the seat of government was removed to Washington. On the 27th of February, in the following year Congress passed an act, directing "that the laws of the State of Virginia and Maryland, as they then existed, should continue in force within the parts of the District which had been ceded by those States respectively." This act seems to have been unnecessary, as the former statute had provided that those laws should remain in vigour until they should be altered. It may, however, be considered as corroborative, and as declaratory of the existing state of things.

Be that as it may, there can be no doubt, that whether in virtue of these acts of Congress, or of the general law existing at the time they were made, the common law of Maryland and that of Virginia as they respectively apply have never ceased to be in force within this District. Therefore, there can be no question there, whether the Courts of the United States do, or do not, possess what is called common law jurisdiction, either in criminal or civil cases, and they have in fact been to this day in the constant exercise of it, without the aid of a special statute for that purpose. The Congress did no more than erect and organise the tribunals inferior to the Supreme Court, and left them to exercise their jurisdiction according to the existing local laws. In the. distribution of their powers, cognisance was given in general terms to the Circuit Court of "all crimes committed within the District," without any distinction made between statutary and common law offences. An appellate jurisdiction was given to the Supreme Court from all decrees, and judgments of the. inferior tribunals, but there was no express prohibition against their exercising any other jurisdiction which the. laws of Virginia and Maryland had before the cession vested in their Supreme Courts.

It is a question of no small importance, whether by the cession of this District to the United States, by Virginia and Maryland, and by the acts of Congress continuing in force the existing laws of those States, the Supreme Court of the United States did not ipso facto succeed to all the powers which were at the time vested in the Supreme Courts of Maryland and Virginia, within the parts of the District which had respectively belonged to them, and whether an act of Congress giving them certain specific powers, without any words of exclusion as to others, can be construed to the disparagement of those they possessed before. It may be questioned also whether the clauses in the Constitution which restrict the jurisdiction of the federal tribunals, were not solely intended to protect the retained sovereignty of the States from being encroached upon, and whether when those Courts are sitting in or for the District of Columbia or the Territories, where there is no independent sovereignty to be protected, the nature, and extent of their jurisdiction may not he sometimes derived from another source? For my part, I acknowledge that I strongly incline to think, that the Supreme Court sitting at Washington possesses two distinct capacities, that of the Supreme Court of the United States, and that of the superior judicature, of the District. I have always been astonished that this point was not made in the celebrated cases of MARBURY v. MADISON,* and Ex parte BOLLMAN,† in support of the authority of the Court to grant a writ of mandamus in the one case, and of habeas corpus in the other. But I will not proceed further on this delicate topic, which I acknowledge I have not yet sufficiently considered; all that I shall say is, that these questions never having been directly brought before the Supreme Court of the United States, cannot be said to have been finally decided on, and cases may yet arise in which much will depend on their being determined one way or the other. At any rate, this derivative power from the Constitution and laws of the States or nations who have ceded, or may hereafter cede, territories to the United States, if it really exists, is of too great importance to the supreme tribunals of the Union, for them to yield it up without full and mature investigation. I consider it as one of the fairest flowers in their judicial wreath.

(* 1 Cranch, 137.

† 4 Cranch, 175.)

I beg your pardon for having thus somewhat wandered from the immediate object in contemplation: but the subject of this digression does not appear to me to he entirely unconnected with it. It seems naturally to flow from the great and pregnant principle laid down by Montesquieu and by Blackstone.

I hope I have convinced you, that within this District the Courts of the United States have cognisance of the common law, in criminal as well as in civil matters. It is true, it may be said that they possess it by virtue of the acts of Congress above cited; but I have endeavoured to prove to you, and I hope not without success, that they would have been entitled to that jurisdiction, even if those acts had never been passed, saving its distribution between the different tribunals, which could only be made by the authority which created and organised them. I proceed now to the Territories.

2. OLD TERRITORY NORTH WEST OF THE OHIO. —

Out of this extensive tract of country, three States have already been formed, to wit, Ohio, Indiana, and Illinois, who all, tacitly or otherwise, have adopted the common law, in aid of the statutes which have been enacted by the territorial authorities, and successively by their own Legislatures. It is needless to inquire into the state of things which produced that which now exists, as it would not lead us to any

practical result. The territory of Michigan, was before the revolution a part of the British province of Quebec, and governed by the French law in civil and the common law in criminal cases. Since it has become the property of the United States, the common law has been introduced into it, no matter by what means. The remainder of the old territory, except a few posts occupied by the troops of the United States, is in the possession of the Indians. The common lav/ will probably make its way into it, as it has done into all the other parts, and indeed, it cannot be otherwise, as soon as it is inhabited by an American population. They will carry into it, as American citizens, as much of the common law as will be suited to their local situation.* But I must not anticipate on another part of my subject, to which I shall draw your attention presently.

(* 1 Blac. Com. 107.)

Within those parts of this tract of country that have been erected into States, the powers of the federal judiciary are the same that they have been shewn to possess in the other States of the Union; in the territory of Michigan, and in the territorial governments that may be established in the now desert country, the local law, whatever it may be, and the laws of the United States where they apply, will be their guide.

3. THE OLD TERRITORY SOUTH OF THE OHIO. —

This tract of country, with some trifling additions, now forms the two States of Mississippi and Alabama; they have both adopted the common law. The same principles will of course apply here which govern in the other States.

4. THE OLD SPANISH PROVINCES OF LOUISIANA AND THE FLORIDAS — Before I proceed to the application of the principles which I have laid down to the States and Territories which have been formed out of this vast extent of country, it will not be improper to take notice of the course which Congress has pursued on obtaining possession of them. It will be found to be different from that which was adopted with respect to the. District of Columbia, and will corroborate the observations which I have made respecting the necessity of a fixed principle in all such cases.

Louisiana was ceded by France to the United States in the year 1803, and was taken possession of at the end of the same year. On the 31st of October, Congress passed a law, authorising the President to take possession of and occupy that territory, in which it was provided, that until the expiration of the session, unless provision should be sooner made for the temporary government of the said Territories, all the military, civil, and judicial powers exercised by the officers of the existing government of the same should be vested in, and be exercised by, such persons and in such manner as the President should direct, for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion.

By this act, Congress did no more than transfer to the President the powers vested in the national government by virtue of the treaty of cession, taking it for granted, of course, that the laws which existed at the time should remain in force until altered or repealed. Here note the difference between this and the special provision which was made for maintaining the laws of Virginia and Maryland within the District of Columbia.

On the 25th of February, 1804, another act was passed extending to Louisiana the United States law for registering ships, and entitling the inhabitants to the ownership of American vessels. This shews that Congress did not consider that the laws of the United States superseded those which were before established, either from the moment of the cession or from the time of possession taken.

On the 26th of March following, Congress, by another act, divided Louisiana into two territories, and legislating for one of them, (the territory of Orleans) extended to it several more statutes of the United States. The legislative power was given to the governor with the aid of a council, and they were authorised to alter, modify, or repeal the laws which might be then in force. An analogous power was conferred on the governor and judges of the northern section, which retained the name of Louisiana. No other material change was made in the existing laws of either district, but the introduction of the writ of habeas corpus, trial by jury in all criminal cases, and bail for offences not capital, and trial by jury in civil cases at the option of either parly. It was also provided that no cruel punishments should he inflicted. In every thing else, the territorial laws remained as they were before, without any special provision to that effect.

The same course, was pursued with respect to Florida. By an act of Congress of the 3d of March, 1819, a discretionary power was given to the governor, in the same manner as had been done at first with respect to Louisiana, and certain specified laws of the United States were directed to be carried into execution within that territory. Not a word was said of the then existing system of laws, either to confirm or to repeal it.

This act, however, (except so much thereof as merely authorised the President to receive possession of the Floridas) was only to be in force until the end of the session of Congress of 1815) — 20, and as those Territories were only delivered up to the United States on the 10th and 17th of July, 1821, that part which provided for their temporary government could not be legally carried into execution at that period. How matters were then managed, it is not my business to inquire; but it is certain that if the laws of Spain did not. then by the force of the law of nations, and the common law of these U. States continue in vigour, there must have been a long period of complete anarchy or of unauthorised despot ism; for it was not until the 3d of March, 1823, near twenty months after possession of the country was delivered, that Congress passed an act for the establishment of a territorial government within those Districts, which was entitled a "Supplement" to the one before recited, a part of which continued in force, but which was lapsed as to every thing which related to the government of the country. By this act the legislative power was vested in a governor and council; but the ancient laws were neither repealed, nor expressly maintained. This subject was passed entirely sub silentio.

These variations in the laws of Congress for the government of the different territories which have been successively acquired by the United States, can only be accounted for by the supposed absence of a principle applying to the subject matter, or the little attention that has been paid to it by statesmen as well as lawyers. I shall be happy if I have succeeded in proving to you that there is a fixed rule, not only consistent with the sound principles of natural justice, and of common sense, but recognised at the same time by the law of nations, and by the common law.

Suppose a murder had been committed in Florida within those twenty months of absence of all regular legislation; if the ancient laws of the territory had not remained in force until new ones were substituted in their stead, how could justice have been done, against the criminal, and the tranquillity of the country preserved? Some persons, perhaps, will speak of Courts martial, and military government; but it is not to be thus governed, that subjects are transferred with territory from one civilised nation to another; rather than have recourse to such means, it is better to establish almost any principle that will continue to the inhabitants of the ceded country the, enjoyment of a regular system of laws, and not leave them even for the shortest period at the mercy of an arbitrary ruler. But the law has provided one at once wise and salutary; I hope I have not attempted in vain to demonstrate it.

On this principle, therefore, Louisiana and the Floridas were, at and after the times of their respective cessions, and possession thereof taken by the United States, under the dominion of the laws of Spain, Since those periods, this state of things has experienced considerable change. Out of old Louisiana, two great and important States have already arisen, one of which has resumed the ancient name of the Spanish province, and the other is now the State of Missouri. She was admitted into the Union on the 10th of August, 1821. During the first ten years of its territorial existence, that country was nominally subject to the Spanish law; but as there were few or no lawyers among them who understood that system of jurisprudence, the common law gradually and almost insensibly superseded it, and at last, by an act of the territorial Legislature, passed on the 19th of January, 1816, it was proclaimed and established, and since has continued to be the law of the land. Louisiana pursued a different course.

That country was principally inhabited by people of French origin, and among them were several lawyers of great eminence, attached, as is natural, to the system of laws which had been the object of their early studies, and as naturally averse to one which they did not understand. Among the American jurists who directed their steps to that newly acquired dominion were also men of distinguished talents, among whom I need only name Mr. EDWARD LIVINGSTON, whose genius and learning have acquired so much fame to himself and to his country. He perceived with a keen glance what advantage could be taken of the existing state of things; he and his American colleagues were devoid of prejudice, and found the same liberal disposition in the French members of the bar of New Orleans. This harmony produced a system of jurisprudence combining the excellencies of the common and the civil law. This is not the place to explain its details; I shall only say, that all the practitioners that I have conversed with, common lawyers as well as civilians, who have exercised the legal profession within that State, concur in extolling it as the best that they have ever known. I have not heard on this subject one dissenting voice. The Americans from the old States who reside in that country, are also universally satisfied with it. The Louisianians reject the common law as a system; they have, even guarded by a special clause in their constitution against its introduction among them.* But they do not reject its salutary principles when they find them applicable to their local situation and circumstances. They are as much attached as we are to those great bulwarks of political and civil liberty, the habeas corpus, the freedom of the press, trial by jury in civil as well as in criminal cases, and all those protecting forms which are established among us as the safeguards of liberty and innocence.

(* "The existing laws in this territory, when this Constitution goes into effect, shall continue to he in force until altered or abolished by the Legislature: Provided, however, that the Legislature shall never adopt any system or code of laws by general reference to the said system or code; but in all cases shall specify the several provisions of the laws it may enact." Const. of Louisiana, art. 4. §.11.)

The Louisianians have lately determined to be governed entirely by written laws. Mr. Livingston has been charged with the preparation of a draft of a criminal code; his able report to the Legislature upon that subject is well known in this country. He, in common with others, is also appointed to prepare a revised civil code, and thus every branch of State jurisprudence is to be reduced to a text. But do what they will, legislators will never be able to provide for every possible case, and much will still have to be left to the sound discretion of the constitutional expositors of the laws. The celebrated code of Justinian is not free from obscure laws, on the true sense of which commentators have not yet agreed, and even antinomies not unfrequently occur in the decisions and edicts which compose the body of the civil law. In every country there is what the French call jurisprudence, and we, common law; which is nothing else than the aggregate of the successive decisions of Judges on points which the textual laws have not foreseen, or have not sufficiently explained.*

(* In France, although it abounds with codes, there are, nevertheless, voluminous collections of reports of judicial decisions, the knowledge of which is an important branch of the legal science, and is called la jurisprudence des arréts. These decisions, although they are not considered paramount to the textual law, have nevertheless great authority. Before the late revolution, they were not so much respected as they are at present, because there was no supreme judiciary in that country, and the parliaments, within their several districts, often decided in contradiction to each other. The maxim at the bar then was, judicial decisions are good for those in whose favour they were given. But since a high Court for the correction of errors has been erected for the whole kingdom, under the name of cour de cassation, their opinions, though sometimes contradictory, have obtained a much higher degree of respect, and a common law is gradually establishing itself by the side of the ancient and modern codes. The degree of authority to which these supreme decisions are entitled, has lately become an important question among the French jurists. See on this subject the excellent treatise of M. Dupin, one of the most eminent advocates of the Paris bar, entitled "De la jurisprudence des arréts," Paris, 1822. He maintains the doctrine of the great BACON.)

But enough of Louisiana. The remainder of its ancient territory, not long since a wilderness, forms at present the territory of Arkansas, separated from Missouri in 1819, three years after the common law had been introduced by statute into that State. It therefore remains subject to it.

The Floridas are yet nominally under the dominion of the law of Spain, unless their lately established territorial government has established the common law by statute as was done in Missouri. At any rate the common law, if it does not already, must soon prevail in these Territories. It is a sound, and a wise policy where there is not a large and important population attached to another system, to introduce that which is in use in the governing country.

By whatever law these countries may be governed, that is their common law, and whenever it applies, it is that which the federal Courts are bound to carry into execution. But in all cases in which the local laws are not susceptible of application, these States and territories are of course subject to the same law with the others, to the common and statute law of the whole country.

I proceed now to the last division of this part of my subject.

5. FORTS, ARSENALS, DOCK-YARDS, &c. — By the Constitution of the United States, art. 1. §. 8. parag. 17. "Congress have the right of exclusive legislation in all cases whatsoever, over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings." The States by their cessions have sometimes thought proper to limit this right of exclusive legislation, and even to retain the whole of the jurisdiction which they before possessed. Thus Pennsylvania, in the act of Assembly of the 15th of April, 1795, by which she cedes Mud island, and the fortifications thereon erected, to the United States, has inserted a proviso that her jurisdiction over the island, in civil, and criminal cases, shall be the same as before the passing of that act."* Other modifications have been required by other States, and agreed to by Congress. Whether individual States, when they cede particular spots to the United States for the important purposes of erecting forts, arsenals, and other bulwarks of national defence, have a constitutional right to reserve to themselves the exercise of the legislative and judicial power over those places, and thus be enabled to defeat the military operations of the general government, is a question which I shall not here inquire into; I think it, with Mr J. Story at least, extremely doubtful;** but I can see no reason why the laws which were in force on those particular spots before they were ceded, should not continue to govern, until Congress shall think proper to alter them; to be executed, however, by the authorities of the United States, and by no others, otherwise, anarchy must prevail there, in all cases for which Congress have not legislated. Thus, there is no provision made for the definition and punishment of the crime of arson, of all others the most dangerous in places of this description; on the principles which I have laid down, this crime may he punished by the United States judiciary merely applying and executing the law on this subject, by which the place was governed before the cession.

(* 3 Bioren's L. Pennsylvania, 22:5.)

** U. S. v. Cornell, 2 Mason, 66.)

Having thus explained to yon the meaning of the word jurisdiction, and pointed out the various sources from whence the judicial authority in general arises; having moreover endeavoured to elucidate the principles on which I conceive that every question respecting the jurisdictional rights of the federal Courts ought to be discussed, so as to lead to rational as well as legal conclusions, I shall proceed to consider another not less important subject by examining with you, whether there is in the United States a common or national system of laws, other than the law of nations, the Constitution, and the acts of the federal Legislature.

SECTION III — If, as I have endeavoured to prove to you, there is in every State and in every District or Territory, a common or local law which takes effect in most cases in which Congress have not legislated or have not the power to legislate to the contrary, this question will probably appear to you more curious in theory than useful in practice; it is certain that if the principles which I have successively laid down are admitted, the circle of operation of this common or national law (if it exists) will have been very much narrowed, and but very few cases will remain susceptible of its direct application: nevertheless, the subject is too interesting to pass unnoticed, and at the risk of trespassing too much upon your patience, I will proceed in its investigation.

I never could comprehend how a great country like the United States, connected by manners, customs, habits, religion, and government, can exist together without a common law. The civil law is the. common law of Europe, and is so called, jus commune. Each separate government has modified it as it thought proper to suit its own local circumstances, or has introduced into its territories new edicts, new laws, and new codes, but still the civil law governs in all their common concerns. It is, with the local ordinances where they apply, the rule of decision in their maritime Courts. In the negotiations between sovereigns, the principles of the civil law are constantly referred to, and their authority never denied. It is, indeed, the foundation on which the modern law of nations has been erected.

Before the late French revolution there was a tribunal at Rome, in many respects analogous to our federal Courts. It was called the Rota. Its Judges were appointed by the different Catholic sovereigns of Europe out of the number of their own subjects, and it took cognisance of all controversies submitted to them from every country. Its members were renowned for their integrity and learning, and many causes of the greatest importance, even between princes, were brought before them. Their judgments were every where respected. They did not take as the rule of their decisions the local laws and edicts of the papal States, but the common law of Europe, the civil law was their guide. I have understood that this celebrated tribunal has been lately re-established.

In the same manner, and on stronger grounds, I consider the common law of England as the jus commune of the United States.

Until the late revolution, the British colonies, although separated by local governments, have never ceased to make one whole with the remainder of the British empire. They were a part of the English nation, bone of their bone and flesh of their flesh. They brought with them, as Blackstone says, into this new country, so much of the English common law as was suited to their colonial situation. They brought it as a birth-right, and even after the declaration of their independence, the greatest number of them, if not all, claimed it as such. In most of them, also, their right to colonise was expressly burthened with the obligation to submit to these laws; in all of them, these laws were the foundation of their whole legislation, and were recurred to when their local statutes were silent. The New England colonies alone refused to receive this system as imposed upon them, though they followed it in practice of their own accord, and as their own colonial law. To all local purposes this was right; beyond that, as they enjoyed in common with all the colonists the protection of the common law, they were bound to submit to its corresponding duties, and virtually did so. The common law was the common jurisprudence of England and her English colonies, under such modifications as their peculiar situation required. In all cases for which the local law had not provided, or to which it was not applicable, this national law was the rule of decision. As the civil law is now in Europe, it was not, indeed, paramount to the local customs and statutes, but it was the fruitful source from which principles were drawn to aid in the solution of all the doubts and difficulties which arose from them, and the rule by which unforeseen cases were decided. It was a general system of jurisprudence, constantly hovering over the local legislation and filling up its interstices. It was ready to pour in at every opening that it could find. Like the sun under a cloud, it was overshadowed, not extinguished, by the local laws. It lost nothing of its force, its power, or its vigour. It burst in at the moment of the adoption of the Constitution of the United States, and filled up every space which the State laws ceased to occupy.

In all national matters the law of England has never ceased to be the rule of right and wrong. The famous controversy between William Penn and Lord Baltimore, was determined on its principles. In the colonial Courts of Vice-admiralty, which were national tribunals, it possessed a widely extended dominion. Whatever would have been felony at land, was piracy when committed on the high seas. What was to be so construed, the law of England alone could decide; otherwise the crime of piracy would have been as various as the colonial Legislatures chose to make it, and the Judges would have been constantly embarrassed as to what laws they were to apply. The common law, therefore, in these cases must have been their guide.

It would take up too much of your time if I were to multiply instances of this kind. Besides, I must leave something for your future research.

The British colonies, now independent States, have never ceased to be under a national superintending government. Before the revolution, it was that of the King and Parliament of Great Britain. Their powers as to this country were limited, and so are those of the government which now supplies their place. They were succeeded at the revolution by a Congress whose jurisdiction was at first recognised by the individual States, and was more firmly established afterwards by an express national compact which at last gave place to the present federal government. Under these various forms the limitations of the power of the superintending authority were not always the same, but this did not affect their general character of a national head. The old Congress had, as well as the king of Great Britain, the powers of war and peace, of coining money, of holding prize Courts, and others of the principal attributes of national sovereignty. The general system of laws by which these always separated, yet always united, colonies or States were governed have never been repealed, either expressly or by necessary implication. They have always continued to be in vigour as far as applicable to our varying situations.

I think, then. I can lay it down as a correct principle, that the common law of England, as it was at the time of the declaration of independence, still continues to be the national law of this country, so far as it is applicable to our present state, and subject to the modifications that it has received here in the course of near half a century. The most important of those mollifications result from the uniform principles established by the Constitution and laws of the United States, and the Constitutions of the different States; the local alterations which the States have thought proper to make for their own purposes are no part of it, still it is pervaded by the general spirit of the revolution, as it was in England after the accession of William and Mary, which is easy to perceive by comparing the judicial decisions of those times with those that took place in the reigns of the Stuarts. Our Judges, in more liberal and enlightened times, are placed precisely in the same situation as the English Judges were at that period.

I know that nothing is easier than to start curious questions and raise imaginary difficulties. But I will venture to say that none such will occur, more than usually takes place in the ordinary administration of the law. In civil cases, the common law is recurred to by general consent, and the Judges have not experienced more than common difficulties in the execution of their duty. In criminal matters, the laws of the United States have provided for the most important and frequent occurrences; and, after all. the sphere of action of this national common law, beyond the operation which it receives without opposition in daily practice is so narrow, and its application of so rare occurrence, that, as I have observed before, the present question is more one of curiosity than of practical use. The only real difficulties that it presented I hope I have satisfactorily removed.

But why need I go into such a wide argument to prove what I consider a self-evident principle? We live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet it when we wake and when we lay down to sleep, when we travel and when we stay at home; it is interwoven with the very idiom that we speak, and we cannot learn another system of laws without learning at the same time another language. We cannot think of right or of wrong but through the medium of the ideas that we have derived from the common law.

We need but open the Constitution of the United States and the laws which have been made in pursuance of it, and we shall find the common law almost in every line. I shall not here trouble you with numerous quotations, but I will ask you what is the privilege of habeas corpus, which, by the 9th section of the 1st article of the Constitution, is not to be suspended but in pertain cases, if the common law is not there to explain its meaning? What corruption of blood is that which is mentioned in the third section of the third article? What are the suits at common law mentioned in the 9th amendment, and what common law is that which is there referred to? What is meant by this expression in the 13th section of the Judiciary Act of the 24th September, 1789, that the Supreme Court may issue writs of mandamus, in cases warranted by the principles and usages of law, and in the 10th section of the same act, when it saves to suitors a common law remedy in certain admiralty cases where the common law is competent to give it? What law, indeed, but that which is so elegantly defined by Mr. C. J. Marshall, in his opinion above referred to. "I understand," says he, "by the law mentioned in the statutes of the United States, those general principles and those general usages which are to he found not in the legislative acts of any particular State, but in that generally recognised and long established law, which forms the. substratum of the laws of every State."* To this high authority may be added that of Judge Story, who, in the case of the United States v. Coolidge,† declared, that "the Constitution and laws of the United States are predicated upon the existence of the common law." That there is a general common law in the United State for all national purposes and for all cases in which the local law is not the exclusive rule, and that that law is the common law of England, was the decided opinion of the late Chief Justice Ellsworth, and it is the more remarkable, as he was a citizen of the State of Connecticut, where the common law is only considered in force as far as it has been adopted by their own judicial decisions. He delivered this opinion in the case of the United States v. Isaac Williams, which was an indictment for accepting a French commission to cruize, and capturing a British vessel in violation of our neutrality, the defendant pleaded that he was at the time a French citizen by naturalisation, but the Court over-ruled the plea, and C. J. Ellsworth declared "that the common law of this country was the same as it was before the revolution, that the defendant could not dissolve the compact which bound him to the United States, without the consent of the community." Therefore he was convicted and sentenced to fine and imprisonment.** This was in respect of its application a most unfortunate decision, and may be compared in its effects to the sedition law. It wounded the feelings and opinions of the American people, by denying the right of expatriation and setting up the claim of perpetual allegiance. Thus a sound doctrine by being mixed with a doubtful, and at any rate an unpopular principle, made the nation afraid of the common law, which they thought turned their country into a prison, and prevented them from migrating whithersoever they pleased. It was not necessary to go so far to convict Williams of having violated the neutrality of the United States by means of a fraudulent naturalisation in a belligerent country.

(* 2 Burr's Trial, 482.

† 1 Gallis. 488

** Sergeant's Const. Law, p. 263.)

The general doctrine, however, laid down by C, J. Ellsworth, that the common law is the general law of the land, has always appeared to me to be correct. I have never been able to understand the distinction which has been made between civil and criminal cases, nor why, when we constantly apply its principles in criminal as well as in civil trials, we should hesitate to admit its definitions of offences and distribution of punishments; for, after all it is in these two points alone that seems to consist the whole difficulty.* After much reflection on the the subject, it appears to me that these doubts have their origin in the fear, lest it should lead the federal Courts to claim and exercise too extensive a jurisdiction in criminal cases, which I think I have sufficiently shewn cannot be the case, and perhaps also in some vague fears that are entertained of certain harsh punishments which our modern manners reprove, but which still stain the page of the common law; as for instance the punishment of petty treason in men by drawing and quartering, and in women by burning. But the 10th amendment of our Constitution has sufficiently provided that no cruel and unusual punishment shall be inflicted," which word "unusual" evidently refers to the United States, and the time when the Constitution was made, and therefore is not to be confounded with the same clause in the English bill of rights, which referring to another period and to another country, may have been differently construed. The peine forte and dure, and burning in the hand in cases of manslaughter are abolished, and milder substitutes provided by our national statutes; corruption of blood, trial by battle, all other modes of trial, but trial by jury in criminal cases are also abolished; in short the common law as modified by our Constitution, by our laws, manners and usages, is as wholesome and as harmless a system, in criminal as well as in civil cases, as any that can be devised.

(* Various circumstances have concurred after the revolution to create doubts in the public mind respecting the operation of the common law in this country as a national system, particularly in criminal cases. The bitter feeling of animosity against England which the revolutionary war produced was not amongst the least of these causes. The States might recognise their own common law, but to have been subject in any case to the law of the enemy, seemed in some manner like a dereliction of the principle of independence, while it was no more so than the recognition of the binding force of the civil law was in the European States, a token of submission to the sovereignty of the Roman Emperors, whose succession was still continued in Germany. In the year 1781, Congress fell under aw embarrassment which I can only ascribe to this popular feeling, and it is curious to observe how they extricated themselves. By the articles of confederation they had the power given to them of "appointing Courts for the trial of piracies and felonies committed on the high seas," (Art. of Confed. art. 9.) No power of legislation was annexed to this, while in the case of captures jure belli, they were empowered, not only to establish a Court of Appeals to decide those causes in the last resort, but to establish rules for deciding what captures should be legal, and how the proceeds should be distributed, which leads me to infer that in the case of piracies and other felonies, it was meant to withhold from them the power of legislation. It seems, therefore, that all they had to do was to appoint the Courts for the trial of those crimes, and to leave their Judges to proceed according to the law of admiralty. But they thought it necessary to proceed further, by which it appears to me that they exceeded their authority. They defined the offences, by assimilating them on the principle of the statute of Henry VIII., to the same crimes committed at land, and prescribed a common law mode of trial, much in the words of the same statute. They also affixed the punishment, but here it is easy to perceive that they were under the guidance of no solid principle, and the course they pursued was such as, surely, would not be imitated at this day; they resolved that the punishment should be the same as if the offence had been committed at land, and that the criminal "should be utterly excluded the benefit of clergy, where the same was taken away or not admitted for such like offence, committed within the body of a county or at land, where the trial should be had." Resol. 5. April, 1781 — 7. Jour. of Cong 65. Thus a pirate taken by a vessel of the United States, might it brought into New Hampshire, for instance, he hanged, and it in Georgia, only be burned in the hand. In a former part of this discourse I have explained at large the principles which I conceive alone to afford the grounds of a sound and consistent legislation upon this subject.

It would be curious to know how the colonial Judges of the Courts of Admiralty construed the statute of Henry VIII., which defines piracy to be that which, if committed at land, would be felony. Did they lake in such cases the law of the mother country, or the local law, as their guide? As there was no great, if any, difference at that time between the one and the other, it is most probable that they never thought at all upon the subject.)

As to offences not capital, cruel and unusual punishments being forbidden by our Constitution, there remains none but fine, imprisonment and, perhaps, whipping and the pillory. I hope I shall hear nothing of the ducking stool and other obsolete remains of the customs of barbarous ages. The pillory and whipping, I know, are out of use in most of the States, imprisonment at hard labour having been substituted in lieu of them. Yet Congress have thought proper to retain the latter punishment in their penal code, and we have seen it inflicted not long since in our city on an offender against the laws of the United States. It is in the power of the national Legislature to alter or amend the law in this respect, as they shall think proper; but until they do so, I see nothing inhuman in the moderate infliction of either of these penalties, nor any reason why we should reject the common law on their account.

It may be said, perhaps, that there is too much left to the discretion of the Judges as to the quantum, and even the nature of the punishment and sometimes also as to deciding what is or what is not an indictable act. As to the quantum of punishment, I know no system of laws in which some discretion at least is not left to the Court according to the greater or lesser magnitude of the offence. It is impossible to avoid this inconvenience by any legislation. The same thing may be said of the authority to choose between two or three mild punishments; there may be cases in which imprisonment would be death to the party, and when a fine may be inflicted upon him with greater effect; others when the reverse may be the case. With respect to the power of deciding in some doubtful cases, whether a certain act be indictable or not, if it is an evil, it is one to which our citizens are all subject within their respective States, and I do not see why any should be exempted from it, merely because they are not amenaable to a State jurisdiction. If it were so, it would follow, that the federal Constitution has loosened in a strange manner the bands of society which existed at the time of its adoption, and that it proclaimed impunity to every crime which the State authorities could not reach, until by the gradual and slow process of legislation, Congress should provide for every case that might in future arise. Such is the inevitable consequence of the principle that the United States have no national common law, while the doctrine that I contend for is entirely harmless, particularly when it is considered that the common law does not give jurisdiction to the federal Courts, but is merely directory of its exercise. So that it appears to me that the opponents of this principle, by not viewing the subject in all its bearings, have in fact been afraid of dangers which are not to be apprehended.

Thus a phantom has been raised which needs only to be looked fully in the face to vanish into empty air. The more this question is investigated on its true principles, the more I am satisfied that the inquiry will result in the conclusions that I have formed and which I commit to your future research. Before I conclude, however, this part of my discourse, I must take notice of an argument which is not without plausibility, and which may possibly be urged against the doctrine which, in a former part of this discourse, I have been endeavouring to establish. By the second section of the third article of the Constitution it is provided, "that the judicial power shall extend to all cases in law and equity arising (inter alia) under the laws of the United States." Now it may be said, that if the common law is a law of the United States, it necessarily follows that the federal Courts are bound to take cognisance of all offences committed against it, whether or not Congress has made provision by statute for their trial and punishment.

To this objection, which I acknowledge is not entirely devoid of force, I venture to answer: That the section of the Constitution from which this provision is taken, is altogether restrictive, and was intended to confine the powers of the federal judiciary within certain fixed bounds, and therefore its language is to be taken in its natural restrictive sense, and not as extending authority beyond the bounds prescribed by the instrument. It appears to me also that by the words "the laws of the United States," the framers of the Constitution only meant the statutes which should be enacted by the national Legislature; otherwise, if they had intended to include the common law, they would have expressed themselves otherwise, and no doubt have also specifically described those powers under the common law which they meant to confide to the judiciary, for the general expression all cases arising under the common law would have given them such a wide and undefined extent of jurisdiction as cannot be supposed to have been in contemplation. By the words in law or equity, however, they have clearly shewn that they did not mean to exclude the common law as a means of exercising such jurisdiction as Congress might think proper to commit to the Judges in pursuance of the Constitution; for the law which is there spoken of can be no other than the common law. It has been supposed that the word law was employed here in contradistinction to equity, and therefore was meant to be applicable only to civil cases. But if it were so, how could the judiciary take cognisance of offences created by national statutes, if the very clause which gives them jurisdiction in cases arising under the laws of the United States, restricts them by the technical construction of one of the terms which it employs to cases merely civil, even though arising under those statutes? According to this construction the clause would read thus: "All civil cases arising under the Constitution and laws of the United States." But when the Constitution gave to Congress the power to define and punish treason, piracy, and a variety of other crimes, and to make laws, such as a bankrupt law, embracing criminal as well as civil matters, it cannot he well conceived that it should have meant to confine the judiciary to the execution of such parts of those laws only as were of a civil nature, to matters of law in strict contradistinction to matters of equity.

It appears to me clear, therefore, that while the Constitution did not mean to vest in the judiciary an unlimited power to take cognisance of offences at common law, it still recognised the common law as their guide in all cases, whether civil or criminal, in which they had jurisdiction given to them over the person or subject matter, either by its own provisions, or by the laws which should be enacted by Congress in pursuance to the authority vested in them. Thus, if Congress should make a law authorising the District or Circuit Courts to take cognisance of all prosecutions for bribery or attempts to bribe an officer of the United States, without defining the offence or affixing its punishment, the Judges in such cases should be bound to administer the common or any other law that applied to the subject.

It must not be forgotten, however, that the restrictions which are thus imposed by the Constitution on the federal judiciary, were only intended to guard against encroachments on the sovereignty of the individual States, and therefore are solely applicable to cases in which that sovereignty may be affected: otherwise, it appears clear to me that the limitations of the judiciary power must proceed from other sources.

On the whole, therefore, I think I may venture to assert —

1. That the common law is the law of the United States in their national capacity, and is recognised as such in many instances by the Constitution of the United States and the statutes made in pursuance of it.

2. That when the federal Courts are sitting in or for the States, they can, it is true, derive no jurisdiction from the common law, because the people of the United States, in framing their Constitution, have thought proper to restrict them within certain limits; but that whenever by the Constitution or the laws made in pursuance of it, jurisdiction is given to them either over the person or subject matter, they are bound to take the common law as their rule of decision whenever other laws, national or local, are not applicable.

3. But that the limitations of the judiciary power which are the safeguards of the sovereignty of the States, do not apply to the judiciary when sitting in or for the Districts or Territories which acknowledge no sovereignty but that of the nation, and that there the common law has its full force, and is to be the rule in all cases in which the laws of the United States or the local laws do not apply.

I am well aware that this doctrine of the nationality of the common law will meet with many opponents. There is a spirit of hostility abroad against this system which cannot escape the eye of the most superficial observer. It began in Virginia in the year 1799 or 1800, in consequence of an opposition to the alien and sedition acts; a committee of the legislative body made a report against those laws which was accepted by the house, in which it was broadly laid down that the common law is not the law of the United States. Not long afterwards, the flame caught in Pennsylvania, and it was for some time believed that the Legislature would abolish the common law altogether. Violent pamphlets were published to instigate them to that measure.* The whole, however, ended in a law for determining all suits by arbitration in the first instance, at the will of either party, and another prohibiting the reading and quoting in Courts of justice of British authorities of a date posterior to the revolution. Both these statutes, as you well know, are still in force.

(* This spirit was considerably checked by a well written pamphlet published at the time by Joseph Hopkinson, Esq. of this city, in which he demonstrated the absurdity of the project of abolishing the common law.)

It was not long before this inimical disposition towards the common law made its way into the State of Ohio. In the year 1819, a learned and elaborate work was published in that State,† in which it was endeavoured to prove not only that the common law was not the law of the United States, but that it had no authority in any of the States that had been formed out of the old north western territory. But few copies of his work have been printed; nevertheless as it is learnedly and elaborately written, it cannot but have had a considerable degree of influence.

(† Historical sketches of the principles and maxims of American Jurisprudence, in contrast with the doctrines of the English Common Law on the subject of crimes and punishments. — By John Milton Goodenow, 428 pp. 8vo. Steubenville, 1819.)

In other States, attacks upon the common law, more or less direct, have appeared from time to time.*

(* Among those some persons seem to consider the address lately delivered before the Historical Society of New York, by my excellent friend Mr. William Sampson, for my part, I rather believe that he meant to point the keen arrows of his wit against the superstition, not against the pure religion of the common law. Mr. Sampson is an Iconoclastes in jurisprudence; he has made pretty free with the Saxon and Norman idols, and may have displeased those who would wish to bring us back to ihe ancient worship of Thor and Woden. But every liberal common lawyer will applaud the sentiments which he expresses in the following eloquent passage, which I beg leave to quote at large from his address:

"Our law is justly dear to us, and why .' because it is the law of a free people, and has freedom lor its end, and under it we live both free and happy. When we go forth, it walks silent and unobtrusive by our side, covering us with its invisible shield from violence and wrong. Beneath our own roof, or by our own fireside, it makes our home our castle. All ages, sexes, and conditions, share its protecting influence. It shadows with its wing the infant's cradle, and with its arm upholds the tottering steps of age. Do the smiles of the babe give gladness to the mother's heart, her joy is perfect in the consciousness that no tyrants power dare to snatch it from her arms; that when she consigns it to repose, its innocent slumbers are guarded by a nation's strength, and that it sleeps more free from danger than kings amidst their armed myrmidons. And when life's close draws near, we feel the cheering certitude, that those we love and leave shall possess the goods that we possessed, and enjoy the same security in which we lived and died. But that we are indebted for this, to Saxon, Scandinavian, Gaul, Greek, or Trojan, is what unsophisticated reason will not endure. We owe it to the growth of knowledge, and to the struggles of virtuous patriots, many of whom have bled and died for it: we owe it to fortunate occasion and favouring providence." Sampson's Disc. p. 60.)

Its faults (for it is not free from them) are laid hold of and exhibited in the most glaring light; its ancient abuses, its uncertainty the immense number of volumes in which its doctrines are to be sought for, its various and daily increasing modifications in the different States, the contradictory decisions which occur among so many independent tribunals, and above all the supposed danger to our institutions from its being still the law of a monarchical country, the opinions of whose Judges long habit has taught us to respect, which opinions are received from year to year, and admitted in our Courts of justice if not as rules, at least, as guides for their decisions; these are the topics which are in general selected for the animadversions of those who hold the contrary opinion to mine, and there is enough of plausibility in them to make us presume that they are not without effect on the public mind.

That there are real and serious inconveniences in our actual system of jurisprudence, is what no candid man will deny; but none of them is, nor are all of them sufficient to induce the abolition of the common law. Were it abolished, a still greater difficulty must arise, to fill up the immense chasm which would be produced by its absence. Not all the codes of all the Benthams would be capable of producing that effect.

The task of legislation is not so easy a one as some people seem to imagine. The immortal Bacon was of opinion that neither lawyers nor philosophers were fit for it; the former because their notions were too narrow, the latter because theirs were too enlarged. He thought that this business could only be safely confided to statesmen, as being best acquainted with mankind.* For my part, I am inclined to think that a good legislator ought to possess the combined knowledge and talents of the lawyer, the philosopher, and the statesman. I need not say how few there are of those in any age or in any country. But admitting that this country possesses superior legislative talents to any other, I assert, without the fear of contradiction, that it is impossible to abolish the common law. Make as many codes as you will, this second nature will still force itself upon you:

—— — "Expellas furcâ tamen usque recurret."

In proof of this, I shall adduce a very recent and very striking instance. The emperor Napoleon gave to the French a new and uniform code of laws, which has been now in force about twenty years. It is admitted to be as complete as a work of this kind can be, and well suited to the nation for whom it was made. But I can assure you, that, as far as I have been able to observe, the digests and code of Justinian, the former laws and ordinances of the kingdom, and the immense collection of the works of the civilians and French jurists are not less quoted at present in the lawyers' pleadings than they formerly were, and so it would be with us if we were to abolish the common law. We should still recur to it for principles and illustrations, and it would rise triumphant above its own ruins, deriding and defying its impotent enemies.

(* Qui de legibus scripserunt omnes, vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa, dictu puichra, sed ab usu remota. Jurisconsulti autem, suæ quisque patriæ legum, vel etiam Romanarum, aut Pontificarum, placius obnoxii et addicti, judicio sincero non utuntur, sed tanquam è vinculis serniocinantur. Certè cognitio ista ad viros civiles propriè spectat; qui optimè norunt, quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ; ideòque possint de legibus, ex principiis et præceptis, tam æquitatis naturalis, quam politices, decernere. De augm. Scient. I. 8 c. 3.)

The common law may be viewed under different aspects. Hence the variety of opinions that have been and are still maintained respecting it. There is an ancient and a modern, an English and an American common law, making in some respects a whole system, in some others distinct codes. Viewed altogether, it presents a rude and mis-shapen mass, rudis indigestaque moles. Like certain works of art, its separate parts must be dwelt upon for some time before its beauties or its defects can be justly appreciated. It is not to be wondered at, therefore, if it has warm enthusiasts and violent enemies. It would require a consummate artist to delineate it as it ought to be; as I do not possess the requisite talent, I shall content myself with a plain statement of my ideas upon the subject.

I admire and I venerate the common law; not, indeed, the common law of the Saxons,* Danes, and Normans, nor yet that which prevailed in England during the reigns of the Plantagenets, the Tudors, and the first Stuarts, but that which took its rise at the time of the great English revolution in the middle of the 17th century, to which the second revolution in 1688 gave shape and figure, which was greatly improved in England in the reigns of William, Anne, and the two first Georges, but which, during that last period and since, has received its greatest improvement and perfection in this country, where it shines with greater lustre than has ever illumined the island of Great Britain. In former times, its present defects excepted, it bore no resemblance to what it is now.

(* I shall cite only two of the laws of Alfred, the greatest of the Saxon kings, to shew how far they are deserving of the eulogies that have been lavished upon his times, and what liberty and equality there was in England under his reign.

"If a man have connection with the wife of one worth 1200s he shall pay 120s.; if with the wile of one worth 600s. he shall pay 100s; and if with the wife of a yeoman, 40s. for the redemption of his head. This fine shall be levied on the chattels of the delinquent, and he shall not be sold for it." — LL Ælf. c. 10.

"If any one shall strike his man or his maid servant, and he or she do not die the same day, but live two or three days, he shall not be equally guilty, because his slave is his money; but if he or she die the same day, then the guilt shall rest upon him." — LL. Ælf. c. 17.)

If the common law had remained in England as it was in the reigns of Elizabeth and James, it would not have deserved the high encomiums that have been justly bestowed upon it, nor would it have been worth being claimed by Americans as their birth right. England, it is true, had a kind of representative government, but so had almost every other country in Europe. As England had her parliament, other nations had their States, their Cortes, and their Diets, but all weighed down by the supreme authority of the sovereign, by virtue of the dispensing power, borrowed from the example of the emperors and popes, and strengthened by the famous maxim of the imperial law, Quod principi placuit, legis habet vigorem. The celebrated writ of habeas corpus was a part of the English code, but the civil law had also its title, De liberis exhibendis,* and neither of them was adequate to the protection of the subject against the attempts of arbitrary power. Even trial by jury was no safeguard to the innocent, when powerful men thirsted for his life; the history of those ages offers no example of those independent juries who distinguished themselves in later times by the noble stand which they made against tyranny and oppression. All the firmness and eloquence of William Penn would have availed him but little in former reigns, and. indeed, when we consider the power which the Courts had and exercised even at this time, we cannot withhold our astonishment from the result of this prosecution. The trial of William Penn is one of the brightest examples of successful virtue and courage which History affords.

(* ff. lib. 43. tit. 30. De liberis exhibendis, item ducendis.)

The civil jurisprudence was a complex system in which the Judges lost themselves in refinements and distinctions without end. The method of reasoning by induction, which Bacon recommended and exemplified, and which the celebrated Stewart and the philosophers of the Scotch school have so elegantly elucidated, was then unknown, or not understood; the logic of the schools prevailed, and every thing was discussed by syllogisms in Barbara and Baralipton. A highly complicated system of litis contestatio, or, as we call it, pleading,* overdriven to excess, excluded plain reason and common sense from the bar and from the bench, and a great majority of the cases brought before Courts of justice were decided upon some nice point of form. This artificial logic produced the same effects in England, which the Aristotelian Dialectics had produced in Greece and at Rome; sophistry became in vogue, and Seneca, if he had lived in those times, might have applied to the English lawyers and Judges what he says of the Roman sophists in his eighty-second letter to Lucilius. The plain roles of right and wrong were lost sight of in the midst of a sea of metaphysical subtleties. The greatest talents were misapplied in endeavouring to find reason beyond the bounds of common sense. As theology had had her Thomas Aquinas, so jurisprudence had her Coke; both men of great mental powers, superior to most of their contemporaries. but not to their age. One man alone arose, whom no country and no age ever surpassed, who held up the torch of truth to a generation whose eyes were too weak to bear its resplendence. This was the great BACON:

Qui genus humanum ingenio superavit & omneis Præstinxit; stellas exortus uti æthereus Sol.**

(* The great Lord Mansfield has said, that "the substantial rules of pleading are founded in strong sense, and in the soundest and closest logic." This is undoubtedly true; but Lord Mansfield does not tell us what are those substantial rules, while at the same time he confesses that even those "by being misunderstood and misapplied, are often made use of as instruments of chicane." Robinson v. Raley, 1 Burr. 319.

In the same manner the substantial rules of the Aristotelian system of Dialectics are founded in strong sense, and in the soundest and closest logic. There is nothing better than syllogistic forms to bring a controversy to a point or to prove the fallacy of an argument. Yet we all know how these forms have been abused. In fact they are, as well as the English system of pleading, nice and delicate instruments, excellent in the hands of those who know how to use, and are not disposed to abuse them; but too dangerous to be entrusted to every one, when great inconveniences may arise from their unskilful or designed perversion.

While writing this note, I find in a late English newspaper an extract of a speech of the Lord Chancellor of England in the House of Peers, on the 6th of March last, which is so appropriate to my purpose, that I cannot help inserting it here: "He took the opportunity," he said "of observing upon the intricacy of legal pleadings. In former limes, these pleadings were extremely simple, but by modern practice, they had been rendered most complicated. It had been thought advisable to assimilate the pleadings of Scotland, the length and intricacy of which had been much complained of, to those of England; but it appeared to him that the pleadings of this country were now nearly as intricate as those of Scotland, and therefore little would be gained by this assimilation." The editor who reports this extract adds these emphatical words: "We rejoice most unfeignedly that the CHANCELLOR has enlisted himself on the side of COMMON SENSE. — Lond. Morn. Chron. March 8, 1824.)

(** Lucret.)

I invite you, my dear fellow students, to read with the utmost attention and to compare with the writings of the other jurists of those times, his admirable treatise "De justitiâ universali, seu de fontibus juris." It is at the end of the third chapter of the eighth book of his celebrated work "De dignitate & augmentis scientiarum." It is divided into ninety-seven aphorisms, every one of which ought to be studied and meditated on by every lawyer and statesman, and by every student who aspires to become either.

If we wish to have an idea of what the civil jurisprudence of England was towards the end of the wars of the two Roses (and if we except the bankrupt system, the acts of Elizabeth against fraudulent conveyances, and perhaps, a few more statutes, it was not much improved from that time to the period of the revolution) we have only to turn to the book of Chancellor Fortescue De laudibus legum Angliæ, a work professedly written to prove the superiority of the law of England over all others, and particularly the civil law. Setting aside what he says of the representative form of government and of trial by jury, he adduces no instance of that superiority, but the illegitimacy of ante-nuptial children, the maxim, quod partus non sequitur ventrem, and the doctrine of feudal wardships, none of which would be considered at this day as giving an advantage to one system of law over another. Yet Chancellor Fortescue was a very learned man, and appears to have been equally skilled in the civil and in the common law.

The true æra of the common law is the period which followed the great revolution of 1648, to the time of our own emancipation. It was then that it assumed that bold and majestic shape, those commanding features which have made it the pride of the nations who possess it, and the envy of those that do not. During that period the rights of man have been acknowledged and defined, and limits have been set to the sovereign authority. The prerogatives of the crown (I am speaking here of England) have been ascertained and restricted within proper bounds, the legislative, executive and judicial authorities have taken their respective stations and known the extent of their several powers; Judges have been rendered independent, and juries have been freed from ignoble shackles. The writ of habeas corpus has been made effectual, a fair and unexceptionable mode of trial has been provided for cases of high treason. The press has been freed from the unhallowed touch of State licensers, religious toleration has been established. The hand of arbitrary power has been paralysed, and man has been taught to walk erect and to feel the dignity of his nature. Civil jurisprudence has also been considerably improved, and is in a progressive state of further amendment.

These are the great features of the English Common law, by which that country has been raised above the other nations of Europe. I am now to shew the improvements which have taken place in the United States.

I shall not speak here of the difference which exists between the forms of government of the two countries; such comparisons are invidious and entirely useless to my purpose. I do not want to raise our nation at the expense of another which in all probability, had she been placed in our situation, would have acted precisely as we have done, and it may well be doubted whether in her circumstances we should have done better than she has. Besides, it is the law alone, not the national organisation that I have in view: I need not say that America has adopted all the improvements of the mother country, I shall only shew what ameliorations she has herself made in the system. Not only religious toleration, but religious equality has been established. Treason has been constitutionally defined, and by the same instrument, as well as by the Constitutions and laws of the several States, a right has been secured to every accused party to defend himself by counsel in all criminal cases, without discrimination of fact or law. The benefit of the writ of habeas corpus has not only been secured in the same manner as in England, but its remedy has been extended by the power which the Judges have and exercise of investigating the real merits of each case without confining themselves to the face of the return. The liberty of the press has been made to rest on a constitutional sanction, and not on the mere absence of prohibitory laws. Mild punishments hate taken the place of the former sanguinary code, and the interior economy of prisons, and penitentiaries has been suited to the humanity of the age. Imprisonment for debt has been taken away in several of the States in favour of the weaker sex, there is even a general disposition to abolish it altogether: but if it should be abolished, it is to be hoped that a greater hold will be given to the creditor on the property of his debtor than he has by the existing laws: that for instance, the doctrine of liens will be further extended, and outstanding debts made liable to attachment or execution, under suitable regulations. Nor will it be, perhaps politic to abolish it as to every description of persons; but I should have too much to say if I were to proceed further on that important, but delicate and complicated subject. I shall only observe that it is closely connected with a system of bankrupt law.

Civil jurisprudence has also been greatly improved in the United States. Of the ancient feudal system nothing remains but a few empty names and forms, while in fact the citizens may almost be said to hold their property in pure allodium.* All the lands sold by the State of New York have been granted allodially in name as well as in substance, although from the force of mere habit, the words "fee simple" are still used in the conveyances, from one purchaser to another. Estates tail are every where (except in one State) either abolished, or a simple form has been provided for converting them into absolute estates.** The doctrine of survivorship in joint-tenancy is also done away. The law of primogeniture no longer subsists in any of the States. Conveyancing has been reduced to simple forms, and is no more an intricate science. Registries of deeds and mortgages have been established in every State.

(* The case of Perrin v. Blake, (4 Burr. 2579, Butler's notes on Co. Lit. 329,) has been and I presume is still in England the source of endless discussions. It was decided one way by the Court of King's Bench, another by the Court of Exchequer Chamber, and the parties having compromised pending a writ of error to the House of Lords, it was not finally decider!. At the time when it was first discussed, says Mr. Fearne, the law on the subject was so far settled, that lawyers might, at least, form a probable conjecture, if not opinion, respecting questions of the same nature, (Fearne on Conting. Rem. 238); when it was argued in the King's Bench, says the reporter, "the cases cited were many and difficult to reconcile, each side had a string of them." (4 Burr. 2586.) The doctrine in Shelly's case, (4 Co. 104. b.) which Lord Mansfield's opponents strive to apply to this question, is admitted on all hands, to have been intended to secure to the feudal lord, his rights of wardship, marriage and relief, which have never been known in this country. How should such a case be decided on the principles of the American common law? A good dissertation on this question would be of great value to our profession, and throw considerable light on the fundamental principles of our rational system of jurisprudence.)

(* The follow ing is extracted from the valuable work entitled "The Annual Law Register of the United States," published at Burlington, N. Jersey, by the Hon. William Griffith, formerly a Judge of the Circuit Court of the United States for the States of New Jersey, Pennsylvania, and Delaware. The volumes which have already appeared of this work are extremely interesting, as they bring together in one point of view the laws of the different States on the most important subjects. The use of this collection will appear from the following extract, made by a young gentleman of the law academy.)

Of estates tail in the several States of the Union.

In four States never known to have been in existence, viz. Vermont, Illinois, Indiana, and Louisiana.

In one, viz. South Carolina, the statute de donis never was in force, but fees conditional at common law prevail.

In twelve they have been abolished or converted by statutes into fee simple absolute, viz. New York, Ohio, Virginia, North Carolina, Georgia Missouri, Tennessee, Kentucky, Connecticut, Alabama, Mississippi,and New Jersey, but in the last four, a kind of estate tail still exists, being for the life of one donee or a succession of donees then living.

In six they may be barred by deed, acknowledged before a Court or some magistrate, viz. Rhode Island, Maine, Pennsylvania, Massachusetts, Maryland, and Delaware, but in the last four may also be barred by fine and common recovery.

And in one only do they exist as. in England with all their peculiar incidents viz. New Hampshire.

The forms of proceeding in Courts of justice have also been greatly simplified, and the number of its officers reduced to a prothonotary or clerk and a common cryer. The costs of a law suit are comparatively trifling, and the law is accessible, to the poor as well as to the rich; a loose practice, it is true, has succeeded in our Courts to the strict forms of pleading, but it appears to work well to all practical purposes. Even in England, pleading is at present but the shadow of what it once was; in most personal actions, the declarations declare nothing, as in ejectment, and in actions of general indebitatus assumpsit, and particularly that for money had and received to the plaintiff's use. Neither do the general pleas at present used disclose the real grounds of the defence. In this manner that overwrought system has re-acted upon itself. It must he admitted, however, that it has produced the forms of criminal indictments still in use, the excellence of which can only be duly appreciated by comparing them with the acts of accusation of other countries.*

(* I have before me the indictment or acte d'accusation, in the case of the murderers of Fualdes, on their second trial at Alby, in France, in the year 1818. It is of immense length, and this length is not produced by harmless tautology or the repetition of mere words of form, nor by stating the case in different ways, in order to make the allegations and proofs exactly agree; but it is a minute and circumstantial narrative, not only of the particulars which attended the perpetration of the criminal act, but of all the evidence with its successive variations, the conduct of the accused and of the witnesses on their examinations; and all the gossip which occurred in the course of the preparatory proceedings. All this is narrated in an inflated, rhetorical style, well larded with epithets, and stuffed with declamation, and every thing in the instrument appears designed for theatrical effect, and calculated to make a strong impression upon the jury and the public against the accused. A few extracts wilt show what I mean.

After relating the circumstances of the murder with all their disgusting details, the Attorney General proceeds:

"After the unhappy Fualdes had lost his life in the most barbarous manner, his corpse was wrapped in a sheet and blanket, tied up, like a bale of goods, with cords of the thickness of a finger," &c. — The remainder of the details is in the same style.

The accused being all joined in the same indictment, the part which each took in the murder is separately noticed: the following is the charge against Anne Benoit, one of them.

"Anne Benoit co-habited with Baptiste Collard, in the house which was the theatre of the crime. On the 19th of March, about 8 o'clock in the evening, she was found concealed in the street Hebdomadiers near the house of Mis-

sonnier, By her own avowal, the fatal handkerchief with which the unhappy Fualdes was gagged, belongs to her; she blushed when somebody told her that no doubt she had lent it to Baptiste Collard, her pretended husband, to strangle therewith the Sieur Fualdes."

Madame Manson, originally a witness in the cause, but in consequence of having wavered and varied in her depositions, now charged as an accomplice, in order, by working upon her fears, to extract from her more explicit testimony, is indicted in these words:

"A woman named Manson, born Enjelran, after having declared before the prelect of the Aveyron, that she had been an eye witness to the murder of Fualdes, that she was in Bancal's house at the moment when it was committed, that she had been exposed to the greatest dangers; after having made the same avowal to divers persons, appeared at the trial and denied the facts; she swore she never had been in Bancal's house, and her assertions being contradicted by her countenance, her looks and her gestures, the sight of [he accused produced in her convulsions, and real or simulated faintings, several times during the sitting, she fell, or appeared to fall into a swoon; the words 'dagger' — 'murder' — escaped from her lips," &c. concluding that because she has thus varied in her testimony, she is now indicted as an accessary to the murder.

The whole is in the same style, calculated to overwhelm the accused, and to present them to the jury, not so much for trial as for conviction.

This form of indictment is not borrowed from the civil law; for the civilians maintain that such an instrument ought to contain only what is material and indispensably necessary to understand the true grounds of the accusation, which they express by the follow ing doggerel line:

Quis, quid, ubi, quibus auxiliis, cur, quomodo, quando.

This is in fact all that is necessary to be stated; but the French attornies general have preferred adopting the inquisitorial form now in use, which is, undoubtedly, better calculated for the display of eloquence than for the attainment of justice.

At the same lime I must acknowledge that there is in the present mode of administering criminal justice in France something well worthy of imitation, even in this country. In the discussions which take place, whether on a trial or law argument, the accused always has the last word. It is so likewise in Scotland.)

Thus far we have improved on the common law, the honour of further improvements is still in reserve for us. While the common law is and ever will be the best system of political and criminal legislation that has ever been known, I cannot say I think it entitled to the same praise in what may properly be called the jus civile, I mean that part of the law which governs the construction of contracts between man and man, and establishes the rules of meum and tuum. In this part of the system too much remains of those subtle and nice distinctions originally introduced by the false logic of the schools, and preserved by the force of custom and respect for antiquity. The habit of reasoning on artificial principles still continues in England; hence their jurists too often generalise where they should distinguish, and distinguish where they should generalise. Thus they lay hold of some general principle, as for instance "that a factor has no right to pledge his principal's goods," and apply it indiscriminately to almost every case.* Thus the rule caveat emptor, borrowed from the civil law and applied there only, for obvious reasons, to sales of slaves, horses, and cattle,† is applied in England to all species of dealings, to the great detriment of commerce.‡ Thus a distinction is raised between obligations arising from contracts and those imposed on the party by the operation of law; what excuses from the performance in the one case, is held not to do so in the other; a rule which is not founded either on reason or justice.** It is said that Judges are not to make contracts for the parties, but to explain them. This is perfectly true, but it is not perceived that this literal construction leads to the very error which is wished to be avoided; for neither party could possibly foresee at the making of a contract all the accidents that might impede or prevent its performance, and the Judges who so decide virtually insert the words "at all events" which the instrument they are construing does not contain. Our own Judge M'Kean very properly, in my opinion, overruled this doctrine in the case of Pollard v Shaffer,†† and it seems it was also formerly denied to be law in the Court of Chancery in England.‡‡

(* Pickering v. Bush, 15 East, 44. Martins v. Coles, 1 M. & Selw. 146.

ff lib 21. De Ædilitio Edicto, tit 1.

Chandler v. Lopus, Cro. Jac. 4. Bree v. Holbech, Doug. 655. Parkinson. v. Lea, 2 East, 314, and numerous other cases. This doctrine is approved of even in a Treatise on Equity, 1 Fonb. 380, in note. Mr. Wooddeson calls it an unconscientious maxim. 2 Wood, lect. 415. In South Carolina, it is not considered to be law, even as respects the sale of slaves, Timrod V. Shoolbred, 1 Bay, 319; Whitfield v. M'Leod, 2 Bay, 380; lister v. Exrs. of Graham, 1 Rep. Const. Court, 182.)

(** So late as the year 1802, Lord Alvanley, Chief Justice of the English Court of Common Pleas, was pleased to say, that this doctrine, as laid down in the case of Jane v. Paradyne, Alleyn, 26, is founded on MUCH GOOD SENSE. Touteng v. Hubbard, 3 Bos. & Pul. 300. I have often derived much pleasure and instruction from the opinions of this learned Judge and eminent jurist; I am therefore the more astonished at his having gone so far to vindicate a principle, which in his country may, indeed, be venerable from its antiquity, but cannot stand the test of close and logical investigation. This shews how difficult it is even for the greatest minds to divest themselves of ancient prejudices, particularly when seconded by the soft whisperings of national pride.

†† 1 Dall. 210.

‡‡ 3 Bur. 1639.)

These and other similar rules, however unjust, might perhaps be tolerated in a mere municipal code; but when we find them introduced into the commercial and maritime law, as for instance in the case of Cook v. Jennings,§ and other subsequent cases, in which the elegant doctrine of freight pro ratâ itineris, laid down by Lord Mansfield in the case of Luke et al v. Lyde* is made to yield to the niceties of the Norman school, we lament that this beautiful system of general jurisprudence, which belongs not to one nation, but to all the world.† should be disfigured by a forced adaptation to certain local theories. This is what I am sorry to say has happened in England. The law of freight, insurance, &c. is. in many important and substantial points, different there from what it is in the rest of the world, and no impartial jurist will say that it has been improved by the anomalous doctrines that have been introduced into it. Some of them are contrary to every principle of sound jurisprudence. This is not the place to advert to them in detail; but I may instance the rule which makes the sentences of foreign Courts of admiralty conclusive in a suit on a policy of insurance.** This doctrine is evidently unjust in a belligerent nation that insures for neutrals and both unjust and impolitic in a neutral nation that insures for its own citizens. I might also animadvert upon the doctrine by which the owner of a ship is allowed the benefit of the clause in a policy of insurance against barratry of the master,†† thus enabling him to throw upon third persons the responsibility which the law imposes upon him for the acts of his servant; also that which impairs the obligation of a first contract of insurance, by compelling successive underwriters to contribute, when the property is overinsured;‡ the narrow construction given to the words "perils of the sea"*** and a multitude of other anomalies differing from the general law received by all the commercial world besides, and which in theory, at least, is a part of the common law."†††

(§ 2 Terra Rep. 381.

* 2 Bur. 889.

† Thus in mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature, the law merchant which is a branch of the law of nations is regularly and constantly adhered to, so that in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but the great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. 4 Black. Com. 67.

The maritime law is not the law of a particular country, but the general law of nations; non erit lex alia Romæ, &c. Lord MANSFIELD, in Luke et al. v. Lyde. 2 Bur. 887.

C'est par le droit des gens que la navigation a toujours été régie. Elle est le lien de la société des peuples. Chez les nations commerçantes, les loix maritimes sont à peu près les mêmes, attendo la reciprocite des interêts. On doit done avoir recours aux Loix des autres peuples, soit pour mieux connoître l'Esprit des ordonnances du Royaume, soit pour décider les cas qu'elles n'ont pas prévu. 1 Emerigon, 21

** Bernardi v. Monteux, Dougl. 554. Lothian v. Henderson, 3 Bos. & Pul. 499.

†† Havelock v. Hancill, 3 Term. Rep. 277.

Marshall on Insurance, 146. There is no maxim better established in English jurisprudence and, indeed, in that of all the world, than that Judges are not to make the law, but to expound it, and that they are by no means to substitute for it their own ideas of right or wrong. But here is a very strong example to the contrary. The law had been settled in England in the case of the African Company v. Bull, (1 Shower, 1.32. Gilb. 238,) and the custom, says the reporter, had been proved plainly and fully by all the exchange, that the first underwriters in a case of over insurance, were to pay the loss to the extent of their policy, and the others successively, until the whole loss was satisfied. Yet, Lord Mansfield, yielding to a sudden notion of superior equity, in two successive cases: at Nisi Prius, Rogers v. Davis, and Davis v. Gilbert, (Beawes L. M. 242.) thought proper to set aside the established law, and to introduce the principle of contribution, because there was something equalising in it that struck his fancy. If he had taken the trouble to consult the foreign writers, with whose works at other times he appeared familiar, he would have found that the rule which he thus abolished, was not only the law of England, but that of all the commercial world, and if he had reflected upon the subject, which he was well able to do, he would have been satisfied that he was not at liberty to modify the contract between the insured and the first underwriters, it being a complete bargain and sale of eventual profit on the one side and of indemnity on the other. (Roccus, de assec. note 3.) His reputation, however, sanctioned the new principle, I am sorry to say, not only in England but in this country, and the consequence has been that our underwriters are compelled to insert in their policies, a special clause which makes the old doctrine the rule between them and the insured. I presume that the same thing takes place in England. Mr. Marshall remarks that the custom proved by all the exchange seems now to be forgotten. (Marsh. 149.) They may, however, do in England as they please; but the question in this country is, are we bound by such decisions? I leave the answer to those who are competent to give it.

*** Marshall, 487.

††† Mr. Ingersoll, in his interesting Discourse on the influence of America on the mind, delivered before the American Philosophical Society, on the 18th of October last, has justly observed that "British commercial law is, in many respects, inferior to that of the continent of Europe." p. 35. When it is considered that Great Britain is beyond a doubt ihe first commercial nation in the world, this assertion may appear very bold, and yet it is perfectly correct. A great number of mistaken and erroneous decisions and opinions of the English tribunals in cases of commercial law may be pointed out in the books of Reports, going no farther back than Lord Holt's decision in Clerke v. Martin (2 Ld. Raym. 757,) in which that great Judge, who in other respects is highly entitled to our veneration, thought he had discovered that promissory notes or notes to order, were not within the custom of merchants, but had been invented by the brokers in Lombard street; while it is well known that even the canon law recognised them as mercantile instruments and as a species of bills of exchange, so early as the year 1571. (See Pragmatic of Pope Pius V. De Cambiis;) and it is also known that at the time when Lord Holt declared these instruments to be a late English invention, the celebrated commercial ordinance of Lewis XIV. of the year 1673, had been thirty years before the world, in which promissory notes were recognised and classed with bills of exchange, and in fact they had been in use for more than one hundred years among merchants throughout Europe. And yet at this day it would, perhaps, be error in an English Court to declare on these notes as on the custom of merchants. Lord Mansfield is celebrated tor his improvements on English mercantile law; he was certainly a man of the most extraordinary genius; but he was not sufficiently acquainted with the subject either by study or by experience, and so committed a number of mistakes, and his successors have done the same, often by pretending to correct his decisions in cases in which his luminous mind had directed him right. It is important to Americans to know these truths: If I am allowed life and leisure, I may one day develop them in such a manner as will leave no doubt of the correctness of Mr. Ingersoll's assertion. All this has proceeded from endeavouring to apply to the liberal system of mercantile law, the quaint and subtle theories of the old common law jurists, and from disdaining to obtain knowledge from the works of foreign legislators and juridical writers.)

Whatever may be the cause from which these defects arise, they disfigure a system which, without them, would be the most perfect, and even with them, is, taken all in all, the noblest in the universe. It is in our power to correct these faults, to shew to a great, learned, and intelligent nation their own common law improved by their sons, and thus to repay them for the benefit they have bestowed by imparting it to us.

It is understood that Congress are seriously thinking of exercising the various and important legislative powers entrusted to them by the Constitution. A criminal code is said to be in contemplation. It is to be hoped, that under their general power to regulate commerce, they will enact an uniform maritime and commercial rode, and that in preparing it they will avail themselves of the wisdom of all the commercial nations. They will remember what was said by the great Lord Mansfield in the case of Hamilton v. Mendez, "that the daily negotiations of merchants ought not to depend on niceties and subtleties, but on rules and principles founded on the dictates of common sense."*

(* 2 Bur. 1214. Sixteen years afterwards, the same illustrious Judge, in the case of Buller v. Harrison, in an unguarded moment, ventured to assert, that it is of much more consequence that mercantile questions should be fully settled and ascertained, than which way the decision is." Cowp. 567. This last opinion has been but too much followed, while the first, seems to have been almost entirely forgotten, and yet, nothing is more certain than that of all the branches of jurisprudence, there is none more easily reducible to clear principles than mercantile law.)

If American jurists wish to obtain the respect of those of Great Britain, it is not by servilely echoing their decisions and opinions; it is by shewing them that the science of jurisprudence is not exclusively theirs, by decently contradicting them when a proper occasion offers, and by correcting their errors when discovered, at the same time submitting to their just correction of our own.

It must not be believed that the writings and opinions of our jurists are not noticed by the men of mind of our profession in that country. In the year 1803, the doctrine of conclusiveness of the sentences of foreign Courts of admiralty was to all appearance finally and solemnly settled, on long and elaborate arguments, in the. House of Lords, in the case of Lothian v. Henderson.* About that time this doctrine, fatal to our neutral interests, was much discussed in this country, and its discussions drew forth the talents of Judge Livingston, Judge Cooper, Mr. De Witt Clinton, the late Mr. Dallas, and several others. In the year 1808, notwithstanding the solemn determination that I have mentioned, we find this doctrine shaken almost to its foundation by two decisions of the Court of King's Bench in Fisher v. Ogle and Donaldson v. Thompson.† In one of those cases, Lord Ellenborough observed, that "it was by an overstrained comity that foreign sentences had been received as evidence of the facts which they averred;" and in the other, that "he should die with Lord Thurlow in the opinion

that they should not have been so received." This sudden change of sentiment in the English Supreme Bench can only be ascribed to the effect of the writings of American jurists. About the same period, but before these decisions were given, Sir Charles Abbott, now chief justice of that Court, was writing his able treatise on the law relative to merchant ships and seamen, in which this doctrine of the conclusiveness of foreign sentences came incidentally under his view. After stating, as usual, that it is founded on an "established rule of the law of nations," he concludes, nevertheless, with saying, that the Courts of justice in his country have adhered to it "with the dignity belonging to regular and permanent establishments."** It is impossible not to perceive that this apology and the sarcasm that accompanies it were not meant for his countrymen. If the doctrine in question was founded on an established rule of the law of nations, it wanted no apology of any kind, much less was it necessary to speak of the "dignity of regular and permanent establishments." This was evidently meant as a proud answer to the American jurists who had written on this question and had demonstrated the injustice which was done to neutral subjects who caused their property to be insured in Great Britain. Such indirect marks of respect, proceeding from such sources, however they may be disguised, are truly flattering to us in a national point of view, and ought, for some time at least, to be sufficient to satisfy our reasonable ambition, and encourage us to proceed in the investigation of science, by which we shall not only spread instruction among ourselves, but disseminate light beyond the bounds of our own country.

(* 8 Bos. & Pull. 499.

† 1 Campb. N. P. 413, 429.

** "It would be unjust to charge the master or owners for some cases of omission, upon which ships were condemned in France during the late war although the terms of the condemnation were such as to discharge the insurers from their responsibility, according to the rule of the LAW OF NATIONS, which holds the sentence of a foreign Court to be conclusive of the fact on which it is founded, and to which rule the Courts of justice in this country adhered with the dignity belonging to regular and permanent establishments." Abbott on Shipping, 263. See above, p. 15.)

But to return to our subject —

General jurisprudence is a part of the common law, but its rules and principles are not exclusively to be found in common law writers. That science ought to be studied, particularly in this country, where a light is to be held to the judiciaries of twenty-four different States. Whence is this light to proceed, but from the writings and discussions of liberal and learned jurists? The conflict of opinions will produce truth, and truth at last will find its way every where. The law should be treated as every other science; its theories should be scanned, and its defects pointed out; the excellent principles with which it abounds should be confronted with the decisions in which they have been either forgotten or misapplied, and this course should be pursued until the whole system at last shall be founded on the basis of universal justice. For justice, not in form merely, but in substance is a debt which is due by every government to its citizens.

Sir William Jones, in England, endeavoured to point out this noble path to his countrymen, and with that view published his excellent treatise on the law of bailments. But the age was not prepared for his doctrines, the lights that he shed on our science were ton strong for the eyes of his contemporaries; he was sent to India in honourable exile, there to waste, his gigantic powers in curious, indeed, but fruitless disquisitions on oriental languages and antiquities. Romilly did much while he. lived. Mackintosh is still alive for the good of his country and of mankind.*

(* In this country we have to regret that Chancellor KENT, one of the greatest luminaries of our science, by the effect of an impolitic provision in the Constitution of his own State, has been displaced from the office which he so many years filled with honour, because he was — sixty years old.)

Those who wish to see uniformity of jurisprudence in this widely extended union, ought to remember that nothing is uniform but sound principles, and that false theories and false logic lead inevitably to contradictory decisions. In England, there is in fact but one great judicature, sitting at Westminster. Although divided into different tribunals, the same spirit pervades them all, and in important cases the twelve Judges meet together to decide. Above them is the House of Lords, whose judgments are final and conclusive. Here we have, on the contrary, twenty four different supreme judicatures, with a countless number of inferior tribunals, dispersed over an immense extent of territory. Beyond them there is no authority whose decisions are binding in all cases. The Supreme Court of the United States is limited in its jurisdiction and powers, and except in certain matters of national concern, State Judges do not conceive themselves bound to conform to their opinions. In short, there is no polar star to direct our uncertain wanderings. We must then either tacitly submit to receive the law from a foreign country, by adopting the opinions of the English Judges, however they may vary from our own, or even from those which they formerly entertained, or we must find some expedient to preserve our national independence, and at the same time to prevent our national law from falling into that state of confusion which will inevitably follow from the discordant judgments of so many co-ordinate judicial authorities. Already the evil is felt in a considerable degree: it will be more so in process of time, and it is to be feared, that in the course of fifty years the chaos will become inextricable, unless a speedy remedy is applied.

The only remedy that I can think of is to encourage the study of general jurisprudence, and of the eternal and immutable principles of right and wrong; of that science by which Cicero enlightened, not only the prætors of his days, but the Judges of succeeding ages, and which, I am sorry to say, has fallen too much into neglect. When the principles of that science are sufficiently disseminated, they will fructify, and statutes and judicial decisions will gradually take their colour from them. System will be introduced where it is wanted. Sound theories will take the place of false ones, and the rules of genuine logic will direct their application to particular cases. All this will be done gradually and insensibly, and the benefit of it will be felt by our remotest posterity. Otherwise, it is to be feared, that other and worse remedies will be applied; for every one of us must be sensible that the evils which I have mentioned are generally felt, and that the spirit of innovation is abroad; a spirit which manifests itself by rash and undigested experiments, and sometimes by demolishing without re-building, so that at last we shall be reduced to a state of confusion worse confounded.

It is therefore incumbent on the rising generation to apply themselves to the study of those general principles, which, if that spirit should continue to exist, will enable them at least to direct it into its proper channel, and prevent the axe from being applied at last to the root of the tree.

Those who may think that there is an advantage in the science of the law being involved in mysteries and artificial theories, are egregiously mistaken. The science of medicine was so once, when genius lashed it with the pen of Moliere. Since it has abandoned its senseless nostrums and formulas, and fixed itself firmly on the basis of fact and experiment, it has considerably gained in respect, honour, and emolument. By pursuing a similar course, the legal profession will receive similar rewards.

I do not mean to say that theory should at once supersede established rules, or that the student should erect himself into a legislator. I have no such preposterous ideas. Your studies are principally to be directed to the law, as it is, and with a view to its regular practice: hence in our ordinary exercises I have avoided touching upon such subjects as this, and I have explained the laws to you as they are found in our books and in the decisions of our tribunals. But on this occasion, I cannot forget that there are some of you who are destined to be one day the Judges and legislators of our country. To those who are fired with this noble ambition, I have particularly addressed the preceding observations, not to diminish the respect which they owe to the laws by which we are governed, but to shew the utility of the principles of general jurisprudence, and what benefits may be derived from them.

Nor must it be believed that I am a friend to rash and sudden innovation; on the contrary, I am well convinced that amendments in the laws ought to be gradual and almost insensible, and that the delicate chisel, and not the rough axe, is the instrument to be employed; but the delicate chisel can only be skilfully used by the masters of the art. I would compare our system of laws in this respect to one of those ancient statues of Phidias or Praxiteles, which have been in part mutilated or defaced by the hand of time: an able sculptor, and not a a stone mason, should be called upon to repair it.

The true principles of jurisprudence, in order to fructify, ought first to take root in the minds of the members of the legal profession. Then, and not till then, will false principles gradually give way, as the ripe fruit falls from the tree. But in order to produce that effect, we ought to invite each other to reflection on these important subjects by learned treatises and free discussions, and the labours of the jurist ought not to be confined to mere compilations. In short, jurisprudence ought to be treated as a philosophical science. If Montesquieu had not written, the distinction between the three powers of government would be yet unknown, and their limits undefined. If Beccaria had not written, the torture and its horrid concomitants would not have disappeared from the face of Europe, and sanguinary codes would not almost every where have given way to mild punishments. All the amendments which Blackstone in his Commentaries suggested to be made in the common law, have been adopted, and some of them improved upon in this country, and it is only to be regretted that he did not suggest more.

But as I have observed, these suggestions ought to come from those who have made legislation their peculiar study, and ought to be made in the grave and solemn manner which the subject requires. They ought to be addressed to the understanding of those who are best able to judge of them.

Therefore, I address myself exclusively to the profession; by whom I expect to be understood and appreciated. To their tribunal I submit the observations I have ventured to make, soliciting only brotherly indulgence.

The common law is destined to acquire in this country the highest degree of perfection of which it is susceptible, and which will raise it in all respects above every other system of laws, ancient or modern. But it will not have fully reached that towering height, until the maxim shall be completely established in practice as well as in theory,

THAT PURE ETHICS AND SOUND LOGIC ARE ALSO PARTS OF THE COMMON LAW.


ADDENDA.

CONTAINING,

I. A BRIEF SKETCH OF THE NATIONAL JUDICIARY POWERS EXERCISED IN THE UNITED STATES, FROM THE FIRST SETTLEMENT OF THE COLONIES TO THE TIME OF THE ADOPTION OF THE PRESENT FEDERAL CONSTITUTION BY THOMAS SERGEANT, ESQ.

II. AN ADDRESS DELIVERED AT THE OPENING OF THE LAW ACADEMY OF PHILADELPHIA, BEFORE THE TRUSTEES AND MEMBERS OF THE SOCIETY FOR THE PROMOTION OF LEGAL KNOWLEDGE, IN THE HALL OF THE SUPREME COURT, ON WEDNESDAY, THE 21ST OF FEBRUARY, 1821. BY PETER S. DU PONCEAU, LL.D.

ADDENDA. I.

A BRIEF SKETCH OF THE NATIONAL JUDICIARY POWERS EXERCISED IN THE UNITED STATES, FROM THE FIRST SETTLEMENT OF THE COLONIES TO THE TIME OF THE ADOPTION OF THE PRESENT FEDERAL CONSTITUTION. BY THOMAS SERGEANT, ESQ. VICE PROVOST OF THE LAW ACADEMY OF PHILADELPHIA.

THE States of which our Union was at first composed, during the period antecedent to the adoption of the Constitution, while they were colonies of the British empire, and while they were connected together at first by the Congress, and afterwards by the articles of confederation, exercised within their respective limits the main portion of the judicial authority of the country through the medium of tribunals constituted by themselves, and governed by the common law, the principles of equity, their own acts of Assembly and usages, and such British statutes as had been extended to or adopted by them. But, during this period, there were judicial controversies over which the colonial or State Courts did not entertain jurisdiction at all, or entertained it in subordination to, or by delegation from, the national authority, residing in a power supposed to be the depositary of a common interest, and possessing a general jurisdiction.

This period may be divided into three parts —

1. The government and jurisdiction of the crown of England began with the settlement of the colonies, and continued until the 5th September, 1774 when a Congress first met to consider of the public grievances, and gradually prepared for and repelled hostilities. At this era the revolution commenced.

2. The government by a Congress continued till the 1st March, 1781, when the articles of Confederation were finally ratified.

3. On the 4th March, 1789. the articles of Confederation were superseded by the adoption of the present Constitution.

It is proposed to consider the subject under these three divisions.

I. Of the period that elapsed while the colonies were dependent upon the crown of England.

During the period antecedent to the revolution, Courts of vice-admiralty were established in some, and probably in all of the States, by the crown of Great Britain; in some instances, by a right reserved in their charters, and in others without. The nature and extent of their jurisdictions depended on the commissions of the crown, and acts of parliament conferring additional authorities. The commissions of the crown gave the Courts which were established a most ample jurisdiction over all maritime contracts, and over torts and injuries as well in ports as upon the high seas; and acts of parliament enlarged, or rather recognised this jurisdiction, by giving or confirming cognisance of all seizures for contraventions of the revenue laws.*

(* De Lovio v. Boit, 2 Gall. 470. In the charter of Massachusetts, in 1692, there is an express reservation of the exclusive right in the crown to establish Admiralty Courts by virtue of commissions issued for this purpose, ib. No such reservation, however, is contained in the charter of William Penn, granted the 4th March, 1680. On the contrary, it gives to William Penn and his heirs, their deputies and lieutenants, power to appoint and establish any Judges and justices, magistrates and other officers whatsoever, for what causes soever, (for the probates of wills and for the granting of administrations,) with what power soever, and in such forms as to them should seem most convenient: and by judges by them delegated to award process, hold pleas, and determine all actions, suits, and causes whatsoever, as well criminal as civil, real, personal, and mixed. Sec 5. By ft subsequent part of the charter, William Penn, his heirs, or assigns, were made personally responsible for any misdemeanours committed or permitted by them against the laws of trade and navigation, and subjected to forfeiture of the charter tor not paying the damages awarded by the Courts of Westminster. Sec. 14. A Court of vice-admiralty was, notwithstanding, established at an early date for the province of Pennsylvania, and the territories or counties of New Castle, Kent, and Sussex, on the Delaware. It existed in 1708, 1 Proud's Hist. Penn. 486, and continued till the revolution. I have perused the records of this Court from the year 1735 to the year 1746, in the course of which time there were three different commissaries or Judges of the Court, which was held at Philadelphia. They were commissioned by the Crown under the great seal of the High Court of Admiralty of England: but the commission itself I have not met with. During the vacancies that occasionally occurred, the proceedings were carried on in the name of the Lords Commissioners for executing the office of Lord High Admiral of Great Britain. Brown, in his Civil and Admiralty Law, says, that all the powers of vice-admiralty within his majesty's dominions are derived from the High Admiral or the Commissioners of the Admiralty of England, as inherent and incident to that office. Accordingly, by virtue of their commission, the Lords of the Admiralty are authorised to erect Courts of vice-admiralty in North America, the West Indies, and the settlements of the East India Company. 2 Bro. Civ. and Adm. Law.

It is presumed, says Judge STORY, in the note to his learned opinion in De Lovio v. Boit, that the commissions are usually in the same form. One of the latest is to the Governor of the royal province of New Hampshire, in 6 Geo. 3, (1766.) It authorises him "to take cognisance of, and proceed in all causes civil and maritime, and in complaints, contracts, offences, or suspected offences, crimes, pleas, debts, exchanges, actions and demands, accounts, charter parties, agreements, suits, trespasses, inquiries, extortions, and demands, and business, civil and maritime, whatsoever, commenced or to be commenced between merchants, or between owners and proprietors of ships and other vessels, and merchants, or others whomsoever, with such owners and proprietors of ships; and all other vessels whatsoever, employed or used within the maritime jurisdiction of our vice-admiralty of our said province, &c. or between any other persons, whomsoever had, made, begun, or contracted, for any matter, thing, cause, or business whatsoever done or to be done within our maritime jurisdiction aforesaid, &c. &c. and moreover in all and singular complaints, contracts, agreements, causes, and businesses, civil and maritime, to he performed beyond the sea or contracted there, however arising or happening," with many other general powers. And it declares the jurisdiction to extend "throughout all and every the sea shores, public streams, ports, fresh waters, rivers, creeks and arms as well of the sea as of the rivers and coasts whatsoever of our said province," &c. In point of fact, the Vice-admiralty Court of Massachusetts, before the revolution, exercised a jurisdiction far more extensive than that of the Admiralty in England. De Lovio v. Boit, 2 Gall. 470, 471, note. See also the Little Joe, Stewart's Ad. Rep. 394.

The commission to the Governor of New Hampshire above mentioned may, perhaps, be deemed an extension of the powers of the Courts of Vice-admiralty beyond former precedents, For we find the Congress of 1774 and 1775, on repealed occasions, complaining of these extensions by the crown, in order to enforce the obnoxious statutes passed to impose duties for the purpose of raising a revenue in America. The declaration and resolves of Congress of the 14th October, 1774, mention, among other grievances, that the British Parliament had extended the jurisdiction of the Courts of Admiralty, not only for collecting the said duties, but tor the trial of causes merely arising within the body of a county, 1 Journ. Cong. 27., and that the acts of 4 Geo. 3. c. 15, and c. 34 5 Geo. 3. c 25, 6 Geo. 3. c. 52, 7 Geo. 3. c. 41, and c 46, & 8 Geo. 3, extended the power of the Admiralty Courts beyond their ancient limits. ib. 30. See also ib. 41. 47. In the address to the inhabitants of the colonies, of October 21st, 1774, it is stated, that in the year 1768 a statute was made to establish Courts of Admiralty and vice-admiralty on a new model, expressly for the end of more effectually recovering the penalties and forfeitures inflicted by acts of Parliament formed for the purpose of raising a revenue in America. ib. 48. See also ib. 51, 190.

By the records of the Vice-admiralty Court of Pennsylvania, &c. from 1755 to 1746, before referred to, it appears, that the business was inconsiderable It consisted of proceedings by the Collector by information against vessels and goods for breaches of the acts of Parliament relating to the revenue: libels tor seaman's wages; orders for surveys of damaged vessels and goods, and of wrecks, and appraisement thereof, with power to the commissioners appointed, to adjust the salvage in the cases of wrecks; records of protests; and, towards the end of the time, registers of letters of marque granted by the Governor, and prize proceedings, against vessels captured from the French and Spaniards.

There is one proceeding to authorise persons to take an inventory of the effects in a vessel, the master of which was drowned in the Delaware after arrival, and one other on a bottomry. It may be remarked, that although the proceedings are very formal, no instance appears of an answer or claim by a defendant or claimant or oath or affirmation.)

In England the Court of Admiralty never possessed any jurisdiction in revenue causes; that was appropriated by the common law to the Court of Exchequer. But the vice admiralty Courts in this country when colonies, and in the West [tidies, obtained, by the provisions of the statute of 13 Car. 2, commonly colled the navigation act, and 7 and 8 Will. 3 c. 22, a jurisdiction in revenue causes totally foreign to the. original jurisdiction of the admiralty, and unknown to it; though it was held that appeals lay from them in such causes to the admiralty in England.*

(* 2 Bro. Civ. and Adm. Law, 491. Yet the extent of the jurisdiction of the Admiralty Courts in the colonies seems to have been, for some time, a subject of considerable discussion and difference of opinion in England. In Chalmers's collection of the opinions of eminent lawyers on various points of jurisprudence, chiefly concerning the colonies, fisheries, and commerce of Great Britain published at London in 1814, there are several opinions to be found on this subject. In July , 1702, Sir John Cooke, advocate-general, gave an opinion, that penalties and forfeitures under the act of navigation, 12 Car. 2, c. 18, the act for the encouragement of trade, 15 Car. 2. c. 7, the act for preventing planting tobacco in England, and for regulating the plantation trade, 22 and 23 Car. 2. c. 26, might be prosecuted in the Admiralty Courts of the plantations, as well as penalties and forfeitures under the act relating to the plantation trade, 7 and 8 Will. 3. 2 Chalm. Opinions, 193.

In August of the same year, the Attorney general, Northey, gave it as his opinion to the hoard of trade, that the jurisdiction of the Admiralty Courts of the colonies extended only to prosecutions under the 7th and 8th Will. 3. and did not embrace cases arising under the statutes of Car. 2. above mentioned, ib 187.

In 1720, however, Mr. West, who was assigned as counsel to the Commissioners of trade and plantations, was of opinion, that the statutes 13 Rich. 2. c. 5., 15 Rich. 2. c. 3., 2 Hen. 4. c. 11. and 27 Eliz. c. 11, by which the admiralty jurisdiction in England was limited and confined, were not introductive Of new laws, but only declaratory of the common law, and were, therefore, of force even in the plantations; and that none of the acts of trade and navigation, gave the admiralty Judges in the West Indies an increase of jurisdiction beyond that exercised by the High Court of Admiralty at home. He was also of opinion, that the superior Courts of common law in New England had a power to grant prohibitions to the admiralty Courts, and states that prohibitions were the remedy constantly applied there to prevent their encroachment, ib. 200.

It is stated by the Attorney general Northey, in the above mentioned opinion, that an action of trover had been brought and was then depending in the Queen's Bench, against Col Quarry, the Judge of the Admiralty in Pennsylvania, for condemning in his Court an unregistered vessel for trading there.)

In questions of prize in the vice admiralty Courts an appeal lay to the commissioners of appeals consisting chiefly of the privy council. In instance and revenue causes, it lay to the High Court of Admiralty in England, and thence to the delegates.* The power of the High Court of Admiralty to receive appeals from the vice admiralty Courts in revenue causes had been disputed, on the ground that they were not in their nature causes civil or maritime, but that it was a jurisdiction specially given to the vice admiralty Courts by the statute of 7 and 8 Will. 3. c. 32, which took no notice of any appellate jurisdiction in the High Court of Admiralty in such cases. But the point was fully settled in favour of this jurisdiction in the year 1754.†

Controversies between two of the provinces concerning the extent of their charter boundaries or the like, came before the King in his privy council, who exercised original jurisdiction therein, upon the principles of feodal sovereignty.‡ Thus in July 1761, the King in privy council approved the report of a committee of council for plantation affairs, relative to the disputes that had for some years subsisted between the provinces of New Hampshire and New York, concerning the boundary line between those provinces, and ordered and declared, the western banks of the river Connecticut to be the boundary line.**

(* 1 Wheat. 19. 2 Bro. Civ. and Adm. Law. 493. Blackstone, (3 Com. 70,) says, an appeal also lay to the King in council. But this opinion of his seems to be relinquished. 2 Bro. Civ. and Adm. Law, 493.

† 2 Bro. Civ. and Adm. Law, 493, note. 2 Rob. 248. See the note of Mr. Wheaton to the case of the Sarah, 8 Wheat. 396.

‡ 1 Bl. Com. 231. 1 Vez. 444.)

(** 3 Belknap's Hist. N. Hampshire, 296. Appendix, No. XI.)

A general superintending power by way of appeal was exercised by the King in council from the decisions of the colonial tribunals. For example, in year 1685, an appeal of William Vaughan, from a verdict and judgment against him in the Courts of New Hampshire, at the suit of Robert Mason, Esq. as proprietor of that province, for certain lands and tenements in Portsmouth in the said province, was heard by counsel before the committee for trade and plantations of the privy council, who reported that the verdict and judgment should be affirmed, and they were ratified and confirmed accordingly by the King in council.† And such appeals from the highest Court in Pennsylvania, and in the other colonies to the King in council were common before the revolution.‡

(† Ibid. 345. Appendix, XLI.

‡ It would seem, however, that in some instances the appeal was first to the Governor and council, and from thence to the King in council. See the case of Gordon v. Lowther, 2 Ld. Ray. 1447, a case of that kind, brought from the Island of Barbadoes. In the same case it is stated that the rule was, that the party appealing must procure the proceedings to be transmitted, and proceed, within a year after the appeal allowed in the plantations: and the appeal in that case was dismissed under this rule. In Pennsylvania, (which was a proprietary government) no such appellate jurisdiction was entertained by the Governor and council before the revolution.)

II. Of the period during which the national authority was exercised by Congress.

As a necessary consequence of the revolution, the judicial power of the crown in the then colonies, as well as all its other authority, ceased; and from the commencement of the war in April 1775, Congress with the approbation of the colonies and people, and from the emergency of the crisis, exercised the sovereign authority of the country, so far as related to war and peace. They raised armies and navies, and directed military operations, emitted bills of credit, made treaties, and received and sent ambassadors; commissioned privateers, prescribed the objects of capture, and made rules for the distribution of prizes. As the legality of all captures on the high seas depends on the law of nations, and a just and uniform execution of that law is essential to the sovereign power, which might be implicated with foreign nations in the results of its administration, Congress had for this purpose a right of maintaining a control by appeal, in cases of capture, as well over the decisions of juries as of Judges.* When Congress, therefore, in November 1775, first authorised the capture of English vessels of war, and of other vessels employed in the service and supply of the English armies, by vessels to be commissioned by Congress or their authority, they recommended to the several Legislatures of the united colonies, as soon as possible to erect Courts of justice, or give jurisdiction to those in being, to determine concerning such captures; the trials thereof to be by a jury, under such regulations as to the respective Legislatures should seem expedient; but that in all cases an appeal should be allowed to Congress, or such person or persons as they should appoint for the trial of appeals, under certain provisos as to the time of demanding, and lodging the appeal, and giving security.**

(* Penhallow v. Doane's adms. 3 Dall. 80.)

(** 1 Journ. Congress, 259, 260 The State Courts of Admiralty also exercised jurisdiction in instance causes. See Hopkinson's reports.)

The application to Congress on appeal was by petition, which, at first, was usually referred to a special committee appointed in each case, consisting of five members. But on the 30th January 1777, Congress resolved to appoint a standing committee, to consist of five members, to hear and determine these appeals, and to them the petitions were referred when presented.† Three members were added in May, but in October following the number was restored to five; they, or any three, to hear and determine.

(† Journ Congress. The first standing committee of appeals, which was appointed on the 30th January. 1777, consisted of Mr. Wilson, Mr. Sergeant, Mr. Ellery, Mr. Chase, and Mr. Sherman.)

The resolution of Congress of November 1775, above mentioned, was complied with by several States; some allowing appeals to Congress on a larger, some on a more contracted scale. In some instances the acts passed by the States on the subject gave rise to questions concerning the respective authority of Congress, and of the States, which occasioned much debate and difference of opinion in Congress, and elsewhere; and some of these questions were not finally determined till after the adoption of the present Constitution. In July 1776, the Legislature of the State of New Hampshire passed an act which allowed an appeal to Congress, or persons appointed by them, only when the vessel capturing was fitted out at the charge of the united colonies; in other cases the appeal was to be to the Supreme Court of judicature of that State.* A citizen of New Hampshire, acting under the commission of Congress, in a vessel owned by citizens of New Hampshire, in October 1777, captured a vessel as prize on the high seas. Being claimed by citizens of Massachusetts, a trial by jury took place in the New Hampshire Court maritime, erected by the act of that State, of July 1776, and the jury found a verdict for the captors. The claimants prayed an appeal to Congress, but the Court refused it, because it was contrary to the law of the State. The claimants then appealed to the superior Court and a jury; there also a verdict was found for the captors. The claimants then prayed an appeal to Congress, and petitioned Congress, who referred it to the committee of appeals, and that committee decided in June, 1779, that they had jurisdiction. After the confederation, the Court of appeals reversed the decrees passed by the Courts of New Hampshire, and in the year 1795, the Supreme Court of the United States, on appeal from the Circuit Court of New Hampshire, carried into effect the decree of the Court of appeals.**

(* In November, 1779, the legislature of New Hampshire extended the license of appeal to Congress to every case wherein the subject of any foreign nation in amity with the United States should be interested in the dispute, and allowed it no further.)

(** Penhallow v.