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 A