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	 <P ALIGN="CENTER"><FONT SIZE="+1">A DISSERTATION</FONT> <BR> ON THE <BR>
		<FONT SIZE="+1">NATURE AND EXTENT</FONT> <BR> OF <BR> <FONT SIZE="+2">THE
		JURISDICTION</FONT> <BR> OF THE <BR> <FONT SIZE="+1">COURTS OF THE UNITED
		STATES</FONT>,</P> 
	 <P ALIGN="CENTER">BEING A VALEDICTORY ADDRESS <BR> DELIVERED TO THE
		STUDENTS OP THE LAW ACADEMY OF PHILADELPHIA, AT THE CLOSE OF THE ACADEMICAL
		YEAR, ON THE 22D APRIL, 1824, <BR> <FONT SIZE="+1">BY PETER S. DU PONCEAU,
		LL.D.</FONT> <BR> PROVOST OF THE ACADEMY.</P> 
	 <P ALIGN="CENTER">TO WHICH ARE ADDED, <BR> A BRIEF SKETCH OF THE NATIONAL
		JUDICIARY POWERS EXERCISED IN THE UNITED STATES PRIOR TO THE ADOPTION OF THE
		PRESENT FEDERAL CONSTITUTION, <BR> BY THOMAS SERGEANT. ESQ. VICE PROVOST.</P> 
	 <P ALIGN="CENTER">AND THE AUTHOR'S <BR> DISCOURSE ON LEGAL EDUCATION,</P> 
	 <P ALIGN="CENTER">DELIVERED AT THE OPENING OF THE LAW ACADEMY, IN FEBRUARY,
		1821.</P> 
	 <P ALIGN="CENTER">WITH AN APPENDIX AND NOTES.</P> 
	 <P>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. &#151; JONES. <I>Law of Bailments</I>.</P> 
	 <P ALIGN="CENTER">PHILADELPHIA: <BR> PUBLISHED BY ABRAHAM SMALL. 1824.</P> 
	 <P><I>Eastern District of Pennsylvania, to wit:</I></P> 
	 <P>BE IT REMEMBERED, <I>That on the seventh day of June, in the
		forty-eighth year of the independence of the United States of America, A.
		D</I>. 1824, Peter Stephen Du Ponceau, <I>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</I>:</P> 
	 <P>"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. <I>Jones</I>, Law
		of Bailments."</P> 
	 <P><I>In Conformity to the Act of the Congress of the United States,
		intituled</I>, "<I>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</I>." &#151; <I>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."</I></P> 
	 <P ALIGN="RIGHT"><I>D. C<FONT SIZE="-1">ALDWELL</FONT>, Clerk of the
		Eastern District of Pennsylvania</I>.</P> <HR> 
	 <P ALIGN="CENTER">TO <BR> THE HONOURABLE WILLIAM TILGHMAN, LL.D. <BR> CHIEF
		JUSTICE OF THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA, <BR> AND
		PATRON OF THE <BR> LAW ACADEMY OF PHILADELPHIA. <BR> RESPECTFULLY INSCRIBED BY
		<BR> THE AUTHOR.</P> <HR> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">PREFACE.</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>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 <I>&agrave; priori</I>, and to carry them
		<I>provisionally</I>, 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
		<I>common law</I>, to mould the Constitution as they please, and to ex end
		their own jurisdiction beyond the limits prescribed by the national compact?
		</P> 
	 <P>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 <I>common law
		jurisdiction</I>, 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 <I>common law
		jurisdiction</I>, while a proper distinction would probably have reconciled all
		conflicting opinions upon the subject.</P> 
	 <P>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 <I>common
		law</I>, which originally was a code of feudal customs, similar to the
		<I>coutumes</I> 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 <I>Constitution</I>,
		with the political government of the country. The king's prerogative and the
		rights of the subject are alike defined and limited by the <I>common law</I>.
		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 <I>common law</I>. This <I>ens rationis</I> 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 <I>common law</I>.
		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
		<I>villenage</I>, were parts of the <I>common law</I>. At the revolution it
		shook off those unworthy fetters, and assumed the character of manly freedom
		for which it is now so eminently distinguished.</P> 
	 <P>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 <I>common law</I>,
		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 <I>common
		law</I>, and at the very moment when independence was declared, the <I>common
		law</I> was claimed by an unanimous voice as the <I>birth right</I> 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 <I>Constitution</I>, or the <I>common law</I>, 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.</P> 
	 <P>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 <I>source</I> of
		their delegated powers, which are only to be found in the letter or spirit of
		the instruments by which they have been granted.</P> 
	 <P>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 <FONT SIZE="-1">SYSTEM OF JURISPRUDENCE</FONT> and nothing more. It is no
		longer the <I>source</I> of power or jurisdiction, but the <I>means</I> or
		instrument through which it is exercised. Therefore, whatever meaning the words
		<I>common law jurisdiction</I> may have in England, with us they have none; in
		our legal phraseology they may be said to be <I>insensible</I>. To them may be
		applied the language in which the common lawyer of old spoke of a title of the
		civil law: <I>In ceulx parolx n'y ad pas entendment</I>.*</P> 
	 <P><FONT SIZE="-1">(* 1 Blac. Com. 22.)</FONT></P> 
	 <P>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 <I>common law jurisdiction</I>, 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.
		</P> 
	 <P>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 "<I>common law jurisdiction</I>." 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 <I>source</I> of
		jurisdiction, and as a <I>means</I> 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 <I>obiter dicta</I> 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 <I>common law
		jurisdiction</I> 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.</P> 
	 <P>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
		<I>source</I> of power and as a <I>means</I> 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.</P> 
	 <P>Having thus, as I conceive, disarmed the common law of its only
		dangerous attribute, the <I>power giving capacity</I>, I have no hesitation in
		asserting that as a system of jurisprudence it is the <I>national law</I> 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.</P> 
	 <P>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.
		</P> 
	 <P>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 <I>injustice</I>: 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.</P> 
	 <P>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 <I>malleable</I>, 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, <I>commerce, observation, study</I>, or refinement.
		Willing to avail itself of experience, it receives additional improvement from
		every <I>new situation</I> 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 <I>of written law</I>,
		which must be implicitly obeyed. <I>Hoc quidem perdurum est, sed ita lex
		scripta est</I>.&#134;</P> 
	 <P><FONT SIZE="-1">(* 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.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; <I>ff</I>. L. 40. <I>tit</I>. 9. 1.12. &sect;
		1.)</FONT></P> 
	 <P>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 <I>accommodating principle</I> 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 <I>commercial law</I>, 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 J<FONT
		SIZE="-1">OHN</FONT> E. H<FONT SIZE="-1">ALL</FONT>, Esq. the contents of which
		bear ample testimony to this fact. Mr. W<FONT SIZE="-1">HEATON</FONT>, 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 <I>Spain</I>. 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 C<FONT
		SIZE="-1">OOPER</FONT> 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.</P> 
	 <P>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 R<FONT
		SIZE="-1">EEVES</FONT>. 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 G<FONT SIZE="-1">OULD</FONT>, successor of Judge R<FONT
		SIZE="-1">EEVES</FONT>. 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.
		B<FONT SIZE="-1">ARRY</FONT>, and one of common and statute law, under Mr.
		B<FONT SIZE="-1">LEDSOE</FONT>. In the University of New York, the Hon. J<FONT
		SIZE="-1">AMES</FONT> K<FONT SIZE="-1">ENT</FONT>, 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 H<FONT SIZE="-1">OFFMAN</FONT>, and
		at Northampton, in the State of Massachusetts, Judge H<FONT
		SIZE="-1">OWE</FONT> and Mr. M<FONT SIZE="-1">ILLS</FONT>, 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.</P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>This evil is gradually correcting itself, and the common law appears
		more and mote dignified with <I>American features</I>. It is observed with
		pleasure that the opinions of Mr Chief Justice M<FONT SIZE="-1">ARSHALL</FONT>,
		are more generally founded upon principle than upon authority, and with the
		same satisfaction we see that Judge W<FONT SIZE="-1">ASHINGTON</FONT>, 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.</P> 
	 <P>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.</P> 
	 <P>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 <I>system</I>.</P> 
	 <P>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 B<FONT SIZE="-1">ACON</FONT>. But I wish only to be permitted to
		quote a few lines from the excellent Sir W<FONT SIZE="-1">ILLIAM</FONT> J<FONT
		SIZE="-1">ONES</FONT>, which are so peculiarly applicable, that I cannot
		forbear inserting them here in his own words:</P> 
	 <P>"If law be a <I>science</I>, and really deserve so sublime a name, it
		must be founded on <I>principle</I>, 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 <I>dignity</I> be lessened, and he will become
		the <I>greatest lawyer</I> who has the strongest habitual or artificial
		<I>memory</I>.* I shall say no more upon this subject; for</P> 
	 <BLOCKQUOTE> 
		<P>"'Tis enough &#151; advent'rous to have touch'd <BR> Light on the
		  numbers of the <I>British</I> sage."&#134;</P> </BLOCKQUOTE> 
	 <P><FONT SIZE="-1">(* Law of Bailments. &#134; Thomson.)</FONT></P> 
	 <P>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.</P> 
	 <P>A few words more will conclude this preface.</P> 
	 <P>I am under great obligations to my friend, T<FONT SIZE="-1">HOMAS</FONT>
		S<FONT SIZE="-1">ERGEANT</FONT>, 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.&#135; 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.</P> 
	 <P><FONT SIZE="-1">(&#135; 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.)</FONT></P> 
	 <P>Nor can I omit mentioning the Annual Law Register of the United States,
		lately published by the Hon. W<FONT SIZE="-1">ILLIAM</FONT> G<FONT
		SIZE="-1">RIFFITH</FONT>.* 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 <I>American Jurisprudence</I>. It is time
		that the common law should gradually conform itself to the <I>national
		spirit</I>. 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.</P> 
	 <P><FONT SIZE="-1">(* Annual Register of the United States, by William
		Griffith, counsellor at law; vols. 3d and 4th. Burlington, New Jersey,
		1822.)</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>Before I conclude, I would observe, that whenever, in the course of the
		ensuing address, I make use of the familiar expression "<I>common law
		jurisdiction</I>" as appertaining to the Courts of the United States, I always
		mean jurisdiction <I>of</I> and not <I>from</I> the common law. In this sense I
		have said (page 70) that the Courts of the District of Columbia have <I>common
		law jurisdiction</I>, 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.</P> 
	 <P>I now commit this little work to the candour and indulgence of my
		professional brethren.</P> <HR> 
	 <P ALIGN="CENTER"><FONT SIZE="+2">TABLE OF CONTENTS.</FONT></P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">INTRODUCTION.</FONT></P> 
	 <P>Cases which gave rise to the question of <I>common law
		jurisdiction</I>,</P> 
	 <P>1. Worrall's Case, ... 1</P> 
	 <P>2. Burr's Case, ... 5</P> 
	 <P>3. Hudson &amp; Goodwin's Case, ... 7</P> 
	 <P>4. Coolidge's Case, .. 9</P> 
	 <P>Observations on the decisions in these four cases, ...13</P> 
	 <P>Object of this work, ... 16</P> 
	 <P>THE ADDRESS.</P> 
	 <P>Questions to be considered, ... 17</P> 
	 <P>-----------how to be stated, ... 19</P> 
	 <P>Jurisdiction, what it is, ... 21</P> 
	 <P>----------------<I>in locum</I>, ... 23 </P> 
	 <P>----------------<I>in personam</I>, ... 24 </P> 
	 <P>----------------<I>in subjectam materiam</I>, ... 26</P> 
	 <P>Laws are but the means through which jurisdiction is exercised, not the
		source from whence it springs, ... <I>ibid</I>.</P> 
	 <P>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</P> 
	 <P>Illustrations of this doctrine &#151;</P> 
	 <P>SECT. I. Of the Courts of the United States when exercising their
		jurisdiction in or for the confederated States, ... 31</P> 
	 <P>1. Cases at Common law, ... 35</P> 
	 <P>Cases of the United States <I>v</I>. Worrall, and the United States
		<I>v</I>. Hudson &amp; Goodwin, considered, ... 50</P> 
	 <P>Has the federal government a right to protect its officers against
		insult and outrage? ... 51</P> 
	 <P>Can the federal Legislature enact penal laws for that purpose? ...
		53</P> 
	 <P>Can the federal Courts protect them by the mere force of the common law?
		... </P> 
	 <P>Distinction between <I>imperative</I> and <I>potential</I> or
		<I>permissive</I> powers under the federal Constitution, ... 54 </P> 
	 <P>2. Cases of admiralty jurisdiction, ... 57</P> 
	 <P>SECT. II. Jurisdiction exercised without the limits of the States. Of
		ceded countries and places, and what laws are in force within them, ... 65</P> 
	 <BLOCKQUOTE> 
		<P>1. District of Columbia, ... 69</P> 
		<P>2. Old Territory N. W. of the Ohio, ... 73</P> 
		<P>3. Old Territory S. W. of the Ohio, ... 74 </P> 
		<P>4. Louisiana and Florida, ... 75</P> 
		<P>5. Forts, Arsenals, Dock Yards, &amp;c... 83 SECT. III. Question
		  whether the common law is the national law of the United States, considered,
		  ... 85</P> </BLOCKQUOTE> 
	 <P>Recapitulation of the principles attempted to be established in this
		dissertation, ... 101</P> 
	 <P>Hostility to the common law, its origin and cause, ...102 </P> 
	 <P>Inconveniences in the common law, but none sufficient to induce its
		abolition, ... 104</P> 
	 <P>Impossibility of abolishing the common law, ... 105</P> 
	 <P>General view of the common law in England before the revolution of 1648,
		... 106</P> 
	 <P>Improvement of the common law since that time, in England, .... 111</P> 
	 <P>In America, .... 112</P> 
	 <P>Defects of the common law, ... 117</P> 
	 <P>The commercial and maritime law in England different in many respects
		from the general law of the commercial world, and why? ... 119</P> 
	 <P>The improvement of the common law reserved to the United States; how to
		be effected? ... 123</P> 
	 <P>Effects produced in England by the writings of Americanjurists, ... 124
		</P> 
	 <P>The study of general jurisprudence recommended. Law should be treated as
		a philosophical science. Consequences that it will produce. Conclusion, ...126
		</P> 
	 <P ALIGN="CENTER">ADDENDA.</P> 
	 <P>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 </P> 
	 <P>II. An Address delivered at the opening of the Law Academy of
		Philadelphia, on the 21st February, 1821.</P> 
	 <P>By Peter S. Du Ponceau, LL.D. ... 169</P> 
	 <P ALIGN="CENTER">APPENDIX.</P> 
	 <P>I. Constitution of the United States, ... 193</P> 
	 <P>II. Extract from the Report of the case of the United States <I>v</I>.
		Worrall, (Circuit Court, Pennsylvania District,) .... 213</P> 
	 <P>III. Instruction from the Assembly of Virginia, to their Senators in
		Congress, respecting the common law, ... 225</P> 
	 <P>IV. Extract from the Report of the case of the United States <I>v</I>.
		Aaron Burr, (Circuit Court, Virginia District,) ... 227</P> 
	 <P>V. Report of the case of the United States <I>v</I>. Hudson &amp;
		Goodwin, (Supreme Court U. S.,) ... 233</P> 
	 <P>VI. Judge Story's opinion in the case of the United States <I>v</I>.
		Coolidge, (Circuit Court, Massachusetts District,) .... 237</P> 
	 <P>VII. Report of the same case on appeal, in the Supreme Court of the
		United States, ... 247</P> 
	 <P>VIII. Extract from the opinion of Chief Justice Tilghman, in the case of
		the Commonwealth of Pennsylvania <I>v</I>. Kosloff, ... 249 </P> <HR> 
	 <P ALIGN="CENTER">A DISSERTATION <BR> ON THE <BR> NATURE AND EXTENT <BR> OF
		<BR> <FONT SIZE="+2">THE JURISDICTION</FONT> <BR> OF THE <BR> <FONT
		SIZE="+1">COURTS OF THE UNITED STATES</FONT>,</P> 
	 <P ALIGN="CENTER">BEING A VALEDICTORY ADDRESS <BR> DELIVERED TO THE
		STUDENTS OF THE LAW ACADEMY OF PHILADELPHIA, AT THE CLOSE OF THE ACADEMICAL
		YEAR, ON THE 22D APRIL, 1824,</P> 
	 <P ALIGN="CENTER">BY PETER S. DU PONCEAU, LL.D. <BR> PROVOST OF THE
		ACADEMY.</P> 
	 <P><FONT SIZE="-1">EX LEGE COMMUNI NON ORITUR JURISDICTIO.</FONT></P> 
	 <P><FONT SIZE="-1">IN GENERALIBUS, GENERALE: IN LOCALIBUS, LOCALE JUS
		PR&AElig;VALEAT</FONT></P> <HR> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">A DISSERTATION, &amp;c.</FONT></P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">INTRODUCTION.</FONT></P> 
	 <P>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.</P> 
	 <P><FONT SIZE="-1">(* 2 Dall. 384.)</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>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."</P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P><FONT SIZE="-1">(* 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.</FONT></P> 
	 <P><FONT SIZE="-1">Judge Wilson, who presided at this trial, in his charge
		to the jury, took the ground of its being also an offence at <I>common law</I>,
		of which the law of nations was a part, and maintained the doctrine that the
		<I>common law</I> 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 <I>common law</I>, 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 <I>proprio
		vigore</I>, 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
		<I>universal common law</I> 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 <I>common law</I>, and deriving its authority in a manner
		exclusively from the latter. It was considering the subject in its narrowest
		point of view.</FONT></P> 
	 <P><FONT SIZE="-1">On the trial of this cause, I was concerned fop the
		defendant.)</FONT></P> 
	 <P>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 <I>no common law of
		the United States</I>. The question, he said, was not about the <I>power</I>,
		but about the <I>exercise</I> 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 <I>had no
		common law</I>, 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. </P> 
	 <P>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 U<FONT
		SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT> <I>v</I>. A<FONT
		SIZE="-1">ARON</FONT> B<FONT SIZE="-1">URR</FONT>,* 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 "<I>the Courts of the United States had not jurisdiction of
		the common law</I>." 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.**</P> 
	 <P><FONT SIZE="-1">(* Report of Burr's Trial, by David Robertson, 2 vol.
		8vo. Richmond, 1808. Vol. 2, p. 481.</FONT></P> 
	 <P><FONT SIZE="-1">** 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 "<I>common law
		jurisdiction</I>," had no definite meaning, and was led to enter into this
		investigation of the subject.)</FONT></P> 
	 <P>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.</P> 
	 <P>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 <I>of common law jurisdiction</I> was propounded in terms
		for the decision of the superior tribunal. It was the well known case of the
		U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT> <I>v</I>. H<FONT
		SIZE="-1">UDSON</FONT> and G<FONT SIZE="-1">OODWIN</FONT>.* 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
		<I>common law jurisdiction</I> in cases of libel? was the question submitted to
		the Supreme Court, and which it was called to decide upon.</P> 
	 <P><FONT SIZE="-1">(* 7 Cranch, 32.)</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>The Court proceeded further, and in doing so, I must say, travelled, as
		the phrase is, <I>extr&agrave; cancellos</I>, or beyond the record. The
		question submitted to them simply was, whether the Courts of the United States
		had common law jurisdiction <I>in cases of libel</I>? The question which this
		case presents, said Mr. J. Johnson, "is whether the Circuit Court can exercise
		a common law jurisdiction <I>in criminal cases</I>? We state it thus broadly,"
		continued the learned Judge, "because a decision in a case of libel will apply
		to <I>every case</I>, in which jurisdiction is not vested in those Courts by
		statute."</P> 
	 <P>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 <I>rules of action</I> from the common or
		any other law, yet they cannot derive from such a source their <I>right to
		act</I>; 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 <I>United
		States</I> v. <I>Worrall</I>, were taken by the profession in a much more
		extensive sense than the Court in this case appears to have had in
		contemplation.</P> 
	 <P>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 U<FONT SIZE="-1">NITED</FONT> S<FONT
		SIZE="-1">TATES</FONT> <I>v</I>. C<FONT SIZE="-1">OOLIDGE</FONT>.* 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.</P> 
	 <P><FONT SIZE="-1">(* 1 Gallison,488. 1 Wheaton, 415.)</FONT></P> 
	 <P>It appears that the case of the <I>United States</I> v. <I>Hudson and
		Goodwin</I>, before mentioned, had been decided by the Supreme Court on an
		<I>ex parte</I> 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 <I>common law jurisdiction</I> 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.</P> 
	 <P>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 <I>United
		States</I> v. <I>Hudson and Goodwin</I> 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 <I>common law</I> and
		<I>common law jurisdiction</I>, that Mr. Gallison at the head of his report of
		this case, states the question to have been, <I>Whether the Circuit Court of
		the United States has jurisdiction over common law offences against the United
		States?</I> 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.</P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>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 <I>United States</I> v. <I>Hudson and Goodwin</I>, 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.</P> 
	 <P>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 <I>United States</I> v. <I>Worrall</I>, Judge Chase, and in the
		<I>United States</I> v. <I>Hudson and Goodwin</I>, the Supreme Court were right
		in deciding that their respective tribunals had not jurisdiction of the
		particular case, while in the <I>United States</I> v. <I>Coolidge</I> Judge
		Story was also right in deciding the reverse. In like manner, in the case of
		the <I>United States v. Burr</I>, 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 <I>obiter dicta</I> of the Judges.</P> 
	 <P><FONT SIZE="-1">(* I do not consider the reversal of the judgment in the
		<I>United States</I> v. <I>Coolidge</I>, 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.)</FONT></P> 
	 <P>The case of the <I>United States</I> v. <I>Coolidge</I> 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
		<I>United States</I> v. <I>Hudson and Goodwin</I>, 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.</P> 
	 <P>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 B<FONT SIZE="-1">ERNARDI</FONT> <I>v</I>. M<FONT
		SIZE="-1">OTTEUX</FONT>,* 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 H<FONT SIZE="-1">UGHES</FONT> <I>v</I>.
		C<FONT SIZE="-1">ORNELIUS</FONT>,&#134; 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 <I>conclusiveness of
		foreign sentences</I> has still too many friends.</P> 
	 <P><FONT SIZE="-1">(* Douglas. 554.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 2. Shower, 232.</FONT></P> 
	 <P><FONT SIZE="-1">** Regis et principis factum connumeratur inter casus
		fortuitos. <I>Roccus, de assec. not</I>. 65. Merces capt&aelig; &agrave;
		potestate, seu judice administrante in illo loco, &#151; tenentur
		assecuratores. &#151; Quod judex facit injust&egrave;, dicitur casus fortuitus,
		and in assecuratione pertinet ad illum qui in se suscepit casum fortuitum.
		Ibid. not. 54. <I>quotes Straccha, and numerous other authors</I>.</FONT></P> 
	 <P><FONT SIZE="-1">Le fait du Prince est mis dans la classe des cas
		fortuits, <I>Scaccia, quest</I>. 1, No. 136. <I>Ibid</I>. No. 137. Peu importe
		que l'injustice prec&egrave;de de la corruption du Juge ou de son ignorance.
		<I>Quid refert sordibus judicis, an stultitia res perierit, ff. de evictionib.
		l</I>. 51. &#151; Il est donc certain que les assureurs r&eacute;pondent de la
		confiscation injuste prononc&eacute;e par le tribunal du lieu o&ugrave; le
		navire pris a &eacute;t&eacute; conduit. <I>Em&eacute;rigon, sur les
		Assurances</I>, Vol. 1. p. 457.</FONT></P> 
	 <P><FONT SIZE="-1">See also the opinion of this eminent jurist in the ease
		<I>of Angles and others</I> v, <I>The Underwriters</I>, 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, <I>Valin</I>. ibid.)</FONT></P> 
	 <P>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.
		</P> 
	 <P>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.</P> 
	 <P>The opinions of the Judges, in the four cases above mentioned, are
		inserted at large in the appendix.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">THE ADDRESS.</FONT></P> 
	 <P>MY FRIENDS AND FELLOW STUDENTS,</P> 
	 <P>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 <I>Courts of the United
		States</I>, 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 <I>United
		States</I> v. <I>Hudson and Goodwin</I>,* and the <I>United States v.
		Coolidge</I>.&#134; 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.</P> 
	 <P><FONT SIZE="-1">(* 7 Cr. 32.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 1 Wheat. 416.)</FONT></P> 
	 <P>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
		<FONT SIZE="-1">LEX LEGUM</FONT>, 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.</P> 
	 <P>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.</P> 
	 <P>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
		<I>United States</I> v. <I>Hudson and Goodwin</I>, above cited, the question
		was as stated by the reporter, whether the federal tribunals could exercise
		<I>common law jurisdiction</I> in criminal cases? It appears to me to have been
		here ambiguously expressed, because the words <I>common law jurisdiction</I>,
		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 <I>obiter</I> 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 <I>from</I> the common law, it does
		not follow that they have not jurisdiction <I>of</I> the common law. This is
		what I shall endeavour to prove to you in the present discourse.</P> 
	 <P>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.</P> 
	 <P>I shall, in the first place, explain to you the. true meaning of the
		word <I>jurisdiction</I>, 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.</P> 
	 <P>J<FONT SIZE="-1">URISDICTION</FONT>, 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 <I>judicial power</I>. 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.</P> 
	 <P>Every human jurisdiction, without exception, rests on one of three
		foundations, or on several of them together.</P> 
	 <BLOCKQUOTE> 
		<P>1st. The place or territory over which it is exercised, and that is
		  called jurisdiction over the place, <I>in locum</I>.</P> 
		<P>2d. The persons which are subjected to its action, and that is
		  jurisdiction over the person, <I>in personam</I>.</P> 
		<P>3d. The subjects of which it takes cognisance. and that is
		  jurisdiction over the subject matter, <I>in subjectam materiam</I>.</P>
		</BLOCKQUOTE> 
	 <P>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, <I>ratione personarum</I>. 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 <I>jurisdictio in materiam, ratione loci rei act&aelig;</I>.</P> 
	 <P>These are the only species of jurisdiction that exist, as I may say,
		<I>in rerum natur&acirc;</I>,* 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. </P> 
	 <P><FONT SIZE="-1">(* It may be asked, perhaps, whether there is not also a
		jurisdiction <I>in rem</I>, as we are accustomed to speak in reference to the
		Court of admiralty. <I>Res</I>, is but another word for <I>materia</I>;
		therefore, jurisdiction <I>in rem</I>, means no more than jurisdiction over the
		<I>subject matter</I>. It matters not whether it be a physical or a moral
		subject. The words <I>in rem</I>, 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 <I>in rem</I>.)</FONT></P> 
	 <P>1. Jurisdiction over the place, or <I>in locum</I>. 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 <I>in
		locum</I>, 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.</P> 
	 <P>2. Jurisdiction <I>in personam</I>. 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.**</P> 
	 <P><FONT SIZE="-1">(* 4 Com. 276.</FONT></P> 
	 <P><FONT SIZE="-1">** Kaimes' Prin. of Eq. B. iii. c. 8.)</FONT></P> 
	 <P>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.</P> 
	 <P>3. Jurisdiction <I>in subjectam materiam</I>. 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 <I>lex loci contractus</I> 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.</P> 
	 <P>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, &amp;c. and of crimes, and offences committed on the high seas. As a
		Court of prize, it entertains jurisdiction of captures <I>jure belli</I> 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, &amp;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.</P> 
	 <P>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 <I>ratione materi&aelig;</I>, 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.</P> 
	 <P>In order to prove this position, I shall consider the Courts of the
		United States, in two different points of view:</P> 
	 <P>I. As exercising their jurisdiction in or for the confederated
		States.</P> 
	 <P>II. As exercising it for the territories belonging to the Union.</P> 
	 <P>III. And in the third place, I shall incidentally consider whether there
		is a national common law in the United States.</P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>SECTION I. &#151; Within the actual limits of the States properly so
		called from which I except forts, arsenals, &amp;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 <I>in
		locum</I>, 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.</P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>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. </P> 
	 <P><FONT SIZE="-1">(* Const. U. S. art. 3. &sect;. 2.)</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>Proceeding now to illustrate this doctrine by examples, I shall first
		consider its application to cases of jurisdiction <I>in personam</I>. 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, &amp;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.</P> 
	 <P>Three cases only have been decided (at least that have come to my
		knowledge) which bear upon this part of my argument. They are <I>Mannhardt</I>
		v. <I>Soderstrom</I>,&#134; <I>The United States</I> v. <I>Ravara</I>,&#135;
		and <I>The Commonwealth of Pennsylvania</I> v. <I>KosIoff</I> &sect;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.
		</P> 
	 <P><FONT SIZE="-1">(* 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 <I>offences against the peace and
		dignity of the individual States</I>, and whether these can be said to be
		<I>against the peace and dignity of the United States</I>? But I see no
		difficulty in laying such an offence in an indictment, as <I>against the peace
		and dignity of both</I>; for it appears to me that in the political as in the
		physical body, <I>whoever offends a part, offends the whole</I>. 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.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 1 Binn. 138.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 2 Dall. 97.</FONT></P> 
	 <P><FONT SIZE="-1">&sect; 5 Serg. &amp; Rawle, 545.)</FONT></P> 
	 <P>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.</P> 
	 <P>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.</P> 
	 <P>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
		<I>obiter dictum</I> 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 <I>The United States</I> v.
		<I>Aaron Burr</I>, 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.</P> 
	 <P>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.*</P> 
	 <P><FONT SIZE="-1">(* 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: &#151; </FONT></P> 
	 <P><FONT SIZE="-1">SECT. 33. <I>And be it further enacted</I>, 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.</FONT></P> 
	 <P><FONT SIZE="-1">SECT. 34. <I>And be it further enacted</I>, 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.</FONT></P> 
	 <P><FONT SIZE="-1">SECT. 35. <I>And be it further enacted</I>, 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.</FONT></P> 
	 <P><FONT SIZE="-1">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.)</FONT></P> 
	 <P>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.</P> 
	 <P>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, <I>ubi lex non
		distinguit, ibi et nos non distinguere debemus</I>.</P> 
	 <P>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 &#151; an authority to which I have long been accustomed to
		bow with profound reverence, &#151; in short, no less a one than that of the
		Chief Justice of the United States. In the case of <I>The United States</I> v.
		<I>Aaron Burr</I>, 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.*</P> 
	 <P><FONT SIZE="-1">(* 2 Robertson's Report of Burr's Trial,
		482.)</FONT></P> 
	 <P>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 <I>capias</I> was the proper mode, according to the modern usage of the
		common law, while their opponents insisted that a <I>summons</I> 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.</P> 
	 <P>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 <I>civil cases</I>,
		and that it could not be so in <I>any case</I> of a <I>criminal</I> 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 <I>American</I>
		common law, which abhors unnecessary forms, and is averse to putting an accused
		party to unnecessary expense.</P> 
	 <P>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 <I>against the United States;</I>
		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 <I>in cases where they
		apply</I>. 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.</P> 
	 <P>It is true that the learned Chief Justice, in giving his opinion on the
		same question, is also reported to have said "that <I>no man</I> 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 <I>obiter</I> 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, "<I>it seems to me</I>" 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.</P> 
	 <P>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.</P> 
	 <P>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 <I>The Commonwealth</I> v. <I>Kosloff</I>.
		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
		<I>that the Supreme Court shall have jurisdiction in all cases affecting a
		consul</I>. 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 <I>punishment</I> of offences?" (Here the learned
		Judge expresses a doubt merely about the <I>punishment</I>, 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. N<FONT SIZE="-1">O EMBARRASSMENT, HOWEVER,
		COULD EQUAL THAT INTO WHICH THIS COURT WOULD BE THROWN, SHOULD IT DETERMINE
		THAT NO COURT OF THE </FONT>U<FONT SIZE="-1">NITED</FONT> S<FONT
		SIZE="-1">TATES HAS JURISDICTION IN A CASE WHICH AFFECTS A CONSUL IN EVERY
		THING SHORT OF LIFE, WHEN THE </FONT>C<FONT SIZE="-1">ONSTITUTION DECLARES,
		THAT THE </FONT>S<FONT SIZE="-1">UPREME </FONT>C<FONT SIZE="-1">OURT SHALL HAVE
		JURISDICTION IN ALL CASES AFFECTING CONSULS</FONT>." Having shewn, as I think,
		in a satisfactory manner, that where jurisdiction is given <I>in personam</I>,
		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 <I>subjectam materiam</I>.</P> 
	 <P>Suppose the federal Constitution had declared, in general terms, that
		the judiciary of the United States should have cognisance of all cases of
		<I>violence upon the persons of aliens</I>; 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.</P> 
	 <P>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:</P> 
	 <P>"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.*</P> 
	 <P><FONT SIZE="-1">(* 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. <I>ff. L</I>. 2. <I>tit</I>. 1. <I>I</I>.
		2.)</FONT></P> 
	 <P>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.</P> 
	 <P>The reason given for this exclusion by Mr. Justice Johnson in delivering
		the opinion of the Supreme Court in the case of the <I>United States</I> v.
		<I>Hudson and Goodwin</I>, 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.</P> 
	 <P>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.</P> 
	 <P>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."</P> 
	 <P>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.</P> 
	 <P>These would be important objects of discussion, if the question stood on
		the point of <I>common law jurisdiction</I>; 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.</P> 
	 <P>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.</P> 
	 <P>The most prominent cases under the first head are those of the <I>United
		States</I> v. <I>Worrall,*</I> and the <I>United States v. Hudson and
		Goodwin</I>.&#134; They shall be considered together, as they are analogous,
		and appear to depend on the same principle.</P> 
	 <P><FONT SIZE="-1">(* 2 Dall.384</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 7 Cranch, 32.)</FONT></P> 
	 <P>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. </P> 
	 <P>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. </P> 
	 <P>Over the <I>place</I>, 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 <I>person</I> there was none, and as to the <I>subject
		matter</I>, 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 <I>jurisdictio in
		materiam ratione personarum</I>, or jurisdiction of the subject matter limited
		by the description of persons affected by the offence.</P> 
	 <P>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.</P> 
	 <P>The next question is, whether protection may be afforded to those
		officers by the national Legislature?</P> 
	 <P>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 <I>Sedition Act</I>.
		This law was brought forward in troublesome times and in the most obnoxious
		shape to public feelings, as it seemed to intrench on the people's darling
		prerogative, the freedom of the press. The consequences are well known. The
		people imbibed the opinion that this law had been made for the support, not of
		the government, but of a party, and the party and the law met with the same
		fate. Thus, by an imprudent and ill-timed measure, prejudices have been raised
		in the public mind against an exercise of power which every impartial man must
		admit to be indispensable to the safety, and perhaps to the very existence of
		the national government.* But if, by a fair construction of the Constitution,
		this power of self-protection is given to the federal government considered as
		a whole, and if it may be exercised by the legislative authority, can it by any
		construction, on the same general principle, be considered as contemporaneously
		vested in the judiciary authorities or in any of them? The Supreme Court of the
		United States cannot have it, unless it be by way of appeal. Its original
		exercise, therefore, if any where, must be lodged with the inferior Courts. Can
		these, by any implication from the powers granted to them by either the
		Constitution or the laws, assume to take cognisance of offences of this nature,
		from the murder of a President travelling through a State to the seat of
		government, to an assault and battery on a tide waiter? Are they to designate
		the particular officers who are thus placed under the protection of the nation
		through its legitimate authorities, to define their crimes and offences, and
		graduate their punishment? Has the common law provided for such a state of
		things, and was it ever within its view? I shall not undertake to decide these
		questions, because I do not think it necessary for my purpose; I place the
		subject upon another and a different ground.</P> 
	 <P><FONT SIZE="-1">(* In like manner, towards the close of the presidency
		of the venerable John Adams, but, unfortunately, after it was known that Mr.
		Jefferson was to succeed him, and that a different party from that which at
		that time had the government in their hands had acquired the ascendancy, a wise
		law was enacted for the new organisation of the federal judiciary. Circuit
		Judges were created for every State, and the Supreme Court remained stationary
		at the seat of government. If Mr. Adams had been placed under circumstances in
		which he could, regardless of momentary considerations, and looking forward to
		futurity, have left the Judges under this law to be appointed by his successor,
		he would have conferred a lasting benefit upon the nation. But having filled
		the seats at the moment when he was about to retire from office, the measure
		was ascribed to party motives, and one of the first acts of the succeeding
		Legislature was to repeal this excellent law, and the former order of things
		was restored. Since that time, every effort has been making to improve the
		judiciary organisation, but without success.)</FONT></P> 
	 <P>Among the powers given by the Constitution to the national government,
		without distinction of its branches, some are imperative, while others are
		merely <I>potential</I> or <I>permissive</I>. Thus, although Congress have the
		power expressly granted to them of making uniform laws on the subject of
		bankruptcy, they have only acted upon it temporarily, and ever since have
		abstained from its exercise. If this distinction is correct when applied to
		powers expressly given, it is so <I>a fortiori</I> as to those which are merely
		implied. The power of protecting the officers of government from violence and
		insult, is no where given in terms in the text of the Constitution, although it
		may be fairly infer red from its whole context. Nor is it given to any
		particular branch of the government. It is therefore, in the nation at large,
		and lies dormant until it shall be called into action by the national
		Legislature.</P> 
	 <P>There is no absolute necessity for vesting immediately the judicial
		branch of this power in the federal Courts. The officers of the national
		government have long lived, and, it is to be hoped, will long live, under the
		safe protection of the laws of the States where they may permanently or
		transiently reside. When it will be necessary to give them a higher protection,
		it is not for the judiciary to decide; the Legislature alone is appointed to
		watch over the welfare of the nation and provide for its wants: when it shall
		think proper so to do. it will be the duty of the federal tribunals to execute
		the laws that it shall make.</P> 
	 <P>On this ground my mind perfectly coincides with the decision of the
		Supreme Court in the case of the <I>United States</I> v. <I>Hudson and
		Goodwin</I>, although I do not concur in all the reasoning which is reported as
		forming the grounds of their decision. The question was not propounded to them
		in such clear and precise terms as to lead them directly to the essential point
		on which it turned. Yet this point did not escape their discriminating minds,
		and they have decided on it in such a manner as was to be expected from their
		judicial talents.</P> 
	 <P>I shall now proceed to treat of cases which come within the scope of
		admiralty and maritime jurisdiction. It is necessary that I should speak
		somewhat at large upon this subject.</P> 
	 <P>The admiralty jurisdiction in England is divided into two separate and
		distinct departments, proceeding by different laws and different forms of
		judicial inquiry. The original cognisance of civil matters is exclusively
		vested in the High Court of Admiralty, consisting of a single Judge, who is a
		Doctor of the civil law. All proceedings there are according to the forms
		prescribed by the Roman Imperial Code, which, together with the general
		maritime law and statutes of the realm, is the rule of decision. The criminal
		jurisdiction, on the contrary, belongs to what is called the Court of Admiralty
		Sessions, which consists of commissioners of Oyer and Terminer appointed under
		the great seal, consisting of the Judge of the Court of Admiralty, who
		presides, and three or four other persons, two of whom are to be common law
		Judges. In this Court all trials are by jury, and the proceedings according to
		the course of the common law. In ancient times, the Judge of Admiralty was
		possessed of criminal as well as civil jurisdiction in the fullest extent, but
		the civil law mode of trial which was practised in his Court, in criminal as
		well as in civil cases, being justly complained of as a grievance, the present
		system was established by statute 28 H. 8, c. 15, which to this day continues
		in force.*</P> 
	 <P><FONT SIZE="-1">(* 4 Blac. Com. 269.)</FONT></P> 
	 <P>In the American colonies the whole admiralty power was vested in a
		single Judge, as it was formerly in England; in criminal causes, however, the
		trials were by jury, and the proceedings according to the forms of the common
		law. How this practice was introduced I cannot tell; probably in imitation of
		the usages of the mother country, possibly also the Judges were so directed in
		their commissions, or in the orders which they received from the Lords
		Commissioners. When the admiralty jurisdiction was transferred to the State
		Judges at the revolution, and subsequently to the federal tribunals, this mode
		of proceeding was so well established that it was, and is still, considered as
		inherent to the admiralty system, and as the law of the land in relation to
		this subject. </P> 
	 <P>The result of this system is, that the criminal department of the
		admiralty jurisdiction in England and in this country, presents a singular
		mixture of the civil and common law, in which the latter, however,
		predominates. Although the statute of Henry VIII. introduced it merely for the
		purpose of regulating the. mode of trial and form of proceedings, its
		principles have gradually become interwoven with the whole criminal branch of
		the admiralty law. To this the common law definition of the crime of piracy has
		not a little contributed. It defines this offence to be "those acts of robbery
		and depredation committed at sea, which, if committed on land, would have
		amounted to felony."* This reference to the common law for the definition and
		qualification of particular acts, threw the law of nations and the civil law so
		much into the back ground that it was even doubted whether piracy by the law of
		nations only, and not coming precisely with the common law definition of this
		offence was cognisable by an admiralty Court. In crimes amounting to felony,
		therefore, the common law may be considered, if not as the exclusive, at least,
		as a legitimate and concurrent source of authority and rule of decision; but in
		offences of an inferior grade, the law civil and maritime, as
		contradistinguished from the common or municipal law, still governs in every
		thing but the forms of proceedings and mode of trial.</P> 
	 <P><FONT SIZE="-1">(* 4 Blac. Com. 71.)</FONT></P> 
	 <P>Such is the jurisdiction which has been transferred by the people of the
		United States, and by the States, themselves, when they ratified the
		Constitution, to the national government, to be exercised by the judiciary
		branch of its administration. I do not and cannot consider it as one of those
		<I>potential</I> or permissive powers which I have above mentioned. It is of
		vital importance to the national safety and even existence, and it has been
		committed in its fullest extent to the federal judiciary by name, while the
		power of the Legislature over the subject was left, except in the specific
		cases of piracy and prize, to be collected from implication and as matter of
		inference. If, therefore, the Congress had done no more than to designate the
		particular Courts which should exercise that jurisdiction, I do not think that
		they should be bound to wait for particular laws defining their powers or the
		mode of executing them before they proceeded to its exercise, neither should
		they wait for laws defining maritime offences and affixing their punishment;
		for the admiralty law has provided for all these matters, and the
		administration of that law was committed to them when the jurisdiction was
		transferred; for whoever gives the end gives the means. Nor do I think that so
		much inconvenience can arise as some have imagined from the defect of
		legislative provisions in these matters, even as respects criminal
		jurisdiction. Maritime offences are divisible into two classes, felonies and
		misdemeanors. The former, under the general name of piracy, are sufficiently
		defined by the law of nations and the common law. The latter are classed and
		defined in a well known scientific code, and their punishment generally results
		in fine and imprisonment as at common law. Doubtful and difficult cases, no
		doubt would have arisen, as in every other branch of the judicial functions;
		but it would have been the duty of the Judges to solve them as in other cases,
		subject to the revision of the Supreme Court of the Union. In matters of life
		and death, they would have taken care not to convict, unless the law was clear,
		as well as the evidence. For, as Lord Bacon says, "De eapitalibus in
		quibuscunque curiis nisi ex lege not&acirc; &amp; cert&acirc; pronunciato.
		Indixit enim mortem Deus ipse pri&ugrave;s; poste&agrave; inflixit. Nee vita
		eripienda nisi ei qui se in suam vitam peccare pri&ugrave;s nosset."* Thus in
		the cases of the <I>United States</I> v. <I>Gill</I>,&#134; <I>United
		States</I> v. <I>Bevan</I>,&#135; and <I>United States</I> v.
		<I>Wiltberger</I>,&sect; where the law was not perfectly clear, and in some
		cases it even appeared that the Legislature of the United States had so
		restricted the locality of the crimes of which the parties were accused as not
		to include within their enactment the particular places in which they had been
		perpetrated, the Courts, with great propriety, either arrested the judgment
		after conviction or directed an acquittal.</P> 
	 <P><FONT SIZE="-1">(* De Jure univ. Aphor. 89.</FONT></P>
	 <P><FONT SIZE="-1">&#134; 4 Dall. 426.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 3 Wheat. 336.</FONT></P> 
	 <P><FONT SIZE="-1">&sect; 5 Wheat. 76.)</FONT></P> 
	 <P>I do not mean, therefore, to say that Congress have not a right to
		legislate on matters within the scope of admiralty and maritime jurisdiction.
		On the contrary, I think that they have a full and complete right so to do, and
		that when they have so done, their laws should be strictly and faithfully
		executed; but I think I am correct in asserting, that where they have not
		legislated, the Judges are nevertheless bound to execute the laws which apply
		to the subjects within their jurisdiction to the best of their judgment and
		understanding.</P> 
	 <P>In cases of mere misdemeanour, I do not find reason for the same
		scruples as in questions of life and death. Therefore, I regret that the
		celebrated case of the <I>United States</I> v. <I>Coolidge</I>,* should have
		been given up without argument, It does not appear to me, in the first place,
		that it turned at all upon the question of <I>common law jurisdiction</I>, or
		that this question was in the least involved in it. It was the case of a rescue
		on the high seas of a prize ship from the hands of the captor. It was,
		therefore, a clear case of admiralty and maritime jurisdiction, to be tried and
		punished, although by a common law mode of proceeding, according to the rules
		of the civil and maritime law. To say the least of it, it was a contempt of the
		authority of the prize Court; as it was intercepting property on its way to the
		Court that was to adjudicate upon it, and which was at that time to be
		considered as in <I>custodi&acirc; legis</I>.&#134; In either way, it appears
		to me it was punishable, whether the Court of Admiralty had jurisdiction or not
		of <I>common law offences</I>. If the case had been exhibited to the Court in
		this point of view, I think I do not go too far in believing that the
		jurisdiction of the admiralty would have been sustained.</P> 
	 <P><FONT SIZE="-1">(* 1 Wheat. 416.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; <I>Smart</I> v. <I>Wolf</I>, 3 Durnf. &amp; East,
		323.)</FONT></P> 
	 <P>Having thus gone through the observations I had to make on the subject
		of the jurisdiction of the federal Courts, when exercising it within or for the
		territory of the individual States, I shall now consider its nature and extent
		when exercised without that territory. The field is new and ample, and leads to
		novel and interesting views; I shall, however, endeavour to condense what I
		have to say within those bounds beyond which I could not expect to receive your
		attention.</P> 
	 <P>SECTION II. &#151; The places without the jurisdictional boundaries of
		the confederated States over which the federal government has jurisdiction, are
		the following:</P> 
	 <BLOCKQUOTE> 
		<P>1st. The District of Columbia.</P> 
		<P>2d. The ceded Territories.</P> 
		<P>3d. The forts, arsenals, dock yards, &amp;c.</P> </BLOCKQUOTE> 
	 <P>All these dominions have been acquired by cession from the individual
		States or from foreign States, or purchased from individuals with the
		permission of the former. They are all subject to the exclusive jurisdiction of
		the national government. No judiciary power is exercised there but what is
		derived from federal authority.</P> 
	 <P>We are, in the first place, to inquire whether there is in these
		territories, as well as in the States, a local law, which may be called the
		common law of the place, to be administered by the judiciary of the United
		States, and what that law is. We shall be guided in this inquiry by the law of
		nations and the common law of England, which profess the same doctrines upon
		this subject.</P> 
	 <P>It will not be denied that the law of nations is a <I>common law</I> of
		the United States, or a law common to them in their federate and national
		character. It is with another law, which shall be mentioned in its place, the
		<I>nexus</I> which connects them together in their sovereign capacities in all
		cases which the Constitution has not foreseen or provided for. In their
		relations with their subordinate, or, if the word may he properly used,
		<I>subject</I> dominions, the law of nations still governs in all matters in
		which their mutual or reciprocal rights are concerned, and other laws do not
		supersede it. Ceded countries, particularly, have been at all times under the
		special protection of the law of nations. Let us see what it provides with
		respect to them.</P> 
	 <P>"A State," says Montesquieu, "that has conquered another State, treats
		it in one of the four following manners: 1. It continues to govern it according
		to its laws, retaining only the administration of the civil and political
		government. 2. It gives it a new civil and political government. 3. It destroys
		the national society and disperses the people into other countries. 4. It
		exterminates all the citizens." ''The first mode is conformable to the law of
		nations that we follow at this day."* I do not, nor did this distinguished
		author, mean to say, that the conquering sovereign may not and does not
		sometimes alter or modify the system of laws of the conquered country, and even
		abolish it altogether and substitute a new one if he thinks proper so to do.
		This is not unfrequently done, and often it is for the good of the subject.
		Thus Great Britain abolished in Canada the criminal law of France, and
		introduced in lieu of it the more humane code of the English law; thus one of
		the first acts of Napoleon when he conquered Spain, was to abolish monachal
		institutions and the Holy Inquisition. But what I wish to shew is, that until
		the existing laws at the time of the conquest are thus abolished or altered,
		they remain in full force. We all remember the outcry that was not long since
		raised against a British governor of the island of Trinidad, for having
		inflicted the torture on a young woman accused of a capital crime. He pleaded
		the ancient law of the country, and was justified. Even at this day,
		notwithstanding the deadly hatred which the sovereigns of Europe maintained
		against the late Emperor of France, it is a fact that his civil and criminal
		codes are yet in force in the kingdom of the Netherlands and in the German
		provinces on the left bank of the Rhine ceded to Prussia, and the, codes of
		Joseph and of Joachim are still the law of the kingdom of Naples. Near us, in
		Lower Canada, the <I>Coutume de Paris</I>, and the old French law generally, so
		far as it is not modified by British or local statutes, have never ceased,
		since the conquest, to be the law of the land. But it may be said, that
		admitting these principles to be correct as relates to a conquered country,
		they may not be applicable to one that is transferred by a voluntary cession.
		This would be a distinction without a difference. In principle, the two cases
		are the same; and it may even be said that a conqueror has more power over a
		country that he has subdued, than a sovereign who acquires a territory by
		purchase or voluntary transfer. The uncontrolled rights of force are, in the
		first case, mitigated by a rule which the law of nations has established; a law
		founded on a principle of mutual convenience, which convenience is not less in
		the case of a cession than of a conquest. This principle, therefore, applies
		with greater force to the former than to the latter case. Besides, it is a well
		established maxim of the modern law of nations, that it is not the conquest of
		a country or the possession of it by force of arms that gives the conqueror a
		right to its quiet dominion, but the <I>cession</I> that is made of it to him
		by the treaty of peace. It is only the cession which makes the acquisition
		complete.** The military title which conquest gives is merged in the civil
		title obtained by this voluntary act, which alone gives to the conqueror a
		legal permanent dominion over the ceded country.</P> 
	 <P><FONT SIZE="-1">(* Spirit of Laws, B. 10. c. 3.</FONT></P> 
	 <P><FONT SIZE="-1">** Vattel's Law of Nations, B. 3. c. 13. &sect;
		197.)</FONT> </P> 
	 <P>Hence the learned Blackstone, when laying down the common law on this
		subject, which is no other than the law of nations interwoven into that system,
		makes no difference between countries acquired by conquest and those obtained
		by voluntary cession. "In conquered or CEDED countries," says that able writer,
		"that have already laws of their own, the King may, indeed, alter and change
		those laws; but till he does actually change them, the ancient laws of the
		country remain."&#134; I. admit that the authorities he cites,&#135; do not go
		the whole length of his position, as they only refer to countries acquired by
		<I>conquest</I>; but of this he was, no doubt, aware, and nevertheless did not
		hesitate to lay down the principle in its fullest extent; so that his opinion,
		though not supported by a direct adjudication at Westminster Hall, is
		nevertheless entitled to the the greatest respect as the deliberate and well
		considered sentiment of an enlightened common lawyer and general jurist.</P> 
	 <P><FONT SIZE="-1">(&#134; 1 Blac. Com. 108.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; They are, 7 Rep. 17, <I>Calvin's case</I>;
		Shower's Parl. Cases, 31, and Lord Mansfield's argument in <I>Campbell</I> v.
		<I>Hall</I>, Cowp. 204.)</FONT></P> 
	 <P>It is, indeed, difficult to reconcile to reason the opposite principle.
		If the laws in force in a ceded country at the time of the cession do not
		continue to operate until others are substituted in their place, one of two
		things must happen; either the laws of the new sovereign must immediately take
		effect, or there must be a period of anarchy or military despotism. The latter
		supposition cannot be for a moment entertained, and as to the former it will be
		asked whether the new laws are to be enforced from the moment of the cession,
		when the old sovereign has given up all his right, title, and jurisdiction over
		the country, or from the moment of possession delivered. If the cession avoids
		the laws of the ceding power, how is the country to be governed until the new
		sovereign comes into possession? If the latter epoch is to be the period of
		change, how can the new subjects be expected to obey laws that they are not
		acquainted with, and how can they be justly punished for their infraction? If a
		single day is allowed to give time for the promulgation of the new system, my
		whole principle is granted, which is that the old laws remain in force until
		new ones are introduced by some public act of the sovereign in possession.</P> 
	 <P>On this interesting subject, I have been astonished to find none but
		vague and unsettled opinions among the gentlemen of the profession whom I have
		consulted, who candidly acknowledged that they had never had occasion to
		reflect upon it. I searched the writers on the Law of Nations and on the Common
		Law, and, except the passages which I have above cited from Montesquieu and
		Blackstone, which, however, are no where contradicted, found nothing that I
		could consider as directly in point, though much from whence the principle may
		fairly be inferred. The Acts of Congress, on taking possession of the District
		of Columbia and the territories of Louisiana and Florida, did not afford me
		more satisfaction. I found there the same uncertainty and indecision, the
		Legislature sometimes providing for the continuation of the ancient laws, at
		others seeming to take it for granted that they remained in force without the
		necessity of a legislative sanction. In fact, if we except Blackstone, this
		subject does not appear to have been much considered in Europe or in this
		country.</P> 
	 <P>There is not much reason to he astonished. This is not an every day
		question, and lawyers are not likely to meet it often in their practice. As to
		governments, while they can settle every thing with a stroke of the pen, they
		will not be inclined to lose their time in inquiring about abstract principles.
		</P> 
	 <P>In the despotic kingdoms of Europe, these matters are very easily
		arranged; but in this free and inquisitive country, where every man will not
		only know the law, but the reason of it, it cannot be expected that such an
		important subject should remain long undiscussed. I have therefore thought it
		my duty to bring it before you, and offer it as a subject for your earnest
		investigation. I believe I may venture to assert that you will not find the
		principle laid down by Blackstone any where contradicted, much less will you
		find another substituted in its place. It appears to me impossible to find one
		that will not be at once tyrannical and unjust.</P> 
	 <P>I shall therefore proceed to its application to the subject before us,
		as respects the District of Columbia, and the other Territories under the
		dominion of the United States.</P> 
	 <P>1. T<FONT SIZE="-1">HE</FONT> D<FONT SIZE="-1">ISTRICT OF </FONT>C<FONT
		SIZE="-1">OLUMBIA</FONT>. By the 17th paragraph of the 8th section of the 1st
		article of the Constitution of the United States, the Congress is authorised
		"to exercise exclusive legislation, in all cases whatsoever, over such District
		(not exceeding ten miles square) as may, by the cession of particular States,
		and the acceptance of Congress, become the seat of the government of the United
		States." The States of Maryland and Virginia, sometime after the adoption of
		the Constitution, offered to cede the Territory which is now the District of
		Columbia, and was then divided between their several jurisdictions. Congress by
		their act of the 16th July, 1790, accepted this offer, with a proviso that the
		operation of the State laws should not be affected by their acceptance, until
		the time fixed for the removal of the government thereto, and until Congress
		should otherwise by law provide." This proviso shews that at that time some
		doubt was entertained, as to the effect of the cession on the then existing
		laws, and it was probably inserted as a matter of precaution to avoid
		unnecessary discussion.</P> 
	 <P>In the year 1800, the seat of government was removed to Washington. On
		the 27th of February, in the following year Congress passed an act, directing
		"that the laws of the State of Virginia and Maryland, as they then existed,
		should continue in force within the parts of the District which had been ceded
		by those States respectively." This act seems to have been unnecessary, as the
		former statute had provided that those laws should remain in vigour until they
		should be altered. It may, however, be considered as corroborative, and as
		declaratory of the existing state of things.</P> 
	 <P>Be that as it may, there can be no doubt, that whether in virtue of
		these acts of Congress, or of the general law existing at the time they were
		made, the common law of Maryland and that of Virginia as they respectively
		apply have never ceased to be in force within this District. Therefore, there
		can be no question <I>there</I>, whether the Courts of the United States do, or
		do not, possess what is called <I>common law jurisdiction</I>, either in
		criminal or civil cases, and they have in fact been to this day in the constant
		exercise of it, without the aid of a special statute for that purpose. The
		Congress did no more than erect and organise the tribunals inferior to the
		Supreme Court, and left them to exercise their jurisdiction according to the
		existing local laws. In the. distribution of their powers, cognisance was given
		in general terms to the Circuit Court of "all crimes committed within the
		District," without any distinction made between statutary and common law
		offences. An appellate jurisdiction was given to the Supreme Court from all
		decrees, and judgments of the. inferior tribunals, but there was no express
		prohibition against their exercising any other jurisdiction which the. laws of
		Virginia and Maryland had before the cession vested in their Supreme
		Courts.</P> 
	 <P>It is a question of no small importance, whether by the cession of this
		District to the United States, by Virginia and Maryland, and by the acts of
		Congress continuing in force the existing laws of those States, the Supreme
		Court of the United States did not <I>ipso facto</I> succeed to all the powers
		which were at the time vested in the Supreme Courts of Maryland and Virginia,
		within the parts of the District which had respectively belonged to them, and
		whether an act of Congress giving them certain specific powers, without any
		words of exclusion as to others, can be construed to the disparagement of those
		they possessed before. It may be questioned also whether the clauses in the
		Constitution which restrict the jurisdiction of the federal tribunals, were not
		solely intended to protect the retained sovereignty of the States from being
		encroached upon, and whether when those Courts are sitting in or for the
		District of Columbia or the Territories, where there is no independent
		sovereignty to be protected, the nature, and extent of their jurisdiction may
		not he sometimes derived from another source? For my part, I acknowledge that I
		strongly incline to think, that the Supreme Court sitting at Washington
		possesses two distinct capacities, that of the Supreme Court of the United
		States, and that of the superior judicature, of the District. I have always
		been astonished that this point was not made in the celebrated cases of M<FONT
		SIZE="-1">ARBURY</FONT> <I>v</I>. M<FONT SIZE="-1">ADISON</FONT>,* and <I>Ex
		parte</I> B<FONT SIZE="-1">OLLMAN</FONT>,&#134; in support of the authority of
		the Court to grant a writ of <I>mandamus</I> in the one case, and of <I>habeas
		corpus</I> in the other. But I will not proceed further on this delicate topic,
		which I acknowledge I have not yet sufficiently considered; all that I shall
		say is, that these questions never having been directly brought before the
		Supreme Court of the United States, cannot be said to have been finally decided
		on, and cases may yet arise in which much will depend on their being determined
		one way or the other. At any rate, this derivative power from the Constitution
		and laws of the States or nations who have ceded, or may hereafter cede,
		territories to the United States, if it really exists, is of too great
		importance to the supreme tribunals of the Union, for them to yield it up
		without full and mature investigation. I consider it as one of the fairest
		flowers in their judicial wreath.</P> 
	 <P><FONT SIZE="-1">(* 1 Cranch, 137.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 4 Cranch, 175.)</FONT></P> 
	 <P>I beg your pardon for having thus somewhat wandered from the immediate
		object in contemplation: but the subject of this digression does not appear to
		me to he entirely unconnected with it. It seems naturally to flow from the
		great and pregnant principle laid down by Montesquieu and by Blackstone.</P> 
	 <P>I hope I have convinced you, that within this District the Courts of the
		United States have cognisance of the common law, in criminal as well as in
		civil matters. It is true, it may be said that they possess it by virtue of the
		acts of Congress above cited; but I have endeavoured to prove to you, and I
		hope not without success, that they would have been entitled to that
		jurisdiction, even if those acts had never been passed, saving its distribution
		between the different tribunals, which could only be made by the authority
		which created and organised them. I proceed now to the Territories.</P> 
	 <P>2. O<FONT SIZE="-1">LD TERRITORY NORTH WEST OF THE </FONT>O<FONT
		SIZE="-1">HIO</FONT>. &#151; </P> 
	 <P>Out of this extensive tract of country, three States have already been
		formed, to wit, <I>Ohio, Indiana</I>, and <I>Illinois</I>, who all, tacitly or
		otherwise, have adopted the common law, in aid of the statutes which have been
		enacted by the territorial authorities, and successively by their own
		Legislatures. It is needless to inquire into the state of things which produced
		that which now exists, as it would not lead us to any</P> 
	 <P>practical result. The territory of Michigan, was before the revolution a
		part of the British province of Quebec, and governed by the French law in civil
		and the common law in criminal cases. Since it has become the property of the
		United States, the common law has been introduced into it, no matter by what
		means. The remainder of the old territory, except a few posts occupied by the
		troops of the United States, is in the possession of the Indians. The common
		lav/ will probably make its way into it, as it has done into all the other
		parts, and indeed, it cannot be otherwise, as soon as it is inhabited by an
		American population. They will carry into it, as American citizens, as much of
		the common law as will be suited to their local situation.* But I must not
		anticipate on another part of my subject, to which I shall draw your attention
		presently.</P> 
	 <P><FONT SIZE="-1">(* 1 Blac. Com. 107.)</FONT></P> 
	 <P>Within those parts of this tract of country that have been erected into
		States, the powers of the federal judiciary are the same that they have been
		shewn to possess in the other States of the Union; in the territory of
		Michigan, and in the territorial governments that may be established in the now
		desert country, the local law, whatever it may be, and the laws of the United
		States where they apply, will be their guide.</P> 
	 <P>3. T<FONT SIZE="-1">HE OLD TERRITORY SOUTH OF THE </FONT>O<FONT
		SIZE="-1">HIO</FONT>. &#151; </P> 
	 <P>This tract of country, with some trifling additions, now forms the two
		States of Mississippi and Alabama; they have both adopted the common law. The
		same principles will of course apply here which govern in the other States.</P>
	 
	 <P>4. T<FONT SIZE="-1">HE OLD </FONT>S<FONT SIZE="-1">PANISH PROVINCES OF
		</FONT>L<FONT SIZE="-1">OUISIANA AND THE </FONT>F<FONT SIZE="-1">LORIDAS</FONT>
		&#151; Before I proceed to the application of the principles which I have laid
		down to the States and Territories which have been formed out of this vast
		extent of country, it will not be improper to take notice of the course which
		Congress has pursued on obtaining possession of them. It will be found to be
		different from that which was adopted with respect to the. District of
		Columbia, and will corroborate the observations which I have made respecting
		the necessity of a fixed principle in all such cases.</P> 
	 <P>Louisiana was ceded by France to the United States in the year 1803, and
		was taken possession of at the end of the same year. On the 31st of October,
		Congress passed a law, authorising the President to take possession of and
		occupy that territory, in which it was provided, that until the expiration of
		the session, unless provision should be sooner made for the temporary
		government of the said Territories, all the military, civil, and judicial
		powers exercised by the officers of the existing government of the same should
		be vested in, and be exercised by, such persons and in such manner as the
		President should direct, for maintaining and protecting the inhabitants of
		Louisiana in the free enjoyment of their liberty, property, and religion.</P> 
	 <P>By this act, Congress did no more than transfer to the President the
		powers vested in the national government by virtue of the treaty of cession,
		taking it for granted, of course, that the laws which existed at the time
		should remain in force until altered or repealed. Here note the difference
		between this and the special provision which was made for maintaining the laws
		of Virginia and Maryland within the District of Columbia.</P> 
	 <P>On the 25th of February, 1804, another act was passed extending to
		Louisiana the United States law for registering ships, and entitling the
		inhabitants to the ownership of American vessels. This shews that Congress did
		not consider that the laws of the United States superseded those which were
		before established, either from the moment of the cession or from the time of
		possession taken.</P> 
	 <P>On the 26th of March following, Congress, by another act, divided
		Louisiana into two territories, and legislating for one of them, (the territory
		of Orleans) extended to it several more statutes of the United States. The
		legislative power was given to the governor with the aid of a council, and they
		were authorised to alter, modify, or repeal the laws which might be then in
		force. An analogous power was conferred on the governor and judges of the
		northern section, which retained the name of Louisiana. No other material
		change was made in the existing laws of either district, but the introduction
		of the writ of <I>habeas corpus</I>, trial by jury in all criminal cases, and
		bail for offences not capital, and trial by jury in civil cases at the option
		of either parly. It was also provided that no cruel punishments should he
		inflicted. In every thing else, the territorial laws remained as they were
		before, without any special provision to that effect.</P> 
	 <P>The same course, was pursued with respect to Florida. By an act of
		Congress of the 3d of March, 1819, a discretionary power was given to the
		governor, in the same manner as had been done at first with respect to
		Louisiana, and certain specified laws of the United States were directed to be
		carried into execution within that territory. Not a word was said of the then
		existing system of laws, either to confirm or to repeal it.</P> 
	 <P>This act, however, (except so much thereof as merely authorised the
		President to receive possession of the Floridas) was only to be in force until
		the end of the session of Congress of 1815) &#151; 20, and as those Territories
		were only delivered up to the United States on the 10th and 17th of July, 1821,
		that part which provided for their temporary government could not be legally
		carried into execution at that period. How matters were then managed, it is not
		my business to inquire; but it is certain that if the laws of Spain did not.
		then by the force of the law of nations, and the common law of these U. States
		continue in vigour, there must have been a long period of complete anarchy or
		of unauthorised despot ism; for it was not until the 3d of March, 1823, near
		twenty months after possession of the country was delivered, that Congress
		passed an act for the establishment of a territorial government within those
		Districts, which was entitled a "Supplement" to the one before recited, a part
		of which continued in force, but which was lapsed as to every thing which
		related to the government of the country. By this act the legislative power was
		vested in a governor and council; but the ancient laws were neither repealed,
		nor expressly maintained. This subject was passed entirely <I>sub
		silentio</I>.</P> 
	 <P>These variations in the laws of Congress for the government of the
		different territories which have been successively acquired by the United
		States, can only be accounted for by the supposed absence of a principle
		applying to the subject matter, or the little attention that has been paid to
		it by statesmen as well as lawyers. I shall be happy if I have succeeded in
		proving to you that there is a fixed rule, not only consistent with the sound
		principles of natural justice, and of common sense, but recognised at the same
		time by the law of nations, and by the common law.</P> 
	 <P>Suppose a murder had been committed in Florida within those twenty
		months of absence of all regular legislation; if the ancient laws of the
		territory had not remained in force until new ones were substituted in their
		stead, how could justice have been done, against the criminal, and the
		tranquillity of the country preserved? Some persons, perhaps, will speak of
		Courts martial, and military government; but it is not to be thus governed,
		that subjects are transferred with territory from one civilised nation to
		another; rather than have recourse to such means, it is better to establish
		almost any principle that will continue to the inhabitants of the ceded country
		the, enjoyment of a regular system of laws, and not leave them even for the
		shortest period at the mercy of an arbitrary ruler. But the law has provided
		one at once wise and salutary; I hope I have not attempted in vain to
		demonstrate it.</P> 
	 <P>On this principle, therefore, Louisiana and the Floridas were, at and
		after the times of their respective cessions, and possession thereof taken by
		the United States, under the dominion of the laws of Spain, Since those
		periods, this state of things has experienced considerable change. Out of old
		Louisiana, two great and important States have already arisen, one of which has
		resumed the ancient name of the Spanish province, and the other is now the
		State of <I>Missouri</I>. She was admitted into the Union on the 10th of
		August, 1821. During the first ten years of its territorial existence, that
		country was nominally subject to the Spanish law; but as there were few or no
		lawyers among them who understood that system of jurisprudence, the common law
		gradually and almost insensibly superseded it, and at last, by an act of the
		territorial Legislature, passed on the 19th of January, 1816, it was proclaimed
		and established, and since has continued to be the law of the land. Louisiana
		pursued a different course.</P> 
	 <P>That country was principally inhabited by people of French origin, and
		among them were several lawyers of great eminence, attached, as is natural, to
		the system of laws which had been the object of their early studies, and as
		naturally averse to one which they did not understand. Among the American
		jurists who directed their steps to that newly acquired dominion were also men
		of distinguished talents, among whom I need only name Mr. E<FONT
		SIZE="-1">DWARD</FONT> L<FONT SIZE="-1">IVINGSTON</FONT>, whose genius and
		learning have acquired so much fame to himself and to his country. He perceived
		with a keen glance what advantage could be taken of the existing state of
		things; he and his American colleagues were devoid of prejudice, and found the
		same liberal disposition in the French members of the bar of New Orleans. This
		harmony produced a system of jurisprudence combining the excellencies of the
		common and the civil law. This is not the place to explain its details; I shall
		only say, that all the practitioners that I have conversed with, common lawyers
		as well as civilians, who have exercised the legal profession within that
		State, concur in extolling it as the best that they have ever known. I have not
		heard on this subject one dissenting voice. The Americans from the old States
		who reside in that country, are also universally satisfied with it. The
		Louisianians reject the common law as a system; they have, even guarded by a
		special clause in their constitution against its introduction among them.* But
		they do not reject its salutary principles when they find them applicable to
		their local situation and circumstances. They are as much attached as we are to
		those great bulwarks of political and civil liberty, the <I>habeas corpus</I>,
		the freedom of the press, trial by jury in civil as well as in criminal cases,
		and all those protecting forms which are established among us as the safeguards
		of liberty and innocence.</P> 
	 <P><FONT SIZE="-1">(* "The existing laws in this territory, when this
		Constitution goes into effect, shall continue to he in force until altered or
		abolished by the Legislature: Provided, however, that the Legislature shall
		never adopt any system or code of laws by general reference to the said system
		or code; but in all cases shall specify the several provisions of the laws it
		may enact." <I>Const. of Louisiana, art</I>. 4. &sect;.11.)</FONT></P> 
	 <P>The Louisianians have lately determined to be governed entirely by
		written laws. Mr. Livingston has been charged with the preparation of a draft
		of a criminal code; his able report to the Legislature upon that subject is
		well known in this country. He, in common with others, is also appointed to
		prepare a revised civil code, and thus every branch of State jurisprudence is
		to be reduced to a text. But do what they will, legislators will never be able
		to provide for every possible case, and much will still have to be left to the
		sound discretion of the constitutional expositors of the laws. The celebrated
		code of Justinian is not free from obscure laws, on the true sense of which
		commentators have not yet agreed, and even antinomies not unfrequently occur in
		the decisions and edicts which compose the body of the civil law. In every
		country there is what the French call <I>jurisprudence</I>, and we, <I>common
		law</I>; which is nothing else than the aggregate of the successive decisions
		of Judges on points which the textual laws have not foreseen, or have not
		sufficiently explained.*</P> 
	 <P><FONT SIZE="-1">(* In France, although it abounds with codes, there are,
		nevertheless, voluminous collections of reports of judicial decisions, the
		knowledge of which is an important branch of the legal science, and is called
		<I>la jurisprudence des arr&eacute;ts</I>. These decisions, although they are
		not considered paramount to the textual law, have nevertheless great authority.
		Before the late revolution, they were not so much respected as they are at
		present, because there was no supreme judiciary in that country, and the
		parliaments, within their several districts, often decided in contradiction to
		each other. The maxim at the bar then was, <I>judicial decisions are good for
		those in whose favour they were given</I>. But since a high Court for the
		correction of errors has been erected for the whole kingdom, under the name of
		<I>cour de cassation</I>, their opinions, though sometimes contradictory, have
		obtained a much higher degree of respect, and a <I>common law</I> is gradually
		establishing itself by the side of the ancient and modern codes. The degree of
		authority to which these supreme decisions are entitled, has lately become an
		important question among the French jurists. See on this subject the excellent
		treatise of M. Dupin, one of the most eminent advocates of the Paris bar,
		entitled "<I>De la jurisprudence des arr&eacute;ts</I>," Paris, 1822. He
		maintains the doctrine of the great B<FONT SIZE="-1">ACON</FONT>.)</FONT> </P> 
	 <P>But enough of Louisiana. The remainder of its ancient territory, not
		long since a wilderness, forms at present the territory of Arkansas, separated
		from Missouri in 1819, three years after the common law had been introduced by
		statute into that State. It therefore remains subject to it.</P> 
	 <P>The Floridas are yet nominally under the dominion of the law of Spain,
		unless their lately established territorial government has established the
		common law by statute as was done in Missouri. At any rate the common law, if
		it does not already, must soon prevail in these Territories. It is a sound, and
		a wise policy where there is not a large and important population attached to
		another system, to introduce that which is in use in the governing country.</P>
	 
	 <P>By whatever law these countries may be governed, <I>that</I> is their
		common law, and whenever it applies, it is that which the federal Courts are
		bound to carry into execution. But in all cases in which the local laws are not
		susceptible of application, these States and territories are of course subject
		to the same law with the others, to the <I>common and statute law</I> of the
		whole country.</P> 
	 <P>I proceed now to the last division of this part of my subject.</P> 
	 <P>5. F<FONT SIZE="-1">ORTS, ARSENALS, DOCK-YARDS</FONT>, &amp;c. &#151; By
		the Constitution of the United States, art. 1. &sect;. 8. parag. 17. "Congress
		have the right of exclusive legislation in all cases whatsoever, over all
		places purchased by the consent of the Legislature of the State in which the
		same shall be, for the erection of forts, magazines, arsenals, dock yards, and
		other needful buildings." The States by their cessions have sometimes thought
		proper to limit this right of exclusive legislation, and even to retain the
		whole of the jurisdiction which they before possessed. Thus Pennsylvania, in
		the act of Assembly of the 15th of April, 1795, by which she cedes Mud island,
		and the fortifications thereon erected, to the United States, has inserted a
		proviso that her jurisdiction over the island, in civil, and criminal cases,
		shall be the same as before the passing of that act."* Other modifications have
		been required by other States, and agreed to by Congress. Whether individual
		States, when they cede particular spots to the United States for the important
		purposes of erecting forts, arsenals, and other bulwarks of national defence,
		have a <I>constitutional</I> right to reserve to themselves the exercise of the
		legislative and judicial power over those places, and thus be enabled to defeat
		the military operations of the general government, is a question which I shall
		not here inquire into; I think it, with Mr J. Story at least, <I>extremely
		doubtful</I>;** but I can see no reason why the laws which were in force on
		those particular spots before they were ceded, should not continue to govern,
		until Congress shall think proper to alter them; to be executed, however, by
		the authorities of the United States, and by no others, otherwise, anarchy must
		prevail there, in all cases for which Congress have not legislated. Thus, there
		is no provision made for the definition and punishment of the crime of
		<I>arson</I>, of all others the most dangerous in places of this description;
		on the principles which I have laid down, this crime may he punished by the
		United States judiciary merely applying and executing the law on this subject,
		by which the place was governed before the cession. </P> 
	 <P><FONT SIZE="-1">(* 3 Bioren's L. Pennsylvania, 22:5.)</FONT></P> 
	 <P><FONT SIZE="-1">** U. S. <I>v</I>. Cornell, 2 Mason, 66.)</FONT></P> 
	 <P>Having thus explained to yon the meaning of the word jurisdiction, and
		pointed out the various sources from whence the judicial authority in general
		arises; having moreover endeavoured to elucidate the principles on which I
		conceive that every question respecting the jurisdictional rights of the
		federal Courts ought to be discussed, so as to lead to rational as well as
		legal conclusions, I shall proceed to consider another not less important
		subject by examining with you, whether there is in the United States a common
		or national system of laws, other than the law of nations, the Constitution,
		and the acts of the federal Legislature.</P> 
	 <P>SECTION III &#151; If, as I have endeavoured to prove to you, there is
		in every State and in every District or Territory, a common or local law which
		takes effect in most cases in which Congress have not legislated or have not
		the power to legislate to the contrary, this question will probably appear to
		you more curious in theory than useful in practice; it is certain that if the
		principles which I have successively laid down are admitted, the circle of
		operation of this common or national law (if it exists) will have been very
		much narrowed, and but very few cases will remain susceptible of its direct
		application: nevertheless, the subject is too interesting to pass unnoticed,
		and at the risk of trespassing too much upon your patience, I will proceed in
		its investigation.</P> 
	 <P>I never could comprehend how a great country like the United States,
		connected by manners, customs, habits, religion, and government, can exist
		together without a <I>common law</I>. The civil law is the. common law of
		Europe, and is so called, <I>jus commune</I>. Each separate government has
		modified it as it thought proper to suit its own local circumstances, or has
		introduced into its territories new edicts, new laws, and new codes, but still
		the civil law governs in all their common concerns. It is, with the local
		ordinances where they apply, the rule of decision in their maritime Courts. In
		the negotiations between sovereigns, the principles of the civil law are
		constantly referred to, and their authority never denied. It is, indeed, the
		foundation on which the modern law of nations has been erected.</P> 
	 <P>Before the late French revolution there was a tribunal at Rome, in many
		respects analogous to our federal Courts. It was called the <I>Rota</I>. Its
		Judges were appointed by the different Catholic sovereigns of Europe out of the
		number of their own subjects, and it took cognisance of all controversies
		submitted to them from every country. Its members were renowned for their
		integrity and learning, and many causes of the greatest importance, even
		between princes, were brought before them. Their judgments were every where
		respected. They did not take as the rule of their decisions the local laws and
		edicts of the papal States, but the common law of Europe, the civil law was
		their guide. I have understood that this celebrated tribunal has been lately
		re-established.</P> 
	 <P>In the same manner, and on stronger grounds, I consider the common law
		of England as the <I>jus commune</I> of the United States.</P> 
	 <P>Until the late revolution, the British colonies, although separated by
		local governments, have never ceased to make one whole with the remainder of
		the British empire. They were a part of the English nation, bone of their bone
		and flesh of their flesh. They brought with them, as Blackstone says, into this
		new country, so much of the English common law as was suited to their colonial
		situation. They brought it as a birth-right, and even after the declaration of
		their independence, the greatest number of them, if not all, claimed it as
		such. In most of them, also, their right to colonise was expressly burthened
		with the obligation to submit to these laws; in all of them, these laws were
		the foundation of their whole legislation, and were recurred to when their
		local statutes were silent. The New England colonies alone refused to receive
		this system as imposed upon them, though they followed it in practice of their
		own accord, and as their own colonial law. To all local purposes this was
		right; beyond that, as they enjoyed in common with all the colonists the
		protection of the common law, they were bound to submit to its corresponding
		duties, and virtually did so. The common law was the common jurisprudence of
		England and her <I>English</I> colonies, under such modifications as their
		peculiar situation required. In all cases for which the local law had not
		provided, or to which it was not applicable, this national law was the rule of
		decision. As the civil law is now in Europe, it was not, indeed, paramount to
		the local customs and statutes, but it was the fruitful source from which
		principles were drawn to aid in the solution of all the doubts and difficulties
		which arose from them, and the rule by which unforeseen cases were decided. It
		was a general system of jurisprudence, constantly hovering over the local
		legislation and filling up its interstices. It was ready to pour in at every
		opening that it could find. Like the sun under a cloud, it was overshadowed,
		not extinguished, by the local laws. It lost nothing of its force, its power,
		or its vigour. It burst in at the moment of the adoption of the Constitution of
		the United States, and filled up every space which the State laws ceased to
		occupy.</P> 
	 <P>In all national matters the law of England has never ceased to be the
		rule of right and wrong. The famous controversy between William Penn and Lord
		Baltimore, was determined on its principles. In the colonial Courts of
		Vice-admiralty, which were national tribunals, it possessed a widely extended
		dominion. Whatever would have been felony at land, was piracy when committed on
		the high seas. What was to be so construed, the law of England alone could
		decide; otherwise the crime of piracy would have been as various as the
		colonial Legislatures chose to make it, and the Judges would have been
		constantly embarrassed as to what laws they were to apply. The common law,
		therefore, in these cases must have been their guide.</P> 
	 <P>It would take up too much of your time if I were to multiply instances
		of this kind. Besides, I must leave something for your future research.</P> 
	 <P>The British colonies, now independent States, have never ceased to be
		under a national superintending government. Before the revolution, it was that
		of the King and Parliament of Great Britain. Their powers as to this country
		were limited, and so are those of the government which now supplies their
		place. They were succeeded at the revolution by a Congress whose jurisdiction
		was at first recognised by the individual States, and was more firmly
		established afterwards by an express national compact which at last gave place
		to the present federal government. Under these various forms the limitations of
		the power of the superintending authority were not always the same, but this
		did not affect their general character of a national head. The old Congress
		had, as well as the king of Great Britain, the powers of war and peace, of
		coining money, of holding prize Courts, and others of the principal attributes
		of national sovereignty. The general system of laws by which these always
		separated, yet always united, colonies or States were governed have never been
		repealed, either expressly or by necessary implication. They have always
		continued to be in vigour as far as applicable to our varying situations.</P> 
	 <P>I think, then. I can lay it down as a correct principle, that the common
		law of England, as it was at the time of the declaration of independence, still
		continues to be the national law of this country, so far as it is applicable to
		our present state, and subject to the modifications that it has received here
		in the course of near half a century. The most important of those
		mollifications result from the uniform principles established by the
		Constitution and laws of the United States, and the Constitutions of the
		different States; the local alterations which the States have thought proper to
		make for their own purposes are no part of it, still it is pervaded by the
		general spirit of the revolution, as it was in England after the accession of
		William and Mary, which is easy to perceive by comparing the judicial decisions
		of those times with those that took place in the reigns of the Stuarts. Our
		Judges, in more liberal and enlightened times, are placed precisely in the same
		situation as the English Judges were at that period.</P> 
	 <P>I know that nothing is easier than to start curious questions and raise
		imaginary difficulties. But I will venture to say that none such will occur,
		more than usually takes place in the ordinary administration of the law. In
		civil cases, the common law is recurred to by general consent, and the Judges
		have not experienced more than common difficulties in the execution of their
		duty. In criminal matters, the laws of the United States have provided for the
		most important and frequent occurrences; and, after all. the sphere of action
		of this national common law, beyond the operation which it receives without
		opposition in daily practice is so narrow, and its application of so rare
		occurrence, that, as I have observed before, the present question is more one
		of curiosity than of practical use. The only real difficulties that it
		presented I hope I have satisfactorily removed.</P> 
	 <P>But why need I go into such a wide argument to prove what I consider a
		self-evident principle? We live in the midst of the common law, we inhale it at
		every breath, imbibe it at every pore; we meet it when we wake and when we lay
		down to sleep, when we travel and when we stay at home; it is interwoven with
		the very idiom that we speak, and we cannot learn another system of laws
		without learning at the same time another language. We cannot think of right or
		of wrong but through the medium of the ideas that we have derived from the
		common law.</P> 
	 <P>We need but open the Constitution of the United States and the laws
		which have been made in pursuance of it, and we shall find the common law
		almost in every line. I shall not here trouble you with numerous quotations,
		but I will ask you what is the privilege of <I>habeas corpus</I>, which, by the
		9th section of the 1st article of the Constitution, is not to be suspended but
		in pertain cases, if the common law is not there to explain its meaning? What
		corruption of blood is that which is mentioned in the third section of the
		third article? What are the suits at <I>common law</I> mentioned in the 9th
		amendment, and what common law is that which is there referred to? What is
		meant by this expression in the 13th section of the Judiciary Act of the 24th
		September, 1789, that the Supreme Court may issue <I>writs of mandamus</I>, in
		cases warranted by the principles and usages of <I>law</I>, and in the 10th
		section of the same act, when it saves to suitors a <I>common law</I> remedy in
		certain admiralty cases where the <I>common law</I> is competent to give it?
		What law, indeed, but that which is so elegantly defined by Mr. C. J. Marshall,
		in his opinion above referred to. "I understand," says he, "by the law
		mentioned in the statutes of the United States, those general principles and
		those general usages which are to he found not in the legislative acts of any
		particular State, but in that generally recognised and long established law,
		which forms the. substratum of the laws of every State."* To this high
		authority may be added that of Judge Story, who, in the case of the <I>United
		States v. Coolidge</I>,&#134; declared, that "the Constitution and laws of the
		United States are predicated upon the existence of the common law." That there
		is a general common law in the United State for all national purposes and for
		all cases in which the local law is not the exclusive rule, and that that law
		is the common law of England, was the decided opinion of the late Chief Justice
		Ellsworth, and it is the more remarkable, as he was a citizen of the State of
		Connecticut, where the common law is only considered in force as far as it has
		been adopted by their own judicial decisions. He delivered this opinion in the
		case of the <I>United States</I> v. <I>Isaac Williams</I>, which was an
		indictment for accepting a French commission to cruize, and capturing a British
		vessel in violation of our neutrality, the defendant pleaded that he was at the
		time a French citizen by naturalisation, but the Court over-ruled the plea, and
		C. J. Ellsworth declared "that the common law of this country was the same as
		it was before the revolution, that the defendant could not dissolve the compact
		which bound him to the United States, without the consent of the community."
		Therefore he was convicted and sentenced to fine and imprisonment.** This was
		in respect of its application a most unfortunate decision, and may be compared
		in its effects to the sedition law. It wounded the feelings and opinions of the
		American people, by denying the right of <I>expatriation</I> and setting up the
		claim of <I>perpetual allegiance</I>. Thus a sound doctrine by being mixed with
		a doubtful, and at any rate an unpopular principle, made the nation afraid of
		the common law, which they thought turned their country into a prison, and
		prevented them from migrating whithersoever they pleased. It was not necessary
		to go so far to convict Williams of having violated the neutrality of the
		United States by means of a fraudulent naturalisation in a belligerent country.
		</P> 
	 <P><FONT SIZE="-1">(* 2 Burr's Trial, 482.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 1 Gallis. 488</FONT></P> 
	 <P><FONT SIZE="-1">** Sergeant's Const. Law, p. 263.)</FONT></P> 
	 <P>The general doctrine, however, laid down by C, J. Ellsworth, that the
		common law is the general law of the land, has always appeared to me to be
		correct. I have never been able to understand the distinction which has been
		made between civil and criminal cases, nor why, when we constantly apply its
		principles in criminal as well as in civil trials, we should hesitate to admit
		its definitions of offences and distribution of punishments; for, after all it
		is in these two points alone that seems to consist the whole difficulty.* After
		much reflection on the the subject, it appears to me that these doubts have
		their origin in the fear, lest it should lead the federal Courts to claim and
		exercise too extensive a jurisdiction in criminal cases, which I think I have
		sufficiently shewn cannot be the case, and perhaps also in some vague fears
		that are entertained of certain harsh punishments which our modern manners
		reprove, but which still stain the page of the common law; as for instance the
		punishment of petty treason in men by drawing and quartering, and in women by
		burning. But the 10th amendment of our Constitution has sufficiently provided
		that no cruel and unusual punishment shall be inflicted," which word "unusual"
		evidently refers to the United States, and the time when the Constitution was
		made, and therefore is not to be confounded with the same clause in the English
		bill of rights, which referring to another period and to another country, may
		have been differently construed. The <I>peine forte and dure</I>, and burning
		in the hand in cases of manslaughter are abolished, and milder substitutes
		provided by our national statutes; corruption of blood, trial by battle, all
		other modes of trial, but trial by jury in criminal cases are also abolished;
		in short the common law as modified by our Constitution, by our laws, manners
		and usages, is as wholesome and as harmless a system, in criminal as well as in
		civil cases, as any that can be devised.</P> 
	 <P><FONT SIZE="-1">(* Various circumstances have concurred after the
		revolution to create doubts in the public mind respecting the operation of the
		common law in this country as a national system, particularly in criminal
		cases. The bitter feeling of animosity against England which the revolutionary
		war produced was not amongst the least of these causes. The States might
		recognise their own common law, but to have been subject in any case to the law
		of the <I>enemy</I>, seemed in some manner like a dereliction of the principle
		of independence, while it was no more so than the recognition of the binding
		force of the civil law was in the European States, a token of submission to the
		sovereignty of the Roman Emperors, whose succession was still continued in
		Germany. In the year 1781, Congress fell under aw embarrassment which I can
		only ascribe to this popular feeling, and it is curious to observe how they
		extricated themselves. By the articles of confederation they had the power
		given to them of "appointing Courts for the trial of piracies and felonies
		committed on the high seas," (<I>Art. of Confed</I>. art. 9.) No power of
		legislation was annexed to this, while in the case of captures <I>jure
		belli</I>, they were empowered, not only to establish a Court of Appeals to
		decide those causes in the last resort, but to establish rules for deciding
		what captures should be legal, and how the proceeds should be distributed,
		which leads me to infer that in the case of piracies and other felonies, it was
		meant to withhold from them the power of legislation. It seems, therefore, that
		all they had to do was to appoint the Courts for the trial of those crimes, and
		to leave their Judges to proceed according to the law of admiralty. But they
		thought it necessary to proceed further, by which it appears to me that they
		exceeded their authority. They defined the offences, by assimilating them on
		the principle of the statute of Henry VIII., to the same crimes committed at
		land, and prescribed a common law mode of trial, much in the words of the same
		statute. They also affixed the punishment, but here it is easy to perceive that
		they were under the guidance of no solid principle, and the course they pursued
		was such as, surely, would not be imitated at this day; they resolved that the
		punishment should be the same as if the offence had been committed at land, and
		that the criminal "should be utterly excluded the benefit of clergy, where the
		same was taken away or not admitted for such like offence, committed within the
		body of a county or at land, <I>where the trial should be had</I>." Resol. 5.
		April, 1781 &#151; 7. <I>Jour. of Cong</I> 65. Thus a pirate taken by a vessel
		of the United States, might it brought into New Hampshire, for instance, he
		hanged, and it in Georgia, only be burned in the hand. In a former part of this
		discourse I have explained at large the principles which I conceive alone to
		afford the grounds of a sound and consistent legislation upon this
		subject.</FONT></P> 
	 <P><FONT SIZE="-1">It would be curious to know how the colonial Judges of
		the Courts of Admiralty construed the statute of Henry VIII., which defines
		piracy to be that which, if committed at land, would be felony. Did they lake
		in such cases the law of the mother country, or the local law, as their guide?
		As there was no great, if any, difference at that time between the one and the
		other, it is most probable that they never thought at all upon the
		subject.)</FONT></P> 
	 <P>As to offences not capital, cruel and unusual punishments being
		forbidden by our Constitution, there remains none but fine, imprisonment and,
		perhaps, whipping and the pillory. I hope I shall hear nothing of the ducking
		stool and other obsolete remains of the customs of barbarous ages. The pillory
		and whipping, I know, are out of use in most of the States, imprisonment at
		hard labour having been substituted in lieu of them. Yet Congress have thought
		proper to retain the latter punishment in their penal code, and we have seen it
		inflicted not long since in our city on an offender against the laws of the
		United States. It is in the power of the national Legislature to alter or amend
		the law in this respect, as they shall think proper; but until they do so, I
		see nothing inhuman in the moderate infliction of either of these penalties,
		nor any reason why we should reject the common law on their account.</P> 
	 <P>It may be said, perhaps, that there is too much left to the discretion
		of the Judges as to the quantum, and even the nature of the punishment and
		sometimes also as to deciding what is or what is not an indictable act. As to
		the quantum of punishment, I know no system of laws in which some discretion at
		least is not left to the Court according to the greater or lesser magnitude of
		the offence. It is impossible to avoid this inconvenience by any legislation.
		The same thing may be said of the authority to choose between two or three mild
		punishments; there may be cases in which imprisonment would be death to the
		party, and when a fine may be inflicted upon him with greater effect; others
		when the reverse may be the case. With respect to the power of deciding in some
		doubtful cases, whether a certain act be indictable or not, if it is an evil,
		it is one to which our citizens are all subject within their respective States,
		and I do not see why any should be exempted from it, merely because they are
		not amenaable to a State jurisdiction. If it were so, it would follow, that the
		federal Constitution has loosened in a strange manner the bands of society
		which existed at the time of its adoption, and that it proclaimed impunity to
		every crime which the State authorities could not reach, until by the gradual
		and slow process of legislation, Congress should provide for every case that
		might in future arise. Such is the inevitable consequence of the principle that
		the United States have no national common law, while the doctrine that I
		contend for is entirely harmless, particularly when it is considered that the
		common law does not give jurisdiction to the federal Courts, but is merely
		directory of its exercise. So that it appears to me that the opponents of this
		principle, by not viewing the subject in all its bearings, have in fact been
		afraid of dangers which are not to be apprehended.</P> 
	 <P>Thus a phantom has been raised which needs only to be looked fully in
		the face to vanish into empty air. The more this question is investigated on
		its true principles, the more I am satisfied that the inquiry will result in
		the conclusions that I have formed and which I commit to your future research.
		Before I conclude, however, this part of my discourse, I must take notice of an
		argument which is not without plausibility, and which may possibly be urged
		against the doctrine which, in a former part of this discourse, I have been
		endeavouring to establish. By the second section of the third article of the
		Constitution it is provided, "that the judicial power shall extend to all cases
		in law and equity arising (<I>inter alia</I>) under the laws of the United
		States." Now it may be said, that if the common law is a law of the United
		States, it necessarily follows that the federal Courts are bound to take
		cognisance of all offences committed against it, whether or not Congress has
		made provision by statute for their trial and punishment.</P> 
	 <P>To this objection, which I acknowledge is not entirely devoid of force,
		I venture to answer: That the section of the Constitution from which this
		provision is taken, is altogether restrictive, and was intended to confine the
		powers of the federal judiciary within certain fixed bounds, and therefore its
		language is to be taken in its natural restrictive sense, and not as extending
		authority beyond the bounds prescribed by the instrument. It appears to me also
		that by the words "the laws of the United States," the framers of the
		Constitution only meant the statutes which should be enacted by the national
		Legislature; otherwise, if they had intended to include the common law, they
		would have expressed themselves otherwise, and no doubt have also specifically
		described those powers under the common law which they meant to confide to the
		judiciary, for the general expression <I>all cases arising under the common
		law</I> would have given them such a wide and undefined extent of jurisdiction
		as cannot be supposed to have been in contemplation. By the words <I>in law or
		equity</I>, however, they have clearly shewn that they did not mean to exclude
		the common law as a means of exercising such jurisdiction as Congress might
		think proper to commit to the Judges in pursuance of the Constitution; for the
		law which is there spoken of can be no other than the common law. It has been
		supposed that the word <I>law</I> was employed here in contradistinction to
		<I>equity</I>, and therefore was meant to be applicable only to civil cases.
		But if it were so, how could the judiciary take cognisance of offences created
		by national statutes, if the very clause which gives them jurisdiction in cases
		arising under the laws of the United States, restricts them by the technical
		construction of one of the terms which it employs to cases merely civil, even
		though arising under those statutes? According to this construction the clause
		would read thus: "All <I>civil</I> cases arising under the Constitution and
		laws of the United States." But when the Constitution gave to Congress the
		power to define and punish treason, piracy, and a variety of other crimes, and
		to make laws, such as a bankrupt law, embracing criminal as well as civil
		matters, it cannot he well conceived that it should have meant to confine the
		judiciary to the execution of such parts of those laws only as were of a civil
		nature, to matters of law in strict contradistinction to matters of equity.</P>
	 
	 <P>It appears to me clear, therefore, that while the Constitution did not
		mean to vest in the judiciary an unlimited power to take cognisance of offences
		at common law, it still recognised the common law as their guide in all cases,
		whether civil or criminal, in which they had jurisdiction given to them over
		the person or subject matter, either by its own provisions, or by the laws
		which should be enacted by Congress in pursuance to the authority vested in
		them. Thus, if Congress should make a law authorising the District or Circuit
		Courts to take cognisance of all prosecutions for bribery or attempts to bribe
		an officer of the United States, without defining the offence or affixing its
		punishment, the Judges in such cases should be bound to administer the common
		or any other law that applied to the subject.</P> 
	 <P>It must not be forgotten, however, that the restrictions which are thus
		imposed by the Constitution on the federal judiciary, were only intended to
		guard against encroachments on the sovereignty of the individual States, and
		therefore are solely applicable to cases in which that sovereignty may be
		affected: otherwise, it appears clear to me that the limitations of the
		judiciary power must proceed from other sources.</P> 
	 <P>On the whole, therefore, I think I may venture to assert &#151;</P> 
	 <BLOCKQUOTE> 
		<P>1. That the common law is the law of the United States in their
		  national capacity, and is recognised as such in many instances by the
		  Constitution of the United States and the statutes made in pursuance of it.</P>
		
		<P>2. That when the federal Courts are sitting in or for the States, they
		  can, it is true, derive no jurisdiction from the common law, because the people
		  of the United States, in framing their Constitution, have thought proper to
		  restrict them within certain limits; but that whenever by the Constitution or
		  the laws made in pursuance of it, jurisdiction is given to them either over the
		  person or subject matter, they are bound to take the common law as their rule
		  of decision whenever other laws, national or local, are not applicable.</P> 
		<P>3. But that the limitations of the judiciary power which are the
		  safeguards of the sovereignty of the States, do not apply to the judiciary when
		  sitting in or for the Districts or Territories which acknowledge no sovereignty
		  but that of the nation, and that there the common law has its full force, and
		  is to be the rule in all cases in which the laws of the United States or the
		  local laws do not apply.</P> </BLOCKQUOTE> 
	 <P>I am well aware that this doctrine of the nationality of the common law
		will meet with many opponents. There is a spirit of hostility abroad against
		this system which cannot escape the eye of the most superficial observer. It
		began in Virginia in the year 1799 or 1800, in consequence of an opposition to
		the alien and sedition acts; a committee of the legislative body made a report
		against those laws which was accepted by the house, in which it was broadly
		laid down that the common law is not the law of the United States. Not long
		afterwards, the flame caught in Pennsylvania, and it was for some time believed
		that the Legislature would abolish the common law altogether. Violent pamphlets
		were published to instigate them to that measure.* The whole, however, ended in
		a law for determining all suits by arbitration in the first instance, at the
		will of either party, and another prohibiting the reading and quoting in Courts
		of justice of British authorities of a date posterior to the revolution. Both
		these statutes, as you well know, are still in force.</P> 
	 <P><FONT SIZE="-1">(* This spirit was considerably checked by a well
		written pamphlet published at the time by Joseph Hopkinson, Esq. of this city,
		in which he demonstrated the absurdity of the project of abolishing the common
		law.)</FONT></P> 
	 <P>It was not long before this inimical disposition towards the common law
		made its way into the State of Ohio. In the year 1819, a learned and elaborate
		work was published in that State,&#134; in which it was endeavoured to prove
		not only that the common law was not the law of the United States, but that it
		had no authority in any of the States that had been formed out of the old north
		western territory. But few copies of his work have been printed; nevertheless
		as it is learnedly and elaborately written, it cannot but have had a
		considerable degree of influence.</P> 
	 <P><FONT SIZE="-1">(&#134; Historical sketches of the principles and maxims
		of American Jurisprudence, in contrast with the doctrines of the English Common
		Law on the subject of crimes and punishments. &#151; By John Milton Goodenow,
		428 pp. 8vo. Steubenville, 1819.)</FONT></P> 
	 <P>In other States, attacks upon the common law, more or less direct, have
		appeared from time to time.*</P> 
	 <P><FONT SIZE="-1">(* Among those some persons seem to consider the address
		lately delivered before the Historical Society of New York, by my excellent
		friend Mr. William Sampson, for my part, I rather believe that he meant to
		point the keen arrows of his wit against the superstition, not against the pure
		religion of the common law. Mr. Sampson is an <I>Iconoclastes</I> in
		jurisprudence; he has made pretty free with the Saxon and Norman idols, and may
		have displeased those who would wish to bring us back to ihe ancient worship of
		<I>Thor</I> and <I>Woden</I>. But every liberal common lawyer will applaud the
		sentiments which he expresses in the following eloquent passage, which I beg
		leave to quote at large from his address:</FONT></P> 
	 <P><FONT SIZE="-1">"Our law is justly dear to us, and why .' because it is
		the law of a free people, and has freedom lor its end, and under it we live
		both free and happy. When we go forth, it walks silent and unobtrusive by our
		side, covering us with its invisible shield from violence and wrong. Beneath
		our own roof, or by our own fireside, it makes our home our castle. All ages,
		sexes, and conditions, share its protecting influence. It shadows with its wing
		the infant's cradle, and with its arm upholds the tottering steps of age. Do
		the smiles of the babe give gladness to the mother's heart, her joy is perfect
		in the consciousness that no tyrants power dare to snatch it from her arms;
		that when she consigns it to repose, its innocent slumbers are guarded by a
		nation's strength, and that it sleeps more free from danger than kings amidst
		their armed myrmidons. And when life's close draws near, we feel the cheering
		certitude, that those we love and leave shall possess the goods that we
		possessed, and enjoy the same security in which we lived and died. But that we
		are indebted for this, to Saxon, Scandinavian, Gaul, Greek, or Trojan, is what
		unsophisticated reason will not endure. We owe it to the growth of knowledge,
		and to the struggles of virtuous patriots, many of whom have bled and died for
		it: we owe it to fortunate occasion and favouring providence." <I>Sampson's
		Disc</I>. p. 60.)</FONT></P> 
	 <P>Its faults (for it is not free from them) are laid hold of and exhibited
		in the most glaring light; its ancient abuses, its uncertainty the immense
		number of volumes in which its doctrines are to be sought for, its various and
		daily increasing modifications in the different States, the contradictory
		decisions which occur among so many independent tribunals, and above all the
		supposed danger to our institutions from its being still the law of a
		monarchical country, the opinions of whose Judges long habit has taught us to
		respect, which opinions are received from year to year, and admitted in our
		Courts of justice if not as rules, at least, as guides for their decisions;
		these are the topics which are in general selected for the animadversions of
		those who hold the contrary opinion to mine, and there is enough of
		plausibility in them to make us presume that they are not without effect on the
		public mind.</P> 
	 <P>That there are real and serious inconveniences in our actual system of
		jurisprudence, is what no candid man will deny; but none of them is, nor are
		all of them sufficient to induce the abolition of the common law. Were it
		abolished, a still greater difficulty must arise, to fill up the immense chasm
		which would be produced by its absence. Not all the codes of all the Benthams
		would be capable of producing that effect.</P> 
	 <P>The task of legislation is not so easy a one as some people seem to
		imagine. The immortal Bacon was of opinion that neither lawyers nor
		philosophers were fit for it; the former because their notions were too narrow,
		the latter because theirs were too enlarged. He thought that this business
		could only be safely confided to statesmen, as being best acquainted with
		mankind.* For my part, I am inclined to think that a good legislator ought to
		possess the combined knowledge and talents of the lawyer, the philosopher, and
		the statesman. I need not say how few there are of those in any age or in any
		country. But admitting that this country possesses superior legislative talents
		to any other, I assert, without the fear of contradiction, that it is
		impossible to abolish the common law. Make as many codes as you will, this
		second nature will still force itself upon you:</P> 
	 <BLOCKQUOTE> 
		<P> &#151;&#151; &#151; "Expellas furc&acirc; tamen usque recurret."</P>
		</BLOCKQUOTE> 
	 <P>In proof of this, I shall adduce a very recent and very striking
		instance. The emperor Napoleon gave to the French a new and uniform code of
		laws, which has been now in force about twenty years. It is admitted to be as
		complete as a work of this kind can be, and well suited to the nation for whom
		it was made. But I can assure you, that, as far as I have been able to observe,
		the digests and code of Justinian, the former laws and ordinances of the
		kingdom, and the immense collection of the works of the civilians and French
		jurists are not less quoted at present in the lawyers' pleadings than they
		formerly were, and so it would be with us if we were to abolish the common law.
		We should still recur to it for principles and illustrations, and it would rise
		triumphant above its own ruins, deriding and defying its impotent enemies.</P> 
	 <P><FONT SIZE="-1">(* Qui de legibus scripserunt omnes, vel tanquam
		philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque
		philosophi proponunt multa, dictu puichra, sed ab usu remota. Jurisconsulti
		autem, su&aelig; quisque patri&aelig; legum, vel etiam Romanarum, aut
		Pontificarum, placius obnoxii et addicti, judicio sincero non utuntur, sed
		tanquam &egrave; vinculis serniocinantur. Cert&egrave; cognitio ista ad
		<I>viros civiles</I> propri&egrave; spectat; qui optim&egrave; norunt, quid
		ferat societas humana, quid salus populi, quid &aelig;quitas naturalis, quid
		gentium mores, quid rerumpublicarum form&aelig; divers&aelig;; ide&ograve;que
		possint de legibus, ex principiis et pr&aelig;ceptis, tam &aelig;quitatis
		naturalis, quam politices, decernere. <I>De augm. Scient</I>. I. 8 c.
		3.)</FONT></P> 
	 <P>The common law may be viewed under different aspects. Hence the variety
		of opinions that have been and are still maintained respecting it. There is an
		ancient and a modern, an English and an American common law, making in some
		respects a whole system, in some others distinct codes. Viewed altogether, it
		presents a rude and mis-shapen mass, <I>rudis indigestaque moles</I>. Like
		certain works of art, its separate parts must be dwelt upon for some time
		before its beauties or its defects can be justly appreciated. It is not to be
		wondered at, therefore, if it has warm enthusiasts and violent enemies. It
		would require a consummate artist to delineate it as it ought to be; as I do
		not possess the requisite talent, I shall content myself with a plain statement
		of my ideas upon the subject.</P> 
	 <P>I admire and I venerate the common law; not, indeed, the common law of
		the Saxons,* Danes, and Normans, nor yet that which prevailed in England during
		the reigns of the Plantagenets, the Tudors, and the first Stuarts, but that
		which took its rise at the time of the great English revolution in the middle
		of the 17th century, to which the second revolution in 1688 gave shape and
		figure, which was greatly improved in England in the reigns of William, Anne,
		and the two first Georges, but which, during that last period and since, has
		received its greatest improvement and perfection in this country, where it
		shines with greater lustre than has ever illumined the island of Great Britain.
		In former times, its present defects excepted, it bore no resemblance to what
		it is now. </P> 
	 <P><FONT SIZE="-1">(* I shall cite only two of the laws of Alfred, the
		greatest of the Saxon kings, to shew how far they are deserving of the eulogies
		that have been lavished upon his times, and what liberty and equality there was
		in England under his reign.</FONT></P> 
	 <P><FONT SIZE="-1">"If a man have connection with the wife of one worth
		1200<I>s</I> he shall pay 120<I>s</I>.; if with the wile of one worth
		600<I>s</I>. he shall pay 100s; and if with the wife of a yeoman, 40<I>s</I>.
		for the redemption of his head. This fine shall be levied on the chattels of
		the delinquent, and he shall not be sold for it." &#151; LL &AElig;lf. c.
		10.</FONT></P> 
	 <P><FONT SIZE="-1">"If any one shall strike his man or his maid servant,
		and he or she do not die the same day, but live two or three days, he shall not
		be equally guilty, <I>because his slave is his money;</I> but if he or she die
		the same day, then the guilt shall rest upon him." &#151; LL. &AElig;lf. c.
		17.)</FONT></P> 
	 <P>If the common law had remained in England as it was in the reigns of
		Elizabeth and James, it would not have deserved the high encomiums that have
		been justly bestowed upon it, nor would it have been worth being claimed by
		Americans as their birth right. England, it is true, had a kind of
		representative government, but so had almost every other country in Europe. As
		England had her parliament, other nations had their States, their Cortes, and
		their Diets, but all weighed down by the supreme authority of the sovereign, by
		virtue of the dispensing power, borrowed from the example of the emperors and
		popes, and strengthened by the famous maxim of the imperial law, <I>Quod
		principi placuit, legis habet vigorem</I>. The celebrated writ of <I>habeas
		corpus</I> was a part of the English code, but the civil law had also its
		title, <I>De liberis exhibendis</I>,* and neither of them was adequate to the
		protection of the subject against the attempts of arbitrary power. Even trial
		by jury was no safeguard to the innocent, when powerful men thirsted for his
		life; the history of those ages offers no example of those independent juries
		who distinguished themselves in later times by the noble stand which they made
		against tyranny and oppression. All the firmness and eloquence of William Penn
		would have availed him but little in former reigns, and. indeed, when we
		consider the power which the Courts had and exercised even at this time, we
		cannot withhold our astonishment from the result of this prosecution. The trial
		of William Penn is one of the brightest examples of successful virtue and
		courage which History affords.</P> 
	 <P><FONT SIZE="-1">(* <I>ff. lib</I>. 43. <I>tit</I>. 30. De liberis
		exhibendis, item ducendis.)</FONT></P> 
	 <P>The civil jurisprudence was a complex system in which the Judges lost
		themselves in refinements and distinctions without end. The method of reasoning
		by induction, which Bacon recommended and exemplified, and which the celebrated
		Stewart and the philosophers of the Scotch school have so elegantly elucidated,
		was then unknown, or not understood; the logic of the schools prevailed, and
		every thing was discussed by syllogisms in <I>Barbara</I> and
		<I>Baralipton</I>. A highly complicated system of <I>litis contestatio</I>, or,
		as we call it, <I>pleading</I>,* overdriven to excess, excluded plain reason
		and common sense from the bar and from the bench, and a great majority of the
		cases brought before Courts of justice were decided upon some nice point of
		form. This artificial logic produced the same effects in England, which the
		Aristotelian Dialectics had produced in Greece and at Rome; sophistry became in
		vogue, and Seneca, if he had lived in those times, might have applied to the
		English lawyers and Judges what he says of the Roman sophists in his
		eighty-second letter to Lucilius. The plain roles of right and wrong were lost
		sight of in the midst of a sea of metaphysical subtleties. The greatest talents
		were misapplied in endeavouring to find reason beyond the bounds of common
		sense. As theology had had her Thomas Aquinas, so jurisprudence had her Coke;
		both men of great mental powers, superior to most of their contemporaries. but
		not to their age. One man alone arose, whom no country and no age ever
		surpassed, who held up the torch of truth to a generation whose eyes were too
		weak to bear its resplendence. This was the great B<FONT SIZE="-1">ACON</FONT>:
		</P> 
	 <BLOCKQUOTE> 
		<P>Qui genus humanum ingenio superavit &amp; omneis Pr&aelig;stinxit;
		  stellas exortus uti &aelig;thereus Sol.**</P> </BLOCKQUOTE> 
	 <P><FONT SIZE="-1">(* The great Lord Mansfield has said, that "the
		<I>substantial</I> rules of pleading are founded in strong sense, and in the
		soundest and closest logic." This is undoubtedly true; but Lord Mansfield does
		not tell us what are those <I>substantial</I> rules, while at the same time he
		confesses that even those "by being <I>misunderstood</I> and misapplied, are
		<I>often</I> made use of as instruments of chicane." <I>Robinson</I> v.
		<I>Raley</I>, 1 Burr. 319.</FONT></P> 
	 <P><FONT SIZE="-1">In the same manner the <I>substantial</I> rules of the
		Aristotelian system of Dialectics are founded in strong sense, and in the
		soundest and closest logic. There is nothing better than syllogistic forms to
		bring a controversy to a point or to prove the fallacy of an argument. Yet we
		all know how these forms have been abused. In fact they are, as well as the
		English system of pleading, nice and delicate instruments, excellent in the
		hands of those who know how to use, and are not disposed to abuse them; but too
		dangerous to be entrusted to every one, when great inconveniences may arise
		from their unskilful or designed perversion.</FONT></P> 
	 <P><FONT SIZE="-1">While writing this note, I find in a late English
		newspaper an extract of a speech of the Lord Chancellor of England in the House
		of Peers, on the 6th of March last, which is so appropriate to my purpose, that
		I cannot help inserting it here: "He took the opportunity," he said "of
		observing upon the intricacy of legal pleadings. In former limes, these
		pleadings were extremely simple, but by modern practice, they had been rendered
		most complicated. It had been thought advisable to assimilate the pleadings of
		Scotland, the length and intricacy of which had been much complained of, to
		those of England; but it appeared to him that the pleadings of this country
		were now nearly as intricate as those of Scotland, and therefore little would
		be gained by this assimilation." The editor who reports this extract adds these
		emphatical words: "We rejoice most unfeignedly that the CHANCELLOR has enlisted
		himself on the side of COMMON SENSE. &#151; <I>Lond. Morn. Chron</I>. March 8,
		1824.)</FONT></P> 
	 <P><FONT SIZE="-1">(** Lucret.)</FONT></P> 
	 <P>I invite you, my dear fellow students, to read with the utmost attention
		and to compare with the writings of the other jurists of those times, his
		admirable treatise "<I>De justiti&acirc; universali, seu de fontibus
		juris</I>." It is at the end of the third chapter of the eighth book of his
		celebrated work "<I>De dignitate &amp; augmentis scientiarum</I>." It is
		divided into ninety-seven aphorisms, every one of which ought to be studied and
		meditated on by every lawyer and statesman, and by every student who aspires to
		become either.</P> 
	 <P>If we wish to have an idea of what the civil jurisprudence of England
		was towards the end of the wars of the two Roses (and if we except the bankrupt
		system, the acts of Elizabeth against fraudulent conveyances, and perhaps, a
		few more statutes, it was not much improved from that time to the period of the
		revolution) we have only to turn to the book of Chancellor Fortescue <I>De
		laudibus legum Angli&aelig;</I>, a work professedly written to prove the
		superiority of the law of England over all others, and particularly the civil
		law. Setting aside what he says of the representative form of government and of
		trial by jury, he adduces no instance of that superiority, but the illegitimacy
		of ante-nuptial children, the maxim, <I>quod partus non sequitur ventrem</I>,
		and the doctrine of feudal wardships, none of which would be considered at this
		day as giving an advantage to one system of law over another. Yet Chancellor
		Fortescue was a very learned man, and appears to have been equally skilled in
		the civil and in the common law.</P> 
	 <P>The true &aelig;ra of the common law is the period which followed the
		great revolution of 1648, to the time of our own emancipation. It was then that
		it assumed that bold and majestic shape, those commanding features which have
		made it the pride of the nations who possess it, and the envy of those that do
		not. During that period the rights of man have been acknowledged and defined,
		and limits have been set to the sovereign authority. The prerogatives of the
		crown (I am speaking here of England) have been ascertained and restricted
		within proper bounds, the legislative, executive and judicial authorities have
		taken their respective stations and known the extent of their several powers;
		Judges have been rendered independent, and juries have been freed from ignoble
		shackles. The writ of <I>habeas corpus</I> has been made effectual, a fair and
		unexceptionable mode of trial has been provided for cases of high treason. The
		press has been freed from the unhallowed touch of State licensers, religious
		toleration has been established. The hand of arbitrary power has been
		paralysed, and man has been taught to walk erect and to feel the dignity of his
		nature. Civil jurisprudence has also been considerably improved, and is in a
		progressive state of further amendment.</P> 
	 <P>These are the great features of the English Common law, by which that
		country has been raised above the other nations of Europe. I am now to shew the
		improvements which have taken place in the United States.</P> 
	 <P>I shall not speak here of the difference which exists between the forms
		of government of the two countries; such comparisons are invidious and entirely
		useless to my purpose. I do not want to raise our nation at the expense of
		another which in all probability, had she been placed in our situation, would
		have acted precisely as we have done, and it may well be doubted whether in her
		circumstances we should have done better than she has. Besides, it is the law
		alone, not the national organisation that I have in view: I need not say that
		America has adopted all the improvements of the mother country, I shall only
		shew what ameliorations she has herself made in the system. Not only religious
		<I>toleration</I>, but religious <I>equality</I> has been established. Treason
		has been constitutionally defined, and by the same instrument, as well as by
		the Constitutions and laws of the several States, a right has been secured to
		every accused party to defend himself by counsel in all criminal cases, without
		discrimination of fact or law. The benefit of the writ of <I>habeas corpus</I>
		has not only been secured in the same manner as in England, but its remedy has
		been extended by the power which the Judges have and exercise of investigating
		the real merits of each case without confining themselves to the face of the
		return. The liberty of the press has been made to rest on a constitutional
		sanction, and not on the mere absence of prohibitory laws. Mild punishments
		hate taken the place of the former sanguinary code, and the interior economy of
		prisons, and penitentiaries has been suited to the humanity of the age.
		Imprisonment for debt has been taken away in several of the States in favour of
		the weaker sex, there is even a general disposition to abolish it altogether:
		but if it should be abolished, it is to be hoped that a greater hold will be
		given to the creditor on the property of his debtor than he has by the existing
		laws: that for instance, the doctrine of liens will be further extended, and
		outstanding debts made liable to attachment or execution, under suitable
		regulations. Nor will it be, perhaps politic to abolish it as to every
		description of persons; but I should have too much to say if I were to proceed
		further on that important, but delicate and complicated subject. I shall only
		observe that it is closely connected with a system of bankrupt law.</P> 
	 <P>Civil jurisprudence has also been greatly improved in the United States.
		Of the ancient feudal system nothing remains but a few empty names and forms,
		while in fact the citizens may almost be said to hold their property in pure
		<I>allodium</I>.* All the lands sold by the State of New York have been granted
		allodially in name as well as in substance, although from the force of mere
		habit, the words "fee simple" are still used in the conveyances, from one
		purchaser to another. Estates tail are every where (except in one State) either
		abolished, or a simple form has been provided for converting them into absolute
		estates.** The doctrine of survivorship in joint-tenancy is also done away. The
		law of primogeniture no longer subsists in any of the States. Conveyancing has
		been reduced to simple forms, and is no more an intricate science. Registries
		of deeds and mortgages have been established in every State.</P> 
	 <P><FONT SIZE="-1">(* The case of <I>Perrin</I> v. <I>Blake</I>, (4 Burr.
		2579, Butler's notes on Co. Lit. 329,) has been and I presume is still in
		England the source of endless discussions. It was decided one way by the Court
		of King's Bench, another by the Court of Exchequer Chamber, and the parties
		having compromised pending a writ of error to the House of Lords, it was not
		finally decider!. At the time when it was first discussed, says Mr. Fearne, the
		law on the subject was so far settled, that lawyers might, at least, form a
		<I>probable conjecture, if not opinion</I>, respecting questions of the same
		nature, (Fearne on Conting. Rem. 238); when it was argued in the King's Bench,
		says the reporter, "the cases cited were many and difficult to reconcile,
		<I>each side had a string of them."</I> (4 Burr. 2586.) The doctrine in
		Shelly's case, (4 Co. 104. b.) which Lord Mansfield's opponents strive to apply
		to this question, is admitted on all hands, to have been intended to secure to
		the feudal lord, his rights of wardship, marriage and relief, which have never
		been known in this country. How should such a case be decided on the principles
		of the <I>American</I> common law? A good dissertation on this question would
		be of great value to our profession, and throw considerable light on the
		fundamental principles of our <I>rational</I> system of jurisprudence.)</FONT>
		</P> 
	 <P><FONT SIZE="-1">(* The follow ing is extracted from the valuable work
		entitled "The Annual Law Register of the United States," published at
		Burlington, N. Jersey, by the Hon. William Griffith, formerly a Judge of the
		Circuit Court of the United States for the States of New Jersey, Pennsylvania,
		and Delaware. The volumes which have already appeared of this work are
		extremely interesting, as they bring together in one point of view the laws of
		the different States on the most important subjects. The use of this collection
		will appear from the following extract, made by a young gentleman of the law
		academy.)</FONT></P> 
	 <P><FONT SIZE="-1">Of estates tail in the several States of the
		Union.</FONT> </P> 
	 <P><FONT SIZE="-1">In <I>four</I> States never known to have been in
		existence, viz. Vermont, Illinois, Indiana, and Louisiana.</FONT></P> 
	 <P><FONT SIZE="-1">In <I>one</I>, viz. South Carolina, the statute <I>de
		donis</I> never was in force, but fees conditional at common law
		prevail.</FONT></P> 
	 <P><FONT SIZE="-1">In <I>twelve</I> they have been abolished or converted
		by statutes into fee simple absolute, viz. New York, Ohio, Virginia, North
		Carolina, Georgia Missouri, Tennessee, Kentucky, Connecticut, Alabama,
		Mississippi,and New Jersey, but in the last <I>four</I>, a kind of estate tail
		still exists, being for the life of one donee or a succession of donees <I>then
		living</I>.</FONT></P> 
	 <P><FONT SIZE="-1">In <I>six</I> they may be barred by deed, acknowledged
		before a Court or some magistrate, viz. Rhode Island, Maine, Pennsylvania,
		Massachusetts, Maryland, and Delaware, but in the last four may also be barred
		by fine and common recovery.</FONT></P> 
	 <P><FONT SIZE="-1">And in <I>one</I> only do they exist as. in England with
		all their peculiar incidents viz. New Hampshire.</FONT></P> 
	 <P>The forms of proceeding in Courts of justice have also been greatly
		simplified, and the number of its officers reduced to a prothonotary or clerk
		and a common cryer. The costs of a law suit are comparatively trifling, and the
		law is accessible, to the poor as well as to the rich; a loose practice, it is
		true, has succeeded in our Courts to the strict forms of pleading, but it
		appears to work well to all practical purposes. Even in England, pleading is at
		present but the shadow of what it once was; in most personal actions, the
		declarations declare nothing, as in ejectment, and in actions of general
		<I>indebitatus assumpsit</I>, and particularly that for money had and received
		to the plaintiff's use. Neither do the general pleas at present used disclose
		the real grounds of the defence. In this manner that overwrought system has
		re-acted upon itself. It must he admitted, however, that it has produced the
		forms of criminal indictments still in use, the excellence of which can only be
		duly appreciated by comparing them with the <I>acts of accusation</I> of other
		countries.*</P> 
	 <P><FONT SIZE="-1">(* I have before me the indictment or <I>acte
		d'accusation</I>, in the case of the murderers of Fualdes, on their second
		trial at Alby, in France, in the year 1818. It is of immense length, and this
		length is not produced by harmless tautology or the repetition of mere words of
		form, nor by stating the case in different ways, in order to make the
		allegations and proofs exactly agree; but it is a minute and circumstantial
		narrative, not only of the particulars which attended the perpetration of the
		criminal act, but of all the evidence with its successive variations, the
		conduct of the accused and of the witnesses on their examinations; and all the
		gossip which occurred in the course of the preparatory proceedings. All this is
		narrated in an inflated, rhetorical style, well larded with epithets, and
		stuffed with declamation, and every thing in the instrument appears designed
		for theatrical effect, and calculated to make a strong impression upon the jury
		and the public against the accused. A few extracts wilt show what I
		mean.</FONT></P> 
	 <P><FONT SIZE="-1">After relating the circumstances of the murder with all
		their disgusting details, the Attorney General proceeds:</FONT></P> 
	 <P><FONT SIZE="-1">"After the <I>unhappy</I> Fualdes had lost his life in
		the <I>most barbarous</I> manner, his corpse was wrapped in a sheet and
		blanket, tied up, like a bale of goods, with cords of the thickness of a
		finger," &amp;c. &#151; The remainder of the details is in the same
		style.</FONT></P> 
	 <P><FONT SIZE="-1">The accused being all joined in the same indictment, the
		part which each took in the murder is separately noticed: the following is the
		charge against <I>Anne Benoit</I>, one of them.</FONT></P> 
	 <P><FONT SIZE="-1">"Anne Benoit co-habited with Baptiste Collard, in the
		house which was the <I>theatre</I> of the crime. On the 19th of March, about 8
		o'clock in the evening, she was found concealed in the street Hebdomadiers near
		the house of Mis-</FONT></P> 
	 <P><FONT SIZE="-1">sonnier, By her own avowal, the <I>fatal</I>
		handkerchief with which the <I>unhappy</I> Fualdes was gagged, belongs to her;
		she <I>blushed</I> when somebody told her that no doubt she had lent it to
		Baptiste Collard, her <I>pretended</I> husband, to strangle therewith the Sieur
		Fualdes."</FONT></P> 
	 <P><FONT SIZE="-1">Madame Manson, originally a witness in the cause, but in
		consequence of having wavered and varied in her depositions, now charged as an
		accomplice, in order, by working upon her fears, to extract from her more
		explicit testimony, is indicted in these words:</FONT></P> 
	 <P><FONT SIZE="-1">"A woman named Manson, born Enjelran, after having
		declared before the prelect of the Aveyron, that she had been an eye witness to
		the murder of Fualdes, that she was in Bancal's house at the moment when it was
		committed, that she had been exposed to the greatest dangers; after having made
		the same avowal to divers persons, appeared at the trial and denied the facts;
		she swore she never had been in Bancal's house, and her assertions being
		contradicted by her <I>countenance</I>, her <I>looks</I> and her
		<I>gestures</I>, the sight of [he accused produced in her <I>convulsions</I>,
		and real or simulated <I>faintings</I>, several times during the sitting, she
		fell, or <I>appeared</I> to fall into a <I>swoon</I>; the words 'dagger' &#151;
		'murder' &#151; <I>escaped from her lips,"</I> &amp;c. concluding that
		<I>because</I> she has thus varied in her testimony, she is now indicted as an
		accessary to the murder.</FONT></P> 
	 <P><FONT SIZE="-1">The whole is in the same style, calculated to overwhelm
		the accused, and to present them to the jury, not so much for trial as for
		conviction.</FONT></P> 
	 <P><FONT SIZE="-1">This form of indictment is not borrowed from the civil
		law; for the civilians maintain that such an instrument ought to contain only
		what is material and indispensably necessary to understand the true grounds of
		the accusation, which they express by the follow ing doggerel line:</FONT></P> 
	 <BLOCKQUOTE> 
		<P><FONT SIZE="-1">Quis, quid, ubi, quibus auxiliis, cur, quomodo,
		  quando.</FONT></P> </BLOCKQUOTE> 
	 <P><FONT SIZE="-1">This is in fact all that is necessary to be stated; but
		the French attornies general have preferred adopting the inquisitorial form now
		in use, which is, undoubtedly, better calculated for the display of eloquence
		than for the attainment of justice.</FONT></P> 
	 <P><FONT SIZE="-1">At the same lime I must acknowledge that there is in the
		present mode of administering criminal justice in France something well worthy
		of imitation, even in this country. In the discussions which take place,
		whether on a trial or law argument, the accused always has the <I>last
		word</I>. It is so likewise in Scotland.)</FONT></P> 
	 <P>Thus far we have improved on the common law, the honour of further
		improvements is still in reserve for us. While the common law is and ever will
		be the best system of political and criminal legislation that has ever been
		known, I cannot say I think it entitled to the same praise in what may properly
		be called the <I>jus civile</I>, I mean that part of the law which governs the
		construction of contracts between man and man, and establishes the rules of
		<I>meum</I> and <I>tuum</I>. In this part of the system too much remains of
		those subtle and nice distinctions originally introduced by the false logic of
		the schools, and preserved by the force of custom and respect for antiquity.
		The habit of reasoning on artificial principles still continues in England;
		hence their jurists too often generalise where they should distinguish, and
		distinguish where they should generalise. Thus they lay hold of some general
		principle, as for instance "that a factor has no right to pledge his
		principal's goods," and apply it indiscriminately to almost every case.* Thus
		the rule <I>caveat emptor</I>, borrowed from the civil law and applied there
		only, for obvious reasons, to sales of slaves, horses, and cattle,&#134; is
		applied in England to all species of dealings, to the great detriment of
		commerce.&#135; Thus a distinction is raised between obligations arising from
		contracts and those imposed on the party by the operation of law; what excuses
		from the performance in the one case, is held not to do so in the other; a rule
		which is not founded either on reason or justice.** It is said that Judges are
		not to make contracts for the parties, but to explain them. This is perfectly
		true, but it is not perceived that this literal construction leads to the very
		error which is wished to be avoided; for neither party could possibly foresee
		at the making of a contract all the accidents that might impede or prevent its
		performance, and the Judges who so decide virtually insert the words "at all
		events" which the instrument they are construing does not contain. Our own
		Judge M'Kean very properly, in my opinion, overruled this doctrine in the case
		of <I>Pollard</I> v <I>Shaffer</I>,&#134;&#134; and it seems it was also
		formerly denied to be law in the Court of Chancery in England.&#135;&#135;</P> 
	 <P><FONT SIZE="-1">(* <I>Pickering</I> v. <I>Bush</I>, 15 East, 44.
		<I>Martins</I> v. <I>Coles</I>, 1 M. &amp; Selw. 146.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; <I>ff</I> lib 21. De &AElig;dilitio Edicto, tit
		1. </FONT></P> 
	 <P><FONT SIZE="-1">&#135; <I>Chandler</I> v. <I>Lopus</I>, Cro. Jac. 4.
		<I>Bree</I> v. <I>Holbech</I>, Doug. 655. <I>Parkinson</I>. v. <I>Lea</I>, 2
		East, 314, and numerous other cases. This doctrine is approved of even in a
		Treatise on <I>Equity</I>, 1 Fonb. 380, <I>in note</I>. Mr. Wooddeson calls it
		<I>an unconscientious maxim. 2</I> Wood, lect. 415. In South Carolina, it is
		not considered to be law, even as respects the sale of slaves, <I>Timrod</I> V.
		<I>Shoolbred</I>, 1 Bay, 319; <I>Whitfield</I> v. <I>M'Leod</I>, 2 Bay, 380;
		<I>lister</I> v. <I>Exrs. of Graham</I>, 1 Rep. Const. Court, 182.)</FONT></P> 
	 <P><FONT SIZE="-1">(** So late as the year 1802, Lord Alvanley, Chief
		Justice of the English Court of Common Pleas, was pleased to say, that this
		doctrine, as laid down in the case of <I>Jane</I> v. <I>Paradyne</I>, Alleyn,
		26, is founded on <FONT SIZE="-1">MUCH GOOD SENSE</FONT>. <I>Touteng</I> v.
		<I>Hubbard</I>, 3 Bos. &amp; Pul. 300. I have often derived much pleasure and
		instruction from the opinions of this learned Judge and eminent jurist; I am
		therefore the more astonished at his having gone so far to vindicate a
		principle, which in his country may, indeed, be venerable from its antiquity,
		but cannot stand the test of close and logical investigation. This shews how
		difficult it is even for the greatest minds to divest themselves of ancient
		prejudices, particularly when seconded by the soft whisperings of national
		pride.</FONT></P> 
	 <P><FONT SIZE="-1">&#134;&#134; 1 Dall. 210.</FONT></P> 
	 <P><FONT SIZE="-1">&#135;&#135; 3 Bur. 1639.)</FONT></P> 
	 <P>These and other similar rules, however unjust, might perhaps be
		tolerated in a mere municipal code; but when we find them introduced into the
		commercial and maritime law, as for instance in the case of <I>Cook</I> v.
		<I>Jennings</I>,&sect; and other subsequent cases, in which the elegant
		doctrine of freight <I>pro rat&acirc; itineris</I>, laid down by Lord Mansfield
		in the case of <I>Luke et al</I> v. <I>Lyde</I>* is made to yield to the
		niceties of the Norman school, we lament that this beautiful system of general
		jurisprudence, which belongs not to one nation, but to all the world.&#134;
		should be disfigured by a forced adaptation to certain local theories. This is
		what I am sorry to say has happened in England. The law of freight, insurance,
		&amp;c. is. in many important and substantial points, different there from what
		it is in the rest of the world, and no impartial jurist will say that it has
		been improved by the anomalous doctrines that have been introduced into it.
		Some of them are contrary to every principle of sound jurisprudence. This is
		not the place to advert to them in detail; but I may instance the rule which
		makes the sentences of foreign Courts of admiralty conclusive in a suit on a
		policy of insurance.** This doctrine is evidently unjust in a belligerent
		nation that insures for neutrals and both unjust and impolitic in a neutral
		nation that insures for its own citizens. I might also animadvert upon the
		doctrine by which the owner of a ship is allowed the benefit of the clause in a
		policy of insurance against barratry of the master,&#134;&#134; thus enabling
		him to throw upon third persons the responsibility which the law imposes upon
		him for the acts of his servant; also that which impairs the obligation of a
		first contract of insurance, by compelling successive underwriters to
		contribute, when the property is overinsured;&#135; the narrow construction
		given to the words "perils of the sea"*** and a multitude of other anomalies
		differing from the general law received by all the commercial world besides,
		and which in theory, at least, is a part of the common
		law."&#134;&#134;&#134;</P> 
	 <P><FONT SIZE="-1">(&sect; 2 Terra Rep. 381.</FONT></P> 
	 <P><FONT SIZE="-1">* 2 Bur. 889.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; Thus in mercantile questions, such as bills of
		exchange and the like; in all marine causes relating to freight, average,
		demurrage, insurances, bottomry, and others of a similar nature, the law
		merchant which is a branch of the law of nations is regularly and constantly
		adhered to, so that in all disputes relating to prizes, to shipwrecks, to
		hostages, and ransom bills, there is no other rule of decision but the <I>great
		universal law</I>, collected from history and usage, and such writers of all
		nations and languages as are generally approved and allowed of. 4 <I>Black.
		Com</I>. 67.</FONT></P> 
	 <P><FONT SIZE="-1">The maritime law is not the law of a particular country,
		but the <I>general law of nations</I>; non erit lex alia Rom&aelig;, &amp;c.
		Lord M<FONT SIZE="-1">ANSFIELD</FONT>, in <I>Luke et al</I>. v. <I>Lyde</I>. 2
		<I>Bur</I>. 887.</FONT></P> 
	 <P><FONT SIZE="-1">C'est par le droit des gens que la navigation a toujours
		&eacute;t&eacute; r&eacute;gie. Elle est le lien de la soci&eacute;t&eacute;
		des peuples. Chez les nations commer&ccedil;antes, les loix maritimes sont
		&agrave; peu pr&egrave;s les m&ecirc;mes, attendo la reciprocite des
		inter&ecirc;ts. On doit done avoir recours aux Loix des autres peuples, soit
		pour mieux conno&icirc;tre l'Esprit des ordonnances du Royaume, soit pour
		d&eacute;cider les cas qu'elles n'ont pas pr&eacute;vu. 1 <I>Emerigon</I>,
		21</FONT></P> 
	 <P><FONT SIZE="-1">** <I>Bernardi</I> v. <I>Monteux</I>, Dougl. 554.
		<I>Lothian</I> v. <I>Henderson</I>, 3 Bos. &amp; Pul. 499.</FONT></P> 
	 <P><FONT SIZE="-1">&#134;&#134; <I>Havelock</I> v. <I>Hancill</I>, 3 Term.
		Rep. 277.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; <I>Marshall on Insurance</I>, 146. There is no
		maxim better established in English jurisprudence and, indeed, in that of all
		the world, than that Judges are not to make the law, but to expound it, and
		that they are by no means to substitute for it their own ideas of right or
		wrong. But here is a very strong example to the contrary. The law had been
		settled in England in the case of the <I>African Company</I> v. <I>Bull</I>, (1
		Shower, 1.32. Gilb. 238,) and the custom, says the reporter, had been proved
		plainly and fully <I>by all the exchange</I>, that the first underwriters in a
		case of over insurance, were to pay the loss to the extent of their policy, and
		the others successively, until the whole loss was satisfied. Yet, Lord
		Mansfield, yielding to a sudden notion of superior equity, in two successive
		cases: at Nisi Prius, <I>Rogers</I> v. <I>Davis</I>, and <I>Davis</I> v.
		<I>Gilbert</I>, (Beawes L. M. 242.) thought proper to set aside the established
		law, and to introduce the principle of contribution, because there was
		something <I>equalising</I> in it that struck his fancy. If he had taken the
		trouble to consult the foreign writers, with whose works at other times he
		appeared familiar, he would have found that the rule which he thus abolished,
		was not only the law of England, but that of all the commercial world, and if
		he had reflected upon the subject, which he was well able to do, he would have
		been satisfied that he was not at liberty to modify the contract between the
		insured and the first underwriters, it being a complete bargain and sale of
		eventual profit on the one side and of indemnity on the other. (<I>Roccus, de
		assec</I>. note 3.) His reputation, however, sanctioned the new principle, I am
		sorry to say, not only in England but in this country, and the consequence has
		been that our underwriters are compelled to insert in their policies, a special
		clause which makes the old doctrine the rule between them and the insured. I
		presume that the same thing takes place in England. Mr. Marshall remarks that
		the custom <I>proved by all the exchange</I> seems now to be forgotten. (Marsh.
		149.) They may, however, do in England as they please; but the question in this
		country is, are we bound by such decisions? I leave the answer to those who are
		competent to give it.</FONT></P> 
	 <P><FONT SIZE="-1">*** Marshall, 487.</FONT></P> 
	 <P><FONT SIZE="-1">&#134;&#134;&#134; Mr. Ingersoll, in his interesting
		Discourse on the influence of America on the mind, delivered before the
		American Philosophical Society, on the 18th of October last, has justly
		observed that "British commercial law is, in many respects, inferior to that of
		the continent of Europe." p. 35. When it is considered that Great Britain is
		beyond a doubt ihe first commercial nation in the world, this assertion may
		appear very bold, and yet it is perfectly correct. A great number of mistaken
		and erroneous decisions and opinions of the English tribunals in cases of
		commercial law may be pointed out in the books of Reports, going no farther
		back than Lord Holt's decision in <I>Clerke</I> v. <I>Martin</I> (2 Ld. Raym.
		757,) in which that great Judge, who in other respects is highly entitled to
		our veneration, thought he had discovered that promissory notes or notes to
		order, were not within the custom of merchants, but had been <I>invented by the
		brokers in Lombard street</I>; while it is well known that even the canon law
		recognised them as mercantile instruments and as a species of bills of
		exchange, so early as the year 1571. (See Pragmatic of Pope Pius V. <I>De
		Cambiis</I>;) and it is also known that at the time when Lord Holt declared
		these instruments to be a late English invention, the celebrated commercial
		ordinance of Lewis XIV. of the year 1673, had been thirty years before the
		world, in which promissory notes were recognised and classed with bills of
		exchange, and in fact they had been in use for more than one hundred years
		among merchants throughout Europe. And yet at this day it would, perhaps, be
		error in an English Court to declare on these notes as on the <I>custom of
		merchants</I>. Lord Mansfield is celebrated tor his improvements on English
		mercantile law; he was certainly a man of the most extraordinary genius; but he
		was not sufficiently acquainted with the subject either by study or by
		experience, and so committed a number of mistakes, and his successors have done
		the same, often by pretending to correct his decisions in cases in which his
		luminous mind had directed him right. It is important to Americans to know
		these truths: If I am allowed life and leisure, I may one day develop them in
		such a manner as will leave no doubt of the correctness of Mr. Ingersoll's
		assertion. All this has proceeded from endeavouring to apply to the liberal
		system of mercantile law, the quaint and subtle theories of the old common law
		jurists, and from disdaining to obtain knowledge from the works of foreign
		legislators and juridical writers.)</FONT></P> 
	 <P>Whatever may be the cause from which these defects arise, they disfigure
		a system which, without them, would be the most perfect, and even with them,
		is, taken all in all, the noblest in the universe. It is in our power to
		correct these faults, to shew to a great, learned, and intelligent nation their
		own common law improved by their sons, and thus to repay them for the benefit
		they have bestowed by imparting it to us.</P> 
	 <P>It is understood that Congress are seriously thinking of exercising the
		various and important legislative powers entrusted to them by the Constitution.
		A criminal code is said to be in contemplation. It is to be hoped, that under
		their general power to regulate commerce, they will enact an uniform maritime
		and commercial rode, and that in preparing it they will avail themselves of the
		wisdom of all the commercial nations. They will remember what was said by the
		great Lord Mansfield in the case of <I>Hamilton</I> v. <I>Mendez</I>, "that the
		daily negotiations of merchants ought not to depend on niceties and subtleties,
		but on rules and principles founded on the dictates of <I>common
		sense</I>."*</P> 
	 <P><FONT SIZE="-1">(* 2 Bur. 1214. Sixteen years afterwards, the same
		illustrious Judge, in the case of <I>Buller</I> v. <I>Harrison</I>, in an
		unguarded moment, ventured to assert, that it is of much more consequence that
		<I>mercantile</I> questions should be fully settled and ascertained, <I>than
		which way the decision is</I>." Cowp. 567. This last opinion has been but too
		much followed, while the first, seems to have been almost entirely forgotten,
		and yet, nothing is more certain than that of all the branches of
		jurisprudence, there is none more easily reducible to clear principles than
		<I>mercantile law</I>.)</FONT></P> 
	 <P>If American jurists wish to obtain the respect of those of Great
		Britain, it is not by servilely echoing their decisions and opinions; it is by
		shewing them that the science of jurisprudence is not exclusively theirs, by
		decently contradicting them when a proper occasion offers, and by correcting
		their errors when discovered, at the same time submitting to their just
		correction of our own.</P> 
	 <P>It must not be believed that the writings and opinions of our jurists
		are not noticed by the men of mind of our profession in that country. In the
		year 1803, the doctrine of conclusiveness of the sentences of foreign Courts of
		admiralty was to all appearance finally and solemnly settled, on long and
		elaborate arguments, in the. House of Lords, in the case of <I>Lothian</I> v.
		<I>Henderson</I>.* About that time this doctrine, fatal to our neutral
		interests, was much discussed in this country, and its discussions drew forth
		the talents of Judge Livingston, Judge Cooper, Mr. De Witt Clinton, the late
		Mr. Dallas, and several others. In the year 1808, notwithstanding the solemn
		determination that I have mentioned, we find this doctrine shaken almost to its
		foundation by two decisions of the Court of King's Bench in <I>Fisher</I> v.
		<I>Ogle</I> and <I>Donaldson</I> v. <I>Thompson</I>.&#134; In one of those
		cases, Lord Ellenborough observed, that "it was by an <I>overstrained
		comity</I> that foreign sentences had been received as evidence of the facts
		which they averred;" and in the other, that "<I>he should die</I> with Lord
		Thurlow <I>in the opinion</I></P> 
	 <P><I>that they should not have been so received</I>." This sudden change
		of sentiment in the English Supreme Bench can only be ascribed to the effect of
		the writings of American jurists. About the same period, but before these
		decisions were given, Sir Charles Abbott, now chief justice of that Court, was
		writing his able treatise on the law relative to merchant ships and seamen, in
		which this doctrine of the conclusiveness of foreign sentences came
		incidentally under his view. After stating, as usual, that it is founded on an
		"established rule of the law of nations," he concludes, nevertheless, with
		saying, that the Courts of justice in his country have adhered to it "<I>with
		the dignity belonging to regular and permanent establishments</I>."** It is
		impossible not to perceive that this apology and the sarcasm that accompanies
		it were not meant for his countrymen. If the doctrine in question was founded
		on an established rule of the law of nations, it wanted no apology of any kind,
		much less was it necessary to speak of the "<I>dignity of regular and permanent
		establishments</I>." This was evidently meant as a proud answer to the American
		jurists who had written on this question and had demonstrated the injustice
		which was done to neutral subjects who caused their property to be insured in
		Great Britain. Such indirect marks of respect, proceeding from such sources,
		however they may be disguised, are truly flattering to us in a national point
		of view, and ought, for some time at least, to be sufficient to satisfy our
		reasonable ambition, and encourage us to proceed in the investigation of
		science, by which we shall not only spread instruction among ourselves, but
		disseminate light beyond the bounds of our own country.</P> 
	 <P><FONT SIZE="-1">(* 8 Bos. &amp; Pull. 499.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 1 Campb. N. P. 413, 429.</FONT></P> 
	 <P><FONT SIZE="-1">** "It would be unjust to charge the master or owners
		for some cases of omission, upon which ships were condemned in France during
		the late war although the terms of the condemnation were such as to
		<I>discharge the insurers from their responsibility</I>, according to the rule
		of the <FONT SIZE="-1">LAW OF NATIONS</FONT>, which holds the sentence of a
		foreign Court to be conclusive of the <I>fact</I> on which it is founded, and
		to which rule the Courts of justice in this country adhered <I>with the dignity
		belonging to regular and permanent establishments." Abbott on Shipping</I>,
		263. See above, p. 15.)</FONT></P> 
	 <P>But to return to our subject &#151; </P> 
	 <P>General jurisprudence is a part of the common law, but its rules and
		principles are not exclusively to be found in common law writers. That science
		ought to be studied, particularly in this country, where a light is to be held
		to the judiciaries of twenty-four different States. Whence is this light to
		proceed, but from the writings and discussions of liberal and learned jurists?
		The conflict of opinions will produce truth, and truth at last will find its
		way every where. The law should be treated as every other science; its theories
		should be scanned, and its defects pointed out; the excellent principles with
		which it abounds should be confronted with the decisions in which they have
		been either forgotten or misapplied, and this course should be pursued until
		the whole system at last shall be founded on the basis of universal justice.
		For justice, not in form merely, but in substance is a debt which is due by
		every government to its citizens.</P> 
	 <P>Sir William Jones, in England, endeavoured to point out this noble path
		to his countrymen, and with that view published his excellent treatise on the
		law of bailments. But the age was not prepared for his doctrines, the lights
		that he shed on our science were ton strong for the eyes of his contemporaries;
		he was sent to India in honourable exile, there to waste, his gigantic powers
		in curious, indeed, but fruitless disquisitions on oriental languages and
		antiquities. Romilly did much while he. lived. Mackintosh is still alive for
		the good of his country and of mankind.*</P> 
	 <P>(* In this country we have to regret that Chancellor K<FONT
		SIZE="-1">ENT</FONT>, one of the greatest luminaries of our science, by the
		effect of an impolitic provision in the Constitution of his own State, has been
		displaced from the office which he so many years filled with honour, because he
		was &#151; sixty years old.)</P> 
	 <P>Those who wish to see uniformity of jurisprudence in this widely
		extended union, ought to remember that nothing is uniform but sound principles,
		and that false theories and false logic lead inevitably to contradictory
		decisions. In England, there is in fact but one great judicature, sitting at
		Westminster. Although divided into different tribunals, the same spirit
		pervades them all, and in important cases the twelve Judges meet together to
		decide. Above them is the House of Lords, whose judgments are final and
		conclusive. Here we have, on the contrary, twenty four different supreme
		judicatures, with a countless number of inferior tribunals, dispersed over an
		immense extent of territory. Beyond them there is no authority whose decisions
		are binding in all cases. The Supreme Court of the United States is limited in
		its jurisdiction and powers, and except in certain matters of national concern,
		State Judges do not conceive themselves bound to conform to their opinions. In
		short, there is no polar star to direct our uncertain wanderings. We must then
		either tacitly submit to receive the law from a foreign country, by adopting
		the opinions of the English Judges, however they may vary from our own, or even
		from those which they formerly entertained, or we must find some expedient to
		preserve our national independence, and at the same time to prevent our
		national law from falling into that state of confusion which will inevitably
		follow from the discordant judgments of so many co-ordinate judicial
		authorities. Already the evil is felt in a considerable degree: it will be more
		so in process of time, and it is to be feared, that in the course of fifty
		years the chaos will become inextricable, unless a speedy remedy is
		applied.</P> 
	 <P>The only remedy that I can think of is to encourage the study of general
		jurisprudence, and of the eternal and immutable principles of right and wrong;
		of that science by which Cicero enlightened, not only the pr&aelig;tors of his
		days, but the Judges of succeeding ages, and which, I am sorry to say, has
		fallen too much into neglect. When the principles of that science are
		sufficiently disseminated, they will fructify, and statutes and judicial
		decisions will gradually take their colour from them. System will be introduced
		where it is wanted. Sound theories will take the place of false ones, and the
		rules of genuine logic will direct their application to particular cases. All
		this will be done gradually and insensibly, and the benefit of it will be felt
		by our remotest posterity. Otherwise, it is to be feared, that other and worse
		remedies will be applied; for every one of us must be sensible that the evils
		which I have mentioned are generally felt, and that the spirit of innovation is
		abroad; a spirit which manifests itself by rash and undigested experiments, and
		sometimes by demolishing without re-building, so that at last we shall be
		reduced to a state of confusion worse confounded.</P> 
	 <P>It is therefore incumbent on the rising generation to apply themselves
		to the study of those general principles, which, if that spirit should continue
		to exist, will enable them at least to direct it into its proper channel, and
		prevent the axe from being applied at last to the root of the tree.</P> 
	 <P>Those who may think that there is an advantage in the science of the law
		being involved in mysteries and artificial theories, are egregiously mistaken.
		The science of medicine was so once, when genius lashed it with the pen of
		Moliere. Since it has abandoned its senseless nostrums and formulas, and fixed
		itself firmly on the basis of fact and experiment, it has considerably gained
		in respect, honour, and emolument. By pursuing a similar course, the legal
		profession will receive similar rewards.</P> 
	 <P>I do not mean to say that theory should at once supersede established
		rules, or that the student should erect himself into a legislator. I have no
		such preposterous ideas. Your studies are principally to be directed to the
		law, as it is, and with a view to its regular practice: hence in our ordinary
		exercises I have avoided touching upon such subjects as this, and I have
		explained the laws to you as they are found in our books and in the decisions
		of our tribunals. But on this occasion, I cannot forget that there are some of
		you who are destined to be one day the Judges and legislators of our country.
		To those who are fired with this noble ambition, I have particularly addressed
		the preceding observations, not to diminish the respect which they owe to the
		laws by which we are governed, but to shew the utility of the principles of
		general jurisprudence, and what benefits may be derived from them.</P> 
	 <P>Nor must it be believed that I am a friend to rash and sudden
		innovation; on the contrary, I am well convinced that amendments in the laws
		ought to be gradual and almost insensible, and that the delicate chisel, and
		not the rough axe, is the instrument to be employed; but the delicate chisel
		can only be skilfully used by the masters of the art. I would compare our
		system of laws in this respect to one of those ancient statues of Phidias or
		Praxiteles, which have been in part mutilated or defaced by the hand of time:
		an able sculptor, and not a a stone mason, should be called upon to repair
		it.</P> 
	 <P>The true principles of jurisprudence, in order to fructify, ought first
		to take root in the minds of the members of the legal profession. Then, and not
		till then, will false principles gradually give way, as the ripe fruit falls
		from the tree. But in order to produce that effect, we ought to invite each
		other to reflection on these important subjects by learned treatises and free
		discussions, and the labours of the jurist ought not to be confined to mere
		compilations. In short, jurisprudence ought to be treated as a philosophical
		science. If Montesquieu had not written, the distinction between the three
		powers of government would be yet unknown, and their limits undefined. If
		Beccaria had not written, the torture and its horrid concomitants would not
		have disappeared from the face of Europe, and sanguinary codes would not almost
		every where have given way to mild punishments. All the amendments which
		Blackstone in his Commentaries suggested to be made in the common law, have
		been adopted, and some of them improved upon in this country, and it is only to
		be regretted that he did not suggest more.</P> 
	 <P>But as I have observed, these suggestions ought to come from those who
		have made legislation their peculiar study, and ought to be made in the grave
		and solemn manner which the subject requires. They ought to be addressed to the
		understanding of those who are best able to judge of them.</P> 
	 <P>Therefore, I address myself exclusively to the profession; by whom I
		expect to be understood and appreciated. To their tribunal I submit the
		observations I have ventured to make, soliciting only brotherly indulgence.</P>
	 
	 <P>The common law is destined to acquire in this country the highest degree
		of perfection of which it is susceptible, and which will raise it in all
		respects above every other system of laws, ancient or modern. But it will not
		have fully reached that towering height, until the maxim shall be completely
		established in practice as well as in theory,</P> 
	 <P>T<FONT SIZE="-1">HAT PURE ETHICS AND SOUND LOGIC ARE ALSO PARTS OF THE
		COMMON LAW</FONT>.</P> <HR> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">ADDENDA.</FONT></P> 
	 <P>CONTAINING,</P> 
	 <P>I. A <FONT SIZE="-1">BRIEF SKETCH OF THE NATIONAL JUDICIARY POWERS
		EXERCISED IN THE</FONT> U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES,
		FROM THE FIRST SETTLEMENT OF THE COLONIES TO THE TIME OF THE ADOPTION OF THE
		PRESENT FEDERAL CONSTITUTION BY</FONT> T<FONT SIZE="-1">HOMAS</FONT> S<FONT
		SIZE="-1">ERGEANT</FONT>, E<FONT SIZE="-1">SQ</FONT>. </P> 
	 <P>II. A<FONT SIZE="-1">N ADDRESS DELIVERED AT THE OPENING OF THE</FONT>
		L<FONT SIZE="-1">AW</FONT> A<FONT SIZE="-1">CADEMY OF</FONT> P<FONT
		SIZE="-1">HILADELPHIA, BEFORE THE TRUSTEES AND MEMBERS OF THE</FONT> S<FONT
		SIZE="-1">OCIETY FOR THE</FONT> P<FONT
		SIZE="-1">ROMOTION OF</FONT> L<FONT SIZE="-1">EGAL</FONT> K<FONT
		SIZE="-1">NOWLEDGE, IN THE HALL OF THE</FONT> S<FONT SIZE="-1">UPREME</FONT>
		C<FONT SIZE="-1">OURT</FONT>, ON W<FONT SIZE="-1">EDNESDAY, THE 21ST OF</FONT>
		F<FONT SIZE="-1">EBRUARY, 1821. BY</FONT> P<FONT SIZE="-1">ETER</FONT> S.
		D<FONT SIZE="-1">U</FONT> P<FONT SIZE="-1">ONCEAU</FONT>, LL.D.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">ADDENDA. I.</FONT></P> 
	 <P>A <FONT SIZE="-1">BRIEF SKETCH OF THE NATIONAL JUDICIARY POWERS
		EXERCISED IN THE</FONT> U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES,
		FROM THE FIRST SETTLEMENT OF THE COLONIES TO THE TIME OF THE ADOPTION OF THE
		PRESENT FEDERAL CONSTITUTION. BY</FONT> T<FONT SIZE="-1">HOMAS</FONT> S<FONT
		SIZE="-1">ERGEANT</FONT>, E<FONT SIZE="-1">SQ</FONT>. V<FONT
		SIZE="-1">ICE</FONT> P<FONT SIZE="-1">ROVOST OF THE</FONT> L<FONT
		SIZE="-1">AW</FONT> A<FONT SIZE="-1">CADEMY OF</FONT> P<FONT
		SIZE="-1">HILADELPHIA</FONT>.</P> 
	 <P>T<FONT SIZE="-1">HE</FONT> States of which our Union was at first
		composed, during the period antecedent to the adoption of the Constitution,
		while they were colonies of the British empire, and while they were connected
		together at first by the Congress, and afterwards by the articles of
		confederation, exercised within their respective limits the main portion of the
		judicial authority of the country through the medium of tribunals constituted
		by themselves, and governed by the common law, the principles of equity, their
		own acts of Assembly and usages, and such British statutes as had been extended
		to or adopted by them. But, during this period, there were judicial
		controversies over which the colonial or State Courts did not entertain
		jurisdiction at all, or entertained it in subordination to, or by delegation
		from, the national authority, residing in a power supposed to be the depositary
		of a common interest, and possessing a general jurisdiction.</P> 
	 <P>This period may be divided into three parts &#151; </P> 
	 <P>1. The government and jurisdiction of the crown of England began with
		the settlement of the colonies, and continued until the 5th September, 1774
		when a Congress first met to consider of the public grievances, and gradually
		prepared for and repelled hostilities. At this era the revolution
		commenced.</P> 
	 <P>2. The government by a Congress continued till the 1st March, 1781, when
		the articles of Confederation were finally ratified.</P> 
	 <P>3. On the 4th March, 1789. the articles of Confederation were superseded
		by the adoption of the present Constitution.</P> 
	 <P>It is proposed to consider the subject under these three divisions.</P> 
	 <P>I. <I>Of the period that elapsed while the colonies were dependent upon
		the crown of England</I>.</P> 
	 <P>During the period antecedent to the revolution, Courts of vice-admiralty
		were established in some, and probably in all of the States, by the crown of
		Great Britain; in some instances, by a right reserved in their charters, and in
		others without. The nature and extent of their jurisdictions depended on the
		commissions of the crown, and acts of parliament conferring additional
		authorities. The commissions of the crown gave the Courts which were
		established a most ample jurisdiction over all maritime contracts, and over
		torts and injuries as well in ports as upon the high seas; and acts of
		parliament enlarged, or rather recognised this jurisdiction, by giving or
		confirming cognisance of all seizures for contraventions of the revenue laws.*
		</P> 
	 <P><FONT SIZE="-1">(* <I>De Lovio</I> v. <I>Boit</I>, 2 Gall. 470. In the
		charter of Massachusetts, in 1692, there is an express reservation of the
		exclusive right in the crown to establish Admiralty Courts by virtue of
		commissions issued for this purpose, <I>ib</I>. No such reservation, however,
		is contained in the charter of William Penn, granted the 4th March, 1680. On
		the contrary, it gives to William Penn and his heirs, their deputies and
		lieutenants, power to appoint and establish any Judges and justices,
		magistrates and other officers whatsoever, for what causes soever, (for the
		probates of wills and for the granting of administrations,) with what power
		soever, and in such forms as to them should seem most convenient: and by judges
		by them delegated to award process, hold pleas, and determine all actions,
		suits, and causes whatsoever, as well criminal as civil, real, personal, and
		mixed. <I>Sec 5</I>. By ft subsequent part of the charter, William Penn, his
		heirs, or assigns, were made personally responsible for any misdemeanours
		committed or permitted by them against the laws of trade and navigation, and
		subjected to forfeiture of the charter tor not paying the damages awarded by
		the Courts of Westminster. <I>Sec</I>. 14. A Court of vice-admiralty was,
		notwithstanding, established at an early date for the province of Pennsylvania,
		and the territories or counties of New Castle, Kent, and Sussex, on the
		Delaware. It existed in 1708, 1 <I>Proud's Hist. Penn</I>. 486, and continued
		till the revolution. I have perused the records of this Court from the year
		1735 to the year 1746, in the course of which time there were three different
		commissaries or Judges of the Court, which was held at Philadelphia. They were
		commissioned by the Crown under the great seal of the High Court of Admiralty
		of England: but the commission itself I have not met with. During the vacancies
		that occasionally occurred, the proceedings were carried on in the name of the
		Lords Commissioners for executing the office of Lord High Admiral of Great
		Britain. <I>Brown</I>, in his <I>Civil and Admiralty Law</I>, says, that all
		the powers of vice-admiralty within his majesty's dominions are derived from
		the High Admiral or the Commissioners of the Admiralty of England, as inherent
		and incident to that office. Accordingly, by virtue of their commission, the
		Lords of the Admiralty are authorised to erect Courts of vice-admiralty in
		North America, the West Indies, and the settlements of the East India Company.
		2 <I>Bro. Civ. and Adm. Law</I>.</FONT></P> 
	 <P><FONT SIZE="-1">It is presumed, says Judge S<FONT SIZE="-1">TORY</FONT>,
		in the note to his learned opinion in <I>De Lovio</I> v. <I>Boit</I>, that the
		commissions are usually in the same form. One of the latest is to the Governor
		of the royal province of New Hampshire, in 6 Geo. 3, (1766.) It authorises him
		"to take cognisance of, and proceed in all causes civil and maritime, and in
		complaints, contracts, offences, or suspected offences, crimes, pleas, debts,
		exchanges, actions and demands, accounts, charter parties, agreements, suits,
		trespasses, inquiries, extortions, and demands, and business, civil and
		maritime, whatsoever, commenced or to be commenced between merchants, or
		between owners and proprietors of ships and other vessels, and merchants, or
		others whomsoever, with such owners and proprietors of ships; and all other
		vessels whatsoever, employed or used within the maritime jurisdiction of our
		vice-admiralty of our said province, &amp;c. or between any other persons,
		whomsoever had, made, begun, or contracted, for any matter, thing, cause, or
		business whatsoever done or to be done within our maritime jurisdiction
		aforesaid, &amp;c. &amp;c. and moreover in all and singular complaints,
		contracts, agreements, causes, and businesses, civil and maritime, to he
		performed beyond the sea or contracted there, however arising or happening,"
		with many other general powers. And it declares the jurisdiction to extend
		"throughout all and every the sea shores, public streams, ports, fresh waters,
		rivers, creeks and arms as well of the sea as of the rivers and coasts
		whatsoever of our said province," &amp;c. In point of fact, the Vice-admiralty
		Court of Massachusetts, before the revolution, exercised a jurisdiction far
		more extensive than that of the Admiralty in England. <I>De Lovio</I> v.
		<I>Boit</I>, 2 Gall. 470, 471, note. See also the <I>Little Joe, Stewart's Ad.
		Rep</I>. 394.</FONT></P> 
	 <P><FONT SIZE="-1">The commission to the Governor of New Hampshire above
		mentioned may, perhaps, be deemed an extension of the powers of the Courts of
		Vice-admiralty beyond former precedents, For we find the Congress of 1774 and
		1775, on repealed occasions, complaining of these extensions by the crown, in
		order to enforce the obnoxious statutes passed to impose duties for the purpose
		of raising a revenue in America. The declaration and resolves of Congress of
		the 14th October, 1774, mention, among other grievances, that the British
		Parliament had extended the jurisdiction of the Courts of Admiralty, not only
		for collecting the said duties, but tor the trial of causes merely arising
		within the body of a county, 1 <I>Journ. Cong</I>. 27., and that the acts of 4
		<I>Geo</I>. 3. c. 15, and c. 34 5 <I>Geo</I>. 3. c 25, 6 <I>Geo</I>. 3. c. 52,
		7 Geo. 3. c. 41, and c 46, &amp; 8 <I>Geo. 3</I>, extended the power of the
		Admiralty Courts beyond their ancient limits. <I>ib</I>. 30. See also
		<I>ib</I>. 41. 47. In the address to the inhabitants of the colonies, of
		October 21st, 1774, it is stated, that in the year 1768 a statute was made to
		establish Courts of Admiralty and vice-admiralty <I>on a new model</I>,
		expressly for the end of more effectually recovering the penalties and
		forfeitures inflicted by acts of Parliament formed for the purpose of raising a
		revenue in America. <I>ib</I>. 48. See also <I>ib</I>. 51, 190.</FONT></P> 
	 <P><FONT SIZE="-1">By the records of the Vice-admiralty Court of
		Pennsylvania, &amp;c. from 1755 to 1746, before referred to, it appears, that
		the business was inconsiderable It consisted of proceedings by the Collector by
		information against vessels and goods for breaches of the acts of Parliament
		relating to the revenue: libels tor seaman's wages; orders for surveys of
		damaged vessels and goods, and of wrecks, and appraisement thereof, with power
		to the commissioners appointed, to adjust the salvage in the cases of wrecks;
		records of protests; and, towards the end of the time, registers of letters of
		marque granted by the Governor, and prize proceedings, against vessels captured
		from the French and Spaniards.</FONT></P> 
	 <P><FONT SIZE="-1">There is one proceeding to authorise persons to take an
		inventory of the effects in a vessel, the master of which was drowned in the
		Delaware after arrival, and one other on a bottomry. It may be remarked, that
		although the proceedings are very formal, no instance appears of an answer or
		claim by a defendant or claimant or oath or affirmation.)</FONT></P> 
	 <P>In England the Court of Admiralty never possessed any jurisdiction in
		revenue causes; that was appropriated by the common law to the Court of
		Exchequer. But the vice admiralty Courts in this country when colonies, and in
		the West [tidies, obtained, by the provisions of the statute of 13 <I>Car</I>.
		2, commonly colled the navigation act, and 7 and 8 <I>Will</I>. 3 c. 22, a
		jurisdiction in revenue causes totally foreign to the. original jurisdiction of
		the admiralty, and unknown to it; though it was held that appeals lay from them
		in such causes to the admiralty in England.*</P> 
	 <P><FONT SIZE="-1">(* 2 <I>Bro. Civ. and Adm. Law</I>, 491. Yet the extent
		of the jurisdiction of the Admiralty Courts in the colonies seems to have been,
		for some time, a subject of considerable discussion and difference of opinion
		in England. In <I>Chalmers's</I> collection of the opinions of eminent lawyers
		on various points of jurisprudence, chiefly concerning the colonies, fisheries,
		and commerce of Great Britain published at London in 1814, there are several
		opinions to be found on this subject. In July , 1702, <I>Sir John Cooke</I>,
		advocate-general, gave an opinion, that penalties and forfeitures under the act
		of navigation, 12 <I>Car</I>. 2, c. 18, the act for the encouragement of trade,
		15 Car. 2. c. 7, the act for preventing planting tobacco in England, and for
		regulating the plantation trade, 22 and 23 <I>Car</I>. 2. c. 26, might be
		prosecuted in the Admiralty Courts of the plantations, as well as penalties and
		forfeitures under the act relating to the plantation trade, 7 and 8
		<I>Will</I>. 3. 2 <I>Chalm. Opinions</I>, 193.</FONT></P> 
	 <P><FONT SIZE="-1">In August of the same year, the Attorney general,
		<I>Northey</I>, gave it as his opinion to the hoard of trade, that the
		jurisdiction of the Admiralty Courts of the colonies extended only to
		prosecutions under the 7th and 8th <I>Will</I>. 3. and did not embrace cases
		arising under the statutes of <I>Car</I>. 2. above mentioned, <I>ib</I>
		187.</FONT></P> 
	 <P><FONT SIZE="-1">In 1720, however, Mr. <I>West</I>, who was assigned as
		counsel to the Commissioners of trade and plantations, was of opinion, that the
		statutes 13 <I>Rich</I>. 2. c. 5., 15 <I>Rich</I>. 2. c. 3., 2 <I>Hen</I>. 4.
		c. 11. and <I>27 Eliz</I>. c. 11, by which the admiralty jurisdiction in
		England was limited and confined, were not introductive Of new laws, but only
		declaratory of the common law, and were, therefore, of force even in the
		plantations; and that none of the acts of trade and navigation, gave the
		admiralty Judges in the West Indies an increase of jurisdiction beyond that
		exercised by the High Court of Admiralty at home. He was also of opinion, that
		the superior Courts of common law in New England had a power to grant
		prohibitions to the admiralty Courts, and states that prohibitions were the
		remedy constantly applied there to prevent their encroachment, <I>ib</I>.
		200.</FONT></P> 
	 <P><FONT SIZE="-1">It is stated by the Attorney general <I>Northey</I>, in
		the above mentioned opinion, that an action of trover had been brought and was
		then depending in the Queen's Bench, against Col <I>Quarry</I>, the Judge of
		the Admiralty in Pennsylvania, for condemning in his Court an unregistered
		vessel for trading there.)</FONT></P> 
	 <P>In questions of prize in the vice admiralty Courts an appeal lay to the
		commissioners of appeals consisting chiefly of the privy council. In instance
		and revenue causes, it lay to the High Court of Admiralty in England, and
		thence to the delegates.* The power of the High Court of Admiralty to receive
		appeals from the vice admiralty Courts in revenue causes had been disputed, on
		the ground that they were not in their nature causes civil or maritime, but
		that it was a jurisdiction specially given to the vice admiralty Courts by the
		statute of 7 and 8 <I>Will</I>. 3. c. 32, which took no notice of any appellate
		jurisdiction in the High Court of Admiralty in such cases. But the point was
		fully settled in favour of this jurisdiction in the year 1754.&#134;</P> 
	 <P>Controversies between two of the provinces concerning the extent of
		their charter boundaries or the like, came before the King in his privy
		council, who exercised original jurisdiction therein, upon the principles of
		feodal sovereignty.&#135; Thus in July 1761, the King in privy council approved
		the report of a committee of council for plantation affairs, relative to the
		disputes that had for some years subsisted between the provinces of New
		Hampshire and New York, concerning the boundary line between those provinces,
		and ordered and declared, the western banks of the river Connecticut to be the
		boundary line.**</P> 
	 <P><FONT SIZE="-1">(* 1 <I>Wheat</I>. 19. 2 <I>Bro. Civ. and Adm. Law</I>.
		493. <I>Blackstone</I>, (3 <I>Com</I>. 70,) says, an appeal also lay to the
		King in council. But this opinion of his seems to be relinquished. 2 <I>Bro.
		Civ. and Adm. Law</I>, 493.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 2 <I>Bro. Civ. and Adm. Law</I>, 493,
		<I>note</I>. 2 <I>Rob</I>. 248. See the note of Mr. <I>Wheaton</I> to the case
		of the <I>Sarah</I>, 8 <I>Wheat</I>. 396.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 1 Bl. Com. 231. 1 Vez. 444.)</FONT></P> 
	 <P><FONT SIZE="-1">(** 3 Belknap's Hist. N. Hampshire, 296. Appendix, No.
		XI.)</FONT></P> 
	 <P>A general superintending power by way of appeal was exercised by the
		King in council from the decisions of the colonial tribunals. For example, in
		year 1685, an appeal of William Vaughan, from a verdict and judgment against
		him in the Courts of New Hampshire, at the suit of Robert Mason, Esq. as
		proprietor of that province, for certain lands and tenements in Portsmouth in
		the said province, was heard by counsel before the committee for trade and
		plantations of the privy council, who reported that the verdict and judgment
		should be affirmed, and they were ratified and confirmed accordingly by the
		King in council.&#134; And such appeals from the highest Court in Pennsylvania,
		and in the other colonies to the King in council were common before the
		revolution.&#135;</P> 
	 <P><FONT SIZE="-1">(&#134; Ibid. 345. Appendix, XLI.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; It would seem, however, that in some instances
		the appeal was first to the Governor and council, and from thence to the King
		in council. See the case of <I>Gordon</I> v. <I>Lowther</I>, 2 Ld. Ray. 1447, a
		case of that kind, brought from the Island of Barbadoes. In the same case it is
		stated that the rule was, that the party appealing must procure the proceedings
		to be transmitted, and proceed, within a year after the appeal allowed in the
		plantations: and the appeal in that case was dismissed under this rule. In
		Pennsylvania, (which was a proprietary government) no such appellate
		jurisdiction was entertained by the Governor and council before the
		revolution.)</FONT></P> 
	 <P>II. <I>Of the period during which the national authority was exercised
		by Congress</I>.</P> 
	 <P>As a necessary consequence of the revolution, the judicial power of the
		crown in the then colonies, as well as all its other authority, ceased; and
		from the commencement of the war in April 1775, Congress with the approbation
		of the colonies and people, and from the emergency of the crisis, exercised the
		sovereign authority of the country, so far as related to war and peace. They
		raised armies and navies, and directed military operations, emitted bills of
		credit, made treaties, and received and sent ambassadors; commissioned
		privateers, prescribed the objects of capture, and made rules for the
		distribution of prizes. As the legality of all captures on the high seas
		depends on the law of nations, and a just and uniform execution of that law is
		essential to the sovereign power, which might be implicated with foreign
		nations in the results of its administration, Congress had for this purpose a
		right of maintaining a control by appeal, in cases of capture, as well over the
		decisions of juries as of Judges.* When Congress, therefore, in November 1775,
		first authorised the capture of English vessels of war, and of other vessels
		employed in the service and supply of the English armies, by vessels to be
		commissioned by Congress or their authority, they recommended to the several
		Legislatures of the united colonies, as soon as possible to erect Courts of
		justice, or give jurisdiction to those in being, to determine concerning such
		captures; the trials thereof to be by a jury, under such regulations as to the
		respective Legislatures should seem expedient; but that in all cases an appeal
		should be allowed to Congress, or such person or persons as they should appoint
		for the trial of appeals, under certain provisos as to the time of demanding,
		and lodging the appeal, and giving security.**</P> 
	 <P><FONT SIZE="-1">(* <I>Penhallow</I> v. <I>Doane's adms</I>. 3
		<I>Dall</I>. 80.)</FONT></P> 
	 <P><FONT SIZE="-1">(** 1 <I>Journ. Congress</I>, 259, 260 The State Courts
		of Admiralty also exercised jurisdiction in instance causes. See
		<I>Hopkinson's</I> reports.)</FONT></P> 
	 <P>The application to Congress on appeal was by petition, which, at first,
		was usually referred to a special committee appointed in each case, consisting
		of five members. But on the 30th January 1777, Congress resolved to appoint a
		standing committee, to consist of five members, to hear and determine these
		appeals, and to them the petitions were referred when presented.&#134; Three
		members were added in May, but in October following the number was restored to
		five; they, or any three, to hear and determine.</P> 
	 <P><FONT SIZE="-1">(&#134; <I>Journ Congress</I>. The first standing
		committee of appeals, which was appointed on the 30th January. 1777, consisted
		of Mr. Wilson, Mr. Sergeant, Mr. Ellery, Mr. Chase, and Mr.
		Sherman.)</FONT></P> 
	 <P>The resolution of Congress of November 1775, above mentioned, was
		complied with by several States; some allowing appeals to Congress on a larger,
		some on a more contracted scale. In some instances the acts passed by the
		States on the subject gave rise to questions concerning the respective
		authority of Congress, and of the States, which occasioned much debate and
		difference of opinion in Congress, and elsewhere; and some of these questions
		were not finally determined till after the adoption of the present
		Constitution. In July 1776, the Legislature of the State of <I>New
		Hampshire</I> passed an act which allowed an appeal to Congress, or persons
		appointed by them, only when the vessel capturing was fitted out at the charge
		of the united colonies; in other cases the appeal was to be to the Supreme
		Court of judicature of that State.* A citizen of New Hampshire, acting under
		the commission of Congress, in a vessel owned by citizens of <I>New
		Hampshire</I>, in October 1777, captured a vessel as prize on the high seas.
		Being claimed by citizens of Massachusetts, a trial by jury took place in the
		New Hampshire Court maritime, erected by the act of that State, of July 1776,
		and the jury found a verdict for the captors. The claimants prayed an appeal to
		Congress, but the Court refused it, because it was contrary to the law of the
		State. The claimants then appealed to the superior Court and a jury; there also
		a verdict was found for the captors. The claimants then prayed an appeal to
		Congress, and petitioned Congress, who referred it to the committee of appeals,
		and that committee decided in June, 1779, that they had jurisdiction. After the
		confederation, the Court of appeals reversed the decrees passed by the Courts
		of New Hampshire, and in the year 1795, the Supreme Court of the United States,
		on appeal from the Circuit Court of New Hampshire, carried into effect the
		decree of the Court of appeals.**</P> 
	 <P><FONT SIZE="-1">(* In November, 1779, the legislature of New Hampshire
		extended the license of appeal to Congress to every case wherein the subject of
		any foreign nation in amity with the United States should be interested in the
		dispute, and allowed it no further.)</FONT></P> 
	 <P><FONT SIZE="-1">(** <I>Penhallow</I> v. <I>Doane's adms</I>, 3
		<I>Dall</I>. 80.)</FONT></P> 
	 <P>In the case of the sloop Active, the jurisdiction of Congress was also
		disputed. In that case, on a libel in the Court of Admiralty of Pennsylvania,
		the jury found a verdict distributing the proceeds of a prize among certain
		claimants. From this sentence, or judgment, an appeal was taken to Congress,
		and the committee of appeals, in March, 1779, reversed the decree, and ordered
		process to issue out of the Court of Admiralty of Pennsylvania, to carry the
		decree of reversal into effect. The Judge of the Court of Admiralty refused to
		conform to this order, alleging as a reason the act of the Legislature of
		Pennsylvania, declaring that the finding of a jury should establish the facts
		in all trials in the Court of Admiralty, without re-examination or appeal; and
		that an appeal was permitted only from the decree of a Judge. Congress,
		however, resolved, in March, 1779, that their committee had jurisdiction, and
		made ineffectual efforts to induce the assembly of Pennsylvania to confer with
		them on the subject. After the adoption of the present Constitution, the decree
		of the committee of appeals was enforced in the Courts of the United
		States.&#134;</P> 
	 <P><FONT SIZE="-1">(&#134; See <I>United States</I> v <I>Peters</I>, 5
		<I>Cranch</I>. 115. <I>Ross</I> v. <I>Rittenhouse</I>, 2 <I>Dall</I>. 160.
		<I>United States</I> v. <I>Bright and others</I>, 3 <I>Hall's Law Journ</I>.
		225.)</FONT></P> 
	 <P>In January, 1780, Congress resolved to establish a Court for the trial
		of all appeals from the Courts of Admiralty of the States in cases of capture,
		to consist of three Judges with salaries, appointed and commissioned by
		Congress, two of whom should constitute a quorum. The Court was empowered to
		appoint a register. The trials therein were to be according to the usages of
		nations, and not by jury; and they 6xed the place of their first session at
		Philadelphia, and afterwards at such times and places as the Court should judge
		most conducive to the public good, so that they did not at any time sit further
		eastward than Hartford, in Connecticut, or southward than Williamsborg, in
		Virginia. On the 22d January, they elected the Judges by ballot* The style of
		the Court it was subsequently resolved, should be the <I>Court of Appeals in
		cases of capture</I>; and regulations were made as to the oaths of the Judges
		and Register, the time of entering and lodging appeals, and giving security;
		and the causes depending, and the papers, were ordered to be transferred to
		this Court.&#134;</P> 
	 <P><FONT SIZE="-1">(* Mr <I>Wythe</I>, Mr. <I>Paca</I>, and Mr.
		<I>Hosmer</I>, were elected. Mr. <I>Wythe</I> afterwards declined, and Mr.
		<I>Cyrus Griffin</I> was elected in his place.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 6 <I>Journ. Cong</I>. 156.)</FONT></P> 
	 <P>Applications were sometimes made to Congress to order this Court to
		receive appeals. In September, 1781, we find an application to Congress, and
		instructions by them to the Court, to receive an appeal, where, by the
		indisposition and death of the Register of the Court of Admiralty of
		Pennsylvania, the stipulations were not executed in due form, and in due time.*
		In February, 1782. a resolution was adopted in another case, authorising the
		appeal.&#134; On the other hand, they refused to interfere after the decision
		of the Court,&#135; or in favour of a suitor in the Court of appeals when a
		loss was occasioned by such suitor or his friend.&sect;</P> 
	 <P>In February 1786, Congress resolved, that as the war was at an end, and
		the business of the Court of appeals in a great measure done away, the salaries
		of the Judges should cease.|| In June 1786. they were authorised to grant
		re-hearings or new trials, and a <I>per diem</I> allowance was ordered during
		the sitting of the Court and the time employed in travelling to and from the
		same. &para;</P> 
	 <P><FONT SIZE="-1">(* 7 <I>Journ. Cong</I>. 180.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; <I>Ib</I>. 277.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; <I>Ib</I>. 250. </FONT></P> 
	 <P><FONT SIZE="-1">&sect; <I>lb</I>. 271.</FONT></P> 
	 <P><FONT SIZE="-1">|| 11 <I>Journ. Cong</I>. 33.</FONT></P> 
	 <P><FONT SIZE="-1">&para; <I>Ib</I>. 123. By the ad of Congress of the 8th
		May, 1792, sec. l2, the records and proceedings of this Court are ordered to be
		deposited in the office of the Clerk of the Supreme Court of the United States,
		who is authorised to give copies; and such copies are to have like faith and
		credit as all other proceedings of said Court.)</FONT></P> 
	 <P>In several instances applications were made to Congress, in relation to
		controversies between States concerning the rights of soil and jurisdiction. In
		December 1779, they resolved, that as it appeared, from the representation of
		the delegates of the State of Pennsylvania, that disputes had arisen between
		the States of Pennsylvania and Virginia, relative to the extent of their
		boundaries, which might be productive of serious evils to both States, and tend
		to lessen their exertions in the common cause, it be recommended to the
		contending parlies, not to grant any part of the disputed land, or to disturb
		the possession of any persons living thereon, and to avoid any appearance of
		force, until the dispute could he amicably settled by both States, or brought
		to a just decision by the intervention of Congress; that possessions forcibly
		taken be restored to the original possessors, and things placed in the
		situations in which they were at the commencement of the war, without prejudice
		to the claims of either party.*</P> 
	 <P><FONT SIZE="-1">(* 5 <I>Journ. Cong</I>. 456.)</FONT></P> 
	 <P>So, the disputes existing between the States of New York, New Hampshire,
		and Massachusetts, and the people inhabiting the present State of Vermont, then
		styled the New Hampshire grants, were brought before Congress by their
		applications, and Congress recommended laws to be passed by the respective
		States, expressly authorising Congress to hear and determine all differences
		between them, relative to their respective boundaries, in the mode prescribed
		by the articles of confederation, (which had then been agreed to in Congress,
		but were not ratified by all the States). New York and New Hampshire passed
		such laws, and a hearing before Congress took place.</P> 
	 <P>A controversy subsisting between the States of Virginia and New Jersey,
		respecting a tract of land called Indiana, lying on the river Ohio, was, in
		consequence of instructions from the Legislature of New Jersey, to their
		delegates in Congress, and the petitions of Indiana proprietors, heard before a
		committee of Congress, who reported in May 1782, that the. purchase of the
		Indiana company was made <I>bona fide</I>, &amp;c.*</P> 
	 <P><FONT SIZE="-1">(* 7 <I>Journ. Cong</I>. 364. 9 <I>Journ. Cong</I>.
		64.)</FONT></P> 
	 <P>During this period there existed nothing resembling the appellate
		authority from the tribunals of the respective colonies, previously exercised
		by the King in council.</P> 
	 <P>III. <I>Of the government of the Union under the articles of
		confederation</I>.</P> 
	 <P>The declaration of independence in July 1776, necessarily operated as a
		permanent transfer from the crown of England of the high national powers lately
		exercised by Congress, and was naturally followed by the establishment of a
		regular government, amongst whose different departments these powers might be
		distributed. Accordingly, the day after that on which the declaration of
		independence was resolved upon by Congress in a committee of the whole, (June
		11th 1776.) a proposition was made, and a committee appointed, to prepare, and
		digest the form of a confederation, to be entered into between the
		colonies.&#134; The articles of confederation were agreed to in Congress on the
		15th November 1777,&#135; but were not to be conclusive until they were
		approved by the Legislatures of all the States.&sect; Eleven of the States
		ratified them in 1778, and one in 1779, and one State, the last of the
		thirteen, on the 1st March 1781. The completion of the ratification was
		announced by Congress on the 23d March, and the government commenced its
		operations.</P> 
	 <P><FONT SIZE="-1">(&#134; 2 <I>Journ. Cong</I>. 207.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 3 <I>Journ. Cong</I>. 502. &sect; Article
		18.)</FONT> </P> 
	 <P>By the articles of confederation, the judicial power of the United
		States was defined and somewhat extended, though it was still restricted to
		very narrow limits. The ninth article provided, that the United States in
		Congress assembled, should have the sole and exclusive right and power, 1st. Of
		appointing Courts for the trial of piracies and felonies committed on the high
		seas. 2d. Of establishing Courts for receiving and determining appeals in all
		cases of captures: provided, that no member of Congress should be appointed a
		Judge of any of the said Courts. 3d. The United States in Congress assembled
		were also to be, by the same article, the last resort on appeal, in all
		disputes and differences then subsisting, or that thereafter might arise,
		between two or more States, concerning boundary, jurisdiction, or any other
		cause whatever, which authority was to be exercised by Judges, or
		commissioners, to be appointed in the manner therein particularly described,
		their judgment to be final; provided, that no State should be deprived of
		territory for the benefit of the United States. 4th. And all controversies
		concerning the private right of soil claimed under different grants of two or
		more States, whose jurisdictions, as they might respect such lands and the
		States which passed such grants, were adjusted, the said grants or either of
		them being at the same time claimed to have originated antecedent to such
		settlement of jurisdiction, were, on the petition of either party to Congress,
		to he finally determined, as near as might be, in the same manner as the
		foregoing. Thus limited was the judicial power under the confederation.</P> 
	 <P>1. An ordinance was very soon passed* for establishing Courts for the
		trial of piracies and felonies committed on the high seas, by which persons
		charged with these offences, or accessaries thereto, were to be inquired of and
		tried by the grand and petit jurors according to the course of the common, law,
		in like manner as if committed on land. The justices of the, Supreme or
		Superior Court of judicature, and Judge of the Court of Admiralty of the
		several and respective States, or any two or more of them, were thereby
		appointed Judges.&#134; The punishment was to be the same as if the offence
		were committed on land. When there was more than one Judge of a Court of
		Admiralty, the supreme executive power of the State was to commissionate one
		(of them,) exclusively, to join in performing the duties required by the
		ordinance. All forfeitures were to go to the State, when conviction took
		place.</P> 
	 <P>When Courts were held under the authority of this ordinance, the Judges
		sat in the State Court house, the prisoners were confined in the State gaol
		under the custody of State officers, and were executed, on conviction, by the
		order of the Sheriff.&#135;</P> 
	 <P><FONT SIZE="-1">(* <I>April 5th</I>, 1781. 7 <I>Journ. Cong</I>.
		65.</FONT> </P> 
	 <P><FONT SIZE="-1">&#134; By an ordinance passed in March, 1783, a Judge of
		the Admiralty was always to form one of the Court. 8 <I>Journ. Cong</I> 146.
		</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 2 <I>vol. Debates of Congress</I>, in 1789, page
		286, speech of Mr. <I>Smith</I> of South Carolina.)</FONT></P> 
	 <P>2. No new Court of appeals was constituted after the articles of
		confederation; but the Court, as then organised, appears to have continued. The
		extent of the judicial power of Congress under the articles of confederation,
		in appeals in cases of capture, seems, however, to have been narrowed
		considerably by the construction given to the articles of confederation in the
		State Courts. Thus in Pennsylvania, by an act of the Legislature passed prior
		to the complete ratification of the articles of confederation, a Court of
		appeals was constituted "for reviewing, re-considering, and correcting the
		definitive sentences and decrees of the Court of Admiralty of that State, other
		than in cases of capture upon the water in time of war from the enemies of the
		United States." A complainant filed a libel in the State Court of Admiralty, to
		recover damages against the defendant, for taking from him, on the high seas,
		an English vessel, which he had captured as prize, in which the State Court of
		Admiralty decreed damages and costs. On appeal to the State Court of appeals,
		that Court held, 1st. That an appeal did not lie in the case to the Court
		established by Congress, because the words of the articles of confederation
		authorising the establishing of Courts for receiving and determining finally
		appeals in all cases of capture, meant, captures as prize, when such prize was
		brought <I>infra pr&aelig;sidia</I> of the United States, and, as the prize in
		this case was not brought <I>infra pr&aelig;sidia</I> of the United States, but
		was afterwards re-captured by the British, that Court had no jurisdiction. 2d.
		That the State Court of appeals had jurisdiction, because the Legislature
		intended to give, it jurisdiction in appeals from the admiralty, in all cases
		in which the appeal was not resigned to the United States, and if this were not
		the case there would be a defect of justice.*</P> 
	 <P>3. A Court consisting of five commissioners, organised under the
		articles of confederation, sat at Trenton, in November and December, 1782, to
		decide the controversy which had long subsisted between the States of
		Pennsylvania and Connecticut, relative to the territory of Wyoming. These
		States appeared respectively by counsel, as agents, and their proofs and
		arguments were heard. On the 30th December, 1782, the Court decreed
		unanimously, that the State of Connecticut had no right to the lands in
		controversy and that the jurisdiction and pre-emption of all the territory
		lying within the charter boundary of Pennsylvania claimed by Connecticut, of
		right belonged to the State of Pennsylvania.&#134;</P> 
	 <P>Proceedings also took place in the year 1786 and 1787) for constituting
		Courts to determine controversies respecting territory, between the State of
		Massachusetts and New York, and also between the States of South Carolina and
		Georgia: bat they were never completed, as these States amicably adjusted the
		disputes.&#135;</P> 
	 <P><FONT SIZE="-1">(* <I>Talbot</I> v. <I>Commanders, &amp;c. of three
		brigs</I>. 1 <I>Dall</I>. 95.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 8 <I>Journ. Cong</I>. 83. The Court consisted of
		<I>William Whipple, Welcome Arnold, Wm. C. Houston, Cyrus Griffin</I>, and
		<I>David Brearly, Esqrs</I>,</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 12 <I>Journ. Cong</I>.)</FONT></P> 
	 <P>As well before as after the articles of confederation, Congress, by the
		exercise of an appellate jurisdiction in all cases of capture, had the means of
		enforcing the law of nations, so far as related to questions of prize. To
		enforce it in other respects, they were dependent on the aid of the State
		governments. In August 1779, they resolved, that the President and Supreme
		Executive Council of Pennsylvania be informed, that any prosecution which it
		might be expedient to direct for such matters and things in certain
		publications and transactions, as were against the law of nations, should be
		carried on at the expense of the United States.* In November 1781, they
		recommended to the Legislatures of the States to pass laws punishing
		infractions of the laws of nations, committed by violating safe conducts or
		pass ports granted by Congress; by acts of hostility against persons in amity
		with the United States: by infractions of the immunities of ambassadors: by
		infractions of treaties or conventions: and to erect a tribunal, or to vest one
		already existing with power, to decide on offences against the law of nations,
		and to authorise suits for damages by the party injured, and for compensation
		to the United States for damage sustained by them, from an injury done to a
		foreign power by a citizen.&#134;</P> 
	 <P><FONT SIZE="-1">(* 5 <I>Journ. Cong</I>. 367. In the case of Cornelius
		Sweers in the year 1778 reported 1 <I>Dall</I>. 41, Congress employed counsel
		to prosecute in the State Court. 4 <I>Journ. Cong</I>. 494. See also 5
		<I>Journ. Cong</I>. 283, in the year 1779.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 7 <I>Journ. Cong</I>. 234.)</FONT></P> 
	 <P>In the case of De Longchamps, who was convicted and sentenced in the
		Court of Oyer and Terminer of Pennsylvania in the year 1784, for committing a
		violation of the law of nations by insulting M. Marbois, the secretary of the
		French legation, and for assault and battery, the Court declared, that the law
		of nations formed a part of the municipal law of Pennsylvania, and it seems
		enforced it.* No act appears to have been passed in this State in pursuance of
		the recommendation of Congress. After the arrest of De Longchamps the supreme
		executive council of Pennsylvania gave information of it in a letter to
		Congress, and requested their ad vice,&#134; and the committee of States
		approved thereof.&#135;</P> 
	 <P>On the 24th June, 1776, after independence had been resolved upon, but
		before it was declared, Congress defined allegiance and treason; declaring the
		latter to consist in levying war against any of the colonies within the same,
		or being adherent to the king of Great Britain, or other enemies of the said
		colonies, or any of them, within the same, giving to him or them aid or
		comfort; and recommended it to the Legislatures of the colonies, to pass laws
		for punishing persons proveably attainted of open deed by people of their
		condition. We find several instances of persons convicted in Pennsylvania in
		the year 1778, under the laws of that State, for treasons committed in that
		State.&sect;</P> 
	 <P><FONT SIZE="-1">(* Respublica <I>v</I>. De Longchamps, 1 <I>Dall</I>
		111. </FONT></P> 
	 <P><FONT SIZE="-1">&#134; 9 <I>Journ Cong</I>. 277.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; 9 <I>Journ. Com. of States</I>, 6.</FONT></P> 
	 <P><FONT SIZE="-1">&sect; See 1 <I>Dall</I>. 35, 39.)</FONT></P> 
	 <P>In the ordinance passed in October, 1783, for regulating the post
		offices of the United States, (the power to establish and regulate post offices
		throughout the United States being vested in Congress by the articles of
		confederation,) Congress imposed penalties for official misdemeanors, which
		were made recoverable by action of debt in the name of the Post Master General,
		in the State Where the offence was committed. But, generally speaking, they had
		no power to exact obedience or punish disobedience either by pecuniary mulcts
		or otherwise, but were dependent on the laws and tribunals of the several
		States; so that when laws became necessary to secure the interests of the
		Union, they were obliged to request the State Legislatures to pass them. Thus,
		for example, we find Congress in the year 1782, calling on the Legislatures of
		the States to pass laws, to empower commissioners appointed by Congress to
		settle the accounts of the military department, to call for witnesses and
		examine them on oath or affirmation, touching the accounts.* It was even
		necessary to pass a resolution to request them to enact laws, to enable the
		United States to recover from individuals debts due, and effects belonging to
		the United States.&#134; And in July, 1784, we find the committee of States,
		(who sat during the recess of Congress,) complaining, that none of the State
		Legislatures had made the provision requested agreeably to their
		recommendation, by which the interest of the United States had already suffered
		greatly, and requiring that it should be done without loss of time, and again
		<I>earnestly</I> recommending the adoption of measures to enable the United
		States to sue for and recover their debts and effects and property, and any
		damages they had sustained or might sustain.**</P> 
	 <P><FONT SIZE="-1">(* 4 <I>Journ. Cong</I>. 83, in 1778. 5 <I>Journ.
		Cong</I>. 296, in 1779. 7 <I>Journ. Cong</I>. 298, in 1782.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 7 <I>Journ. Cong</I>. 298.)</FONT></P> 
	 <P><FONT SIZE="-1">(** 9 <I>Journ. Cong. Com. of States</I>,
		29.)</FONT></P> 
	 <P>Hence it appears, that all cases of national or local import were
		decided by the State jurisdictions exclusively, except disputes between States,
		questions arising under grants of land by two or more States in certain cases,
		of prize on appeal, and piracies or felonies on the high seas. To these may be
		added suits against one of the States in the Courts of another, which the
		latter refused to take cognisance of on the general principle that a State was
		sovereign, and one sovereign could not be sued in the Courts of another.&#134;
		The State Courts exercised no jurisdiction in causes arising from a national
		impost or revenue; for none such existed prior to the present Constitution of
		the United States. State imposts existed, and the State tribunals entertained
		the causes arising out of them.&#135;</P> 
	 <P><FONT SIZE="-1">(&#134; Nathans <I>v</I>. Commonwealth of Virginia. 1
		<I>Dall</I>. 77.</FONT></P> 
	 <P><FONT SIZE="-1">&#135; See causes of this description reported 1
		<I>Dall</I>. 62, 197. In Pennsylvania they were tried by jury.)</FONT></P> 
	 <P>Under the confederation, no tribunal was vested with the appellate
		authority which before the revolution was exercised by the King in council from
		the decisions of the Courts of the respective colonies.*</P> 
	 <P><FONT SIZE="-1">(* The only judicial power analogous to this is, the
		appellate jurisdiction vested in the Supreme Court of the United States, under
		the present Constitution, from the highest State Courts, in cases arising under
		the Constitution, laws, or treaties.)</FONT></P> 
	 <P>Since the chief part of the above was printed, I have met with the form
		of a commission of Vice Admiral from the crown to a Governor, which corresponds
		with that mentioned by Judge S<FONT SIZE="-1">TORY</FONT> in his note to <I>De
		Lovio</I> v. <I>Boit</I>. It is contained in "A View of the Constitution of the
		British Colonies in North America and the West Indies, at the time the civil
		war broke out on the continent of America," published at London in 1783, by
		<I>Anthony Stokes</I>, then late Chief Justice of Georgia. As it exhibits the
		extent of the jurisdiction claimed by the Vice-admiralty Courts before the
		revolution, I have thought a copy of it here would prove interesting.</P> 
	 <P ALIGN="CENTER">COMMISSION OF VICE-ADMIRAL.</P> 
	 <P><I>George the Third, &amp;c</I>. &#151; <I>Greeting:</I> </P> 
	 <P>W<FONT SIZE="-1">E</FONT> confiding very much in your fidelity, care,
		and circumspection in this behalf, do, by these presents, which are to continue
		during our pleasure only, constitute and depute you the said A. B. Esq. our
		Captain General and Governor in Chief aforesaid, our Vice Admiral, Commissary
		and Deputy in the office of Vice Admiralty in our province of F &#151;&#151;
		aforesaid, and the territories depending thereon in America, and in the
		maritime parts of the same and thereto adjoining whatsoever; with power of
		taking and receiving all and every the fees, profits, advantages, emoluments,
		commodities. and appurtenances whatsoever due, and belonging to the said office
		of Vice Admiral, Commissary, and Deputy in our province of F &#151;&#151; , and
		the territories depending thereon,</P> 
	 <P>and maritime parts of the same and adjoining to them whatsoever,
		according to the ordinances and statutes of our High Court of Admiralty in
		England.</P> 
	 <P>And we do hereby remit and grant unto you the aforesaid A. B. our power
		and authority in and throughout our province of F &#151;&#151; aforementioned,
		and the territories depending thereon, and maritime parts whatsoever of the
		same and thereto adjacent, and also throughout all and every the sea shores,
		public streams, ports, fresh water rivers, creeks, and arms, as well of the sea
		as of the rivers and coasts whatsoever of our said province of F &#151;&#151; ,
		and the territories depending thereon, and maritime parts whatsoever of the
		same and thereto adjacent, as well within liberties and franchises as without;
		to take cognisance of, and proceed in, all civil and maritime causes, and in
		complaints, contracts, offences, or suspected offences, crimes, pleas, debts,
		exchanges, accounts, charter-parties, agreements, suits, trespasses, injuries,
		extortions, and demands, and business civil and maritime whatsoever, commenced
		or to be commenced between merchants, or between owners and proprietors of
		ships and other vessels, and merchants or others whomsoever, with such owners
		and proprietors of ships and all other vessels whatsoever, employed or used
		within the maritime jurisdiction of our Vice Admiralty of our said province of
		F &#151;&#151; , and the territories depending thereon, or between any other
		persons whomsoever, had, made, begun, or contracted for any matter, thing,
		cause, or business whatsoever, done or to be done within our maritime
		jurisdiction aforesaid, together with all and singular their incidents,
		emergencies, dependencies, annexed or connexed causes whatsoever or howsoever,
		and such causes, complaints, contracts, and other the premises above said, or
		any of them, which may happen to arise, be contracted, had or done, to hear and
		determine according to the rights, statutes, laws, ordinances, and customs
		anciently observed.</P> 
	 <P>And moreover, in all and singular complaints, contracts, agreements,
		causes, and businesses civil and maritime, to be performed beyond the sea, or
		contracted there, howsoever arising or happening: and also in all and singular
		other causes and matters, which in any manner whatsoever touch or any way
		concern, or anciently have and do, or ought to belong unto the maritime
		jurisdiction of our aforesaid Vice Admiralty in our said province of F
		&#151;&#151; , and the territories depending thereon, and maritime parts
		thereof, and to the same adjoining whatsoever; and generally, in all and
		singular all other causes, suits, crimes, offences, excesses, injuries,
		complaints, misdemeanors, or suspected misdemeanors, trespasses, regrating,
		forestalling, and maritime businesses whatsoever, throughout the places
		aforesaid, within the maritime jurisdiction of our Vice Admiralty of our
		province of F &#151;&#151; aforesaid, and the territories depending thereon by
		sea or water, on the banks or shores of the same howsoever done, committed,
		perpetrated, or happening.</P> 
	 <P>And also to inquire by the oaths of honest and lawful men of our said
		province of F &#151;&#151; , and the territories depending thereon, and
		maritime parts of the same and adjoining to them whatsoever, dwelling both
		within liberties and franchises and without, as well of all and singular such
		matters and things, which of right, and by the statutes, laws, ordinances, and
		the customs anciently observed were wont and ought to be inquired after, as of
		wreck of the sea, and of all and singular the goods and chattels of whatsoever
		traitors, pirates, manslayers, and felons howsoever offending within the
		maritime jurisdiction of our Vice Admiralty of our province of F &#151;&#151;
		aforementioned, and the territories depending thereon, and of the goods,
		chattels, and debts of all and singular their maintainers, accessaries,
		councillors, abettors, or assistants whomsoever.</P> 
	 <P>And also of the goods, debts, and chattels of whatsoever person or
		persons, felons of themselves, by what means, or howsoever coming to their
		death within our aforesaid maritime jurisdiction, wheresoever any such goods,
		debts, and chattels, or any part thereof, by sea, water, or land in our said
		province of F &#151;&#151; , and the territories depending thereon, and
		maritime parts of the same and thereto adjacent whatsoever, as well within
		liberties and franchises as without, have been or shall be found forfeited, or
		to be forfeited, or in being.</P> 
	 <P>And moreover, as well of the goods, debts, and chattels, of whatsoever
		other traitors, felons, and manslayers wheresoever offending, and of the goods,
		debts, and chattels of their maintainers, accessaries, counsellors, abettors,
		or assistants, as of the goods debts, or chattels of all fugitives, persons
		convicted, attainted, condemned, outlawed, or howsoever put or to be put in
		exigent for treason, felony, manslaughter, or murder, or any other offence or
		crime whatsoever; and also concerning goods waived, flotson, jetson, lagon,
		shares and treasure found or to be found; deodands, and of the goods of all
		others whatsoever taken or to be taken, as derelict, or by chance found, or
		howsoever due or to be due; and of all other casualties, as well in, upon, or
		by the sea and shores, creeks or coasts of the sea, or maritime parts, as in,
		upon, or by all fresh waters, ports, public streams, rivers, or creeks, or
		places overflown whatsoever, within the ebbing and flowing of the sea or high
		water, or upon the shores and banks of any of the same within our maritime
		jurisdiction aforesaid, howsoever, whensoever, or by what means soever arising,
		happening or proceeding, or wheresoever such goods, debts, and chattels, or
		other the premises, or any parcel thereof may or shall happen to be met with,
		or found within our maritime jurisdiction aforesaid.</P> 
	 <P>And also concerning anchorage, lastage, and ballast of ships, and of
		fishes royal, namely sturgeons, whales, porpoises, dolphins, kiggs, and
		grampusses, and generally of all other fishes whatsoever, which are of a great
		or very large bulk or fatness, anciently by right or custom, or any way
		appertaining or belonging to us.</P> 
	 <P>And to ask, require, levy, take, collect, receive, and obtain for the
		use of us, and to the office of our High Admiral of Great Britain aforesaid for
		the time being, to keep and preserve the said wreck of the sea. and the goods,
		debts, and chattels of all and singular other the premises; together with all
		and all manner of fines, mulcts, issues, forfeitures, amerciaments, ransoms,
		and recognisances whatsoever forfeited or to be forfeited, and pecuniary
		punishments for trespasses, crimes, injuries, extortions, contempts, and other
		misdemeanors whatsoever, howsoever imposed or inflicted, or to be imposed or
		inflicted for any matter, cause, or thing whatsoever in our said province of F
		&#151;&#151; , and the territories depending thereon, and maritime parts of the
		same and thereto adjoining, in any Court of our Admiralty there held or to be
		held, presented or to be presented, assessed, brought forfeited, or adjudged;
		and also all amerciaments, issues, fines, perquisites, mulcts, and pecuniary
		punishments whatsoever, and forfeitures of all manner of recognisances, before
		you or your Lieutenant, Deputy or Deputies in our said province of F
		&#151;&#151; , and the territories depending thereon, and maritime parts of the
		same and thereto adjacent whatsoever, happening or imposed, or to be imposed or
		inflicted, or by any means assessed, presented, forfeited, or adjudged, or
		howsoever by reason of the premises, due or to be due. in that behalf to us, or
		to our heirs and successors.</P> 
	 <P>And further to take all manner of recognisances, cautions, obligations,
		and stipulations, as well to our use, as at the instance of any parties, for
		agreements or debts, or other causes whatsoever, and to put the same into
		execution, and to cause and command them to be executed; and also to arrest,
		and cause and command to be arrested, according to the civil and maritime laws,
		and ancient customs of our said Court, all ships, persons, things, goods, wares
		and merchandises, for the premises and every of them, and for other causes
		whatsoever concerning the same, wheresoever they shall be met with, or found
		throughout our said province of F &#151;&#151; , and the territories depending
		thereon, and maritime parts thereof and thereto adjoining, as well within
		liberties and franchises as without; and likewise for all other agreements,
		causes, or debts, howsoever contracted or arising, so that the goods or persons
		may be found within our jurisdiction aforesaid.</P> 
	 <P>And to hear, examine, discuss, and finally determine the same, with
		their emergencies, dependencies, incidents, annexed and connexed causes and
		businesses whatsoever; together with all other causes, civil and maritime, and
		complaints, contracts, and all and every the respective premises whatsoever
		above expressed, according to the laws and customs aforesaid, and by all other
		lawful ways, means,, and methods, according to the best of your skill and
		knowledge.</P> 
	 <P>And to compel all manner of persons in that behalf, as the case shall
		require, to appear and to answer, with power of using any temporal correction,
		and of inflicting any other penalty or mulct, according to the laws and customs
		aforesaid.</P> 
	 <P>And to do and administer justice, according to the right order and cause
		of law, summarily and plainly, looking only into the truth of the facts.</P> 
	 <P>And to fine, correct, punish, chastise, reform, and to imprison, and
		cause and command to be imprisoned in any gaols, being within our province of F
		&#151;&#151; aforesaid, and the territories depending thereon, the parties
		guilty, and the contemners of the law and jurisdiction of our Admiralty
		aforesaid, and violators, usurpers, delinquents and contumacious absenters,
		masters of ships, mariners, rowers, fishermen, shipwrights, and other workmen
		and artificers whatsoever exercising any kind of maritime affairs, according to
		the rights, statutes, laws, and ordinances, and customs anciently observed; and
		<I>to</I> deliver and absolutely discharge, and cause and command to be
		discharged, whatsoever persons imprisoned in such cases, who are to be
		delivered.</P> 
	 <P>And to preserve, or cause to be preserved, the public streams, ports,
		rivers, fresh waters and creeks whatsoever, within our maritime jurisdiction
		aforesaid, in what place soever they be in our province of F &#151;&#151;
		aforesaid, and the territories depending thereon, and maritime parts of the
		same and thereto adjacent whatsoever, as well for the preservation of our navy
		royal, and of the fleets and vessels of our kingdom and dominions aforesaid, as
		of whatsoever fishes increasing in the rivers and places aforesaid.</P> 
	 <P>And also to keep, and cause to be executed and kept, in our said
		province of F &#151;&#151; , and the territories depending thereon, and
		maritime parts thereof and thereto adjacent whatsoever, the rights, statutes,
		laws, ordinances and customs anciently observed.</P> 
	 <P>And to do, exercise, expedite, and execute all and singular other things
		in the premises, and every of them, as they by right, and according to the laws
		and statutes, ordinances, and customs aforesaid should be done. </P> 
	 <P>And moreover to reform nets too close, and other unlawful engines or
		instruments whatsoever for the catching of fishes wheresoever, by sea, or
		public streams, ports, rivers, fresh waters, or creeks whatsoever, throughout
		our province of F &#151;&#151; aforesaid, and the territories depending
		thereon, and maritime parts of the same and thereto adjacent, used or
		exercised, within our maritime jurisdiction aforesaid wheresoever.</P> 
	 <P>And to punish and correct the exercisers and occupiers thereof,
		according to the statutes, laws, ordinances, and customs aforesaid.</P> 
	 <P>And to pronounce, promulge, and interpose all manner of sentences and
		decrees, and to put the same in execution; with cognisance and jurisdiction of
		whatsoever other causes, civil and maritime, which relate to the sea, or which
		any manner of ways respect or concern the sea, or passage over the same, or
		naval or maritime voyages, or our said maritime jurisdiction, or the places or
		limits of our said Admiralty and cognisance aforementioned, and all other
		things done, or to be done.</P> 
	 <P>With power also to proceed in the same, according to the statutes, laws,
		ordinances, and customs aforesaid, anciently used, as well of mere office mixed
		or promoted, as at the instance of any party, as the case shall require and
		seem convenient: and likewise with cognisance and decision of wreck of the sea,
		and of the death, drowning, and view of dead bodies of all persons howsoever
		killed or drowned, or murdered, or which shall happen to be killed, drowned, or
		murdered, or by any other means come to their death, in the sea, or public
		streams, ports, fresh waters, or creeks whatsoever, within the flowing of the
		sea and high water mark, throughout our aforesaid province of F &#151;&#151; ,
		and the territories depending thereon, and maritime parts of the same, and
		thereto adjacent, or elsewhere within our maritime jurisdiction aforesaid.</P> 
	 <P>Together with the cognisance of Mayhem in the aforesaid places, within
		our maritime jurisdiction aforesaid, and flowing of the sea and water there
		happening; with power also of punishing all delinquents in that kind, according
		to the exigencies of the law and customs aforesaid.</P> 
	 <P>And to do, exercise, expedite, and execute all and singular other
		things, which in and about the premises only shall be necessary or thought
		meet, according to the rights, statutes, laws, ordinances, and customs
		aforesaid.</P> 
	 <P>With power of deputing and surrogating in your place for the premises,
		one or more deputy or deputies, as often as you shall think fit; and also with
		power from time to time of naming, appointing, ordaining, assigning, making,
		and constituting whatsoever other necessary, fit, and convenient officers and
		ministers under you, for the said office, and execution thereof, in our said
		province of F &#151;&#151; , and the territories depending thereon, and
		maritime parts of the same, and thereto adjacent whatsoever.</P> 
	 <P>Saving always the right of our High Court of Admiralty of England, and
		also of the Judge and Register of the said Court, from whom or either of them,
		it is not our intention in any thing to derogate by these presents; and saving
		to every one who shall be wronged or grieved by any definitive sentence or
		interlocutory decree, which shall be given in the Vice Admiralty Court of our
		province of F &#151;&#151; aforesaid, and the territories depending thereon,
		the right of appealing to our aforesaid High Court of Admiralty of England.</P>
	 
	 <P>Provided nevertheless, and under this express condition, that if you,
		the aforesaid A. B. our Captain General and Governor in Chief, shall not
		yearly, to wit, at the end of every year, between the feast of Saint Michael
		the Archangel and All Saints duly certify, and cause to be effectually
		certified (if you shall be thereunto required) to us, and our Lieutenant
		Official, Principals, and Commissary-General and Special, and Judge and
		President of the High Court of our Admiralty of England aforesaid, all that
		which from time to time, by virtue of these presents, you shall do and execute,
		collect, Or receive in the premises, or any of them, together with your full
		and faithful account thereupon, to be made in an authentic form, and sealed
		with the Seal of our Office, remaining in your custody, that from thence, and
		after default therein, these our Letters Patent of the Office of Vice Admiralty
		aforesaid, as above granted, shall be null and void, and of no force or
		effect.</P> 
	 <P>Further we do, in our name, command all and singular our Governors,
		Justices, Mayors, Sheriffs, Captains, Marshals, Bailiffs, Keepers of all our
		Goals and Prisons, Constables, and all other our Officers and faithful liege
		subjects whatsoever, and every of them, as well within liberties and franchises
		as without, that in and about the execution of the premises, and every of them,
		they be aiding, favouring, assisting, submissive, and yield obedience, in all
		things as is fitting to you, the aforesaid A. B. our Captain-General and </P> 
	 <P>Governor in Chief of our province of F &#151;&#151; aforesaid, and to
		your Deputy whomsoever, and to all other Officers by you appointed, and to be
		appointed, of our said Vice Admiralty of F &#151;&#151; aforesaid, and the
		territories depending thereon, and maritime parts of the same, and thereto
		adjoining, under pain of the law, and the peril which will fall thereon.</P> 
	 <P>Given at London, in the High Court of our Admiralty of England
		aforesaid, under the Great Seal thereof, &amp;c.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">II.</FONT></P> 
	 <P>A<FONT SIZE="-1">N ADDRESS DELIVERED AT THE OPENING OF THE</FONT> L<FONT
		SIZE="-1">AW</FONT> A<FONT SIZE="-1">CADEMY OF</FONT> P<FONT
		SIZE="-1">HILADELPHIA, BEFORE THE TRUSTEES AND MEMBERS OF THE</FONT> S<FONT
		SIZE="-1">OCIETY FOR THE</FONT> P<FONT
		SIZE="-1">ROMOTION OF</FONT> L<FONT SIZE="-1">EGAL</FONT> K<FONT
		SIZE="-1">NOWLEDGE, IN THE HALL OF THE</FONT> S<FONT SIZE="-1">UPREME</FONT>
		C<FONT SIZE="-1">OURT, ON</FONT> W<FONT SIZE="-1">EDNESDAY, THE 21ST OF</FONT>
		F<FONT SIZE="-1">EBRUARY, 1821. BY</FONT> P<FONT SIZE="-1">ETER</FONT> S.
		D<FONT SIZE="-1">U</FONT> P<FONT SIZE="-1">ONCEAU</FONT>, LL. D. P<FONT
		SIZE="-1">ROVOST OF THE</FONT> A<FONT SIZE="-1">CADEMY</FONT>. </P> 
	 <P><I>Mr. President, Gentlemen</I>,</P> 
	 <P>You are assembled for the purpose of witnessing and encouraging by your
		presence, the incipient efforts of the Law Academy of Philadelphia. Under your
		patronage we may indulge reasonable hopes of succeeding at least in the
		attainment of the primary object of its institution, which is no other than to
		stimulate the exertions of youth, towards acquiring an enlarged and liberal
		knowledge of the laws of our country. If this honest desire should alone be
		fulfilled, we shall not have laboured and you will not have bestowed your
		countenance and your support in vain. But our views extend much farther. We
		have conceived the ambitious hope of being able, with your powerful assistance,
		to raise from this humble seed a national school of jurisprudence, worthy of
		the high reputation which the Pennsylvania bench and bar have justly acquired;
		we are convinced that it is in your power to raise our infant institution, by
		proper degrees, to this honourable rank, and make it gradually expand, until
		its beneficial influence shall be felt in the remotest parts of our union, This
		we believe you can do, because a national seminary of legal knowledge is
		absolutely wanted in this country; and cannot be much longer- dispensed with;
		because the central situation of this city points it out as the fittest spot
		for such an establishment, and because there are talents here collected fully
		adequate to the important task.</P> 
	 <P>And why should not this honourable design meet with success equal to our
		wishes? What are the mighty obstacles in its way, if we have but the fixed will
		and a firm determination to persevere in our undertaking? Look at that medical
		school, the pride of our city and the honour of our country! Look back to the
		time when it was first instituted, when the population of Philadelphia hardly
		amounted to twenty thousand souls, when there was but little communication
		between the thinly populated provinces of the British American Empire, and when
		it was still fashionable, to believe that a regular education in any of the
		great branches of science could only be acquired in the schools of the mother
		country. How difficult, how impracticable, how extravagant, I may say, must not
		the plan have appeared to vulgar and to timid minds? But Shippen and Morgan and
		Rush, the illustrious founders of that noble institution, thought otherwise.
		With eagle eyes they saw through the mists of futurity, they fell themselves
		carried along with their country in its rapid ascent imperceptible to minds of
		an ordinary stamp. They passed through the storms of the revolution, still
		looking forward to their great object, and two of them at least had the good
		fortune to live to sec it accomplished. While this country shall remain alive
		to the feeling of national glory, while it shall continue to feel a pride in
		the memory of its illustrious citizens, the names of Shippen, Morgan and Rush
		shall be held in perpetual and grateful remembrance.</P> 
	 <P>Had those great men desponded because of the small number of their
		scholars and the gloominess of their first prospects,* we should now have to
		lament our inertness, when we saw, perhaps, some rival city in possession of
		that jewel, which we had indeed the power but not the spirit to acquire. And We
		may lament it in the present instance, if we do not steadily pursue the plan
		that we have begun upon. For the idea has gone forth, the necessity of an
		institution of this kind is felt every where, and depend upon it, America will
		have a national school of jurisprudence, and will gladly patronize such an
		institution, whenever it will find it established upon a rational plan, and
		with a reasonable prospect of success.</P> 
	 <P><FONT SIZE="-1">(* Dr. Rush used often to say in familiar conversation
		with his friends, that the Medical Professors of our University in the first
		years of its establishment had not "<I>salt to their porridge</I>.")</FONT>
		</P> 
	 <P>It is true that we have no model for the institution we contemplate in
		the country whence we have derived the system of common law under which we
		live. There, by what appears at first sight a strange anomaly, but which can
		nevertheless be satisfactorily explained, the civil law enjoys all the
		patronage of government, regular professorships for the instruction of youth in
		the principles of the Roman jurisprudence are established in the two great
		universities of Oxford and Cambridge, while the supreme law of the land appears
		to be neglected, and every attempt to raise seminaries for the education of its
		students has hitherto unaccountably failed. The Inns of Court formerly so
		celebrated, have gradually degenerated from what they once were, no points are
		now mooted there, no regular exercise imposed upon the students, no lectures
		delivered to them; in short no academical instruction is received within their
		walls, and those who wish to apply themselves with success to the study of the
		law, are obliged to resort to the aid of private teachers. The Inns of Court
		are become Inns in the literal sense of the word; lodgings and regular meals
		may be had there: but except that the students are allowed the use of a
		library, every instruction which the bare reading of those books cannot afford,
		must be sought for elsewhere. Even the examination of candidates for admission
		to the bar has become an empty formality. Nor has a better fate attended the
		celebrated chair which Mr. Viner's munificence established at the University of
		Oxford, The great Blackstone appeared there as a bright meteor, and by a single
		course of lectures immortalised his name and rendered a signal benefit to the
		profession. He was followed by Mr. Wooddeson, <I>haud passibus &aelig;quis</I>,
		and since that time a dead silence has reigned in the hall where the
		commentaries were first read to an admiring audience. The Professorship has
		become a sinecure.</P> 
	 <P>In a country so enlightened as England, where every branch of science is
		cultivated with unremitted ardor and exemplary success, such a state of things
		cannot exist without some adequate cause, and we will most probably find it in
		the peculiar nature of their legal and judiciary institutions. The civil law is
		a science founded on principles, and its application to particular cases is the
		result of fair deductions from general rules and maxims. No decision of a Judge
		under such a system can be conclusive, in analogous cases, unless it be traced
		to the fountain of the law by clear logical inference. For the law is always
		paramount to the opinion of the Judges. It is evident therefore that academical
		instruction, is the only means through which a competent knowledge of the civil
		law can be acquired. The common law, on the contrary, rests on a different
		foundation. It is preserved as a sacred deposit, within the precincts of
		Westminster Hall, under the guardianship of twelve high priests, called Judges,
		who alone have the right to deliver its oracles. There you find no subordinate
		judiciary orders, until you come down to the most inferior magistrates, whose
		jurisdiction is every way restricted and circumscribed and almost entirely
		confined to the trial of petty offences, or to what in other countries is
		called the administration of the <I>Police</I>,* while all civil matters and
		the cognisance of great crimes are exclusively reserved to the Supreme Judges,
		whose jurisdiction extends over the Whole country. The law which they
		administer, with the exception of a few statutes, the construction of which
		still rests with themselves, consists entirely of a series of their own and
		their predecessors' decisions on particular cases. There is no appeal to the
		power of logic, or the supremacy of principles. Judicial opinions solemnly
		delivered, must not be impugned, for they are the law of the land, as much as
		if they hud been enacted by the parliament with all the solemn forms of
		legislation. With a judiciary so constituted, it may be politic not to
		encourage academical schools of the national jurisprudence, lest ambitious
		professors and bold commentators should obtrude their private opinions, instil
		doubts into the minds of youth, and diminish the profound respect which the
		nation willingly pays to the responses of the Judges. And indeed the four great
		Courts sitting at Westminster Hall, are themselves schools of the highest kind,
		from whom the assiduous student may acquire all the knowledge that he wants in
		aid of his private studies. The opinions of the Judges given at full length as
		they have been since the days of Lord Mansfield, with the reasons and
		authorities in support of each decision, are professional lectures from the
		best and purest source, which may well supersede the necessity of academical
		institutions, in a country so peculiarly constituted.</P> 
	 <P><FONT SIZE="-1">(* However this may be in theory, it is certainly so in
		practice.)</FONT></P> 
	 <P>But when, on the other hand, we consider the complicated organisation of
		our own country, we find an immense difference between this order of things and
		that which exists in England. Here the common law has not and can never have,
		so long as our constitution subsists, such a sanctuary as is provided for it
		there, nor such a body of high priests entrusted with its exclusive
		guardianship. Nor is there here, as in that country, a sovereign legislature to
		whom alone it is permitted to lay her hand upon the ark, and make such
		alterations as may be required in a succession of ages. Our union, on the
		contrary, consists of twenty-three independent States, and a federal government
		with limited powers. Each State, with in a sphere that extends to all cases of
		ordinary legislation, has its own legislators and its own judiciary
		establishments, with a more or less graduated hierarchy, while England, as I
		have shewn, knows only the highest and the lowest grades. Turn your eyes where
		you will, and you will find no where that common elevated source, whence the
		oracles of law may be received and diffused through the laud. The jurisdiction
		of the Supreme Court of the United States is limited to few objects, and their
		decisions are by no means in all cases considered paramount and obligatory on
		the State judiciaries. Twenty-four Supreme Courts, and an immense number of
		inferior ones, in various gradations, are daily issuing their often
		contradictory decrees, on points arising out of the law which is common to us
		all. I do not except Louisiana, where, though the common law has not been
		established by name, its most essential principles have been necessarily
		introduced, and are constantly acted upon. Each State, moreover, possesses an
		independent legislature, with almost unlimited powers to alter and new model
		the system of laws, a power which they have not sparingly exercised; so that
		the common law in its details has already suffered many considerable changes,
		and in process of time, unless speedy measures are taken to counteract or at
		least to direct that spirit of innovation which appears every where to prevail,
		will branch out into as many different systems as there are States in the
		union, in which the great features of the parent will at last in vain be sought
		for. Those who have attended to the subject, have easily observed in how many
		different ways the law has already been altered in the different States, under
		various customary and statutory modifications. But still it is the common law;
		it is still that law which stamps freedom and equality upon all who are subject
		to it, which protects and punishes with an equal band the high and the low, the
		proud and the humble; it is that law, whose magical wand bursts open the prison
		doors, and delivers in an instant the victims of arbitrary authority; that law,
		which boasts of twelve invisible. Judges, whom the eye of the corruptor cannot
		see, and the influence of the powerful cannot reach; for they are no where to
		be found, until the moment when the balance of justice being placed in their
		hands, they hear, weigh, determine, pronounce, and immediately disappear, and
		are lost in the crowd of their fellow citizens. In short, it is that law, whose
		benefits we all have felt, whose protection we all enjoy, and which no
		description could so well represent to our minds as these two simple words, the
		"<I>common law</I>."</P> 
	 <P>To preserve, at least, in their purity the essential parts of this
		admirable system; to exhibit it constantly as a whole, in the eyes of the
		studious youth of these United States; to instil its principles into the minds
		of those, who at some future day will be called to be the Judges and
		legislators of the land, and by that means to create an army of faithful
		sentinels, who will constantly watch over the sacred deposit in the States
		which they may inhabit; to prevent rash innovations and inconsistent derisions
		in our numerous legislatures and Courts of judicature, and secure as much as
		possible an uniformity of jurisprudence in the land, is the great object which
		those who have projected this institution had in view, an object, which, it
		must be acknowledged, is of the highest importance to our country, and which we
		are satisfied, cannot be obtained by any other means.</P> 
	 <P>In fact, what other method could be proposed under the circumstances
		that I have described to preserve the purity of the law in our extensive
		country? Are we to wait for every spring; and autumn ship from England, for
		cargoes of decisions of the Courts of Westminster Hall? This would be
		derogatory to our national independence; and some States, among which is our
		own, have already shewn their sense of this proceeding, by prohibiting the
		reading in our Courts of modern English adjudications. Are we to refer
		exclusively to that mass of decisions which daily issue in the form of Reports
		from the presses of the different States? But those decisions are often
		contradictory, and probably will become more so, unless there is a central
		point where those divergent rays may be collected and whence they may be
		diffused with additional light over the surface of the union. Or is each State
		to consider the decisions of its own judiciary as the only pure sources of law,
		or are the Judges to select at random from the English and American reporters,
		the doctrines that may best suit their momentary fancy? Any one of these
		methods will be sure to plunge us into a chaos, whence we shall never emerge,
		until some Justinian or Napoleon shall, sword in hand, establish uniformity by
		a code which will bear his name. </P> 
	 <P>The only sure preservative against these threatened evils is the
		establishment of a national school of jurisprudence at some central point of
		the United States. It is through the minds of rising generations that the vast
		body of American citizens can be most effectually acted upon. With a succession
		of able professors the genuine spirit of our law may be preserved through a
		series of ages; legislative innovations, if not prevented, may be directed into
		a proper channel, and uniformity in judicial decisions may be in a great
		degree, if not entirely, secured. The common law, by the mere force of
		circumstances, is becoming more and more, in England as well as here, but more
		particularly in this country, a science of principles, which appears from the
		great number of elementary hooks that have lately been published, in which a
		more luminous order, a more regular method, and a greater freedom of opinion
		display themselves than were formerly met with in works of this description.
		The immense increase of bulky reports which has lately taken place and does not
		seem likely to diminish, will at last drive the student in despair to
		compilations and the works of private jurists, and thus will most probably be
		subverted the ancient basis of the jurisprudence of England, and that system of
		judiciary legislation which has been preserved there for so many ages.</P> 
	 <P>If things should take this course, it may perhaps be wise in the English
		nation, at no very remote period, to establish law schools for themselves. But
		with this we have no concern. It is enough that the necessity of such an
		establishment in this country has been clearly, and I hope satisfactorily
		pointed out to you.</P> 
	 <P>While the organisation of our judiciary readers it impossible to pursue
		the antischolastic system which England has hitherto followed; on the other
		hand it is free from the obstacles which would render our plan, in its full
		extent, absolutely impracticable in that country. There the civil law, which,
		though subordinate, is still a part of their general system, is exclusively
		studied, administered, and practised by a different body of men, from the
		professors of the common law. Hence have arisen jealousies and feuds between
		the civilians and common lawyers which are not entirely composed to this day.
		The two professions are strangers and in a manner hostile to each other. The
		common lawyer looks down upon the civil law with a mixed feeling of contempt
		and dislike,* while the civilian, proud of the protection of his government and
		of the superior elegance of Justinian's code, smiles at what he calls the
		barbarous jargon of Westminster Hall. Yet those two systems, though different
		in many respects, assimilate more than is generally believed, and at any rate
		they are both, as they respectively apply, constituent parts of the general
		jurisprudence of the land. We have in this respect an immense advantage over
		the English nation: the administration of the civil and the common law is
		committed to the same Judges; and the same body of jurists is called upon to
		practise both. Hence it becomes necessary to our practitioners to become
		acquainted with the two codes, by which means the law will become in their
		hands a more expanded and more liberal science. The fruits of the study of the
		civil law, which has lately become fashionable among us, are already to be
		perceived in erudite works of jurisprudence, and in the able decisions of
		federal and State Judges who have shewn by their examples what advantages may
		be derived from an acquaintance with that beautiful system of moral philosophy
		applied to human affairs.</P> 
	 <P><FONT SIZE="-1">(* The source of this feeling lies deep in the history
		of the country. The efforts which were made in former times to introduce the
		civil law into England, were with a view to destroy the liberties of that
		nation. The attachment of the clergy to the Roman code was not so much on
		account of its admirable theory of contracts, as of the imperial texts in
		favour of the unlimited authority of church and king, and the administration of
		justice without a jury, on the models of the Star Chamber and High Commission
		Courts, which plainly shewed what would have been the judicial organisation of
		the kingdom, if their doctrines had prevailed. Nor can we blame the English
		nation for entertaining the same jealousy even at the present day, when we
		consider the tendency of monarchical governments to arbitrary power. In this
		republican country, no such danger is to be dreaded and our common lawyers may
		become acquainted with the civil law, and profit by its knowledge, without any
		fear of the introduction of monarchical principles, or of the <I>torture</I>
		being preferred to <I>trial by</I> <I>jury</I>.)</FONT></P> 
	 <P>The common law, the civil law,* the law commercial and maritime, the law
		of nature and nations, the constitutional and federal law of our country, and
		the jurisprudence of the different States, form together the aggregate of the
		great body of American law. It is impossible that such a vast, such a
		diversified field of knowledge can be well or successfully cultivated without
		the aid of academical instruction. Therefore we may hope in time, if success
		attends this institution, to see its chairs filled with professors of each of
		these branches of our noble science.</P> 
	 <P><FONT SIZE="-1">(* As far as it is a part of our legal system; for there
		ought to be a selection of those titles that are proper to be taught in our
		schools of jurisprudence and the rest, if studied at all, should only be
		considered as a matter of mere curiosity. For this reason, it is suggested that
		a re-publication of those parts of the English translation of Domat's Civil
		Law, which are of real use, and are not in opposition to our national
		institutions, would be found of great advantage to the profession. It might be
		comprised in one octavo volume.)</FONT></P> 
	 <P>Ever since the establishment of the federal constitution, the necessity
		of academical instruction for the students of the law has been felt throughout
		the United States. It was not long after that memorable epoch, that the late
		Judge Wilson gave his celebrated lectures, which if he had continued, would
		have laid an excellent foundation for the edifice that we are now endeavouring
		to raise. Untoward circumstances prevented him from longer giving way to the
		zeal by which be was animated, and the country will long lament that as a
		professor he was only shewn to the legal world. <I>Fata eum tantum
		ostenderunt</I>.</P> 
	 <P>The exertions of Judge Reeves were remarkably successful in establishing
		in Connecticut a respectable law school, consisting of students from all parts
		of the union. This is a proof of the eagerness with which the country is
		disposed to support and patronise similar institutions. But we are informed
		that Judge Reeves has given up his professorship, and that it has fallen into
		other hands, with what success we know not.</P> 
	 <P>In the university of Cambridge, in the State of Massachusetts, there is
		a law chair established; where lectures are regularly delivered by two
		professors of eminent knowledge and talents,* but not on different branches of
		the law. If that justly celebrated seminary were situated elsewhere than in one
		of the most remote parts of our union, there would be no need, perhaps, of
		looking to this city for the completion of the object which we have in view.
		Their own sagacity would suggest to them the necessity of appointing additional
		professors for each important branch of our legal system, and thus under their
		hands would gradually rise a noble temple dedicated to the study of our
		national jurisprudence. But their local situation, and that alone, precludes
		every such hope; for otherwise the world well knows that they are neither
		wanting in inclination or ability to pursue any great object that may redound
		to their fame and the benefit of their country.</P> 
	 <P><FONT SIZE="-1">(* The Honourable Chief Justice Parker and the
		Honourable Asahel Stearns.)</FONT></P> 
	 <P>Not long since, our fellow-citizen Charles W. Hare, deeply impressed
		with a strong sense of the necessity of regular legal instruction, and moved by
		motives of the purest patriotism, accepted the appointment of law professor in
		the university of this State, which had been vacant since the resignation of
		Judge Wilson, and gave a course of gratuitous lectures, in which he displayed
		those brilliant talents with which nature and a refined education have endowed
		him. Unfortunately for us, his private affairs called him to another part of
		the world and thus was his useful career at least interrupted. By these
		examples we see that the most eminent talents have been successively exerted in
		these United States to attain that great object which the country imperiously
		calls for, which must at some day or other be carried into execution, and the
		honour of effecting which courts your acceptance. In time, when this
		institution shall have attained a sufficient degree of maturity, it may be
		annexed to the University of Pennsylvania, and shine there by the side of our
		celebrated medical school; but the first efforts must be made by the
		profession, and our infant academy must be reared under its wings, until it
		shall he worthy of being presented to our alma mater, who, I am convinced, will
		be disposed, in the mean time, to afford us all the aid in her power.</P> 
	 <P>If I have succeeded in convincing you, gentlemen, not only of the
		importance, but of the necessity of this institution, I may indulge a hope that
		you will be disposed to support it with your patronage.* Feeble as it may at
		present appear, if you are but disposed to encourage it, it will rise with
		gigantic steps, and in the end realise the fondest hopes of its patriotic
		founders. It originated with a society of young students, who weekly met
		together under the denomination of a Law Society for the discussion of legal
		questions. Societies of this description have long existed in London among the
		students in the Temple; but their object has been rather to exercise themselves
		in public speaking than to increase their knowledge of jurisprudence. For it is
		but little, after all, that unpractised scholars can communicate to each other.
		Similar societies have been established in this city from time to time; but
		none of them have been able to boast of long duration. At last, a number of
		young gentlemen met together last autumn for the same purpose, sensible of the
		inefficacy of similar associations for the purpose of solid learning, fell upon
		the idea of engaging an elder barrister to preside at their meetings and direct
		their exercises. Being honoured with an application from this society to accept
		the office of their president, it struck me at once that upon this foundation a
		school of jurisprudence might he raised, which, if successfully and and firmly
		established, would redound to the honour of the State and the permanent
		advantage of the country. I therefore accepted their invitation, and
		communicated to them the object I had in view, which I had the pleasure to find
		not only met with their approbation, but excited their warmest zeal, which was
		displayed in their efforts to carry it into effect. A committee was appointed
		from their body, with whom I consulted for several weeks, and when our plan was
		considerably matured, we associated to ourselves a few members of the bar, With
		whom, after much consultation, the project was settled, which has been since
		carried into execution. It was agreed to form a society of such members of the
		profession as should be inclined to join it, and that the law society, erected
		into a law academy, should be annexed to it, and subjected to regular
		discipline under a provost and vice-provost, and a board of trustees elected by
		the society, which was to be styled "The Society for the promotion of Legal
		Knowledge and Forensic Eloquence." Success has hitherto answered our most
		sanguine expectations. The honourable Judges and a considerable number of the
		members of the bar have joined our association. It was thought proper, to avoid
		delay, to name at once the officers of the Society, until the month of May
		next, when a general election shall take place. A charter of incorporation was
		obtained, which, with our constitution, has been published in one of the
		newspapers of this city. On the part of the young gentlemen, who composed the
		law society, not only no obstacle was thrown in our way, but, with an alacrity
		and zeal that does them the greatest honour, they unanimously agreed to
		surrender their independence at the shrine of science, and to submit to
		academical discipline for the sake of promoting their improvement in knowledge.
		On the first invitation, they, without hesitation, formed themselves into a Law
		Academy to be annexed to our Society, agreeably to the provisions of its
		institution. It is to be remarked that the Law Society was not entirely
		composed of young students, but that several of them had been called to the
		bar, and desired to remain members of the Academy, for the encouragement of
		their junior brethren. Although but a few weeks have elapsed since this academy
		has been established, I have the pleasure to state that it has received and is
		receiving a constant accession of members. We have every reason to expect that
		its numbers, already considerable,** will continue to increase.</P> 
	 <P><FONT SIZE="-1">(* The bar of Philadelphia was present by
		invitation.</FONT> </P> 
	 <P><FONT SIZE="-1">** There were at the time thirty regular and eighteen
		honorary members; the latter attending the exercises occasionally, but without
		being liable to fines for non-attendance. (Since that time, the number of the
		students of the academy has increased and is increasing. Professor B<FONT
		SIZE="-1">ARNES</FONT> reads lectures on the Common and Statute laws of
		Pennsylvania to the general satisfaction of his hearers.))</FONT></P> 
	 <P>The youth of the United States are peculiarly adapted to receive
		instruction and profit by it. They are sensible, intelligent, have quick
		perceptions, and are exemplarily docile and tractable. The medical school of
		this city offers a striking example of their thirst after knowledge, and the
		able physicians that it has produced are proofs of their talents and capacity
		for learning. With such a foundation, hardly any plan for an academical
		establishment will appear extravagant. Give our youth but free access to the
		temple of science, and you will see them flock to it in such numbers as will
		astonish you. On this expectation, and the hopes of your patronage, this
		institution has been raised. Give it but reasonable encouragement, and you will
		wonder at the work of your own hands.</P> 
	 <P>The means which are to produce these great effects are very simple.
		Small as are the contributions required of the members of the Society for the
		promotion of legal Knowledge, yet their aggregate is of infinite importance in
		the infancy of this establishment. It is therefore to be wished that all the
		members of our profession should come into this association, so ihat the
		academy should derive from it not only the benefit of a trifling pecuniary aid,
		but the more important one of their support and countenance. The students of
		law should also be induced to become fellows of the academy, for on its
		increase depends the success of the institution, which, as its numbers augment
		will at first be able to support, and at last gradually to raise itself to the
		contemplated height of greatness and prosperity. </P> 
	 <P>At present its resources for instruction rest on the exertions of the
		provost and vice provost. The former exercises of the Law Society are,
		continued; the students once in every week discuss a legal question before the
		presiding member of the faculty, who at the next meeting delivers to them his
		opinion, not in the form of a judicial decision, but of a law lecture on the
		particular subject to which the question refers. It is, moreover, contemplated
		to require of the members readings or dissertations on various points of law.
		Here we have already all the exercises that ever were in use in the English
		Inns of Court, the mooting of points and the law readings; and if our academy
		in its infancy offers the same means of instruction that that celebrated
		university, as Fortescue and Lord Coke style it, ever did in its best days, it
		is worth the student's while to attend it. But there is every reason to hope
		that we shall in time be able to add the lectures of regular professors;* for
		it is evident, that as our academicians increase in numbers, they will more and
		more acquire the capacity to support their own establishment. In the mean time,
		it is much to be wished, that those gentlemen of the profession, who unite
		capacity and leisure, would now and then condescend to deliver to the academy
		occasional lectures on topics of their own choice, remembering on what slender
		foundation our medical school was first established, and the success which
		followed the zeal and perseverance of its founders.</P> 
	 <P><FONT SIZE="-1">(* See the note to p. 187.)</FONT></P> 
	 <P>It is only by united efforts that any important design can be brought to
		a successful issue. We have the happiness to number among the patrons of this
		institution all the honourable Judges of the Supreme Court of this State,
		several of those of the inferior Courts, and a considerable portion of the
		members of our bar. The plan having been conceived by a few, and hurried in its
		execution, in order not to lose the opportunity of obtaining a charter of
		incorporation from the Court which was then sitting, it has been impossible to
		consult many of our respectable brethren whose advice we would with pleasure
		have availed ourselves of. We hope, however, that the opportunity we have
		missed is not lost, and that the more general aid and support of the profession
		will not be wanting to an institution which has for its object the promotion of
		the legal science, and the honour of those who profess it.</P> 
	 <P><I>Gentlemen of the Law Academy</I>,</P> 
	 <P>I turn to you with pleasure, as the pillars on which our institution
		rests. You are the cornerstones of the edifice; with your zealous co-operation
		every hope may be indulged; without it every endeavour of the venerable patrons
		of the establishment roust fail; for it is in vain to support those who will
		not support themselves. Continue, therefore, to show yourselves worthy of the
		honour of being considered as the founders of a national law school in the
		United States. Pursue your studies with increased diligence, that the academy
		may one day point to you with pride and say, "these were our pupils." Endeavour
		to increase your numbers by persuasion and by example; for that is the
		foundation on which we must build, and remember that every additional student
		who now joins the academy, is a new and important pledge of its future success.
		Be not deterred by the fears of the weak or timid, but persevere with steady
		courage in the work that you have begun, and may the Great Legislator of the
		universe bless and direct our endeavours to promote a science which, under the
		revelations of his divine will, is the surest guide to lead mankind into the
		ways of justice and righteousness.</P> <HR> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">APPENDIX.</FONT></P> 
	 <P>I. CONSTITUTION OF THE UNITED STATES OF AMERICA.</P> 
	 <P>The Constitution framed for the United States of America, by a
		Convention of Deputies from the States of New Hampshire, Massachusetts,
		Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
		North Carolina, South Carolina, and Georgia, at a Session begun May 25, and
		ended September 17, 1787.</P> 
	 <P>W<FONT SIZE="-1">E</FONT>, the people of the United States, in order to
		form a more perfect union, establish justice, insure domestic tranquillity,
		provide for the common defence, promote the general welfare, and secure the
		blessings of liberty to ourselves and our posterity, do ordain and establish
		this Constitution for the United States of America.</P> 
	 <P>ARTICLE I.</P> 
	 <P>SECTION I.</P> 
	 <P>All legislative powers herein granted, shall be vested in a Congress of
		the United States, which shall consist of a Senate and House of
		Representatives. </P> 
	 <P>SECTION. II.</P> 
	 <P>1. The house of representatives shall be composed of members chosen
		every second year, by the people of the several States: and the electors in
		each State, shall have the qualifications requisite for electors of the most
		numerous branch of the State legislature.</P> 
	 <P>2. No person shall be a representative, who shall not have attained to
		the age of twenty-five years, and been seven years a citizen of the United
		States; and who shall not when elected, be an inhabitant of that State in which
		he shall be chosen.</P> 
	 <P>3. Representatives and direct taxes shall be apportioned, among the
		several States which may be included within this union, according to their
		respective numbers, which shall be determined by adding to the whole number of
		free persons, including those bound to service for a term of years, and
		excluding Indians not taxed, three-fifths of all other persons. The actual
		enumeration shall be made within three years after the first meeting of the
		Congress of the United States, and within every subsequent term of ten years,
		in such manner as they shall by law direct. The number of representatives shall
		not exceed one for every thirty thousand: but each State shall have at least
		one representative: and, until such enumeration shall be made, the State of New
		Hampshire shall be entitled to choose three; Massachusetts eight; Rhode Island
		and Providence plantations one; Connecticut five; New York six; New Jersey
		four; Pennsylvania eight; Delaware one; Maryland six; Virginia ten; North
		Carolina five; South Carolina five; and Georgia three.</P> 
	 <P>4. When vacancies happen in the representation from any State, the
		executive authority thereof shall issue writs of election to fill such
		vacancies.</P> 
	 <P>5. The house of representatives shall choose their speaker and other
		officers; and shall have the sole power of impeachment.</P> 
	 <P>SECTION III.</P> 
	 <P>1. The senate of the United States shall be composed of two senators
		from each State, chosen by the legislature thereof for six years: and each
		senator shall have one vote.</P> 
	 <P>2. Immediately after they shall be assembled, in consequence of the
		first election, they shall be divided, as equally as may be, into three
		classes. The seats of the senators of the first class shall be vacated at the
		expiration of the second year; of the second class, at the expiration, of the
		fourth year; and of the third class, at the expiration of the sixth year: so
		that one third may be chosen every second year. And if vacancies happen, by
		resignation or otherwise, during the recess of the legislature of any State,
		the executive thereof may make temporary appointments until the next meeting of
		the legislature, which shall then fill such vacancies.</P> 
	 <P>3. No person shall be a senator, who shall not have attained to the age
		of thirty years, and been nine years a citizen of the United States; and who
		shall not, when elected, be an inhabitant of that State for which he shall be
		chosen. </P> 
	 <P>4. The vice-president of the United States shall be president of the
		senate but shall have no vote unless they be equally divided.</P> 
	 <P>5. The senate shall choose their other officers, and also a president
		pro tempore, in the absence of the vice-president, or when he shall exercise
		the office of president of the United States.</P> 
	 <P>6. The senate shall have the sole power to try all impeachments. When
		sitting for that purpose, they shall be on oath or affirmation. When the
		president of the United States is tried, the chief justice shall preside: and
		no person shall be convicted, without the concurrence of two-thirds of the
		members present.</P> 
	 <P>7. Judgment, in cases of impeachment, shall not extend further than to
		removal from office, and disqualification to hold and enjoy any office of
		honour, trust, or, under the United States; but the party convicted shall
		nevertheless be liable and subject to indictment, trial, judgment, and
		punishment according to law.</P> 
	 <P>SECTION IV.</P> 
	 <P>1. The times, places, and manner of holding elections for senators and
		representatives, shall be prescribed in each State by the legislature thereof;
		but the Congress may at any time, by law, make or alter such regulations,
		except as to the places of choosing senators.</P> 
	 <P>2. The Congress shall assemble at least once in every year, and such
		meeting shall be on the first Monday in December, unless they shall by law
		appoint a different day.</P> 
	 <P>SECTION V.</P> 
	 <P>1. Each house shall be the judge of the elections, returns, and
		qualifications of its own members; and a majority of each shall constitute a
		quorum to do business; but a smaller number may adjourn from day to day, and
		may be authorised to compel the attendance of absent members, in such manner
		and under such penalties as each house may provide.</P> 
	 <P>2. Each house may determine the rules of its proceedings, punish its
		members for disorderly behaviour, and with the concurrence of two-thirds, expel
		a member.</P> 
	 <P>3. Each house shall keep a journal of its proceedings, and from time to
		time publish the same, excepting such parts as may in their judgment require
		secrecy; and the yeas and nays of the members of either house, on any question,
		shall, at the desire of one-fifth of those present, be entered on the journal.
		</P> 
	 <P>4. Neither house, during the session of Congress, shall, without the
		consent of the other, adjourn for more than three days, nor to any other place
		than that in which the two houses shall be sitting.</P> 
	 <P>SECTION VI.</P> 
	 <P>1. The senators and representatives shall receive a compensation for
		their services, to be ascertained by law, and paid out of the treasury of the
		United States. They shall, in all cases, except treason, felony, and breach of
		the peace, be privileged from arrest during their attendance at the session of
		their respective houses, and in going to and returning from the same; and for
		any speech or debate in either house, they shall not be questioned in any other
		place.</P> 
	 <P>2. No senator or representative shall, during the time for which he was
		elected, be appointed to any civil office under the authority of the United
		States, which shall have been created or the emoluments whereof shall have been
		increased, during such time; and no person having any office under the United
		States shall be a member of either house during his continuance in office.</P> 
	 <P>SECTION VII.</P> 
	 <P>1. All bills for raising revenue shall originate in the house of
		representatives; but the senate may propose or concur with amendments, as on
		other bills.</P> 
	 <P>2. Every bill which shall have passed the house of representatives and
		the senate, shall, before it become a law, be presented to the president of the
		United States; if he approve, he shall sign it; but if not, he shall return it,
		with his objections, to that house in which it shall have originated, who shall
		enter the objections at large on their journal, and proceed to reconsider it.
		If, after such reconsideration, two thirds of that house shall agree to pass
		the bill, it shall be sent, together with the objections, to the other house,
		by which it shall likewise be reconsidered, and if approved by two thirds of
		that house, it shall become a law. But in all such cases, the votes of both
		houses shall be determined by yeas and nays, and the names of the persons
		voting for and against the bill shall be entered on the journal of each house
		respectively. If any bill shall not be returned by the president within ten
		days (Sundays excepted) after it shall have been presented to him, the same
		shall be a law in like manner as if he had signed it, unless the Congress, by
		their adjournment, prevent its return, in which case it shall not be a law. 3.
		Every order, resolution, or vote, to which the concurrence of the senate and
		house of representatives may be necessary, (except on a question of
		adjournment,) shall be presented to the president of the United States; and
		before the same shall take effect, shall be approved by him, or being
		disapproved by him, shall be repassed by two thirds of the senate and house of
		representatives, according to the rules and limitations prescribed in the case
		of a bill.</P> 
	 <P>SECTION VIII.</P> 
	 <P>The Congress shall have power &#151; </P> 
	 <P>1. To lay and collect taxes, duties, imposts, and excises; to pay the
		debts and provide for the common defence and general welfare of the United
		States; but all duties, imposts, and excises shall be uniform throughout the
		United States.</P> 
	 <P>2. To borrow money on the credit of the United States.</P> 
	 <P>3. To regulate commerce with foreign nations, and among the several
		States, and with the Indian tribes.</P> 
	 <P>4. To establish an uniform rule of naturalisation, and uniform laws on
		the subject of bankruptcies throughout the United States.</P> 
	 <P>5. To coin money, regulate the value thereof, and of foreign coin, and
		fix the standard of weights and measures.</P> 
	 <P>6. To provide for the punishment of counterfeiting the securities and
		current coin of the United States.</P> 
	 <P>7. To establish post offices and post roads.</P> 
	 <P>8. To promote the progress of science and useful arts, by securing, for
		limited times, to authors and inventors, the exclusive right to their
		respective writings and discoveries.</P> 
	 <P>9. To constitute tribunals inferior to the supreme court. </P> 
	 <P>10. To define and punish piracies and felonies committed on the high
		seas, and offences against the law of nations.</P> 
	 <P>11. To declare war, grant letters of marque and reprisal, and make rules
		concerning captures on land and water.</P> 
	 <P>12. To raise and support armies: but no appropriation of money to that
		use shall be for a longer term than two years.</P> 
	 <P>13. To provide and maintain a navy.</P> 
	 <P>14. To make rules for the government and regulation of the land and
		naval forces.</P> 
	 <P>15. To provide for calling forth the militia to execute the laws of the
		union, suppress insurrections, and repel invasions.</P> 
	 <P>16. To provide for organising, arming, and disciplining the militia, and
		for governing such part of them as may be employed in the service of the United
		States, reserving to the States respectively the appointment of the officers,
		and the authority of training the militia according to the discipline
		prescribed by Congress.</P> 
	 <P>17. To exercise exclusive legislation in all cases whatsoever, over such
		district (not exceeding ten miles square) as may, by cession of particular
		States, and the acceptance of Congress, become the seat of government of the
		United States, and to exercise like authority over all places purchased, by the
		consent of the legislature of the State in which the same shall be, for the
		erection of forts, magazines, arsenals, dockyards, and other needful buildings.
		And,</P> 
	 <P>18. To make all laws which shall be necessary and proper for carrying
		into execution the foregoing powers, and all other powers vested by this
		constitution in the government of the United States, or in any department or
		officer thereof.</P> 
	 <P>SECTION IX.</P> 
	 <P>1. The migration or importation of such persons as any of the States now
		existing shall think proper to admit, shall not be prohibited by the Congress
		prior to the year one thousand eight hundred and eight, but a tax or duty may
		be imposed on such importation not exceeding ten dollars for each person.</P> 
	 <P>2. The privilege of the writ of habeas corpus shall not be suspended,
		unless when, in cases of rebellion or invasion, the public safety may require
		it.</P> 
	 <P>3. No bill of attainder, or ex post facto law, shall be passed.</P> 
	 <P>4. No capitation or other direct tax shall be laid, unless in proportion
		to the census or enumeration herein before directed to be taken.</P> 
	 <P>5. No tax or duty shall be laid on articles exported from any State. No
		preference shall be given by any regulation of commerce or revenue to the ports
		of one State over those of another: nor shall vessels bound to or from one
		State, be obliged to enter, clear, or pay duties in another. </P> 
	 <P>6. No money shall be drawn from the treasury, but in consequence of
		appropriations made by law: and a regular statement and account of the receipts
		and expenditures of all public money shall be published from time to time.</P> 
	 <P>7. No title of nobility shall be granted by the United States; and no
		person holding any office of profit or trust under them shall, without the
		consent of the Congress, accept of any present, emolument, office, or title of
		any kind whatsoever, from any king, prince, or foreign state.</P> 
	 <P>SECTION X.</P> 
	 <P>1. No State shall enter into any treaty, alliance, or confederation;
		grant letters of marque and reprisal; coin money; emit bills of credit; make
		any thing but gold and silver coin a tender in payment of debts; pass any bill
		of attainder, ex post facto law, or law impairing the obligation of contracts;
		or grant any title of nobility.</P> 
	 <P>2. No State shall, without the consent of the Congress, lay any imposts
		or duties on imports or exports, except what may be absolutely necessary for
		executing its inspection laws; and the net produce of all duties and imposts,
		laid by any State on imports or exports, shall be for the use of the treasury
		of the United States, and all such laws shall be subject to the revision and
		control of the Congress. No State shall, without the consent of Congress, lay
		any duty on tonnage, keep troops or ships of war in time of peace, enter into
		any agreement or compact with another State, or with a foreign power, or engage
		in war, unless actually invaded, or in such imminent danger as will not admit
		of delay.</P> 
	 <P>ARTICLE II.</P> 
	 <P>SECTION I.</P> 
	 <P>1. The executive power shall be vested in a president of the United
		States of America. He shall hold his office during the term of four years, and,
		together with the vice-president, chosen for the same term, be elected as
		follows:</P> 
	 <P>2. Each State shall appoint, in such manner as the legislature thereof
		may direct, a number of electors, equal to the whole number of senators and
		representatives to which the State may be entitled in the Congress; but no
		senator or representative, or person holding an office of trust or profit under
		the United States, shall be appointed an elector.</P> 
	 <P>3. The electors shall meet in their respective States, and vote by
		ballot for two persons, of whom one at least shall not be an inhabitant of the
		same State with themselves. And they shall make a list of all the persons voted
		for, and of the number of votes for each; which list they shall sign and
		certify, and transmit sealed to the seat of the government of the United
		States, directed to the president of the senate. The president of the senate
		shall, in the presence of the senate and house of representatives, open all the
		certificates, and the votes shall then be counted. The person having the
		greatest number of votes shall be the president, if such number be a majority
		of the whole number of electors appointed; and if there be more than one who
		have such majority, and have an equal number of votes, then the house of
		representatives shall immediately choose, by ballot, one of them for president;
		and if no person have a majority, then, from the five highest on the list the
		said house shall, in like manner, choose the president. But in choosing the
		president, the votes shall be taken by States, the representation from each
		State having one vote; a quorum for this purpose shall consist of a member or
		members from two thirds of the States, and a majority of all the States shall
		be necessary to a choice. In every case, after the choice of the president, the
		person having the greatest number of votes of the electors, shall be the
		vice-president. But if there should remain two or more who have equal votes,
		the senate shall choose from them, by ballot, the vice-president.</P> 
	 <P>4. The Congress may determine the time of choosing the electors, and the
		day on which they shall give their votes; which clay shall be the same
		throughout the United States.</P> 
	 <P>5. No person, except a natural born citizen, or a citizen of the United
		States at the time of the adoption of this constitution, shall be eligible to
		the office of president; neither shall any person be eligible to that office,
		who shall not have attained to the age of thirty-five years, and been fourteen
		years a resident within the United States.</P> 
	 <P>6. In case of the removal of the president from office, or of his death,
		resignation, or inability to discharge the powers and duties of the said
		office, the same shall devolve on the vice president, and the Congress may, by
		law, provide for the case of removal, death, resignation, or inability, both of
		the president and vice-president, declaring what officer shall then act as
		president, and such officer shall act accordingly, until the disability be
		removed, or a president shall be elected.</P> 
	 <P>7. The president shall, at stated times, receive for his services a
		compensation, which shall neither be increased nor diminished during the period
		for which he shall have been elected, and he shall not receive within that
		period any other emolument from the United States, or any of them. </P> 
	 <P>8. Before he enter on the execution of his office, he shall take the
		following oath or affirmation:</P> 
	 <P>"I do solemnly swear (or affirm) that I will faithfully execute the
		office of president of the United States, and will, to the best of my ability,
		preserve, protect, and defend the constitution of the United States."</P> 
	 <P>SECTION II.</P> 
	 <P>1. The president shall be commander in chief of the army and navy of the
		United States, and of the militia of the several States, when called into the
		actual service of the United States. He may require the opinion, in writing, of
		the principal officer in each of the executive departments upon any subject
		relating to the duties of their respective offices: and he shall have power to
		grant reprieves and pardons, for offences against the United States, except in
		cases of impeachment.</P> 
	 <P>2. He shall have power, by and with the advice and consent of the
		senate, to make treaties, provided two-thirds of the senators present concur:
		and he shall nominate, and by and with the advice and consent of the senate,
		shall appoint ambassadors, other public ministers and consuls, judges of the
		supreme court, and all other officers of the United States whose appointments
		are not herein otherwise provided for, and which shall be established by law.
		But the Congress may by law vest the appointment of such inferior officers, as
		they think proper, in the president alone, in the courts, of law, or in the
		heads of departments.</P> 
	 <P>3. The president shall have power to fill up all vacancies that may
		happen, during the recess of the senate, by granting commissions, which shall
		expire at the end of the their next session.</P> 
	 <P>SECTION III.</P> 
	 <P>He shall, from time to time, give to the Congress information of the
		state of the union, and recommend to their consideration such measures as he
		shall judge necessary and expedient. He may, on extraordinary occasions,
		convene both houses or either of them; and, in case of disagreement between
		them, with respect to the time of adjournment, he may adjourn them to such time
		as he shall think proper. He shall receive ambassadors and other public
		ministers</P> 
	 <P>He shall take care that the laws be faithfully executed; and shall
		commission all the officers of the United States.</P> 
	 <P>SECTION IV.</P> 
	 <P>The president, vice-president, and all civil officers of the United
		States, shall be removed from office, on impeachment for, and conviction of,
		treason, bribery, or other high crimes and misdemeanors.</P> 
	 <P>ARTICLE III.</P> 
	 <P>SECTION I.</P> 
	 <P>The judicial power of the United States shall be vested in one supreme
		court, and in such inferior courts, as the Congress may, from time to time,
		ordain and establish. The judges, both of the supreme and inferior courts,
		shall hold their offices during good behaviour; and shall at stated times,
		receive for their services a compensation, which shall not be diminished during
		their continuance in office.</P> 
	 <P>SECTION. II.</P> 
	 <P>1. The judicial 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; to all cases of admiralty and
		maritime jurisdiction; to controversies to which the United States shall be a
		party: to 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.</P> 
	 <P>2 In all cases, affecting ambassadors, other public ministers, and
		consuls, and those in which a State shall be party, the supreme court shall
		have original jurisdiction. In all the other cases before mentioned, the
		supreme court shall have appellate jurisdiction, both as to law and fact, with
		such exceptions, and under such regulations, as the Congress shall make.</P> 
	 <P>3. The trial of all crimes, except in cases of impeachment, shall be by
		jury and such trial shall be held in the State where the said crimes shall have
		been committed; but when not committed within any State, the trial shall be at
		such place or places, as the Congress may by law have directed.</P> 
	 <P>SECTION III.</P> 
	 <P>1. Treason against the United States shall consist only in levying war
		against them, or in adhering to their enemies, giving them aid and comfort. No
		person shall be convicted of treason unless on the testimony of two witnesses
		to the same overt act, or on confession in open court.</P> 
	 <P>2. The Congress shall have power to declare the punishment of treason;
		but no attainder of treason shall work corruption of blood, or forfeiture,
		except during the life of the person attainted.</P> 
	 <P>ARTICLE IV.</P> 
	 <P>SECTION I.</P> 
	 <P>Full faith and credit shall be given, in each State, to the public acts,
		records, and judicial proceedings of every other State. And the Congress may,
		by general laws, prescribe the manner in which such acts, records, and
		proceedings, shall be proved, and the effect thereof.</P> 
	 <P>SECTION II.</P> 
	 <P>1. The citizens of each State shall be entitled to all privileges and
		immunities of citizens in the several States.</P> 
	 <P>2. A person charged in any State with treason, felony, or other crime,
		who shall flee from justice, and be found in another State, shall, on demand of
		the executive authority of the State from which he fled, be delivered up, to be
		removed to the State having jurisdiction of the crime.</P> 
	 <P>3. No person held to service or labour in one State under the laws
		thereof, escaping into another, shall, in consequence of any law or regulation
		therein, be discharged from such service or labour; but shall be delivered up
		on claim of the party to whom such service or labour may be due.</P> 
	 <P>SECTION III.</P> 
	 <P>1. New States may be admitted by the Congress into this union; but no
		new State shall be formed or erected within the jurisdiction of any other
		State, nor any State be formed by the junction of two or more States, or parts
		of States, without the consent of the legislatures of the States, concerned, as
		well as of the Congress.</P> 
	 <P>2. The Congress shall have power to dispose of, and make all needful
		rules and regulations respecting the territory or other property belonging to
		the United States; and nothing in this constitution shall be so construed as to
		prejudice any claims of the United States, or of any particular State.</P> 
	 <P>SECTION IV.</P> 
	 <P>The United States shall guarantee to every State in this union a
		republican form of government, and shall protect each of them against invasion;
		and, on application of the legislature, or of the executive, (when the
		legislature cannot be convened,) against domestic violence.</P> 
	 <P>ARTICLE V.</P> 
	 <P>The Congress, whenever two-thirds of both houses shall deem it
		necessary, shall propose amendments to this constitution; or, on the
		application of the legislatures of two-thirds of the several States, shall call
		a convention for proposing amendments, which, in either case, shall be valid to
		all intents and purposes, as part of this constitution, when ratified by the
		legislatures of three-fourths of the several States, or by conventions in
		three-fourths thereof, as the one or the other mode of ratification may be
		proposed by the Congress; provided, that no amendment which may be made prior
		to the year one thousand eight hundred and eight, shall in any manner affect
		the first and fourth clauses in the ninth section of the first article: and
		that no State, without its consent, shall be deprived of its equal suffrage in
		the senate.</P> 
	 <P>ARTICLE VI.</P> 
	 <P>1. All debts contracted and engagements entered into, before the
		adoption of this constitution, shall be as valid against the United States
		under this constitution, as under the confederation.</P> 
	 <P>2. This constitution, and the laws of the United States which shall be
		made in pursuance thereof, and all treaties made, or which shall be made, under
		the authority of the United States, shall be the supreme law of the land: and
		the judges, in every State shall be bound thereby; any thing in the
		constitution or laws of any State to the contrary notwithstanding.</P> 
	 <P>3. The senators and representatives before mentioned, and the members of
		the several State legislatures, and all executive and judicial officers, both
		of the United States and of the several States, shall be bound by oath or
		affirmation to support this constitution: but no religious test shall ever be
		required as a qualification to any office or public trust under the United
		States.</P> 
	 <P>ARTICLE VII.</P> 
	 <P>The ratification of the convention of nine States shall be sufficient
		for the establishment of this constitution between the States so ratifying the
		same, Done in convention, &amp;c.</P> 
	 <P ALIGN="CENTER">AMENDMENTS.</P> 
	 <P>The following articles in addition to, and amendment of, the
		Constitution of the United States, having been ratified by the legislatures of
		nine States, are equally obligatory with the Constitution itself.</P> 
	 <P>ARTICLE I.</P> 
	 <P>After the first enumeration required by the first article of the
		constitution, there shall be one representative for every thirty thousand,
		until the number shall amount to one hundred, after which the proportion shall
		be so regulated by Congress, that there shall be not less than one hundred
		representatives, nor less than one representative for every forty thousand
		persons, until the number of representatives shall amount to two hundred; after
		which the proportion shall be so regulated by Congress, that there shall not be
		less than two hundred representatives, nor more than one representative for
		every fifty thousand persons.</P> 
	 <P>ARTICLE II.</P> 
	 <P>No law varying the compensation for the services of the senators and
		representatives shall take effect, until an election of representatives shall
		have intervened.</P> 
	 <P>ARTICLE III.</P> 
	 <P>Congress shall make no law respecting an establishment of religion, or
		prohibiting the free exercise thereof; or abridging the freedom of speech, or
		of the press; or the right of the people peaceably to assemble, and to petition
		the government for a redress of grievances.</P> 
	 <P>ARTICLE IV.</P> 
	 <P>A well regulated militia being necessary to the security of a free
		state, the right of the people to keep and bear arms shall not be
		infringed.</P> 
	 <P>ARTICLE V.</P> 
	 <P>No soldier shall, in time of peace, be quartered in any house without
		the consent of the owner; nor in time of war. but in a manner to be prescribed
		by law.</P> 
	 <P>ARTICLE VI.</P> 
	 <P>The right of the people to be secure in their persons, houses, papers,
		and effects, against unreasonable searches and seizures, shall not be violated;
		and no warrants shall issue, but upon probable cause, supported by oath or
		affirmation, and particularly describing the place to be searched, and the
		persons or things to be seized.</P> 
	 <P>ARTICLE VII.</P> 
	 <P>No person shall be held to answer for a capital or otherwise infamous
		crime, unless on a presentment or indictment of a grand jury, except in cases
		arising in the land or naval forces, or in the militia, when in actual service,
		in time of war, or public danger: nor shall any person be subject, for the same
		offence, to be twice put in jeopardy of life or limb; nor shall be compelled in
		any criminal case to be a witness against himself; nor be deprived of life,
		liberty, or property, without due process of law; nor shall private property be
		taken for public use, without just compensation.</P> 
	 <P>ARTICLE VIII.</P> 
	 <P>In all criminal prosecutions, the accused shall enjoy the right to a
		speedy and public trial, by an impartial jury, of the State and district,
		wherein the crime shall have been committed; which district shall have been
		previously ascertained by law; and to be informed of the nature and cause of
		the accusation; to be confronted with the witnesses against him; to have
		compulsory process for obtaining witnesses in his favour; and to have the
		assistance of counsel for his defence.</P> 
	 <P>ARTICLE IX.</P> 
	 <P>In suits at common law, where the value in controversy shall exceed
		twenty dollars, the right of trial by jury shall be preserved; and no fact
		tried by a jury, shall be otherwise re-examined in any court of the United
		States, than according to the rules of the common law.</P> 
	 <P>ARTICLE X.</P> 
	 <P>Excessive bail shall not be required; nor excessive fines imposed; nor
		cruel and unusual punishments inflicted.</P> 
	 <P>ARTICLE XI.</P> 
	 <P>The enumeration, in the constitution of certain rights, shall not be
		construed to deny or disparage others, retained by the people.</P> 
	 <P>ARTICLE XII.</P> 
	 <P>The powers, not delegated to the United States by the the constitution,
		nor prohibited by it to the States, are reserved to the States respectively, or
		to the people.</P> 
	 <P>ARTICLE XIII.</P> 
	 <P>The judicial power of the United States shall not be construed to extend
		to any suit in law or equity, commenced or prosecuted against one of the United
		States by citizens of another State, or by citizens or subjects of any foreign
		State.</P> 
	 <P>ARTICLE XIV.</P> 
	 <P>The electors shall meet in their respective States, and vote by ballot
		for president and vice president, one of whom at least shall not be an
		inhabitant of the same State with themselves; they shall name in their ballots
		the person voted for as president, and in distinct ballots the person voted for
		as vice-president; and they shall make distinct lists of all persons voted for
		as president, and of all persons voted for as vice-president, and of the number
		of votes for each, which list they shall sign and certify, and transmit sealed
		to the seat of government of the United States, directed to the president of
		the senate; the president of the senate shall, in the presence of the senate
		and house of representatives, open all the certificates, and the votes shall
		then be counted: the person having the greatest number of votes for president
		shall be the president, if such number be a majority of the whole number of
		electors appointed; and if no person have such majority, then from the persons
		having the highest numbers not exceeding three on the list of those voted for
		as president, the house of representatives shall choose immediately, by ballot,
		the president. But in choosing the president, the votes shall be taken by
		States, the representation from each State having one vote; a quorum for this
		purpose shall consist of a member or members from two-thirds of the States, and
		a majority of all the States shall be necessary to a choice. And if the house
		of representatives shall not choose a president whenever the right of choice
		shall devolve upon them, before the fourth day of March next following, then
		the vice-president shall act as president, as in the case of the death or other
		constitutional disability of the president.</P> 
	 <P>The person having the greatest number of votes as vice-president, shall
		be vice-president, if such number be a majority of the whole number of lectors
		appointed; and if no person have a majority, then from the two highest numbers
		on the list, the senate shall choose the vice-president: a quorum for the
		purpose shall consist of two-thirds of the whole number of senators, and a
		majority of the whole number shall be necessary to a choice.</P> 
	 <P>But no person constitutionally ineligible to the office of president
		shall be eligible to that of vice-president of the United States.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">II.</FONT> <BR> (EXTRACT.)</P> 
	 <P>THE UNITED STATES <I>v</I>. WORRALL.</P> 
	 <P>In the Circuit Court of the United States for the Pennsylvania
		District.</P> 
	 <P>APRIL SESSIONS, 1798.</P> 
	 <P>Present CHASE and PETERS, Justices. (2 <I>Dallas</I>, 384.)</P> 
	 <P>The defendant was charged with an attempt to bribe <I>Tench Coxe</I>,
		the Commissioner of the Revenue, and the indictment, containing two counts, set
		forth the case as follows: (<I>Here follows the indictment at large, with a
		statement of the evidence and the arguments of counsel on some incidental
		points which arose on the trial</I>.)</P> 
	 <P><I>Verdict</I> &#151; Guilty on both counts of the indictment.</P> 
	 <P><I>Dallas</I>, (who had declined speaking on the facts before the jury)
		now moved in arrest of judgment, alleging that the Circuit Court could not take
		cognisance of the crime charged in the indictment. He premised, that,
		independent of the general question of jurisdiction, the indictment was
		exceptionable, in as much as it recited the act of Congress, making it the duty
		of the Secretary of the Treasury to form the contracts contemplated, but did
		not state the authority for devolving that duty on the Commissioner of the
		Revenue; and, consequently, it could not be inferred, that the corrupt offer
		was made to seduce the Commissioner from the faithful execution of an
		<I>official public trust</I>, which was the gist of the prosecution. But, he
		contended, that the force of the objection to the jurisdiction, superseded the
		necessity of attending to matters of technical form and precision, in
		presenting the accusation. It will be admitted, that all the judicial authority
		of the Federal Courts, must be derived, either from the Constitution of the
		United States, or from the Acts of Congress made in pursuance of that
		Constitution. It is, therefore, incumbent upon the prosecutor to shew, that an
		offer to bribe the Commissioner of the Revenue is a violation of some
		constitutional or legislative prohibition. The Constitution contains <I>express
		provisions</I> in certain cases which are designated by a definition of the
		crimes; by a reference to the characters of the parties offending; or by the
		exclusive jurisdiction of the place where the offences were perpetrated: but
		the crime of attempting to bribe, the character of a federal officer, and the
		place where the present offence was committed, do not form any part of the
		<I>constitutional express provisions</I>, for the exercise of judicial
		authority in the Courts of the Union. The judicial power, however, extends, not
		only to all cases, in law and equity, arising under the Constitution, but,
		likewise, to all such as shall arise under the laws of the United States,
		(<I>art</I>. 3. <I>s</I>. 2.) and besides the authority, specially vested in
		Congress, to pass laws for enumerated purposes, there is a general authority
		given "to make all laws which shall be necessary and proper for carrying into
		execution all the powers vested by the Constitution in the government of the
		United States, or in any department or office thereof.'' (<I>art</I>. 1. s. 8.)
		Whenever then, Congress think any provision necessary to effectuate the
		constitutional power of the government, they may establish it by law; and
		whenever it is so established, a violation of its sanctions will come with the
		jurisdiction of this Court, under the 11<I>th section</I> of the Judicial Act,
		which declares, that the Circuit Court "shall have exclusive cognisance of all
		crimes and offences cognisable under the authority of the United States,"
		&amp;c. 1 <I>Vol. Swift's edit. p. 55</I>. Thus, Congress have provided by law,
		for the punishment of treason, misprision of treason, piracy, counterfeiting
		any public certificate, stealing or falsifying records, &amp;c.; for the
		punishment of various crimes, when committed within the limits of the exclusive
		jurisdiction of the United States; and for the punishment of bribery itself in
		the case of a Judge, an officer of the Customs, or an officer of the
		Excise.</P> 
	 <P>1 <I>Vol. Swift's edit p</I>. 100. <I>Ibid. p</I>. 236, <I>s</I>. 66.
		<I>Ibid. p</I>. 327. <I>s</I>. 47. But in the case of the Commissioner of the
		Revenue, the Act constituting the office does not create or declare the
		offence,</P> 
	 <P>2 <I>Vol. p</I>. 112, <I>s</I>. 6.; it is not recognised in the Act
		under which proposals for building the Light-house were invited, </P> 
	 <P>3 <I>Vol. p</I>. 63; and there is no other Act that has the slightest
		relation to the subject.</P> 
	 <P>Can the offence, then be said to arise under the Constitution, or the
		laws of the United States? And, if not, what is there to render it cognisable
		under the authority of the United States? A case arising under a law, must mean
		a case depending on the exposition of a law, in respect to something which the
		law prohibits, or enjoins. There is no characteristic of that kind in the
		present instance. But it may be suggested, that the office being established by
		a law of the United States, it is an incident naturally attached to the
		authority of the United States, to guard the officer against the approaches of
		corruption, in the execution of his public trust. It is true, that the person
		who accepts an office may be supposed to enter into a compact to be answerable
		to the government which he serves for any violation of his duty; and, having
		taken the oath of office, he would unquestionably be liable, in such case, to a
		prosecution for perjury in the Federal Courts. But because one man, by his own
		act, renders himself amenable to a particular jurisdiction, shall another man,
		who has not incurred a similar obligation, be implicated? If, in other words,
		it is sufficient to vest a jurisdiction in this Court, that a federal officer
		is concerned; if it is a sufficient proof of a case arising under a law of the
		United States to affect other persons, that such officer is bound, by law, to
		discharge, his duty with fidelity; &#151; a source of jurisdiction is opened,
		which must inevitably overflow and destroy all the barriers between the
		judicial authorities of the State and the general government. Anything which
		can prevent a federal officer from the punctual, as well as from an impartial,
		performance of his duty; an assault and battery; or the recovery of a debt, as
		well as the offer of a bribe; may be made a foundation of the jurisdiction of
		this Court; and, considering the constant disposition of power to extend the
		sphere of its influence, fictions will be resorted to, when real cases cease to
		occur. A mere fiction, that the defendant is in the custody of the marshal, has
		rendered the jurisdiction of the <I>King's Bench</I> universal in all personal
		actions. Another fiction, which states the plaintiff to be a debtor of the
		Crown gives cognisance of all kinds of personal suits to the <I>Exchequer</I>:
		And the mere profession of an attorney attaches the privilege of suing and
		being sued in his own Court. If, therefore, the disposition to amplify the
		jurisdiction of the Circuit Court exists, precedents of the means to do so are
		not wanting; and it may hereafter be sufficient to suggest, that the party is a
		federal officer, in order to enable this Court to try every species of crime,
		and to sustain every description of action.</P> 
	 <P>But another ground may, perhaps, be taken to vindicate the present claim
		of jurisdiction: it may be urged, that though the offence is not specified in
		the Constitution, nor defined in any act of Congress; yet, that it is an
		offence at common law, and that the common law is the law of the <I>United
		States</I>, in cases that arise under their authority. The nature of our
		Federal compact, will not, however, tolerate this doctrine. The 12th article of
		the amendment, stipulates, that "the powers not delegated to the <I>United
		States</I> by the Constitution, nor prohibited by it to the States, are
		reserved to the States respectively, or to the People." In relation to crimes
		and punishments, the objects of the delegated power of the <I>United States</I>
		are enumerated and fixed. Congress may provide for the punishment of
		counterfeiting the securities and current coin of the <I>United States</I>; and
		may define and punish piracies and felonies committed on the high seas, and
		offences against the law of nations. <I>Art</I>. 1. <I>s</I>. 8. And, so,
		likewise Congress may make all laws which shall be necessary and proper for
		carrying into execution the powers of the general government. But here is no
		reference to a common law authority: Every power is matter of definite and
		positive grant; and the very powers that are granted cannot take effect until
		they are exercised through the medium of a law. Congress had undoubtedly a
		power to make a law, which should render it criminal to offer a bribe to the
		Commissioner of the Revenue; but not having made the law, the crime is not
		recognised by the Federal Code, constitutional or legislative; and,
		consequently, it is not a subject on which the judicial authority of the Union
		can operate.</P> 
	 <P>The cases that have occurred, since the establishment of the Federal
		Constitution, confirm these general principles. The indictment against
		<I>Henfield</I>, an <I>American</I> citizen, for enlisting and serving on board
		a <I>French</I> privateer, while she captured a Dutch merchant ship, &amp;c.
		expressly charged the defendant with a violation of the treaties existing
		between the <I>United States</I> and the <I>United Netherlands, Great
		Britain</I>, &amp;c. which is a matter cognisable under the Federal authority
		by the very words of the Constitution. The jurisdiction in the indictment
		against <I>Ravara</I>, was sustained by reason of the defendant's official
		character as consul.* And in a recent prosecution by the State of Pennsylvania
		against <I>Shaffer</I>, in the Mayor's Court of Philadelphia, a motion in
		arrest of judgment was over-ruled by the Recorder (Mr. <I>Wilcocks)</I> though
		the offence consisted in forging claims to Land-Warrants, issuable under the
		resolution of Congress; and although the cognisance of all crimes and offences,
		cognisable under the authority of the United States, is exclusively vested in
		the District and Circuit Courts.&#134;</P> 
	 <P><FONT SIZE="-1">(* 2 <I>Dallas</I>, 97.</FONT></P> 
	 <P><FONT SIZE="-1">&#134; 4 <I>Dallas</I>, Append, xxxi.)</FONT></P> 
	 <P><I>Rawle</I> (the Attorney of the District) observed, that the
		exception, taken in support of the motion in arrest of judgment, struck at the
		root of the whole system of the national government; for if opposition to the
		pure, regular, and efficient administration of its affairs, could thus be made
		by fraud, the experiment of force might next be applied; and doubtless with
		equal impunity and success. He concluded, however, that it was unnecessary to
		reason from the inconveniency and mischief of the exception; for, the offence
		was strictly within the very terms of the Constitution, arising under the laws
		of the United States. If no such office had been created by the laws of the
		United States, no attempt to corrupt such an officer could have been made; and
		it is unreasonable to insist, that merely because a law has not prescribed an
		express an appropriate punishment for the offence, that, therefore, the
		offence, when committed, shall not be punished by the Circuit Court, upon the
		principles of common law punishment. The effect, indeed, of the position is
		still more injurious; for, unless this offence is punishable in the Federal
		Courts, it certainly is not cognisable before any State tribunal. The true
		point of view for considering the case, may be ascertained, by an inquiry,
		whether, if Mr. <I>Coxe</I> had accepted the bribe, and betrayed his trust, he
		would not have been indictable in the Courts of the United States? If he would
		be so indictable, upon the strongest principles of analogy, the offence of the
		person who tempted him, must be equally the subject of animadversion before the
		same judicial authority. The precedents cited by the defendant's counsel, are
		distinguishable from the present indictment. The prosecution against
		<I>Henfield</I> was not expressly on the treaty, but on the law of nations,
		which is a part of the common law of the United States; and the power of
		indicting for a breach of treaty, not expressly providing the means of
		enforcing performance in the particular instance, is itself a common law power.
		Unless the judicial system of the United States justified a recourse to common
		law against an individual guilty of a breach of treaty, the offence, where no
		specific penalty was to be found in the treaty would, therefore, remain
		unpunished. So, likewise, with respect to <I>Ravara</I>, although he held the
		office of a consul, he was indicted and punished at the common law. The offence
		charged in <I>Respublica</I> v. <I>Shaffer</I>, did not arise under the, laws
		of the <I>United States;</I> but was simply the forgery of the names of private
		citizens, in order to defraud them of their rights; and even as far as the
		forgery might be supposed to deceive the public officers, it was a deception in
		regard to a mere official arrangement, for ascertaining transfers of donation
		claims, and not in regard to any act directed by law to be performed. But a
		farther distinction presents itself. The donations to the soldiers were founded
		upon resolutions of the <I>United States</I> in Congress, passed long before
		the adoption of the present Constitution. The Courts of the several States,
		therefore, held a jurisdiction of the offence, which, without positive words or
		necessary implication, was not to be divested. The case did not come within the
		expressions in the Constitution, "cases arising under the Constitution and laws
		of the <I>United States</I>," &amp;c. nor has it been expressly provided for by
		any act under the present Constitution. The criminal jurisdiction of the
		Circuit Court, which, wherever it exists, must be exclusive of State
		jurisdiction, cannot, perhaps, fairly be held to operate retrospectively, by
		withdrawing from the State judicatures powers they held, and duties they
		performed, previously to the Constitution, from which the Circuit Court derived
		its birth.</P> 
	 <P>CHASE, <I>Justice</I>. Do you mean, Mr. Attorney, to support this
		indictment solely at common law? If you do, I have no difficulty upon the
		subject: The indictment cannot be maintained in this Court.</P> 
	 <P><I>Rawle</I>, answering in the affirmative, CHASE, <I>Justice</I>,
		stopped <I>M. Levy</I>, who was about to reply, in support of the motion in
		arrest of judgment; and delivered an opinion to the following effect. </P> 
	 <P>CHASE, <I>Justice</I>. This is an indictment for an offence highly
		injurious to morals, and deserving the severest punishment; but, as it is an
		indictment at common law, I dismiss at once every thing that has been said
		about the Constitution and laws of the <I>United States</I>.</P> 
	 <P>In this country, every man sustains a two-fold political capacity; one
		in relation to the State, and another in relation to the <I>United States</I>.
		In relation to the State, he is subject to various municipal regulations,
		founded upon the State constitution and policy, which do not affect him in his
		relation to the <I>United States</I>: For, the Constitution of the Union is the
		source of all the jurisdiction of the national government; so that the
		departments of the government can never assume any power that is not expressly
		granted by that instrument, nor exercise a power in any other manner than is
		there prescribed. Besides the particular cases which the 8th section of the
		first article designates, there is a power granted to Congress to create,
		define, and punish, crimes and offences, whenever they shall deem it necessary
		and proper by law to do so, for effectuating the objects of the government; and
		although bribery is not among the crimes and offences specifically mentioned,
		it is certainly included in this general provision. The question, however, does
		not arise about the power, but about the exercise of the power: &#151; Whether
		the Courts of the <I>United States</I> can punish a man for any act, before it
		is declared by a law of the <I>United States</I> to be criminal? Now, it
		appears to my mind, to be as essential, that Congress should define the
		offences to be tried, and apportion the punishments to be inflicted, as that
		they should erect Courts to try the criminal, or to pronounce a sentence on
		conviction.</P> 
	 <P>It is attempted, however, to supply the silence of the Constitution and
		Statutes of the Union, by resorting to the common law, for a definition and
		punishment of the offence which has been committed: But, in my opinion, the
		<I>United States</I>, as a Federal government, have no common law; and,
		consequently, no indictment can be maintained in their Courts, for offences
		merely at the common law. If, indeed the <I>United States</I> can be supposed,
		for a moment, to have a common law, it must, I presume, be that of
		<I>England</I>; and, yet, it is impossible to trace when, or how, the system
		was adopted, or introduced. With respect to the individual States, the
		difficulty does not occur. When the <I>American</I> colonies were first settled
		by our ancestors, it was held, as well by the settlers, as by the Judges and
		lawyers of <I>England</I>, that they brought hither, as a birth-right and
		inheritance, so much of the common law, as was applicable to their local
		situation, and change of circumstances. But each colony judged for itself, what
		parts of the common law were applicable to its new condition; and in various
		modes, by legislative acts, by judicial decisions, or by constant usage,
		adopted some parts, and rejected others. Hence, he who shall travel through the
		different States, will soon discover, that the whole of the common law of
		<I>England</I> has been no where introduced; that some States have rejected
		what others have adopted; and that there is, in short, a great and essential
		diversity in the subjects to which the common law is applied, as well as in the
		extent of its application The common law, therefore, of one State, is not the
		common law of another; but the common law of <I>England</I>, is the law of each
		State, so far as each State has adopted it; and it results from that position,
		connected with the judicial act, that the common law will always apply to suits
		between citizen and citizen, whether they are instituted in a Federal or State
		Court.</P> 
	 <P>But the question recurs, when and how have the Courts of the <I>United
		States</I> acquired a common law jurisdiction, in criminal cases? The <I>United
		States</I> must possess the common law themselves, before they can communicate
		it to their judicial agents: Now, the <I>United States</I> did riot bring it
		with them from <I>England</I>; the Constitution does not create it; and no act
		of Congress has assumed it. Besides, what is the common law to which we are
		referred? Is it the common law entire, as it exists in <I>England;</I> or
		modified as it exists in some of the States; and of the various modifications,
		which are we to select, the system of <I>Georgia</I> or <I>New Hampshire</I>,
		of <I>Pennsylvania</I> or <I>Connecticut?</I></P> 
	 <P>Upon the whole, it may be a defect in our political institutions, it may
		be an inconvenience in the administration of justice, that the common law
		authority, relating to crimes and punishments, has not been conferred upon the
		government of the <I>United States</I>, which is a government in other respects
		also of a limited jurisdiction; but Judges cannot remedy political
		imperfections, nor supply any legislative omission. I will not say whether the
		offence is at this time cognisable in a State Court; but, certainly, Congress
		might have provided, by law, for the present case, as they have provided for
		other cases, of a similar nature: and yet if Congress had ever declared and
		defined the offence, without prescribing a punishment, I should still have
		thought it improper to exercise a discretion upon that part of the subject.</P>
	 
	 <P>P<FONT SIZE="-1">ETERS</FONT>, <I>Justice</I>. Whenever a government has
		been established, I have always supposed, that a power to preserve itself, was
		a necessary, and an inseparable, concomitant. But the existence of the Federal
		government would be precarious, it could no longer be called an independent
		government, if, for the punishment of offences of this nature, tending to
		obstruct and pervert the administration of its affairs, an appeal must be made
		to the State tribunals, or the offenders must escape with absolute impunity.
		</P> 
	 <P>The power to punish misdemeanors, is originally and strictly a common
		law power; of which, I think, the <I>United States</I> are constitutionally
		possessed. It might have been exercised by Congress in the form of a
		legislative act; but, it may, also, in my opinion be enforced in a course of
		judicial proceeding. Whenever an offence aims at the subversion of any Federal
		institution, or at the corruption of its public officers, it is an offence
		against the well being of the <I>United States;</I> from its very nature, it is
		cognisable under their authority; and consequently, it is within the
		jurisdiction of this Court, by virtue of the 11th section of the judicial act.
		</P> 
	 <P>The Court being divided in opinion, it became a doubt, whether sentence
		could be pronounced upon the defendant; and a wish was expressed by the Judges
		and the attorney of the district, that the case might be put into such a form,
		as would admit of obtaining the ultimate decision of the Supreme Court, upon
		the important principle of the discussion: But the counsel for the prisoner did
		not think themselves authorised to enter into a compromise of that nature. The
		Court, after a short consultation, and declaring, that the sentence was
		mitigated in consideration of the defendants circumstances, proceeded to
		adjudge,</P> 
	 <P>That the defendant be imprisoned for three months; that he pay a fine of
		200 dollars; and that he stand committed, till this sentence be complied with,
		and the costs of prosecution paid.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">III.</FONT></P> 
	 <P>INSTRUCTION</P> 
	 <P>FROM THE GENERAL ASSEMBLY OF VIRGINIA TO THE SENATORS FROM THAT STATE IN
		CONGRESS, JANUARY 11th, 1800.</P> 
	 <P>(1 <I>Tucker's Blackstone, Appendix, p</I>. 438.)</P> 
	 <P>THE General Assembly of Virginia would consider themselves unfaithful to
		the trust reposed in them, were they to remain silent, whilst a doctrine has
		been publicly advanced, novel in its principle and tremendous in its
		consequences: That the common law of England is in force under the government
		of the United States. It is not, at this time, proposed to expose at large the
		monstrous pretensions resulting from the adoption of this principle. It ought
		never, however, to be forgotten, and can never be too often repeated, that it
		opens a new tribunal for the trial of crimes never contemplated by the federal
		compact. It opens a new code of sanguinary criminal law, both obsolete and
		unknown, and either wholly rejected or essentially modified in almost all its
		parts by State institutions. It arrests, or supersedes, State jurisdictions,
		and innovates upon State laws. It subjects the citizens to punishment,
		according to the judiciary will, when he is left in ignorance of what this law
		enjoins as a duty, or prohibits as a crime. It assumes a range of jurisdiction
		for the federal Courts, which defies limitation or definition. In short, it is
		believed, that the advocates for the principle would themselves be lost in an
		attempt to apply it to the existing institutions of Federal and State Courts,
		by separating with precision their judiciary rights, and thus preventing the
		constant and mischievous interference of rival jurisdictions.</P> 
	 <P>Deeply impressed with these opinions, the general assembly of Virginia
		instruct the senators, and request the representatives from this State, in
		Congress, to use their best efforts &#151; </P> 
	 <P>To oppose the passing of any law, founded on, or recognising the,
		principle lately advanced, 'that the common law of England is in force under
		the government of the United States,' excepting from such opposition such
		particular parts of the common law as may have a sanction from the
		Constitution, so far as they are necessarily comprehended in the technical
		phrases which express the powers delegated to the government; .... and
		excepting, also, such other parts thereof as may be adopted by Congress as
		necessary and proper for carrying into execution the powers expressly
		delegated.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">IV.</FONT> <BR> (EXTRACT.)</P> 
	 <P>THE UNITED STATES <I>v</I>. AARON BURR.</P> 
	 <P>In the Circuit Court of the United States for the Virginia District.</P>
	 
	 <P>(2 <I>Robertson</I>, 481.)</P> 
	 <P>THURSDAY, September 3, 1807. </P> 
	 <P>THE Chief Justice delivered the following opinion of the Court on the
		proper process to bring Aaron Burr before the Court to answer the indictment
		for the misdemeanor.</P> 
	 <P>The question now before the Court is, whether bail be demandable from a
		person actually in custody, against whom an indictment for a misdemeanor has
		been found by a grand jury. As conducing directly to a decision of this point,
		the question has been discussed whether a summons or a capias would be the
		proper process to bring the accused in to answer the indictment, if, in point
		of fact, he were not before the Court.</P> 
	 <P>It seems to be the established practice of Virginia in such cases to
		issue a summons in the first instance; and if by any act of Congress the laws
		of the several States be adopted as the rules by which the Courts of the United
		States are to be governed in criminal prosecutions, the question is at an end:
		for I should admit the settled practice of the State Courts as the sound
		construction of the State law under which that practice has prevailed.</P> 
	 <P>The 34th section of the Judicial Act, it is contended, has made this
		adoption.</P> 
	 <P>The words of that section are, "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."</P> 
	 <P>It might certainly be doubted whether this section (if it should be
		construed to extend to all the proceedings in a case where a reference can be
		made to the State laws for a rule of decision at the trial,) can comprehend a
		case where, at the trial in chief, no such reference can be made. Now in
		criminal cases, the laws of the United States constitute the sole rule of
		decision; and no man can be condemned or prosecuted in the Federal Courts on a
		State law. The laws of the several States, therefore, cannot be regarded as
		rules of decision in trials for offences against the United States. It would
		seem to me too that the technical term, "trials at common law," used in the
		section is not correctly applicable to prosecutions for crimes. I have always
		conceived them to be, in this section, applied to civil suits as
		contradistinguished from criminal prosecutions, as well as to suits at common
		law as contradistinguished from those which come before the Court sitting as a
		Court of equity or admiralty.</P> 
	 <P>The provision of this section would seem to be inapplicable to original
		process, for another reason. The case is otherwise provided for by an act of
		Congress. The 14th section of the Judicial Act empowers the Courts of the
		United States "to issue all writs not specially provided for by statute which
		may be necessary for the exercise of their respective jurisdictions, and
		agreeable to the principles and usages of law."</P> 
	 <P>This section seems to me to give this Court power to devise the process
		for bringing any person before it who has committed an offence of which it has
		cognisance, and not to refer it to the State law for that process. The
		limitation on this power is, that the process shall be agreeable to the
		principles and usages of law. By which I understand those general principles
		and those general usages which are to be found not in the legislative acts of
		any particular State, but in that generally recognised and long established
		law, which forms the substratum of the laws of every State.</P> 
	 <P>Upon general principles of law it would seem to me that in all cases
		where the judgment is to affect the person, the person ought to be held subject
		to that judgment. Thus, in civil actions where the body may be taken in
		execution to satisfy the judgment, bail may be demanded. If the right of the
		plaintiff be supported by very strong probability, as in debt upon a specialty,
		bail is demandable without the intervention of a Judge. If there be no such
		clear evidence of the debt, bail is often required upon the affidavit of the
		party. Now, reasoning by analogy from civil suits to criminal prosecutions, it
		would seem not unreasonable, where there is such evidence as an indictment
		found by a grand jury, to use such process as will hold the person of the
		accused within the power of the Court, or furnish security that the person will
		be brought forward to satisfy the judgment of the Court.</P> 
	 <P>Yet the course of the common law appears originally to have been
		otherwise. It appears from <I>Hawkins</I> that the practice of the English
		Courts was to issue a <I>venire facias</I> in the first instance, on an
		indictment for a misdemeanor. This practice, however, is stated by
		<I>Blackstone</I> to have been changed. He says, (vo.. 4, <I>p</I>. 319,) "and
		so in the case of misdemeanors, it is now the usual practice for any Judge of
		Court of King's Bench, upon certificate of an indictment found, to award a writ
		of <I>capias</I> immediately, in order to bring in the defendant."</P> 
	 <P>It is then the English construction of the common law, that although in
		the inferior Courts the <I>venire facias</I> might be the usual course, and
		although it had prevailed, yet that a Judge of the King's Bench might issue a
		<I>capias</I> in the first instance.</P> 
	 <P>This subject has always appeared to me to be in a great measure governed
		by the 33d section of the Judicial Act. That section provides, that for any
		crime or offence against the United States, the offender may, agreeably to the
		usual mode of process against offenders in that State where he is found, be
		arrested and imprisoned, or bailed, as the case may be.</P> 
	 <P>This act contemplates an arrest, not a summons; and this arrest is to be
		not solely for offences for which the State laws authorise an arrest, but, "for
		any crime or offence against the United States." I do not understand the
		reference to the State law respecting the mode of process as over-ruling the
		preceding general words and limiting the power of arrest to cases in which,
		according to the State laws, a person may be arrested, but simply as
		prescribing the mode to be pursued. Wherever, by the laws of the United States,
		an offender is to be arrested, the process of arrest employed in the State
		shall be pursued; but an arrest is positively enjoined for any offence against
		the United States. This construction is confirmed by the succeeding words: the
		offender shall be imprisoned or bailed as the case may be. There exists no
		power to direct the offender, or to bind him without bail, to appear before the
		Court; which would certainly have been allowed had the act contemplated a
		proceeding in such a case which should leave the person at large without
		security. But he is absolutely to be imprisoned or bailed as the case may
		be.</P> 
	 <P>In a subsequent part of the same section it is enacted, "that upon all
		arrests in criminal cases bail shall be admitted, except where the punishment
		may be death."</P> 
	 <P>There is no provision for leaving the person at large without bail; and
		I have ever construed this section to impose it as a duty on the magistrate who
		proceeds against any offender against the United States to commit or bail him.
		I perceive in the law no other course to be pursued.</P> 
	 <P>This section, it is true, does not respect the process upon an
		indictment But the law would be inconsistent with itself if it required a
		magistrate to arrest for any offence against the United States &#151; if it
		commanded him on every arrest to commit or to bail, and yet refused a
		<I>capias</I> and permitted the same offender to go at large, so soon as an
		indictment was found against him. This section, therefore, appears to me to be
		entitled to great influence in determining the Court on the mode of exercising
		the power given by the 14th section in relation to process.</P> 
	 <P>On the impeachment which has been mentioned, this point was particularly
		committed to Mr. Lee, and the law upon it was fully demonstrated by him.</P> 
	 <P>The only difficulty I ever felt on this question was produced by the
		former decision of Judge <I>Iredell</I>. If the State practice on this subject
		had been adopted, I should have held myself bound by that adoption But I do not
		consider the State practice as adopted. <I>Mundell's</I> case was a civil suit;
		and the decision was, that the State rule respecting bail in civil actions must
		prevail. <I>Sinclair's</I> case was indeed a case similar to this; and in
		<I>Sinclair's</I> case a <I>venire facias</I> was issued. But I am informed by
		the Clerk that this was his act at the instance of the attorney, not the act of
		the Court. The point was not brought before the Court.</P> 
	 <P>In <I>Callender's</I> case, a <I>capias</I>, or, what is the same thing,
		a bench warrant was issued. This was the act of the Court; but, not having been
		an act on argument, or with a view of the whole law of the case and of former
		decisions, I should not have considered it as over-ruling those decisions if
		such existed. But there has been no decision expressly adopting the State
		practice; and the decision in <I>Callender's</I> case appears to me to be
		correct.</P> 
	 <P>I think the <I>capias</I> the more proper process; it is conformable to
		the practice of England at the time of our revolution, and is, I think, in
		conformity with the spirit of the 33d section of the Judicial Act. I shall
		therefore adopt it.</P> 
	 <P>To issue the <I>capias</I> to take into custody a person actually in
		custody would be an idle ceremony. In such a case the order of the Court very
		properly supplies the place of a <I>capias</I>. The only difference between
		proceeding by <I>capias</I> and by order, which I can perceive, would be
		produced by making the writ returnable to the next term.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">V.</FONT></P> 
	 <P>REPORT</P> 
	 <P>O<FONT SIZE="-1">F THE CASE OF THE</FONT> U<FONT SIZE="-1">NITED</FONT>
		S<FONT SIZE="-1">TATES</FONT> <I>v</I>. H<FONT SIZE="-1">UDSON</FONT> &amp;
		G<FONT SIZE="-1">OODWIN, AS DECIDED IN THE</FONT> S<FONT
		SIZE="-1">UPREME</FONT> C<FONT SIZE="-1">OURT OF THE</FONT> U<FONT
		SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT>, F<FONT
		SIZE="-1">EB</FONT>. 15<FONT SIZE="-1">TH</FONT>, 1812.</P> 
	 <P>(7 <I>Cranch</I>, 32.)</P> 
	 <P>THE UNITED STATES <I>v</I>. HUDSON &amp; GOODWIN.</P> 
	 <P>Absent W<FONT SIZE="-1">ASHINGTON</FONT>, Justice.</P> 
	 <P>T<FONT SIZE="-1">HIS</FONT> was a case certified from the Circuit Court
		for the district of <I>Connecticut</I>, in which, upon argument of a general
		demurrer to an <I>indictment</I> for a libel on the President and Congress of
		the United States, contained in the <I>Connecticut Courant</I>, of the 7th of
		May, 1806, charging them with having in secret voted two millions of dollars as
		a present to Bonaparte for leave to make a treaty with Spain, the Judges of
		that Court were divided in opinion upon the question, <I>whether the Circuit
		Court of the United States had a common law jurisdiction in cases of libel</I>?
		</P> 
	 <P><I>Pinkney</I>, Attorney General, in behalf of the United States, and
		<I>Dana</I> for the defendants, declined arguing the case.</P> 
	 <P>The Court, having taken time to consider, the following opinion was
		delivered (on the last day of the term, all the Judges being present) by J<FONT
		SIZE="-1">OHNSON</FONT>, J.</P> 
	 <P>The only question which this case presents is, whether the Circuit
		Courts of the United States can exercise a cornmon law jurisdiction in criminal
		cases. We state it thus broadly because a decision on a case of libel will
		apply to every case in which jurisdiction is not vested in those Courts by
		Statute.</P> 
	 <P>Although this question is brought up now for the first time to be
		decided by this Court, we consider it as having been long since settled in
		public opinion. In no other case for many years has this jurisdiction been
		asserted; and the general acquiescence of legal men shews the prevalence of
		opinion in favour of the negative of the proposition.</P> 
	 <P>The course of reasoning which leads to this conclusion is simple,
		obvious, and admits of but little illustration. The powers of the general
		government are made up of concessions from the several States &#151; whatever
		is not expressly given to the former, the latter expressly reserve. The
		judicial power of the United States is a constituent part of those concessions
		&#151; that power is to be exercised by Courts organised for the purpose, and
		brought into existence by an effort of the legislative power of the Union. Of
		all the Courts which the United States may, under their general powers,
		constitute, one only, the Supreme Court, possesses jurisdiction derived
		immediately from the Constitution, and of which the legislative power cannot
		deprive it. All other Courts created by the general government possess no
		jurisdiction but what is given them by the power that creates them, and can be
		vested with none but what the power ceded to the general government will
		authorise them to confer.</P> 
	 <P>It is not necessary to inquire Whether the general government, in any
		and what extent, possesses the power of conferring on its Courts a jurisdiction
		in cases similar to the present; it is enough that such jurisdiction has not
		been conferred by any legislative act, if it does not result to those Courts as
		a consequence of their creation.</P> 
	 <P>And such is the opinion of the majority of this Court: For, the power
		which Congress possess to create Courts of inferior jurisdiction, necessarily
		implies the power to limit the jurisdiction of those Courts to particular
		objects; and when a Court is created, and its operations confined to certain
		specific objects, with what propriety can it assume to itself a jurisdiction
		&#151; much more extended &#151; in its nature very indefinite &#151;
		applicable to a great variety of subjects &#151; varying in every State in the
		Union &#151; and with regard to which there exists no definite criterion of
		distribution between the District and Circuit Courts of the same district?</P> 
	 <P>The only ground on which it has ever been contended that this
		jurisdiction could be maintained is, that, upon the formation of any political
		body, an implied power to preserve its own existence and promote the end and
		object of its creation, necessarily results to it. But without examining how
		far this consideration is applicable to the peculiar character of our
		Constitution, it. may be remarked that it is a principle by no means peculiar
		to the common law. It is coeval, probably, with the first formation of a
		limited government; belongs to a system of universal law, and may as well
		support the assumption of many other powers as those more peculiarly
		acknowledged by the common law of England.</P> 
	 <P>But if admitted as applicable to the state of things in this country,
		the consequence would not result from it which is here contended for. If it may
		communicate certain implied powers to the general government, it would not
		follow that the Courts of that government are vested with jurisdiction over any
		particular act done by an individual in supposed violation of the peace and
		dignity of the sovereign power. The legislative authority of the Union must
		first make an act a crime, affix a punishment to it, and declare the Court that
		shall have jurisdiction of the offence.</P> 
	 <P>Certain implied powers must necessarily result to our Courts of justice
		from the nature of their institution. But jurisdiction of crimes against the
		State is not among those powers. To fine for contempt &#151; imprison for
		contumacy &#151; inforce the observance of order, &amp;c. are powers which
		cannot be dispensed with in a Court, because they are necessary to the exercise
		of all others: and so far our Courts no doubt possess powers not immediately
		derived from statute; but all exercise of criminal jurisdiction in common law
		cases we are of opinion is not within their implied powers.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">VI.</FONT></P> 
	 <P ALIGN="CENTER">OPINION</P> 
	 <P ALIGN="CENTER">O<FONT SIZE="-1">F</FONT> M<FONT SIZE="-1">R</FONT>.
		J<FONT SIZE="-1">USTICE</FONT> S<FONT SIZE="-1">TORY IN THE CASE OF THE</FONT>
		U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT> <I>v</I>. C<FONT
		SIZE="-1">OOLIDGE</FONT>,</P> 
	 <P>In the Circuit Court of the United States, for the District of
		Massachusetts, October Term, 1813.</P> 
	 <P>(1 <I>Gallison</I>, 488.) Indictment for a Misdemeanor. </P> 
	 <P>Whether the Circuit Court of the United States has jurisdiction over
		common law offences against the United States?</P> 
	 <P><I>Story, J</I>. The simple question 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.</P> 
	 <P>I do not think it necessary to consider the more broad question, whether
		the United States, as a sovereign power, have entirely adopted the common law.
		This might lead to very elaborate inquiries, and the present question may well
		be decided, without entering upon the discussion.</P> 
	 <P>I admit in the most explicit terms, that the Courts of the United States
		are Courts of limited jurisdiction, and cannot exercise any authorities which
		are not confided to them by the Constitution and laws made in pursuance
		thereof. But I do contend, that when once an authority is lawfully given, the
		nature and extent of that authority, and the mode, in which it shall be
		exercised, must be regulated by the rules of the common law. In my judgment,
		the whole difficulty and obscurity of the subject has arisen from losing sight
		of this distinction. </P> 
	 <P>Whether the common law of <I>England</I>, in its broadest sense,
		including equity and admiralty, as well as legal doctrines, be the common law
		of the <I>United States</I> or not, it can hardly be doubted, that the
		Constitution and laws of the <I>United States</I> are predicated upon the
		<I>existence</I> of the common law. This has not, as I recollect, been denied
		by any person, who has maturely weighed the subject, and will abundantly appear
		upon the slightest examination. The Constitution of the <I>United States</I>,
		for instance, provides that "the trial of all crimes, except in cases of
		impeachment, shall be by jury." I suppose that no person can doubt, that for
		the explanation of these terms, and for the mode of conducting trials by jury,
		recourse must be had to the common law. So the clause, that, "the judicial
		power shall extend to all cases in law and equity arising under the
		Constitution," &amp;c. is inexplicable, without reference to the common law;
		and the extent of this power must be measured by the powers of Courts of law
		and equity, as exercised and established by that system. Innumerable instances
		of a like nature may be adduced. I will mention but one more, and that is in
		the clause providing, that the privilege of the writ of <I>habeas corpus</I>
		shall not be suspended, unless when in cases of rebellion or invasion the
		public safety may require it. What is the writ <I>of habeas corpus</I>? What is
		the privilege which it grants? The common law, and that alone, furnishes the
		true answer. The <I>existence</I> therefore, of the common law is not only
		supposed by the Constitution, but is appealed to for the construction and
		interpretation of its powers.</P> 
	 <P>There can be no doubt, that Congress may, under the Constitution,
		confide to the Circuit Court jurisdiction of all offences against the <I>United
		States</I>. Has it so done? The judicial act of 24th of September, 1789, ch.
		20. sect. 11, provides, that the Circuit Court "shall have exclusive cognisance
		of all crimes and offences <I>cognisable under the authority of the United
		States</I>, except where that act otherwise provides, or the laws of the
		<I>United States</I> shall otherwise direct, and concurrent jurisdiction with
		the District Courts of the crimes and offences cognisable therein." No
		subsequent act has narrowed the jurisdiction; it remains therefore in full
		operation. The jurisdiction is not, as has sometimes been supposed in argument,
		over all crimes and offences specially created and defined by statute. It is of
		all crimes and offences "cognisable under the authority of the <I>United
		States</I>," that is, of all crimes and offences, to which by the Constitution
		of the <I>United States</I>, the judicial power extends. The jurisdiction could
		not, therefore, have been given in more broad and comprehensive terms.</P> 
	 <P>The Court then having complete jurisdiction, the next point will be to
		ascertain, what are crimes and offences against the <I>United States</I>. And
		here I contend, that recourse must be had to the principles of the common law,
		taken in connexion with the Constitution, in order to fix the definition,
		precisely as in other laws of Congress, we resort to the rules of the common
		law to give them an interpretation. For instance, Congress has provided for the
		punishment of murder, manslaughter and perjury, under certain circumstances;
		but it has no where defined these crimes. Yet no doubt is ever entertained on
		trials, that the explanation of them must be sought in and exclusively governed
		by the common law; and upon any other supposition, the judicial power of the
		<I>United States</I> would be left, in its exercise, to the mere arbitrary
		pleasure of the Judges, to an uncontrollable and undefined discretion. Whatever
		may be the dread of the common law, I presume, that such a despotic power could
		hardly be deemed more desirable.</P> 
	 <P>The necessity and propriety of this principle will be rendered still
		more apparent upon a farther consideration. There are a great variety of cases
		arising under the laws of the <I>United States</I>, and particularly those
		which regard the judicial power, in which the legislative will cannot be
		effectuated, unless by the adoption of the common law. Many cases may be
		governed by the laws of the respective States; but still whole classes remain,
		which cannot be thus disposed of. For example, in <I>Massachusetts</I> no
		Courts of Equity exist, and consequently no recognition of the principles or
		practices of equity, as contradistinguished from law. How then shall a suit in
		equity pending in the Circuit Court for that district be managed or decided?
		There is no law of the <I>United States</I>, which provides for the process,
		the pleadings, or the principles of adjudication. By what rules then shall the
		Court proceed? Certainly all reasoning and all practice pronounce, by the rules
		of equity recognised and enforced in the equity Courts of <I>England</I>. The
		illustration is yet more decisive, as to causes of admiralty and maritime
		jurisdiction; for these exclusively belong to the <I>United States</I>, and
		nothing in the laws or practice of the respective States can regulate the
		proceedings or the principles of decision. In my judgment, nothing is more
		clear, than that the interpretation and exercises of the vested jurisdiction of
		the Courts of the <I>United States</I> must, in the absence of positive law, be
		governed exclusively by the common law.</P> 
	 <P>I would ask then, what are crimes and offences against the <I>United
		States</I>, under the construction of its limited sovereignty, by the rules of
		the common law? Without pretending to enumerate them in detail, I will venture
		to assert generally, that all offences against the sovereignty, the public
		rights, the public justice, the public peace, the public trade, and the public
		police <FONT SIZE="-1">OF THE</FONT> U<FONT SIZE="-1">NITED</FONT> S<FONT
		SIZE="-1">TATES</FONT>, are crimes and offences against the <I>United
		States</I>. From the nature of the sovereignty of the <I>United States</I>,
		which is limited and circumscribed, it is clear that many common law offences,
		under each of these heads, will still remain cognisable by the States; but
		whenever the offence is directed against the sovereignty or powers confided to
		the <I>United States</I>, it is cognisable under its authority. Upon these
		principles and independent of any statute, I presume that treasons, and
		conspiracies to commit treason, embezzlement of the public records, bribery and
		resistance of the judicial process, riots and misdemeanors on the high seas,
		frauds and obstructions of the public laws of trade, and robbery and
		embezzlement of the mail of the <I>United States</I>, would be offences against
		the <I>United States</I>. At common law, these are clearly public offences, and
		when directed <I>against the United States</I>, they must upon principle be
		deemed <I>offences against the United States</I>.</P> 
	 <P>If then it be true, that these are offences against the <I>United
		States</I>, and the Circuit Court have cognisance thereof, does it not
		unavoidably follow, that the Court must have a right to punish them? In my
		judgment no proposition of law admits of more perfect demonstration. To suppose
		a power in a Court to try an offence, and not to award any punishment, is to
		suppose, that the legislature is guilty of the folly of promoting litigation
		without object, and prohibiting acts, only for the purpose of their being
		scoffed at in the most solemn manner. If therefore it authorise a trial of an
		offence, it must be deemed to authorise the Court to render such a judgment, as
		the guilt or innocence of the party may require. As to civil actions, the
		application of the principle has never admitted a doubt; yet in no instance,
		that I recollect, is the form or the substance of the judgments prescribed by
		any law. These judgments, however, must unavoidably differ, not only in
		different actions, but in. the same action, according to the nature of the
		claims and the pleadings of the parties. It is no answer to say, that the laws
		of the States will govern in such cases; for these are not always applicable,
		as suits may be brought in the <I>United States</I> Courts, which are not
		cognisable by State Courts; as for instance, equity and admiralty causes: And
		farther, no such general and universal adoption of the practice or laws of the
		States has been authorised by Congress, or sanctioned by the Courts of the
		<I>United States</I>. The invariable usage of these Courts has been, in all
		cases not governed by State laws, to regulate the pleadings and pronounce the
		judgment of the common law. When I speak here of the common law, I use the word
		in its largest sense, as including the whole system of English jurisprudence.
		For the same reason, therefore, that governs in civil causes, I hold that the
		cognisance of offences includes the power of rendering a judgment of
		punishment, when the guilt of the party is ascertained by a trial.</P> 
	 <P>But it may be asked, what punishment shall be inflicted? The common law
		affords the proper answer. It is a settled principle, that where an offence
		exists, to which no specific punishment is affixed by statute, it is punishable
		by fine and imprisonment. This is so invariably true, that, in all cases, where
		the legislature prohibits any act without annexing any punishment, the common
		law considers it an indictable offence, and attaches to the breach the penalty
		of fine and imprisonment.* I have no difficulty in saying, that the same rule
		must be held to exist here, for the same reason that it is adopted there If,
		therefore, treason had been left without punishment by the act of Congress, I
		have no doubt, that the punishment by fine and imprisonment must have attached
		to the offence.</P> 
	 <P><FONT SIZE="-1">(* <I>Com. Dig. Indict. D. &#151; </I>8 <I>Co</I>. 60.
		<I>b. &#151; </I>2 <I>Inst</I>. 131. &#151; <I>Bac. Abrid. Fine D</I>.
		)</FONT></P> 
	 <P>Upon what ground the common law can be referred to, and made the rule of
		decision in <I>criminal trials</I> in the Courts of the <I>United States</I>,
		and not in the <I>judgment or punishment</I>, I am at a loss to conceive. In
		criminal cases, the right of trial by jury is preserved, but the proceedings
		are not specifically regulated. The forms of the indictment and pleadings, the
		definition and extent of the crime, in some cases the right of challenge, and
		in all the admission and rejection of evidence, are left unprovided for. Upon
		what ground then do the Courts apply in such cases the rules of the common law?
		I can perceive no correct ground, unless it be, that the legislature have
		constantly had in view the rules of the common law, and deemed their
		application <I>in casibus omissis</I> peremptory upon the Courts.</P> 
	 <P>The privilege of the writ of <I>habeas corpus</I> is so high and
		interesting, that it has become a prominent article in the Constitution; and
		the judicial act of the 24th of September, 1789, ch. 20, sect. 14, has
		authorised the Courts of the <I>United States</I>, and the Judges thereof, to
		issue that writ. But if nothing more could be done under it, than the
		legislature have expressly provided, it would be a mere dead letter for its
		most important purposes. It is only by engrafting on the authority of the
		statute the doctrines of the common law, that this writ is made the great
		bulwark of the citizen against the oppressions of the government.</P> 
	 <P>I might enforce the view which I have already taken of this subject, b\
		an examination in detail of the organisation and exercise of the judicial
		powers of the Courts of the <I>United States</I>, with reference to their
		equity, admiralty, and legal jurisdiction; but it cannot be necessary. If I am
		right in the positions, which I have already assumed and explained, there is an
		end of the question, which has been submitted If I am wrong, the error is so
		fundamental, that I cannot hope to reach its source by any merely illustrative
		process.</P> 
	 <P>The result of my opinion is, 1. That the Circuit Court has cognisance of
		all offences against the <I>United States</I>, 2. That what those offences are,
		depends upon the common law applied to the sovereignty and authorities confided
		to the <I>United States</I>. 3. That the Circuit Court, having cognisance of
		all offences against the <I>United States</I>, may punish them by fine and
		imprisonment, where no punishment is specially provided by statute.</P> 
	 <P>I have considered the point as one open to be discussed, notwithstanding
		the decision in the <I>United States</I> v. <I>Hudson &amp; Goodwin</I>,
		February term, 1812, which certainly is entitled to the most respectful
		consideration; but having been made without argument, and by a majority only of
		the Court, I hope that it is not an improper course to bring the subject again
		in review for a more solemn decision, as it is not a question of mere ordinary
		import, but vitally affects the jurisdiction of the Courts of the <I>United
		States</I>; a jurisdiction which they cannot lawfully enlarge or diminish. I
		shall submit, with the utmost cheerfulness, to the judgment of my brethren, and
		if I have hazarded a rash opinion, I have the consolation to know, that their
		superior learning and ability will save the public from any injury by my error.
		That decision, however broad in its language, has not, as I conceive, settled
		the question now before the Court, so far as it respects offences of admiralty
		and maritime jurisdiction. The Constitution has given to the judicial power of
		the <I>United States</I> the jurisdiction as "to all cases of admiralty and
		maritime jurisdiction," and this jurisdiction of course comprehends criminal,
		as well as civil suits. The admiralty is a Court of extensive criminal, as well
		as civil jurisdiction, and has immemorially exercised both. At least no legal
		doubt of its criminal authority has ever been successfully urged. By the law of
		the admiralty, offences, for which no punishment is specially prescribed, are
		punishable by fine and imprisonment; and as offences of admiralty jurisdiction
		are exclusively cognisable by the <I>United States</I>, it follows that all
		such offences are offences against the <I>United States</I>. We have adopted
		the law of the admiralty in all civil causes cognisable by the admiralty: must
		it not also be adopted in offences cognisable by the admiralty? It will perhaps
		be said, that express jurisdiction is given in civil cases of admiralty
		jurisdiction, but not in criminal cases. This is true in terms; but I contend,
		that criminal cases are necessarily included in the grant of cognisance of all
		"crimes and offences cognisable under the authority of the <I>United
		States</I>;" for crimes and offences within the admiralty jurisdiction are not
		only cognisable but cognisable <I>exclusively</I> under the authority of the
		<I>United States</I>. And Congress, in punishing certain offences upon the high
		seas, which are neither <I>piracies</I> nor <I>felonies</I>, have undoubtedly
		acted upon the conviction, that such offences were of admiralty and maritime
		jurisdiction.* Whatever room, therefore, there may be for doubt, as to what
		common law offences are offences against the <I>United States</I>, there can be
		none as to admiralty offences.</P> 
	 <P>If this be true, then the reasoning, which I have before urged, applies
		in its full force, and I will not take up time in repeating it.</P> 
	 <P>On the whole, my judgment is, that all offences within the admiralty
		jurisdiction are cognisable by the Circuit Court, and in the absence of
		positive law, are punishable by fine and imprisonment.</P> 
	 <P>See 4 <I>Bl Com</I>. 5, 44, 263. &#151; 2 <I>Bro. Civ</I>. and <I>Mm.
		Law</I>.</P> 
	 <P><I>Davis, J</I>. did not concur, with a view to bring the question
		solemnly before the Supreme Court; so it was certified to the Supreme Court, as
		upon a division of the Judges.</P> 
	 <P><FONT SIZE="-1">(* See <I>act</I> 24<I>th Sept</I>. 1789, <I>ch</I>. 20,
		sect. 12, 13, 16, 17, &amp;c.)</FONT></P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">VII.</FONT></P> 
	 <P>REPORT</P> 
	 <P>O<FONT SIZE="-1">F THE CASE OF THE</FONT> U<FONT SIZE="-1">NITED</FONT>
		S<FONT SIZE="-1">TATES</FONT> <I>v</I>. C<FONT SIZE="-1">OOLIDGE, AS DECIDED ON
		APPEAL IN THE</FONT> S<FONT SIZE="-1">UPREME</FONT> C<FONT SIZE="-1">OURT OF
		THE</FONT> U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT>, F<FONT
		SIZE="-1">EBRUARY TERM</FONT>, 1816.</P> 
	 <P>(1 <I>Wheaton</I>, 415.) (C<FONT SIZE="-1">ONSTITUTIONAL</FONT> L<FONT
		SIZE="-1">AW</FONT>.)</P> 
	 <P>THE U<FONT SIZE="-1">NITED</FONT> S<FONT SIZE="-1">TATES</FONT>
		<I>v</I>. C<FONT SIZE="-1">OOLIDGE</FONT>, <I>et al</I>.</P> 
	 <P><I>Qu&aelig;re</I>, whether the Courts of the United States have
		jurisdiction of offences at common law against the United States?</P> 
	 <P>T<FONT SIZE="-1">HIS</FONT> was an indictment in the Circuit Court of
		the district of Massachusetts, against the defendants, for forcibly rescuing a
		prize, which had been captured and taken possession of by two American
		privateers. The captured vessel was on her way, under the direction of a prize
		master and crew, to the port of Salem for adjudication. The indictment laid the
		offence as committed upon the high seas. The question made was, whether the
		Circuit Court had jurisdiction over common law offences against the United
		States? on which the Judges of that Court were divided in opinion.</P> 
	 <P>The <I>Attorney General</I> stated that he had given to this ease an
		anxious attention; as much so, he hoped, as his public duty, under whatever
		view of it, rendered necessary. That he had also examined the opinion of the
		Court, delivered at February term, 1813, in the case of the <I>United
		States</I> v. <I>Hudson and Goodwin</I>. That considering the point as decided
		in that case, whether with, or without, argument, on the part of those who had
		preceded him as the representative of the government in this Court, he desired
		respectfully to state, without saying more, that it was not his intention to
		argue it now. </P> 
	 <P><I>Story, J</I>. I do not take the question to be settled by that
		case.</P> 
	 <P><I>Johnson, J</I>. I consider it to be settled by the authority of that
		case.</P> 
	 <P><I>Washington, J</I>. Whenever counsel can be found ready to argue it, I
		shall devest myself of all prejudice arising from that case.</P> 
	 <P><I>Livingston, J</I>. I am disposed to hear an argument on the point.
		This case was brought up for that purpose, but until the question is re-argued,
		the case of the <I>United States</I> v. <I>Hudson and Goodwin</I> must be taken
		as law.</P> 
	 <P><I>Johnson, J</I>. delivered the opinion of the Court.</P> 
	 <P>Upon the question now before the Court a difference of opinion has
		existed, and still exists, among the members of the Court. We should,
		therefore, have been willing to have heard the question discussed upon solemn
		argument. But the Attorney General has declined to argue the cause; and no
		counsel appears for the defendant. Under these circumstances the Court would
		not choose to review their former decision in the case of the <I>United
		States</I> v. <I>Hudson and Goodwin</I>, or draw it into doubt. They will,
		therefore, certify an opinion to the Circuit Court in conformity with that
		decision.</P> 
	 <P>Certificate for the defendant.</P> 
	 <P ALIGN="CENTER"><FONT SIZE="+1">VIII.</FONT> <BR> (EXTRACT.)</P> 
	 <P>The Commonwealth of Pennsylvania <I>v</I>. K<FONT
		SIZE="-1">OSLOFF</FONT>. </P> 
	 <P>In the Court of Oyer and Terminer of the city and county of
		Philadelphia, January session, 1816.</P> 
	 <P>(5 <I>Serg. &amp; Rawle</I>, 545.)</P> 
	 <P><I>Tilghman, C. J</I>. The grand inquest for the city and county of
		Philadelphia, having preferred a bill of indictment against <I>Nicholas
		Kosloff</I>, Consul General of his Imperial Majesty the Emperor of Russia, a
		motion has been made to quash the indictment for want of jurisdiction in this
		Court. Two causes are assigned for our want of Jurisdiction. 1. That the
		privilege of immunity from criminal prosecutions, is conferred on consuls by
		the law of nations. 2. That by the Constitution of the United States,
		<I>exclusive jurisdictions</I> all cases affecting consuls is vested in the
		Courts of the United States.</P> 
	 <P><I>Mr. C. J. Tilghman decided the first question in the negative; but
		his argument on this point not relating to the matters treated of in this work,
		it is here omitted. On the second question, the Chief Justice proceeded to
		deliver his opinion as follows</I>.</P> 
	 <P>2. A more difficult question remains to be considered &#151; Is the
		jurisdiction of this Court taken away, by the Constitution and laws of the
		United States? Before I go into an examination of the Constitution and laws, it
		may not be improper to say a word or two, respecting the subject in which this
		question arises. An agent of a foreign government, accused of a crime committed
		in the State of Pennsylvania, claims, not an exemption from trial, but the
		right of being tried by a Court of the United States. His public relations are,
		not with the State of Pennsylvania, but with the government of the United
		States: and if the Emperor of Russia should suppose that he had cause to
		complain of our treatment of his officer, he must address himself, not to the
		Governor of Pennsylvania, but to the President of the United States. But even
		where there was a cause of complaint, cases may be easily supposed, in which
		the President might think it more conducive to the peace of the nation, to send
		a foreign agent out of the country, to be punished by his own Sovereign, than
		to inflict punishment on him, by our own laws, here. These considerations are
		so manifest, that when the people of the United States were about to form a
		federal government, through which alone they were to maintain an intercourse
		with foreign nations, it would have seemed a want of common prudence, not to
		commit to that government the management of all affairs respecting the public
		agents of those nations. Let us now advert to the instrument of our Federal
		Union, and we shall soon perceive, that the statesmen who framed it, were
		perfectly aware of the importance of placing all foreign public agents, Consuls
		included, under the complete superintendance of the Federal Government. It was
		through the judicial power, that those persons could principally be affected.
		Accordingly we find it provided, by the 2d sect, of the 3d article of the
		Constitution, that the judicial power shall extend "to all cases affecting
		Ambassadors, other public ministers, and Consuls." Words more comprehensive
		cannot be devised They include suits of every kind, civil and criminal. This is
		not denied by the Attorney General of Pennsylvania, nor, as I understand, is it
		denied, that by virtue of this provision, Congress had a right to declare by
		law, that in no case, civil or criminal, should a State Court have jurisdiction
		over a Consul. But it is contended, that until Congress does by law declare so,
		the State Courts have <I>concurrent</I> jurisdiction with the Courts of the
		United States; or rather, that in the case before us, the State Courts
		<I>alone</I> have jurisdiction, because, Congress having passed no law defining
		the crime, or the punishment of rape' the Courts of the United States cannot
		take cognisance of the offence. The Constitution in the 1st section of the 3d
		article, declares in what Courts the judicial power shall be vested,
		<I>viz</I>. "in one Supreme Court, and in such inferior Courts as the Congress
		may from time to time ordain and establish." &#151; In the 2d section, it
		enumerates the different cases to which the judicial power shall extend, and
		then goes on to direct the distribution of that power among the different
		Courts. &#151; " In all cases affecting Ambassadors, other public ministers,
		and Consuls, and those in which a State shall be a party, the Supreme Court
		shall have <I>original</I> jurisdiction: in all the other cases before
		mentioned, the Supreme Court shall have <I>appellate</I> jurisdiction, both as
		to law and fact, with such exceptions, and under such restrictions, as the
		Congress shall make." Thus the judicial power, extending to all cases affecting
		Consuls, and that portion of it which respects Consuls, being vested in the
		Supreme Court, it follows, that as soon as the Supreme Court was organised by
		law, it became immediately vested with original jurisdiction in every case by
		which a Consul might be affected. But was this an exclusive jurisdiction? The
		opinion of the Supreme Court, <I>Marbury</I> v. <I>Madison</I>, 1
		<I>Cranch</I>, 137, goes far towards establishing the principle of exclusive
		jurisdiction. The point decided in that case, was, that where the Constitution
		had vested the Supreme Court with appellate jurisdiction, it was not in the
		power of Congress to give it original jurisdiction; and the whole scope of the
		argument maintained in the Court's opinion, goes to prove, that where the
		Constitution had given original jurisdiction, it was not in the power of
		Congress to give appellate jurisdiction. This will appear from the following
		extract from that opinion. "If Congress remains at liberty "to give this Court
		appellate jurisdiction, where the Constitution has declared their jurisdiction
		shall be original, the "distribution of jurisdiction made in the Constitution,
		is form without substance. Affirmative words are often, in their operation,
		<I>negative</I> of other objects than those affirmed, and in this case, a
		negative, or <I>exclusive</I> sense must be given to them, or they have no
		operation at all. If the solicitude of the Convention, with respect to our
		peace with foreign powers, induced a provision that the Supreme Court should
		take original jurisdiction in cases which might be supposed to affect them; yet
		the clause would have proceeded no further than to provide for such cases, if
		no further restriction on the power of Congress had been intended. That they
		should have <I>appellate</I> jurisdiction in all <I>other</I> cases, with such
		exceptions as Congress might make, is no restriction, unless the words be
		deemed exclusive of original jurisdiction." Now taking this to be the
		construction of the Constitution, all these parts of the "act to establish the
		judicial Courts of the United States,'" which vest jurisdiction in cases
		affecting Consuls, in the District or Circuit Courts, would be unconstitutional
		and void. And, if it was intended by the Constitution, that no inferior Court
		of the United States should have jurisdiction, it cannot be supposed that a
		State Court was to have it, because there is much stronger reason for denying
		it to the State Courts, than to the inferior Courts of the United States. It
		will be perceived, that this principle shakes the decision in the case of
		<I>Ravara</I>, who was convicted in the Circuit Court, though not that part of
		the decision which respects the privilege of a Consul. But if the two cases
		cannot be reconciled, the Circuit Court must give way. Supposing, however, for
		arguments' sake, that the Constitution does not vest the Supreme Court with
		<I>exclusive</I> jurisdiction; let us see whether Congress has not excluded the
		State Courts by the judiciary act, passed 24th <I>September</I>, 1789. By the
		9th section, the District Courts are vested <I>exclusively of the Courts of the
		several States</I>, with cognisance of "all crimes and offences that shall be
		cognisable under the authority of the United States, committed within their
		respective districts, where no other punishment than whipping, not exceeding
		thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not
		exceeding six months, is to be inflicted." Consuls are embraced in this
		jurisdiction, as plainly appears by considering the whole section, and as was
		declared by this Court, in <I>Manhardt v. Soderstrom</I>, (1 <I>Binn</I>. 138.)
		Then comes the 11th section; by which the Circuit Courts are vested with
		<I>exclusive cognisance</I> of "all crimes and offences cognisable under the
		authority of the United States, except where the said 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." Does not this exclude the State Courts from jurisdiction in the case
		of Consuls? The only argument attempted, or that can be devised, in support of
		the negative, is, that no offence is cognisable in any Court of the United
		States, until Congress has declared it to be an offence, and prescribed the
		punishment. This is the only consideration which ever had the least weight in
		my mind. But upon mature reflection, I am unable to deny, that the Courts of
		the United States can take cognisance, when I find it written in the
		Constitution, <I>that the Supreme Court shall have jurisdiction in all eases
		affecting a Consul</I>. Is he not affected in criminal cases, much more than in
		civil? How then can I say, that the Supreme Court has no jurisdiction? But how,
		or by what law is he to be punished, in case of conviction? Shall he be
		punished by the law of <I>Pennsylvania</I>, where the offence was committed,
		inasmuch as there is no other express law which reaches his case? And it is on
		account of the <I>person only</I> that jurisdiction is given to the Courts of
		the United States. Does the 34th section of the judiciary act apply to the
		punishment of offences, by which it is 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?" May a person convicted in a Court of the United States, of a
		crime of the highest grade, concerning which Congress has made no provision, be
		punished, according to the opinion of Judge S<FONT SIZE="-1">TORY</FONT>, in
		<I>The United States</I> v. <I>Coolidge</I>, 1 <I>Gallisori's Rep</I>. 488, 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
		<I>in every thing short of life</I>, when the Constitution declares, that the
		Supreme Court shall have jurisdiction <I>in all cases affecting him</I>. Upon
		full consideration, I am of opinion that the indictment should be quashed,
		because this Court has no jurisdiction.</P> 
	 <P><I>Brackenridge, J</I>. concurred in the opinion to quash the
		indictment, because <I>exclusive jurisdiction</I> was vested in the Courts of
		the United States. Concerning the privileges of a Consul he did not think it
		necessary to give an opinion.</P> 
	 <P>Indictment quashed.</P> <HR> 
	 <P>TABLE OF THE CASES CITED OR REFERRED TO IN THIS BOOK.</P> 
	 <P>A.</P> 
	 <P>African Company <I>v</I> Bull, 121</P> 
	 <P>Angles <I>v</I> Underwriters, 15</P> 
	 <P>B.</P> 
	 <P>Bernardi <I>v</I> Motteaux, 14, 121</P> 
	 <P>Bollman's Case, 72</P> 
	 <P>Bree <I>v</I> Holbech, 118</P> 
	 <P>Buller <I>v</I> Harrison, 123</P> 
	 <P>C.</P> 
	 <P>Calvin's Case, 66</P> 
	 <P>Campbell <I>v</I> Hall, 60</P> 
	 <P>Chandler <I>v</I> Lopus, 118</P> 
	 <P>Clerke <I>v</I> Martin, 122</P> 
	 <P>Commonwealth <I>v</I> Kosloff, 35, 36, 44, 249 </P> 
	 <P>&#151;&#151;&#151;&#151;&#151; <I>v</I> Sweers, 154</P> 
	 <P>D.</P> 
	 <P>Davis <I>v</I> Gilbert, 121</P> 
	 <P>De Lovio <I>v</I> Boit, 137, 138, 158</P> 
	 <P>Donaldson <I>v</I> Thompson, 124</P> 
	 <P>F.</P> 
	 <P>Fisher <I>v</I> Ogle, 124</P> 
	 <P>Fualdes, case of, 116</P> 
	 <P>G.</P> 
	 <P>Gordon <I>v</I> Lowther, 141</P> 
	 <P>H.</P> 
	 <P>Hamilton <I>v</I> Mendez, 123</P> 
	 <P>Havelock <I>v</I> Hancell, 121</P> 
	 <P>Hughes <I>v</I> Cornelius, 14</P> 
	 <P>J.</P> 
	 <P>Jane <I>v</I> Paradyne, 119</P> 
	 <P>L.</P> 
	 <P>Lister <I>v</I> Graham's exrs. 118</P> 
	 <P>Little Joe, 138</P> 
	 <P>Lothian <I>v</I> Henderson, 121, 124</P> 
	 <P>Luke <I>v</I> Lyde, 120</P> 
	 <P>M.</P> 
	 <P>Mannhardt <I>v</I> Soderstrom, 35, 253</P> 
	 <P>Marbury <I>v</I> Madison, 72, 251</P> 
	 <P>Martins <I>v</I> Coles, 118</P> 
	 <P>N.</P> 
	 <P>Nathans <I>v</I> Commonwealth of Virginia, 157</P> 
	 <P>P.</P> 
	 <P>Parkinson <I>v</I> Lea, 118</P> 
	 <P>Penn's Case, 108</P> 
	 <P>Penn <I>v</I> Lord Baltimore, 88</P> 
	 <P>Penhallow <I>v</I> Doane's adms. 142, 145</P> 
	 <P>Perrin <I>v</I> Blake, 114</P> 
	 <P>Pickering <I>v</I> Bush, 118</P> 
	 <P>Gov. Picton's Case, 65 Pollard <I>v</I> Shaffer, 119</P> 
	 <P>Q.</P> 
	 <P>Col. Quarry's Case, 140</P> 
	 <P>R.</P> 
	 <P>Respublica <I>v</I> De Longchamps, 155</P> 
	 <P>Robinson <I>v</I> Raby, 109</P> 
	 <P>Rogers <I>v</I> Davis, 121</P> 
	 <P>Ross <I>v</I> Rittenhouse, 145</P> 
	 <P>S.</P> 
	 <P>The Sarah, 140</P> 
	 <P>Smart <I>v</I> Wolff, 62</P> 
	 <P>T.</P> 
	 <P>Talbot <I>v</I> Commanders, &amp;c. of three brigs, 153</P> 
	 <P>Timrod <I>v</I> Shoolbred, 118</P> 
	 <P>Touteng <I>v</I> Hubbard, 119</P> 
	 <P>U.</P> 
	 <P>United States <I>v</I> Bevan, 61</P> 
	 <P>----------------- <I>v</I> Bright, 145</P> 
	 <P>----------------- <I>v</I> Burr, 5, 13, 37, 40, 227</P> 
	 <P>-----------------<I>v</I> Coolidge, 9, 13, 62, 92, 237 247, 254</P> 
	 <P>----------------- <I>v</I> Cornell, 84</P> 
	 <P>----------------- <I>v</I> Gill, 61</P> 
	 <P>------------------<I>v</I> Henfield, 3</P> 
	 <P>------------------<I>v</I> Hudson and Goodwin, 7, 10 11, 12, 13, 14, 19,
		47, 50, 56, 233</P> 
	 <P>----------------- <I>v</I> Peters, 145</P> 
	 <P>------------------<I>v</I> Ravara, 3, 35, 36, 252</P> 
	 <P>----------------- <I>v</I> Williams, 93</P> 
	 <P>------------------<I>v</I> Wiltberger, 61</P> 
	 <P>----------------- <I>v</I> Worrall, 1, 9, 13, 50, 213</P> 
	 <P>W.</P> 
	 <P>Whitfield <I>v</I> M'Leod, 118</P> 
	 <P>Wyoming cause, 153</P> <HR> 
	 <P>ERRATA.</P> 
	 <P><I>This mark</I> &raquo; <I>is intended to shew that the lines are to be
		counted from the top of the page, and this</I> &laquo; <I>from the bottom of
		the text. The letter</I> n, <I>means that the error is in the notes</I>.</P> 
	 <P>Page 1, line 4 &laquo; after the words "of the same State," <I>add</I>
		"claiming lands under grants of different States"</P> 
	 <P>P. 3, line 5 &laquo; <I>n</I>. for "into," <I>read</I> "in."</P> 
	 <P>P. 4, line 1 &raquo; for "appears," <I>read</I> "appear."</P> 
	 <P>P. 7, line 17 &raquo; for "on which it was called," <I>read</I> "which
		it was called upon."</P> 
	 <P> &#151; line 7 &laquo; after the word "law," <I>add</I> a note of
		interrogation,?</P> 
	 <P>P. 12, line 10 &laquo; for "<I>obites,"</I> read "<I>obiter."</I></P> 
	 <P>P. 15, line 7 &raquo; <I>n</I>. for "<I>ibib</I>," read
		"<I>ibid."</I></P> 
	 <P>P. 50, line 1 &laquo; <I>dele</I> "turn"</P> 
	 <P>P. 57, line 16 &raquo; for "proceeding," <I>read</I> "proceedings."</P> 
	 <P>------- line 19 &raquo; for "forms," <I>read</I> "is." </P> 
	 <P>P. 82, line 8 &raquo; for "Arkansaw," <I>read</I> "Arkansas."</P> 
	 <P>------ lines 14, 15 &raquo; for "governments have," <I>read</I>
		"government has" &#151; </P> 
	 <P>and for "statutes," <I>read</I> "statute."</P> 
	 <P>P. 187, lines 2, 3 &laquo; for "efforts," <I>read</I> "effects."</P>
	 <HR> 
	 <P>Reprint Edition 1972 by Arno Press Inc.</P> 
	 <P>Reprinted from a copy in</P> 
	 <P>The Wesleyan University Library</P> 
	 <P>American Law: The Formative Years ISBN for complete set: 0-405-03990-5
		See last pages of this volume for titles.</P> 
	 <P>Manufactured in the United States of America</P> 
	 <P>Library of Congress Cataloging in Publication Data</P> 
	 <P>Du Ponceau, Peter Stephen, 1760-1844.</P> 
	 <P>A dissertation on the nature and extent of the jurisdiction of the
		courts of the United States.</P> 
	 <P>(American law: the formative years)</P> 
	 <P>1. Courts &#151; U. S. 2. Jurisdiction &#151; U. S.</P> 
	 <P>3. Law &#151; Study and teaching. I. Title. II. Series.</P> 
	 <P>KF8858.D8 1972 347'.73'12 79-37971</P> 
	 <P>ISBN 0-405-04007-5</P> <HR> 
	 <P>AMERICAN LAW: The Formative Years</P> 
	 <P>An Arno Press Collection</P> 
	 <P>Angell, Joseph K. A Treatise on the Law of Carriers of Goods and
		Passengers, by Land and by Water. 1849.</P> 
	 <P>Angell, Joseph K. A Treatise on the Law of Fire and Life Insurance.
		1854. </P> 
	 <P>Angell, Joseph K. and Samuel Ames. A Treatise on the Law of Private
		Corporations, Aggregate. 1832.</P> 
	 <P>Brackenridge, Hugh Henry. Law Miscellanies. 1814.</P> 
	 <P>Dalton, Michael. The Countrey Justice. 1622.</P> 
	 <P>Du Ponceau, Peter S. A Dissertation on the Nature and Extent of the
		Jurisdiction of the Courts of the United States. 1824.</P> 
	 <P>Duer, John. The Law and Practice of Marine Insurance. Two volumes.
		1845-1846.</P> 
	 <P>[Goodenow, John Milton]. Historical Sketches of the Principles and
		Maxims of American Jurisprudence. 1819.</P> 
	 <P>Gould, James. A Treatise on the Principles of Pleading, in Civil
		Actions. 1832.</P> 
	 <P>Greenleaf, Simon. A Treatise on the Law of Evidence. Three volumes.
		1842-1853.</P> 
	 <P>Griffith, William. Annual Law Register of the United States. Two
		volumes. 1822.</P> 
	 <P>Hawkins, William. A Treatise of the Pleas of the Crown. Two books in
		one. 2nd edition. 1724-1726.</P> 
	 <P>Hilliard, Francis. The Elements of Law. 1835.</P> 
	 <P>Hoffman, David. A Course of Legal Study, Addressed to Students and the
		Profession Generally. 2nd edition. 1836. Two volumes in one. </P> 
	 <P>Justices and Juries in Colonial America: Two Accounts, 1680-1722.
		1972.</P> 
	 <P>Laussat, Anthony, Jr. An Essay on Equity in Pennsylvania. 1826.</P> 
	 <P>Redfield, Isaac F. A Practical Treatise upon the Law of Railways. 2nd
		edition. 1858.</P> 
	 <P>Reform of Criminal Law in Pennsylvania: Selected Enquiries, 1787-1819.
		1972. </P> 
	 <P>Sedgwick, Theodore. A Treatise on the Measure of Damages. 1847.</P> 
	 <P>Simpson, William. The Practical Justice of the Peace and Parish-Officer,
		of His Majesty's Province of South-Carolina. 1761.</P> 
	 <P>Story, Joseph. Commentaries on Equity Jurisprudence, as Administered in
		England and America. Two volumes. 1836.</P> 
	 <P>Story, Joseph. Commentaries on the Conflict of Laws, Foreign and
		Domestic. 1834.</P> 
	 <P>Story, William W. A Treatise on the Law of Contracts Not Under Seal.
		1844. </P> 
	 <P>Sullivan, James. The History of Land Titles in Massachusetts. 1801.</P> 
	 <P>Swift, Zephaniah. A Digest of the Law of Evidence. 1810.</P> 
	 <P>Swift, Zephaniah. A System of the Laws of the State of Connecticut. Two
		volumes. 1795-1796.</P> 
	 <P>Verplanck, Gulian C. An Essay on the Doctrine of Contracts. 1825.</P> 
	 <P>Wyche, William. A Treatise on the Practice of the Supreme Court of
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