gional 
 3ility 
 
 M
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A DISSERTATION 
 
 ON THE 
 
 NATURE AND EXTENT 
 
 OF THE 
 
 COURTS OF THE UNITED STATES, 
 
 BEING A VALEDICTORY ADDRESS 
 
 IIF.LIVERED TO THE STUDENTS OF THE LAW ACADEMY OF PHILADELPHIA, AT THE 
 CLOSE OF THE ACADEMICAL YEAH, ON THE 22fl 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 EXER- 
 CISED IN THE UNITED STATES PRIOR TO THE ADOPTION OF 
 THE PRESENT FEDERAL CONSTITUTION, 
 
 BY THOMAS SERGEANT, ESQ.. VICE PROVOST. 
 
 AND THE AUTHOU'S 
 
 DISCOURSE ON LEGAL EDUCATION, 
 
 DELIVERED AT THE OPENING OF THE LAW ACADEMY, 1ST FKBRUARY, 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 bv nice links and beautiful de- 
 pendencies, and each of them, HS I havt- fully persuaded myself, is reducible to 
 a few plain elements. JONES. Law of Bailments. 
 
 PHILADELPHIA : 
 
 PUBLISHEP BY ABRAHAM SMALi. 
 1824.
 
 T 
 DfrTH 
 
 J 
 
 Eastern District of Pennsylvania, to wit: 
 
 BE IT REMEMBERED, That on the seventh day ojfJime,in the forty- 
 eighth year uf the independence of the United States of Ame- 
 [SEAL.] rica, A. D. 1824, Pner Stephen D<> Ponceau, of thesaia Dis- 
 trict, hath deposited in this office the Title of a Book, the right 
 whereof he claims as Avtltor, in the -words following, to wit ; 
 
 " A Dissertation on the nature and extent of the Jurisdiction of the Courts of 
 the United States, bi-ins> Valedictory Addivus delivered to the students, of the 
 Lau Academy of Plulndel|ihi.i. at tlit- cl.iM" of the academical year, on the 22d 
 April, 1824, by P.-ter S. Du P- nceu, LL.I). Piovost of the Acudi-my. To 
 which aie adilt-tl, A bnet skt-tch ol the National Judiciary Powers exercised 
 in the I'liiti d States prior t" the adoption of the prenei.t Federal Constitution, 
 by Thomas Sergeant, Esq. Vice Provost. Anil the author's Discourse on Legal 
 Education, delivered at the op-'nirg ol thf Law Academy in February, 1821. 
 \Vitli ai^Appendix and Notes. The great ay*trm of jurisp udenct , like that of 
 the onivi rse, coi-sists f)f nmry subordinate systems, all of hich are connected 
 b> nice links and be^util'iil dependencies, and each of tin in, as I have hilly 
 persuaded ntjsell, is reducible to a ft-w plain elements. Jones, Law of Bail- 
 ment*." 
 
 In Conformity to the Jet of the Congress of the United States, intituled, 
 " An Jlct for the Encouragement of Learning, by securing thf Copif* of 
 JWci/w, Charts, and Books, to thf Jsuthart and Proprietors of such Co/lies, 
 dm ing the Times therein mentioned. 1 ' And also to the Act, entitled, " An 
 Act rufjpletii'-ittary to An Act, entitled, " Ait Act for the Encouragement of 
 Jjeaming, by securing the Copies of Mips. Charts and Books, to the Authors 
 and Proprietors of such Copies during the Times tlterein mentioned?' and 
 extending the Beiu-fts thereof to the Arts of designing, engrar'ing, and 
 etching historical and other Prints." 
 
 D. CALDWELL, 
 Clerk of the Eastern District of Pennsylvania.
 
 TO 
 
 THE HONOURABLE 
 WILLIAM TILGBMAN, LL.D. 
 
 GHIEF JUSTICE OF THE SUPREME COURT OF THE COM- 
 MONWEALTH OF PENNSYLVANIA, 
 
 AND PATRON OF THE 
 
 LAW ACADEMY OF PHILADELPHIA. 
 
 RESPECTFULLY INSCRIBED BY 
 
 i 
 
 THE AUTHOR. 
 
 748841.
 
 PREFACE. 
 
 THE questions which are the subject of the 
 following Discourse, are some of the most im- 
 portant that have been agitated under the Con- 
 stitution 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 juris- 
 prudence, and even on the ultimate shape 
 which our federal Constitution may be destin- 
 ed to assume. 
 
 That there are implied, as well as express, 
 powers granted by the Constitution of the 
 United States to the national government, is 
 what it is at this day impossible to deny 
 or even to doubt. Some of those have 
 already been acted upon, and are in the full 
 course of actual exercise ; others are prepar- 
 ing to be carried into execution. It is too late 
 now to controvert the doctrine of implied con- 
 stitutional authority. 
 
 But while these implied powers are admit- 
 ted on all hands to exist in the federal govern- 
 ment to a greater or lesser extent, a question 
 has arisen, whether it is competent for the judi-
 
 VI PREFACE. 
 
 4 
 
 cial department, whose sphere of action the Con- 
 stitution has heen peculiarly careful to limit and 
 define, to assume rights to themselves by their 
 decisions a priori, and to carry them provision- 
 ally,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 he required. In other words, the inquiry 
 is, whether the Federal Courts have a right 
 independent of the people of the Un'ted States 
 or their representatives, by virtue of some oc- 
 cult power supposed to be derived from the 
 common law, to mould the Constitution as they 
 please, and to ex end their own jurisdiction 
 beyond the limits prescribed by the national 
 compact ? 
 
 There would have been but little difficulty 
 in solving this simple question, if, by a care- 
 lessness of expression unfortunately too com- 
 mon in our legal language, it had not been 
 clothed in the ambiguous words common law 
 jurisdiction, which have been the source of 
 all the doubts and all the hesitation that it has 
 produced, because it was not considered that 
 these words are susceptible of a double inter- 
 pretation, implying in the one sense, a juris- 
 diction perfectly lawful, and in the other a 
 power in direct opposition to the letter and
 
 PREFACE. VII 
 
 spirit of our national charter ; so that the 
 controversy has been to maintain or rejec\ al- 
 together, and in every sense, this common law 
 jurisdiction, while a proper distinction would 
 probably have reconciled all conflicting opi- 
 nions upon the subject. 
 
 In order that this may be clearly under- 
 stood, it is necessary to enter into some pre- 
 liminary explanations. In England, the coun- 
 try from whence we have derived, not only our 
 system of jurisprudence, but most of our civil 
 and political institutions, there is a metaphy- 
 sical being called common law, which originally 
 was a code of feudal customs, similar to the 
 contumes which, unt'l lately, governed the dif- 
 ferent provinces of the neighbouring kingdom 
 of France, but which, by gradual steps, and by 
 the force of circumstances has become incor- 
 porated and in a manner identified not only with 
 the national jurisprudence, but, under the name 
 of Constitution, with the political government of 
 the country. The king's prerogative and the 
 rights of the subject are alike defined and 
 limited by the common law. The various 
 and often conflicting jurisdictions of the dif- 
 ferent tribunals in which justice is adminis- 
 tered are also said to be derived from it, al- 
 though in many instances they are known to
 
 Vlll PREFACE. 
 
 be founded on gradual and successive assump- 
 tions of power ; but those having been estab- 
 lished and consolidated by time are now be- 
 come common law. This ens rationisis 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 ma- 
 ritime law, the constitution and even the reli- 
 gion of the kingdom, are considered to be parts 
 and parcels of the common law. It pervades 
 every thing;, and every thing 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 dis- 
 position of the* Judges. It has experienced 
 great changes at different periods, and is des- 
 tined to experience more. It is from its very 
 nature uncertain and fluctuating; while to vul- 
 gar eyes it appeals fixed and stationary. Un- 
 der the Tudors and the first Stuarts forced 
 loans, wardships, purveyance, monopolies, le- 
 gislation by royal proclamations, and even the 
 Star Chamber and High Commission Courts, 
 and slavery itself, under the name ofvillenage, 
 were parts of the common law. At the revo- 
 lution it shook off those unworthy fetters, and
 
 PREFACE. IX 
 
 assumed the character of manly freedom for 
 which it is now so eminently distinguished. 
 
 Twelve Judges, who hold their offices dur- 
 ing good hehaviour, are the oracles of this 
 mystical science. In a monarchy like Eng- 
 land, which has no written constitution, but in 
 which all the rights of the sovereign as well as 
 the privileges of the people are to be deduced 
 from the common law, those Judges are an 
 useful check against the encroachments of the 
 monarch or his ministers ; hence the common 
 law and the judicial power are in that country 
 almost objects of idolatrous worship. While 
 the United States were colonies, they partook 
 of this national feeling. The grievances which 
 induced them to separate from the mother 
 country were considered as violations of the 
 common law, and at the very moment when 
 independence was declared, the common law 
 was claimed by an unanimous voice as the 
 birth right of American citizens ; for it was 
 then considered as synonymous to the British 
 Constitution, with which their political rights 
 and civil liberties were considered to be iden- 
 tified. In the dissentions that arose between 
 the colonies and Great Britain, the Constitu- 
 tion, or the common law, which was the same 
 thing, was appealed to in favour of the doc-
 
 X PREFACE. 
 
 trines which the contending parties respectively 
 maintained. It was, therefore, held by all in 
 equal veneration, and by all cherished as their 
 most precious inheritance. 
 
 The revolution has produced a different 
 state of things in this country. Our political 
 institutions no longer depend on uncertain tra- 
 ditions, but on the more solid foundation of ex- 
 press written compacts; the common law is only 
 occasionally referred to for the interpretation 
 of passages in our textual constitutions and the 
 statutes made in aid of them, which have been 
 expressed in its well known phraseology; but 
 there ends its political empire : it is no longer 
 to it that our constituted authorities look to for 
 the source of their delegated powers, which 
 are only to be found in the letter or spirit of 
 the instruments by which they have been 
 granted. 
 
 The common law, therefore, is to be consi- 
 dered in the United States in no other light 
 than that of a system of jurisprudence, vene- 
 rable, indeed, for its antiquity, valuable for the 
 principles of freedom which it cherisbes^and 
 inculcates, and justly dear to us for the bene- 
 fits that we have received from it ; but still in 
 the happier state to which the revolution has 
 raised us, it is a SYSTEM OF JURISPRUDENCE
 
 PREFACE. XI 
 
 and nothing more. It is no longer the source 
 of power or jurisdiction, but the means or in- 
 strument through which it is exercised. There- 
 fore, whatever meaning the words common 
 law jurisdiction may have in England, with 
 us they have none ; in our lesal phraseology 
 they may be said to he msensibte. To them 
 may be applied the language in which the com- 
 mon lawyer of old spoke of a title of the civil 
 law : In ceulx parolx n'y ad pas entendment.* 
 
 But this immense change in the existing 
 state of things has not been immediately per- 
 ceived, nor its effects clearly understood. 
 Therefore our tribunals have been vexed with 
 questions and arguments about the extent of 
 their common law jurisdiction, because it was 
 not observed that all jurisdiction in the sense 
 above explained was irrevocably gone. But 
 old habits of thinking are not easily laid aside ; 
 we might have gone on for many years longer 
 confounding the Pnglish 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 dan- 
 gerous consequences, that hesitation was pro- 
 duced, and the public attention was at last 
 drawn to this important subject. 
 
 1 Blac. Com. 22.
 
 Xll PREFACE. 
 
 These were criminal prosecutions for of- 
 fences in which the peace and dignity of the 
 United States seemed to be involved, but the 
 jurisdiction of which was not given to the fed- 
 eral 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, there- 
 fore, contended that the Courts could here ex- 
 ercise over them what was called a u common 
 law jurisdiction." The Constitution, it was 
 admitted, had not expressly provided for the 
 preservation of the national peace and dignity 
 by criminal prosecutions in such cases, nor had 
 it vested any authority in the tribunals for that 
 purpose ; but it was insisted that that power 
 was indispensable to our national existence, 
 and therefore must be considered as necessa- 
 rily implied. The federal Courts had a right 
 to interpret the doubtful parts of the Constitu- 
 tion, they were the expounders of the com- 
 mon law, the common law had provided for 
 the punishment of such offences, the safety of 
 the country required that they should be pun- 
 ished, the Courts were, therefore, not only au- 
 thorised but bound to execute the common law. 
 On the other side, it was easily perceived that
 
 PREFACE. Xlll 
 
 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 un- 
 limited 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 ques- 
 tions produced ; sometimes it was said that 
 the common law was not the law of the 
 United States in their national capacity, at 
 other times that it was so in civil, but not in 
 criminal cases ; but no one seemed fully aware 
 of the distinction between the common law 
 considered as a source of jurisdiction, and as a 
 means for exercising it. Tlie Judges, however, 
 unwilling to extend the limits of their au- 
 thority, generally declined to assume this juris- 
 diction, 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 unani- 
 mous, nor was it satisfactory to the profession, 
 because in consequence of some obiter dicta of 
 the Judges, it was understood in too wide a 
 sense, and its application was carried to an extent 
 which the Court had not probably contempla-
 
 X!V PREFACE. 
 
 ted: a case of which they had full and complete 
 jurisdiction given to them in the most express 
 terms hy 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 hy 
 the improvident sanction of a solemn judicial 
 decree. On the whole, after so many deci- 
 sions, this question of common law jurisdiction 
 has remained and still remains as unsettled 
 as before, several of the Judges in the last 
 case of this description which came before 
 them, having expressed a wish that it should 
 be fully and solemnly discussed. 
 
 I have endeavoured in the following essay 
 to sift to the bottom this complicated question, 
 and to establish stnind and legal principles 
 which may lead to the solution of all similar 
 ones that may hereafter arise. I do not flat- 
 ter myself to have fully succeeded in this ar- 
 duous undertaking; I- hope, however, that I 
 have opened the way for its further and more 
 successful investigation. The distinction which 
 I have assumed between the common law as 
 a source of power and as a means for its ex- 
 ercise is the foundation of my argument. From 
 the common law considered in the first point 
 of view, 1 contend that in this country no ju-
 
 PREFACE. XV 
 
 risdiction can arise, while in the second every 
 lawful jurisdiction may be exercised through 
 its instrumentality, and by means of its pioper 
 application. 
 
 Having thus, as I conceive, disarmed the 
 common law of its only dangerous attribute, 
 the power grui?ig capacity, 1 have no hesitation 
 in asserting that as a system of jurisprudence 
 it is the national law of this Union, as well as 
 that of the individual States. In this respect 
 I consider it as perfectly harmless in a politi- 
 cal point of view and as beneficial in all others. 
 I shall not here anticipate the reasons which 
 I have given for this opinion. 
 
 At the same time that 1 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 sus- 
 ceptible 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 ob- 
 ject 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.
 
 XVI I Kl.l A< I 
 
 In the observations that I have made on the 
 defects of the common law I have not touched 
 upon what I consider as mere inconvenien- 
 cies, such, for instance, as the numerous fic- 
 tions with which it abounds. 1 consider it as 
 of very little consequence whether an eject- 
 ment 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 sys- 
 tem of law, is actual injustice : it is in vain to 
 say that the law is so established and that it 
 is better that it should be certain than that it 
 should be just ; 1 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 absurdi- 
 ties, which being perceived, lead to endless ex- 
 ceptions and to numerous contradictions, and 
 that from the whole results that very uncer- 
 tainty 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
 
 PREFACE. XV11 
 
 from its principles, and falling into fanciful no- 
 tions which in the end may produce at least 
 inconvenient results ; nevertheless, I have ex- 
 pressed 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, Puffen- 
 dorff, Pothier, and many others. The works 
 of the last of these writers were warmly re- 
 commended by Sir William Jones to his coun- 
 trymen, but without success. 
 
 Of all systems of jurisprudence the common 
 law is the best adapted for improvement, 
 therefore I rejoice to see it established in this 
 country. It is more malleable, if I may use the 
 expression, than written codes or statutes. In 
 this point of view, it is admirably described by 
 the late Judge Wilson. " The accommodating 
 " principle," says that able and learned jurist.
 
 ... 
 XV1I1 PREPACK. 
 
 " of a system of common law, will adjust itself 
 " to every grade and species of improvement, 
 " by practice, commerce, observation, study, or 
 " refinement. Willing to avail itself of expe- 
 " rience, it receives additional improvement 
 " from every new situation to which it arrives, 
 " and in this manner attains in the progress of 
 " time, higher and higher degrees of perfection 
 " resulting from the accumulated wisdom of 
 " ages."* This cannot he said of written law, 
 which must he implicitly obeyed. Hocquidem 
 perdurum est, sed ita lex scripta est.-{ 
 
 I am not, therefore, of the opinion of those, 
 although there are several among them whom 
 I highly respect, who think that we ought im- 
 mediately 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 ele- 
 ments which compose the common law, and 
 would exhibit the same defects, no longer sus- 
 ceptible of the accommodating principle men- 
 tioned by Judge Wilson, but possessing all the 
 unbending imperative force of statutory enact- 
 
 * Judge WILSON'S charge to the grand jury, specially sumnionnl for the 
 trial of John Singleterry and Gideon flenfii'ld, delivered on the 22<] July, 
 1793. See Dunlup's Daily Advertiser of the 25th of July of that year, in the 
 Philadelphia City Library. 
 
 t^*. L. 40. tit. 9. 1. 13. I.
 
 PREFACE. XIX 
 
 ments. It is much better that things should 
 remain as they are until the common law shall 
 by successive improvements have attained its 
 highest degree of perfection ; then it will be 
 time to reduce its principal provisions to a text; 
 for the details must always be left to the sound 
 application of the principles of the system, as 
 it is impossible for any legislator to foresee all 
 the cases that may possibly arise. I think, 
 however, that we are sufficiently ripe for a 
 national system of commercial law, and there- 
 fore I have ventured to express a hope that 
 Congress will exercise the powers which the 
 Constitution has given them upon that subject. 
 Tliere is among the members of the legal 
 profession in this country a disposition to ex- 
 tend the bounds of our science, and to improve 
 our jurisprudence by the study of that of other 
 nations, ancient and modern, which has not 
 been sufficiently observed. We have a Law 
 Journal, of which seven volumes have already 
 been published in this city by JOHN E. HALL, 
 Esq. the contents of which bear ample testi- 
 mony to this fact. Mr. WHEATON, the official 
 reporter of the decisions of the Supreme Court 
 of the United States, has placed at the end of 
 each of the eia;ht volumes that have hitherto 
 appeared of his Reports, an appendix of learn-
 
 XX PREFACE. 
 
 ed notes, giving comparative views of the laws 
 of different countries on the various sub- 
 jects which are treated of in the body of the 
 work. We understand that his ninth volume 
 is to contain an epitome of the laws of 
 Spain. A great number of the works of 
 eminent foreign authors, such as Roccus, 
 Bynkershoek, Martens. Schlegel, Pothier, 
 Emerigon, Valin, Jacobsen, and others have 
 been translated by our jurists from various 
 languages, and published, some of them 
 with valuable notes. Two different transla- 
 tions have appeared of the French commercial 
 code, and one of the criminal code, all with 
 copious notes by different authors. Judge 
 COOPER has published Justinian's Institutes, 
 with a translation, and a large body of anno- 
 tations, in which he ably compares ihe 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 cul- 
 tivate jurisprudence as a philosophical science, 
 and the result may be easily anticipated. 
 
 As a farther evidence of this spirit, I must 
 not omit to observe that Law schools, within 
 these two or three years have been increasing 
 in this country in an astonishing degree, and
 
 PREFACE. 
 
 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 pro- 
 fessorships in the University of Cambridge in 
 Massachusetts, and the school which had been 
 established at Litchfield in Connecticut by the 
 late Judge REEVES. These were at that time 
 the only institutions of the kind known out of 
 this State. They continue to flourish, the lat- 
 ter under the care of Judge GOULD, succes- 
 sor of Judge REEVES. Since then other si- 
 milar establishments have arisen, from which 
 the greatest benefits may be expected to our 
 profession and to our science. In the Transyl- 
 vania 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. 
 BAURY. and one of common and statute law, 
 under Mr. BLEDSOE. In the University of 
 New York, the Hon. JAMES KENT, who, dur- 
 ing so many years, distinguished himself as 
 Chancellor of that Stale, and whose name and 
 talents are and will be long in veneration 
 among us, fills the lately established chair of 
 Jurisprudence. At Baltimore, Professor HOFF- 
 MAN, and at Northampton, in the State of 
 Massachusetts, Judge HOWE and Mr. MILLS,
 
 XX11 PREFACE. 
 
 member of Congress, lecture with success to 
 considerable numbers of students. There may 
 be other similar institutions which are not 
 known to me ; no doubt there will be several 
 more in the course of a few years, such is the 
 rapid course that this country is taking in the 
 pursuit of elegant and useful knowledge*. 
 
 The opinions of English jurists and the 
 decisions of English Judges so long regarded 
 among us with implicit deference, are now 
 scanned with greater freedom and with the 
 spirit becoming an independent nation. Be- 
 fore the late revolution that spirit prevailed in 
 a great degree in the colonial tribunals, parti- 
 cularly in the provinces that were under char- 
 ter and proprietary governments, and the 
 Judges shewed a disposition to accommodate 
 the law to the local circumstances of the coun- 
 try. 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 adop- 
 tion of the federal Constitution, when a Su- 
 preme Court was established, the Judges of 
 which were indiscriminately taken from the 
 States which had been under a royal govern- 
 ment, and from those which had been govern- 
 ed under their charters and their proprietaries.
 
 PREFACE. XXlil 
 
 From that time there was perceived in the 
 State as well as in the federal Courts a much 
 more rigid adherence to Knglish precedents. 
 Perhaps the vain wish to introduce hy that 
 means uniformity throughout the Union, did 
 not a little contrihute to it. It was felt, how- 
 ever, and complained of by the people, and 
 the consequence was that some of the States. 
 as Pennsylvania Ohio, and New Jersey, pro- 
 hihited hy law the citing of British authorities 
 posterior to the revolution. {This was apply- 
 ing the axe to the root of the tree ; it was an 
 ill judged and inefficient remedy, hut at the 
 same time a solemn warning to Judges and an, 
 indication of the manner in which the people 
 wished the law to he 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 alter- 
 ation 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 alter- 
 ing the common law are to be construed strict-
 
 XXIV PREFACE. 
 
 ly, has, T believe, been carried so far as in some 
 cases to counteract the views of our legisla- 
 tures, and the principles which they meant to 
 establish. 
 
 This evil is gradually correcting itself, and 
 the common law appears more and more dig- 
 nified with American features. It is observed 
 with pleasure that the opinions of Mr. Chief 
 Justice MARSHALL, are more generally found- 
 ed upon principle than upon authority, and 
 with the same%itisfaction we see that Judge 
 WASHINGTON, while he pays proper respect 
 to modern Knglish decisions, does not hesitate 
 to reject those doctrines which to his discrimi- 
 nating mind do not appear consonant to our 
 American system of jurisprudence, and thus 
 proves himself to have inherited the spirit as 
 well as the name and worldly estate of the 
 father of the independence of his native land. 
 
 Thus, the law in this country, as every other 
 science, tends to improvement. This lauda- 
 ble spirit requires only to receive a proper di- 
 rection, which will, no doubt, be given by those 
 who are more adequate than I am to this im- 
 poitant task. In the mean time I have ven- 
 tured to give a few hints to shew the impor- 
 tance of sound principles in a branch of know- 
 ledge on which our lives, our characters, and
 
 PREFACE. XXV 
 
 eur fortunes depend. The peculiar situation 
 in which we are placed appeared to me to re- 
 quire it, as, unless we rally under the standard 
 of principle, we shall be reduced to choose be- 
 tween a perpetual dependence on foreign opi- 
 nions, and plunging into an inextricable laby- 
 rinth of confusion and uncertainty. 
 
 The common law contains within itself al- 
 most every thing that is requisite to raise it to 
 the highest degree of perfection. It is fraught 
 with excellent principles which only require 
 to be methodised and properly applied. They 
 are the foundation upon which authority rests, 
 and unless they are constantly recurred to, the 
 law will soon cease to be a science, and will 
 not even be entitled to the name of a system. 
 
 This opinion might be supported by the au- 
 thority of the greatest men that England has 
 produced, among whom it would be sufficient 
 to name the illustrious BACON. But I wish 
 only to be permitted to quote a few lines from 
 the excellent Sir WILLIAM JONES, which are 
 so peculiarly applicable, that I cannot forbear 
 inserting them here in his own words: 
 
 " If law be a science, and really deserve so 
 " sublime a name; it must be founded on prin- 
 " ciple, and claim an exalted rank in the empire 
 " of reason ; but if it be merely an unconnected 
 
 D
 
 XXVI PREFACE. 
 
 " series of decrees and ordinances, its use may 
 " remain, though its dignity be lessened, and he 
 " will become the greatest lawyer who has the 
 " strongest habitual or artificial memory.* 
 I shall say no more upon this subject ; for 
 
 " *Tis enough adventYous to have touch'd 
 " Light on the numbers of the British sage."t 
 
 Tin- day may come, however, and I hope it 
 will come, when his voice will be responded 
 to from one end of this vast continent to the 
 other. 
 
 A few words more will conclude this preface. 
 
 I am under great obligations to my friend, 
 THOMAS SERGEANT, Esquire, late Attorney 
 General of the State of Pennsylvania, and who 
 slnres with me in the labours of this institu- 
 tion,- 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.J It enabled me to take that 
 comprehensive view of our Constitutional ju- 
 risprudence, which I could not otherwise have 
 
 Law of Bailments. f Thomson. 
 
 t Constitutional Law ; being; a collection of points arising upon the Consti- 
 tution und jurisprudence ot tin- United States, winch have been settled by ju- 
 dicial decision and practice. By Thomas Sergeant, Esq. Philadelphia, Small. 
 1822. 415pp. 8vo.
 
 PREFACE. XXV11 
 
 obtained without much laborious research. 
 This book in my opinion, ought to be found 
 in the library of every American lawyer. 
 
 Nor can 1 omit mentioning the Annual Law 
 Register of the United States, lately published 
 by the Hon. WILLIAM GRIFFITH.* The con- 
 densed view which it gives of the variations 
 from the English law which now exist in the 
 different States of this Union, is of immense 
 value to the student of American Jurisprudence. 
 It is time that the common law should gradu- 
 ally conform itself to the national spirit. When 
 certain principles have acquired an undoubted 
 ascendancy through the whole or a great ma- 
 jority 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 col- 
 lections as that of Mr. Griffith to be invaluable. 
 
 At the request of several friends 1 have re- 
 published in the Addenda, the discourse which 
 I delivered on the subject of legal education 
 
 * Annual Register of the United States, by William Griffith, counsellor at 
 Jw ; Tols. 3d and 4th. Burlington, New Jersey, 1822.
 
 XXV111 PREFACE. 
 
 at the opening of the Law Academy in 1821. 
 1 hope it will not be thought here out of place. 
 
 Considering this Essay as a partial com- 
 mentary 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 like- 
 wise inserted the decisions of the Judges in 
 the five principal cases to which this disser- 
 tation refers, and a denunciation of the com- 
 mon law by the general assembly of Virginia, 
 to which this Essay may be in part considered 
 as an answer. 
 
 Before I conclude, I would observe, that 
 whenever, in the course of the ensuing ad- 
 dress, I make use of the familiar expression 
 "common law jurisdiction" as appertaining to 
 the Courts of the United States, 1 always mean 
 jurisdiction ofand not/row the common law. In 
 this sense I have said (page 70) that the Courts of 
 the District of Co\um\>\ahavc common laujuris- 
 diction, by which I only meant to say that thej 
 have a right to administer the common law 
 in the exercise of their jurisdiction over the 
 territory or a part of it. 
 
 I now commit this little work to the can- 
 dour and indulgence of my professional bre- 
 thren.
 
 TABLE OF CONTENTS- 
 
 INTRODUCTION. 
 
 Pap 
 
 Cases which gave rise to the question of common law 
 jurisdiction, 
 
 1. Worrall's Case, 1 
 
 2. Burr's Case, 5 
 
 3. Hudson & Goodwin's Case, 7 
 
 4. Coolidge's Case, 9 
 Observations on the decisions in these four cases, 13 
 Object of this work, - 16 
 
 THE ADDRESS. 
 
 Questions to be considered, 17 
 
 - how to be stated, - 19 
 
 Jurisdiction, what it is, 21 
 
 in locum, - 23 
 
 in personam, - 24 
 
 in subjectam materiam, - 26 
 
 are but the means through which jurisdiction is 
 exercised, not the source from whence it springs, ibid. 
 The Courts of the United States may take cognisance of 
 offences at common law, when they have jurisdiction 
 over the place, person, or subject matter, 29 
 
 Illustrations of this doctrine 
 
 SECT. I. Of the Courts of the United States when 
 exercising their jurisdiction in or for the con- 
 federated States, - 31 
 
 1. Cases at Common law, - 35 
 
 Cases of the United States v. Worrall, and the United 
 States v. Uudson & Goodwin, considered, * 50
 
 XXXU CONTENTS. 
 
 i'gc. 
 
 Has tlie federal government a right to protect its offi- 
 cers against insult and outrage? 51 
 
 Can the federal Legislature enact penal laws for that 
 purpose ? 53 
 
 Can the federal Courts protect them by the mere 
 force of the common law ? 
 
 Distinction between imperative and potential or per- 
 missive powers under the federal Constitution, 54 
 
 2. Cases of admiralty jurisdiction, - 57 
 
 SECT. II. Jurisdiction exercised without the limits of 
 the States. Of ceded countries and places, and what 
 laws are in force within them, - 63 
 
 1. District of Columbia, - 69 
 
 2. Old Territory N. W. of the Ohio, 73 
 
 3. Old Territory S. W. of the Ohio, 74 
 
 4. Louisiana and Florida, 75 
 
 5. Forts, Arsenals, Dock Yards, &c. 83 
 SECT. III. Question whether the common law is the 
 
 national law of the United States, considered, 85 
 
 Recapitulation of the principles attempted to be estab- 
 lished in this dissertation, - - 101 
 Hostility to the common law, its origin and cause, 102 
 Inconveniences in the common law, but none suffi- 
 cient to induce its abolition, 104 
 Impossibility of abolishing the common law, - 105 
 General view of the common law in England before 
 
 the revolution of 1648, - 106 
 
 Improvement of the common law since that time, in 
 
 England, 111 
 
 In America, - 112 
 
 Defects of the common law, - - 117 
 
 The commercial and maritime law in England dif- 
 ferent in many respects from the general law of 
 ' the commercial world, and why ? 119 
 
 The improvement of the common law reserved to the 
 United States ; how to be effected ? 123
 
 CONTENTS. XXX111 
 
 Page. 
 Effects produced in England by the writings of Ame- 
 
 ricanjurists, 124 
 
 The study of general jurisprudence recommended. 
 
 Law should be treated as a philosophical science. 
 
 Consequences that it will produce. Conclusion, 126 
 
 ADDENDA. 
 
 I. A brief sketch of the national jurisprudence exercis- 
 ed in the United States, from , the first settlement of 
 the Colonies to the time of the adoption of the federal 
 Constitution. By Thomas Sergeant, Esq. 133 
 
 II. An Address delivered at the opening of the Law 
 Academy of Philadelphia, on the 21st February, 1821. 
 
 By Peter S. Du Ponceau, LL.D. 169 
 
 APPENDIX. 
 
 I. Constitution of the United States, 193 
 
 II. Extract from the Report of the case of the United 
 States v. Worrall, (Circuit Court, Pennsylvania Dis- 
 trict,) 213 
 
 III. Instruction from the Assembly of Virginia, to their 
 Senators in Congress, respecting the common law, 225 
 
 IV. Extract from the Report of the case of the United 
 States v. Aaron Burr, (Circuit Court, Virginia Dis- 
 trict,) 227 
 
 V. Report of the case of the United States v. Hudson & 
 
 Goodwin, ( Supreme Court U. S.) - 233 
 
 VI. Judge Story's opinion in the case of the United 
 States v. Coolidge, (Circuit Court, Massachusetts 
 District,) 237 
 
 VII. Report of the same case on appeal, in the Supreme 
 Court of the United States, 247 
 
 VIII. Extract from the opinion of Chief Justice Tilgh- 
 man, in the case of the Commonwealth of Pennsylva- 
 nia v. Kosloff, - 249
 
 TABLE OF THE CASES 
 
 CITED OR REFERRED TO IN THIS BOOK. 
 
 A. 
 
 African Company v Bull, 1 21 
 Angles v Underwriters, 15 
 
 B. 
 
 Bernard! v Motteaux, 14, 121 
 Bellman's Case, 72 
 Breeu Holbech, 118 
 Buller v Harrison, 123 
 
 C. 
 
 Calvin's Case, 66 
 Campbell v Hall, 66 
 Chandler v Lopus, 118 
 Clerke v Martin, 122 
 Commonwealth v Kosloff, 35, 
 
 36, 44, 249 
 .. . v Sweers,! 54 
 
 D. 
 
 Davis v Gilbert, 121 
 
 De Lovio v Boit, 137, 138, 
 
 158 
 Donaldson v Thompson, 124 
 
 F. 
 
 Fisher v Ogle, 124 
 Fualdes, case of, 116 
 
 G. 
 
 Gordon v Lowther, 141 
 
 E 
 
 H. 
 
 Hamilton v Mendez, 123 
 Havelock v Hancell, 121 
 Hughes v Cornelius, 14 
 
 J. 
 
 Jane v Paradyne, 119 
 L. 
 
 Lister v Graham's exrs. 118 
 Little Joe, 138 
 Lothian vHenderson,l21, 124 
 Luke v Lyde, 120 
 
 M. 
 
 Mannhardt v Soderstrom, 35 
 
 253 
 
 Marbury v Madison, 72, 251 
 Martins v Coles, 118 
 
 N. 
 
 Nathans v Commonwealth 
 of Virginia, 157 
 
 P. 
 
 Parkinson v Lea, 118 
 Penn's Case, 108 
 Penn v Lord Baltimore, 88 
 Penhallow v Doane's adms. 
 142, 145
 
 TABLE OF THE CASES CITED. 
 
 Perrinw Blake, 114 
 Pickering v Bush, 118 
 Gov. Picton's Case, 65 
 Pollard v Shaffer, 119 
 
 Q. 
 
 Col. Quarry's Case, 140 
 
 R. 
 
 Respublica v De Longchamps 
 
 155 
 
 Robinson v Raby, 109 
 Rogers v Davis, 121 
 Ross v Rittenhouse, 145 
 
 S. 
 
 The Sarah, 140 
 Smart v Wolff, 62 
 
 T. 
 
 Talbot v Commanders, &c. 
 
 of three brigs, 153 
 Timrod v Shoolbred, 118 
 Touteng v Hubbard, 119 
 
 U. 
 
 United States v Bcvan, 61 
 
 v Bright. 145 
 
 v Burr, 5, 13 
 
 37, 40, 227 
 v Coolidge, 9, 
 
 13,62, 92,237 
 
 247, 254 
 
 v Cornell, 84 
 
 v Gill, 61 
 
 v Henfield, 3 
 
 v Hudson and 
 
 Good win, 7, 10 
 
 11, 12, 13, 14, 
 
 19, 47, 50, 56, 
 
 233 
 
 v Peters, 145 
 v Ravara, 3, 35 
 
 36, 252 
 
 1> Will Jams, 93 
 
 ' v Wiltberger, 
 
 61 
 
 v Worrall, 1, 
 9, 13, 59, 21 S 
 
 W. 
 
 Whitfield v M'Leod, 118 
 Wyoming cause, 153
 
 A DISSERTATION 
 
 ON THE 
 
 NATURE AND EXTENT 
 
 OF 
 
 9 WIBH 2) H ^H IT 
 
 OF THE 
 
 COURTS OF THE UNITED STATES, 
 
 BEING A VALEDICTORY ADDRESS 
 
 KELIVEBED TO THE STUDENTS OF THE LAW ACADEMY OP PHILADELPHIA, AT THE 
 CLOSE OF THE ACADEMICAL TEAR, ON THE 22l) APRIL, 1824, 
 
 BY PETER S. DU PONCEAU, LL.D. 
 
 PHOVOST or THE ACADEMT. 
 
 EX 1E8E COMMTJNI SON OBI TUB JUBI8DICTIO. 
 
 IS OENEHALIBUS, GENERAI-E : IHT LOCALIBUS, LOCALE JUS PBAVA1EAT.
 
 A DISSERTATION, &c. 
 
 INTRODUCTION. 
 
 IN the year 1798, a bill of indictment was pre- 
 ferred 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. 
 
 In order to understand the ground* 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 autho- 
 rity of the national legislature. They were empow- 
 ered 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, 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. 
 
 2DaIl. 384. 
 
 B
 
 Other specific powers were also granted, includ- 
 ing cases of a criminal as well as civil nature. Those 
 were to take cognisance of "all cases of admiralty 
 and maritime jurisdiction and all canes affecting 
 ambassadors, other puhlic ministers and consuls." 
 The constitution did not provide in like manner 
 for rases affecting officers of the government of the 
 United States. 
 
 In addition to the above branches of jurisdiction 
 thus specifically granted, the judicial power was 
 declared by a general clause to extend " to all 
 cases in law and equity, arising under the consti- 
 tution, the laws of thr- United States, and treaties 
 made or to he made under their authority." 
 
 Mr. Dallas contended that the offence of which 
 the defendant stood convicted was not cognisable 
 before this tribunal. It was not evidently within 
 any of the specific powers granted to the judiciary 
 of the United States, neither did it come within 
 their general authority. It was not committed in 
 violation of a treaty nor of a law of the United 
 States, since Congress had passed no act applica- 
 ble 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, thin of- 
 fence was not here within the reach of justice.
 
 ( 3 ) 
 
 Mr. Rawle, the attorney for the District in au- 
 swer 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 possess- 
 ed of jurisdiction, the common law was to be look- 
 ed to for the definition of the offence and the inflic- 
 tion 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 con- 
 victed by the same tribunal of a mere common law 
 offence. 
 
 * This was an indictment for enlisting on board of a French privateer and 
 aiding in the capture of British vessels, in violation of the neutrality and of the 
 treaties of ihe United States. The defence was, that neither the neutrality nor 
 the treaties had been violated in this particular instance. The defendant was 
 acquitted. 
 
 Judge Wilson, who presided at this trial, in his charge to the jury, took 
 the ground of its being also an offence at common law, of which the law of na- 
 tions was a part, and maintained the doctrine that the common law was to be 
 looked to for the definition and punishment of the. offi-nce. This ground had not 
 been adverted to in argument, or at least very slightly. But it would seem that 
 the common law, considered as a municipal system had nothing to do with this 
 case. The law of nations, being the common law of the civilised world, may 
 be said, indeed, to be a part of the law of every civilisi-d nation ; but it stands 
 on other and higher grounds than municipal customs, statutes, edicts or ordi- 
 nances. 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 into a war. Every branch of the 
 national administration, each within its district and its particular jurisdiction 
 is bound to administer it. It defines offences and affixes punishments, and acts 
 every where proprio -vigore, whenever it is not altered or modified by particu- 
 lar national statutes, or usages not inconsistent with its great and fundamental
 
 Thus, the.ro. 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 .-in li jurisdiction, the common law could 
 be looked to for the deflnition and punishment of 
 the crime ? The first of these questions, Judge 
 Chase, who presided at this trial, did not think it 
 neces-ary to consider, but decided in favour of 
 the defendant on the broad ground that there waa 
 no common law of the United States. The ques- 
 tion, he said, was not about the power, but about 
 the exercise of the power. It was whether the 
 Courts of II. e United States could punish a man for 
 any act, before it was declared by a law of the United 
 States to be criminal. The common law could not 
 be recurred to for the definition and punishment of 
 the offence. The United States had no common 
 law, though the States had, but the common law of 
 one State was not the common law of another; nor 
 was the common law of England the law of any of 
 the States, except so far as they had adopted and 
 modified it by their statutes and usages, from which 
 had resulted an endless variety which could not 
 
 principles. Whether there is or not a national common law in other respects, 
 this universal common law can never cease to be the rule of executive and ju- 
 dicial proceedings until mankind shall return to the savage state. Judge Wil- 
 son, therefore, in my opinion, rather weakened than strengthened the ground 
 of the prosecution in placing the law of nations on the same footing with the 
 municipal or local common /aw, and deriving its authority in a manner exclu- 
 sively 'from the latter. It was considering the subject in its narrowest point 
 of view. 
 On the trial of this cause, 1 was concerned for the defendant.
 
 be reconciled. On this ground therefore (leaving 
 jurisdiction out of the question) he was for arrest- 
 ing the judgment ; but the District Judge, Mr. 
 Peters, differing from him in opinion, and the par- 
 ties not agreeing to carry the case up to the Su- 
 preme Court, the judgment was not arrested, and 
 the defendant was fined and imprisoned. Thus 
 ended this celebrated case. 
 
 This decision of Judge Chase made a great 
 noise at the time, and left vague but strong impres- 
 sions, 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 J807, in the case of the 
 UNITED STATES v. AARON BURR,* which was 
 tried at Richmond in Virginia, Mr. Chief Justice 
 Marshall, who presided at that trial in the federal 
 Circuit Court on an incidental motion, in which this 
 question was made, but which did not necessarily 
 involve it, intimated an opinion that the laws of the 
 several States, (including, of course, their common 
 law) could not in any case be considered as rules 
 of decision in trials for offences against the United 
 States. This, however, he expressed upon the 
 whole in the language of doubt, nor was his deci- 
 sion 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 
 
 * Report of Burr's Trial, by David Robertson. 2 vol. 8vo. Richmond, 1S08. 
 Vol. 2, p. 481.
 
 instance. From tho opinion of Judge Chase and 
 the doubt of Mr. Chief Justice Marshall, an un- 
 settled notion \v;is formed and spread ahroad among 
 the profession, that ** the Court it of the United 
 States had not jurisdiction of the common law." 
 Such was the language in which the idra was ex- 
 pressed, in which no distinction was made between 
 the common law as a source of jurisdiction, and as 
 a rule or means for its exercise.*' 
 
 It is not astonishing that this confusion of ideas 
 should have prevailed. In England, the jurisdic- 
 tion 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. Ju- 
 risdiction 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 assimi- 
 lated to municipal tribunals by the various limita- 
 tions 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 
 
 I did not, any more than others, escape the general contagion. It was not 
 until after repeated discussions of these questions in the I:tw academy, that I 
 Ijpgan to perceive that the words " common lav jurisdiction*'' had no definite 
 meaning, and was led to enter into this investigation of the subject.
 
 ( 7 ) 
 
 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 unra- 
 vel the intricacies of this system. 
 
 Things remained in this situation until the year 
 1812, when a case was brought up to the Supreme 
 Court from Connecticut on a division of the Judges, 
 in which the question of common law jurisdiction 
 was propounded in terms for the decision of the su- 
 perior tribunal. It was the well known case of 
 the UNITED STATES v. HUDSON and GOODWIN.* 
 The defendant, a citizen of Connecticut, had been 
 indicted for publishing a libel against the President 
 and Congress of the United States. Whether the 
 Circuit Courts had common law jurisdiction in cases 
 of libel ? was the question submitted to the Supreme 
 Court, and on which it was called to decide. 
 
 The manner in which this question was worded 
 seemed to imply that the Court in that case de- 
 rived 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 
 
 rCranch, .7>.
 
 ( 8 ) 
 
 concurrently vested in the judiciary ; if the Consti- 
 tution did convey certain implied powers to the 
 government considered as a whole, it did not fol- 
 low that the Courts of that government were vest- 
 ed with jurisdiction over any particular act done 
 by an individual in supposed violation of the peace 
 and dignity of the sovereign power. To this argu- 
 ment there seems .to be no answer. It made at 
 once an end of the case. 
 
 The Court, however, did not slop there, but pro- 
 ceeded to say that in order to vest jurisdiction in 
 the federal judiciary in criminal cases, it was ne- 
 cessary 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 en- 
 suing 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 mat- 
 ters are at all connected with jurisdiction, which 
 may be conferred by simple words, such as are suffi- 
 cient to describe the person or the subject matter 
 over which authority is given. But I will not anti- 
 cipate my argument. 
 
 The Court proceeded further, and in doing so, I 
 must say, travelled, as the phrase is, extra cancel - 
 los, or beyond the record. The question submit- 
 ted to them simply was, whether the Courts of the 
 United States had common law jurisdiction in cases 
 of libel? The question which this case presents, 
 said Mr. J. Johnson, " is whether the Circuit
 
 ' Court can exercise a common law jurisdiction in 
 " criminal cases ? We state it thus broadly/ 7 con- 
 tinued the learned Judge, " because a decision in 
 " a case of libel will apply to every case, in which 
 "jurisdiction is not vested in those Courts by sta- 
 " tute." 
 
 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 tri- 
 bunals only by the Constitution or by the statutes 
 made in pursuance of it, and that setting aside the 
 question whether those Courts may derive their 
 rules of action from the common or any other law, 
 yet they cannot derive from such a source their. 
 right to act ; except where, as in cases of admiral- 
 ty, and maritime jurisdiction, a general authority is 
 given to them to administer in all cases a particu- 
 lar body of laws. But these words, and those 
 of Judge Chase in the case of the United States v. 
 Worrallj were taken by the profession in a much 
 more extensive sense than the Court in this case 
 appears to have had in contemplation. 
 
 This was made manifest in a case which present- 
 ed itself in the following year (1813) before the 
 Circuit Court of the United States for the District of 
 Massachusetts. I allude to the case of the UNITED 
 STATES v. COOLIDGE.* This was an indictment 
 for forcibly rescuing en the high seas, a prize which 
 had been captured and taken possession of by two 
 
 1 Gallison, 488. 1 Wheaton, 415. 
 
 Cc
 
 American vessels, and was on hor 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 pur- 
 suance of it. 
 
 It appears that the case of the United States 
 v. Hudson and Goodwin, before mentioned, had 
 been decided by the Supreme Court on an ex parte 
 argument, the counsel for the defendant having de- 
 clined the discussion of the point. This, Mr. Jus- 
 tice 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 ju- 
 risdiction 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 neces- 
 sary to travel out of his straight path, and to aban- 
 don an impregnable fortress to seek battle in the 
 open field. I can only account for his taking that 
 course by the strong desire which I suppose he felt 
 that the general question of common law jurisdic- 
 tion should be* considered by the supreme tribu- 
 nal with the solemnity due to its importance, and 
 that it should be finally settled after a full re-
 
 hearing. For this purpose, it would seem, the two 
 Judges divided, in order that it might be carried, 
 (as in fact it was) up to the Supreme Court of the 
 United States. 
 
 If this desire, which it seems was general among 
 the profession, had not prevailed, it is probable 
 that the difference between the case of the United 
 States v. Hudson and Goodwin and the present one, 
 would have been immediately perceived. The former 
 was a case of libel of which no express cognisance is 
 given by the Constitution to the federal Courts, while 
 this was one of admiralty jurisdiction, committed ex- 
 clusively to those tribunals in- the most direct and ex- 
 plicit terms. The admiralty is governed by a pecu- 
 liar 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 re- 
 sult from the state of the case ; yet so much did 
 ideas turn upon the common law and common law 
 jurisdiction, that Mr. Grallison at the head of his 
 report of this case, states the question to have been, 
 Whether the Circuit Court of the United States 
 has jurisdiction over common law offences against 
 the United States? It is highly probable that this 
 was the point of view in which it was considered 
 by the counsel who argued the cause* Their argu- 
 ment is not in print. 
 
 Judge Story, however, did not express himself
 
 ( 1* ) 
 
 thus. " The simple question," said he " is whether 
 the Circuit Court of the United States has jurisdic- 
 tion to punish offences against the United States, 
 which have not been previously defined, and a spe- 
 cific punishment affixed, by some statute of the 
 United States.'' This was coming much nearer to 
 the true point in controversy ; hut still, 1 shall, 
 with due respect to the opinions of this learned 
 and able Judge, endeavour to show, that it is sta- 
 ted in too general a manner, and that had it been, 
 confined to a Court sitting in the exercise of admi- 
 ralty jurisdiction, it would have admitted of a more 
 complete and more easy solution. 
 
 But it is evident, (to me at least) that Judge 
 Story had the general question, which had so much 
 and so long agitated the bar and the bench, always 
 before his eyes. 
 
 This question the learned Judge decided in the 
 affirmative. As applied to the case before him, 
 there can be no doubt of the correctness of his de- 
 cision, any more than of that of the Supreme Court 
 of the United States, in the case of the United 
 States v. Hudson and Goodwin, although they 
 seem to be in direct opposition to each other. The 
 reason is, in my opinion, that in both these cases, 
 the Judges- were led by the counsel into too wide a 
 field of argument, and assumed as general princi- 
 ples, 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 folio wing address.
 
 ( 13 ) 
 
 It is remarkable that the decisions of the Judges 
 in each of the four ahovc mentioned cases, although 
 on general principles, they are apparently irrecon- 
 cilable, yet are all perfectly correct as applied 
 to each particular case. In the United States 
 v. Worrally Judge Chase, and in the United 
 States v. Hudson and Goodwin, the Supreme 
 Court were right in deciding that their respective 
 tribunals had not jurisdiction of the particular case, 
 while in the United States v. Coolidse Judse 
 
 O C5 
 
 Story was also right in deciding the reverse. In 
 like manner, in the case of the United States v. 
 Burr, Mr. Chief Justice Marshall, decided with 
 great propriety, in refusing to follow the course 
 pointed out by the local law of Virginia. I shall 
 not attempt to disturb any of these decisions.* 
 The difficulty of the questions which I have under- 
 taken to examine, will be found all to result from 
 the obites dicta of the Judges. 
 
 The case of the United States v. Coolidge 
 was carried up by appeal to the Supreme Court. 
 Richard Rush, Esq. then Attorney General of the 
 United States, a gentleman whose talents do hon- 
 our to his profession, being persuaded that the opi- 
 nion 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, 
 
 * I do not consider the reversal of the judgment in the United States T. 
 Coolidge, as a deliberate decision of the Supreme Court, as it was not given upon 
 a full view of the facts, and was submitted to by counsel without argument.
 
 therefore, did no more than confirm their former 
 decision in the case of the United States v. Hudson 
 (Did Goodwin, under the belief that the one submit 
 ted arose from similar facts. Several of the Judges, 
 however, expressed a wish to hear an argument 
 whenever a proper opportunity should offer. 
 
 That the har 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 unwil- 
 ling to believe that it may admit of distinctions 
 in particular cases, is a thing not at all to be won- 
 dered at, or to be interpreted to the disparage- 
 ment of their learning or sagacity. Similar things 
 have happened in every country. How came the 
 English bar and bench, and even that truly great 
 man, Lord Mansfield, in the case of BEKNAKDI v. 
 MOTTEUX,* and in every subsequent case until 
 very lately, to take it at once for granted, by an 
 overstrained extension of the principle laid down 
 by the Court, in the case of HUGHES v. CORNE- 
 LIUS, f that the sentence of a foreign Court of ad- 
 miralty, 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 
 
 Douglas, 554. t 2. Shower, 2S2.
 
 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 confisca- 
 tion, and to refuse paying the loss when it happen- 
 ed, on the ground thaf the property was not neutral; 
 because it had been condemned ? This is not said 
 with a view to depreciate the talents or impeach 
 the rectitude of the English Judges, but to show 
 that the best and the greatest men will sometimes 
 receive impressions, which are afterwards difficult 
 to be eradicated. Besides, this is not written with 
 a view to Europe, but to this country, where the 
 doctrine of conclusiveness of foreign sentences has 
 still too many friends. 
 
 The distribution of powers under the Constitu- 
 tion of the United States is so entirely new, and 
 involves so many nice, and difficult questions of 
 
 * Regis et principis factum connumeratur inter casus fortuitos. Roccus, 
 de assec. not. 65. Merces captre a potestate, seu judice administrante in illo 
 loco, tenentur assecuratores. Quod judex facit injusle, dicitur casus fortui- 
 tus, and in assecuratione pertinet ad ilium qui in se susccpit casum fortuilum. 
 Ibid. not. 54. quotes Straccha, andnumerous other authors. 
 
 Le fait du Prince est mis dans la classe des cas fortuits. Scaccia, quest. I . 
 No. 136. Ibib. No. 137. Peu iraporte que Pinjustice procede de la corrup- 
 tion du Juge ou de son ignorance. Quid refert sordibus judicis, cm stultitid 
 res perierit,ff. deevictionib. I. 51. II est done certain que les assureursrepon- 
 dent de la confiscation injuste pronomree par le tribunal du lieu oule nayire pris 
 a 6te conduit. Emerigon, sur les Assurances, Vol. 1. p. 457. 
 
 See also the opinion of this eminent jurist in the case of Angles and others v, 
 The Underwriters, in Valin's Commentary on the Marine Ordinance of Louis 
 XIV. vol. 2. p. 120. in conformity to which the Parliament of Aix gave their 
 sentence on the 28th of June 1759, on the report of M. de Coriolis, Valin. ibid.
 
 jurisdiction, that it may be considered as a fact 
 highly honourahle to our judiciary and to our coun- 
 try, 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 com- 
 mitted occasional mistakes, on points which it was 
 not incumbent upon them to decide, is no more than 
 what others have done, whose reputation overspreads 
 the world. 
 
 I have endeavoured in the following sheets, to 
 discover the true principles upon which the cases 
 turn, which have given rise to so many, and so va- 
 rious opinions. I dare not flatter myself with hav- 
 ing succeeded ; but, at least, I shall have opened 
 the way in which others, better qualified, may fol- 
 low me with greater success. 
 
 The opinions of the Judges, in the four cases 
 above mentioned, are inserted at large in the ap- 
 pendix.
 
 THE ADDRESS. 
 
 MY FRIENDS AND FELLOW STUDENTS, 
 
 ON taking my affectionate leave of you at the 
 close of this academical year, I have, thought it my 
 duty to address you on some of the most important 
 subjects that have heen discussed in the course of 
 our exercises, 1 mean the nature and extent of the 
 jurisdiction of the Courts of the United States, and 
 the various laws hy 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 ex- 
 ercise of the first abilities of the land, and yet at 
 this moment are not completely settled. For, I do 
 not consider them to be so by the decisions in the 
 cases of the United States v. Hudson and Good- 
 win,* and the United States v. Coolidge.-\ I 
 take no point to be settled by the, first of these 
 eases, 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, 
 
 7 Cr. 32. t 1 Wheat. 416. 
 
 D
 
 ( 18 ) 
 
 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 impres- 
 sion of the bearing and effect of the Court's deci- 
 sion in the first, and the Judges expressed a dis- 
 position to hear the question argued again when- 
 ever a proper opportunity should offer. I there- 
 fore consider the subjects which I have undertaken 
 to treat of as still open to our modest and respect- 
 ful inquiry. 
 
 Although 1 have bestowed upon these interesting 
 questions much anxious meditation and assiduous 
 study, I nevertheless approach them with the 
 greatest diffidence- 1 am aware of all their diffi- 
 culties, much more than those who have paid but 
 a transient attention to them. But 1 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 pre- 
 ceptor, who has no pretention but that of being use- 
 ful to you, and seconding your noble ardour for the 
 attainment nf legal knowledge- 1 shall consider 
 these questions in their order, and endeavour to 
 convince you, by this investigation, of the import- 
 ance of the science of general jurisprudence, or 
 LEX LEGUM, as Lord Bacon elegantly calls it ; as I 
 hope you will find that by recurring to its princi- 
 ples, the most difficult questions may be solved, even
 
 in a new and complicated system of constitutional 
 law, which as it has not its equal in excellence, 
 has not its like in the order and distribution of its 
 powers. 
 
 The manner in which questions are stated is of 
 the highest importance to their correct solution. In 
 the first place, they should not be put in too gene- 
 ral terms, for no one can foresee all the variety of 
 cases that may arise, and in which perhaps, a dif- 
 ferent 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 offen- 
 ces at common law, that there may not be cases 
 where they must of necessity exercise that power ? 
 That there are such cases, I hope 1 shall be able 
 to convince you in the course of this inquiry. 
 
 In the next place, questions ought not to be put 
 in loose and vague terms, but in such as admit of a 
 clear and definite answer. In the case of the 
 United States v. Hudson and Goodwin, above 
 cited, the question was as stated by the reporter, 
 whether the federal tribunals could exercise com- 
 mon law jurisdiction in criminal cases? It appears 
 to me to have been here ambiguously expressed, be- 
 cause the words common law jurisdiction, admit of 
 different interpretations, and consequently of dif- 
 ferent answers. If it is meant by them to ask 
 whether the Courts possess any jurisdiction deriv- 
 ed 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 Constitu- 
 tion, 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 ca.se whatever, take cognisance of an offence 
 which is oniy made such by the common law ; and 
 this is the sense in which it seems to be generally 
 taken by the profession, in consequence of some 
 obiter expressions fallen from the bench ; then I am 
 bound to say, that neither the Constitution nor the 
 laws of the United States, nor yet the rules of sound 
 logic, warrant such an application of the principle. 
 Because the Courts have not jurisdiction from the 
 common law, it does not follow that they have not 
 jurisdiction of the common law. This is what I 
 shall endeavour to prove to you in the present dis- 
 course. 
 
 The question which I shall consider is, whether 
 an offence merely such at common law is indicta- 
 ble 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 answer- 
 ed 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 investi- 
 gation. 
 
 I shall, in the first place, explain to you the true 
 meaning of the word jurisdiction, and the various 
 suhjects 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 he considered. 
 
 JUBISDICTION, in its most general sense, is the 
 power to make, declare, or apply the law ; when 
 confined to the judiciary department, it is what we 
 denominate the judicial power. It is the right of 
 administering justice through the laws, by the 
 means which the laws have provided for that pur- 
 pose. In its more limited sense, which is that in 
 which we are now viewing it, it is still the judicial 
 power ; but considered in relation to its extent and 
 to the subjects which it embraces or upon which it 
 acts. 
 
 Every human jurisdiction, without exception, 
 rests on one of three foundations, or on several of 
 them together. 
 
 1st. The place or territory over which it is ex- 
 ercised, and that is called jurisdiction over the 
 place, in locum. 
 
 2d. The persons which are subjected to its ac- 
 tion, and that is jurisdiction over the person, in 
 personam. 
 
 3d. The subjects of which it takes cognisance,
 
 and that is jurisdiction over the subject matter, in 
 sukjectam materiam. 
 
 This last species of jurisdiction is sometimes 
 limited by persons or places, by being restricted to 
 cases in which certain persons are concerned, or to 
 matters which arise or happen in certain localities. 
 Thus the Constitution of the United States gives 
 jurisdiction to the federal Courts of all suits be- 
 tween 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 juris- 
 dictional power over the subject matter, vesting 
 only with respect to certain persons, ratione per- 
 sonarum. In like manner the Court of admiralty 
 has cognisance of all things done on the high seas. 
 This jurisdiction is also founded on the subject 
 matter: it is not complete, however, until made so 
 by the concurrent circumstance of locality ; it is 
 therefore jurisdictio in materiam, ratione loci rei 
 actce. 
 
 These are the only species of jurisdiction that 
 exist, as 1 may say, in rerum naturu* none will 
 be found on the strictest investigation to exist any 
 
 It may be asked, prrhaps, whether there is not also a jurisdiction in rem, 
 as we are accustomed to speak in reference to the Court of admiralty. .Ret, 
 . ; but another word for muteriat therefore, jurisdiction in rem, means no more 
 han jurisdiction over the .tufijcct matter. It matters not wht-thrr it be :i phy- 
 sical or a mornl'tubject. The words in rem, are more properly applicable to 
 the process than to the jurisdiction. Thus, in respect to ships, we nay say that 
 tbeuilmiralty has jurisdiction oTiTthe subject matter, and, in general, exercises 
 it by a proceeding in rem.
 
 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 na- 
 tional Constitution belong to some one or other of 
 these species ; it would be 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. 
 
 1. Jurisdiction over the place, or in locum. This 
 is the most common kind of jurisdiction, and is 
 sufficiently defined by its descriptive name. Under 
 our particular forms of government, the state Courts 
 alone possess it within the districts allotted to them 
 by their own local laws ; that of federal Courts is 
 founded either on persons or subject matter, and 
 although they exercise it within the state bounda- 
 ries, yet it is not from the place that they derive 
 their powers. It is otherwise in the forts, arsenals, 
 and dock yards, in the District of Columbia, and 
 in the territories belonging to the Union ; there the 
 jurisdiction of the federal Courts is strictly in lo- 
 cum, and there it is exclusive of every other autho- 
 rity not created by the national body. The admi- 
 ralty, in common with those of other maritime na- 
 tions, has a concurrent jurisdiction over the high 
 seas, which must not be confounded with that of 
 things 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 mar- 
 shal in England. It took cognisance of things done
 
 iu foreign countries, but bad no jurisdiction what- 
 ever in or over the territory of the foreign country. 
 or over its subjects. 
 
 S. Jurisdiction in personam. This species of 
 jurisdiction is to be traced, in Europe, to the pride 
 and ambition of the privileged orders. The eccle- 
 siastics and nobles, disdaining to submit to the au- 
 thority of the ordinary tribunals of their country, 
 claimed the right of being amenable only to spe- 
 cial 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 succes- 
 sively 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 pro- 
 " perty, wherein a privilege*! 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 
 
 4r.om.erc.
 
 ( 25 ) 
 
 jurisdiction to try their causes ; because the govern- 
 ment is responsible for every injustice done to them. 
 Thus, in the kingdom of Scotland, all foreign mat- 
 ters 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.* 
 
 On the same principle, the framers of our Con- 
 stitution have, with great wisdom, granted to fo- 
 reigners the personal privilege of suing, and being 
 sued in the federal Courts, and with no less pro- 
 priety have extended it to American citizens of dif- 
 ferent 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 char- 
 tered 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 
 
 * Kaimes' fijn. of Eq. B. iii. c. 8. 
 

 
 also to reconcile with the rejection of the common 
 law an a national system of jurisprudence, the 
 searching into it with so much industrious care, for 
 forced analogies to be applied to a state of things 
 which it never contemplated, for rules which should 
 rather be sought for in the spirit, and policy of our 
 Constitution itself, and in the sound sense which 
 dictated this admirable compact. 
 
 3. Jurisdiction in aubjectam materiam. The sub- 
 jects 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 ad- 
 ministration of justice, the cognisance of these va- 
 rious matters is commonly distributed among dif- 
 ferent tribunals. Hence there are civil, criminal, 
 ecclesiastical, military, maritime, commercial, ma- 
 trimonial, and testamentary Courts, Courts of Equi- 
 ty, 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 them- 
 selves, 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 Equi- 
 ty are even bound by the decisions of the common 
 law. Thus all Courts of justice, when called upon 
 to decide on foreign contracts, take the law of the 
 foreign country, the lex loci contractus as their 
 guide, and decide according to its principles. The 
 jurisdiction over the particular case being ves 1 id 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 mat- 
 ter before them. 
 
 Let us not be deceived, therefore, by those fa- 
 miliar expressions which are used at the bar, and 
 sometimes even on the bench, to describe and desig- 
 nate certain tribunals, but not to define their juris- 
 diction. 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 jurisdic- 
 tional 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 bot- 
 tomry, mariner's was:es, salvage, &c. and of crimes, 
 and offences committed on the high seas. As a 
 Court of prize, it entertains jurisdiction of captures 
 jure belli and their incidents, and in the United
 
 ( 38 ) 
 
 States it is also a Court of revenue. The jurisdic- 
 tion of the English ecclesiastical Courts compre- 
 hends various matters concerning the church estab- 
 lishment, such as substi action of tythes, oblations, 
 mortuaries, and various other subjects relating to 
 church discipline ; also the probate of wills, grant- 
 ing letters of administration, marriage contracts, 
 consanguinity, divorces, alimony, &c. but the par- 
 liament 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, en- 
 tirely taken away, but their right over the subject 
 matter would not be in the least diminished. Thus, 
 when the Legislature of Pennsylvania prohibited 
 our State Courts from taking certain adjudications 
 of the English tribunals as their rule of decision, 
 they did not mean to abridge their jurisdiction in 
 the smallest degree, but left it unimpaired as it 
 was before. 
 
 It may be said, however, that the various branches 
 of jurisdiction may be limited and restricted in such 
 manner as the legislator thinks proper, and it will 
 be inferred as necessary consequence that jurisdic- 
 tion of crimes, and offences ration? materice, may 
 be limited to certain criminal acts, while others may 
 be excluded, and these designated by the particu- 
 lar code of laws which constitutes them crimes or 
 offences. I admit both the proposition and the in- 
 ference. But the question is not whether such a 
 thing may be done, but whether it has been done ;
 
 ( 29 ) 
 
 it is so different from the usual course of legislation 
 that it ought not to he presumed, but the intention 
 of the law giver should he 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 
 decision 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 ju- 
 risdiction of offences at common law, if the juris- 
 diction of those Courts was really deficient, it must 
 have arisen from other causes, and the defect of 
 jurisdiction must have been founded on other grounds 
 than that which has been assumed. 
 
 In order to prove this position, I shall consider 
 the Courts of the United States, in two different 
 points of view : 
 
 I. As exercising their jurisdiction in or for the 
 confederated States. 
 
 II. As exercising it for the territories belonging 
 to the Union. 
 
 III. And in the third place, I shall incidentally 
 consider whether there is a national common law 
 in the United States.
 
 ( 30 ) 
 
 The Iwo above mentioned branches of jurisdiction 
 are, in my opinion, extremely different. The one 
 is unlimited, except by the acts of the federal le- 
 gislature, where they apply, the other is restricted 
 within precise limits by the Constitution itself: 
 these limitations, it is evident, were expressly in- 
 troduced for the purpose of guarding and protect- 
 ing so much of the sovereignty of the States as they 
 have thought proper to retain ; but where the Con- 
 stitution gives to the federal government an exclu- 
 sive 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 Mary- 
 land, exercises its jurisdiction over one of the con- 
 federated States, and therefore is strictly to be con- 
 sidered as the Supreme Court of an union of inde- 
 pendent 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 en- 
 croached upon, although still acting under the na- 
 tional authority, it is in those instances exercising 
 the powers of the Supreme Court of the district or
 
 territory, which powers, I humbly conceive the Con- 
 stitution never meant to limit. This distinction I 
 consider to be all important for the understanding 
 <jf what is to follow. 
 
 I shall then in the first instance consider the ju- 
 risdiction of the federal Courts as it relates to the 
 States properly so called, that is to say, as exercis- 
 ed within or for their proper territory. 
 
 SECTION I. Within the actual limits of the 
 States properly so called from which I except forts, 
 arsenals, &c. over which the United States, by a 
 special provision of the Constitution, have exclusive 
 jurisdiction, the federal Courts cannot be said to 
 possess jurisdiction in locum, unless by way of 
 limitation of the extent of their judicial action. The 
 general jurisdiction over the territory is in fact 
 vested in the States themselves, by virtue of their 
 sovereignty, and that of the federal Courts, derived 
 from the Constitution alone, is merely permissive 
 and consequential on certain specific powers. It 
 is given to them, not as connected with, or flowing 
 from, any right that they have over the territory, but 
 as a means necessary to the exercise of their juris- 
 diction over persons and subject matter. It is, there- 
 fore, from persons and subject matter only, that 
 their whole jurisdiction is derived within these pre- 
 cincts, and they possess no judicial authority what- 
 ever, unless it vests in them from one or the other 
 of these two sources. 
 
 I shall, therefore, in the consideration of this part 
 of my subject confine myself to the jurisdiction that 
 is derived from either person or subject matter.
 
 I shall endeavour to prove to you, that it is not 
 true as a general principle, that the judiciary whe- 
 ther in criminal or civil cases, have not jurisdiction 
 of the common law, or cannot take cognisance of 
 common law offences ; that, on the contrary, when- 
 ever 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 le- 
 gislated upon the subject. 
 
 It must not be believed that our Constitution has 
 given to the national legislature powers co-exten- 
 sive with those that it has conferred upon the judi- 
 ciary. 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, be- 
 tween a state, plaintiff, and citizens of another state, 
 between citizens of different states, between citizens 
 of the same state claiming lands under grants of dif- 
 ferent states, and between a state or the citizens 
 thereof, and foreign states, citizens, or subjects.* 
 It cannot be pretended that Congress have the pow- 
 er to legislate on all the various subjects that may 
 give rise to those controversies', although the judi- 
 ciary are authorised to decide on all and every of 
 them, whenever properly brought within their ju 
 
 Coast. U. S. art. 3. . 2.
 
 ( 33 ) 
 
 risdiction. And it matters not whether the law 
 which they dispense be the common law, or any 
 other applicable to the subject. 
 
 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 in- 
 clude 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 mu- 
 nicipal laws, criminal as well as civil, in all cases 
 in which the law of nations, or treaties, do not ex- 
 empt 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 in- 
 fringement of the municipal law of a State, is ex- 
 F
 
 clusively cognisable iu the federal Courts, and the 
 State tribunals cannot exercise upon them even th 
 least degree of jurisdiction. 
 
 If these principles are correct, it seems to me to 
 follow as a natural consequence, that in all cases 
 in which jurisdiction is vested in the federal Courts, 
 cither over the person or subject matter, those tri- 
 bunals must either take the law applying to the par- 
 ticular case, whatever it may be, as their rule of 
 decision, or the jurisdiction cannot be exercised. 
 
 Proceeding now to illustrate this doctrine by 
 examples, 1 shall first consider its application to 
 cases of jurisdiction in personam. The Consti- 
 tution has given to the Supreme Court, but not 
 exclusively, cognisance of all cases affecting am- 
 bassadors, 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 rea- 
 son of the person. If a consul commits an of- 
 fence 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 wliirh Congress cannot possibly legislate 
 within the State's territorial limits, as if a consul 
 offends against the health laws, against an Act for- 
 bidding clandestine marriages, lotteries, unlawful 
 games, the violation of days set apart for religious 
 worship, &c. 1 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, ex- 
 cept where express or implied legislative powers 
 are granted to Congress by the Constitution. 
 
 Three cases only have been decided (at least 
 that have come to my knowledge) which bear upon 
 this part of my argument. They are Mannhardt 
 v. Soderstrom,-\ The United States v. Jtavara,$ 
 and The Commonwealth of Pennsylvania v. Kos- 
 loff. 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 
 
 * I am well aware of an objection that may be made, and which is entirely 
 technical in its nature. It will be asked, whether the Courts of the United 
 States havejurisdiction of offences against the peace and dignity of the individual 
 States, and whether these can be said to be against the peace and dignity of the 
 United States ? But I see ne difficulty in laying such an offence in an indict- 
 ment, as against the peace and dignity of both; for it appears to me that in the 
 political as in the ph) sical body, -whoever offends apart, offends the -whole. But 
 suppose this plain and obvious principle should not be deemed applicable to 
 the case before us, the question then would be, whether this formidable objec- 
 tion is to prevent the execution of the powers exclusively vested by the Con- 
 stitution 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. 
 
 f 1 Binn. 138. * 2 Ball. 97. $ 5 Serg. & Rawle, 545.
 
 had not jurisdiction. No doubt can be entertained 
 of the correctness of this opinion, nor can it be sup- 
 posed, if the suit had been brought before a fede- 
 ral Court, that it would have proceeded by any 
 other rule than the common or statute law of Penn- 
 sylvania, as applicable to the particular case. The 
 two others were of a criminal nature ; but 1 can 
 see no difference in the principle. 
 
 Ravara was consul of Genoa, and was indicted 
 for writing sundry anonymous and threatening let- 
 ters, 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 af- 
 fixed 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 bad 
 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, accord- 
 ing to my opinion, on the common and statute law 
 combined, because they were the laws properly 
 applicable to the case. 
 
 This appears to have been the sense of the na- 
 tional legislature, when they provided, in the 34th 
 section of the Judiciary Act, " that the laws of the 
 several States, except where the Constitution, trea- 
 ties 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 argu- 
 ment, and I cannot consider it otherwise than as 
 declaratory of what the law was before it was en- 
 acted. 
 
 It has been said, however, that this section of 
 the Judiciary Act was only meant to be applied to 
 civil, and not to criminal cases. But how has this 
 been proved ? In no way that I know of. The 
 doctrine rests entirely on the obiter dictum of a 
 single Judge, expressed in the modest language of 
 doubt, in a case in which the decision of this point 
 was not necessary to that of the question before 
 him, I mean the case of The United States v. 
 .Aaron Burr, which will be presently adverted to, 
 willi 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 in- 
 vestigation. 
 
 If we look attentively at this provision of the 
 Judicial Act, we shall find abundant reason to be- 
 lieve that it was meant to include criminal as well 
 as civil trials. For the section which it imme- 
 diately fellows, which is comparatively long, and 
 goes very much into detail, is entirely devoted to 
 subjects which concern criminal jurisdiction. This
 
 * 88 ) 
 
 is the last section but one in the Act ; the last 
 one treats variously of subjects of civil and crimi- 
 nal law, and these two concluding sections appear 
 to have been made with a view to both, and not ex- 
 clusively to either.* 
 
 The following are the sections above referred to. They are in the Act 
 of Congress of ihc '24th of September, 1789, commonly called the Judiciary 
 Act: 
 
 SECT. 33. And be it further enacted, That for any crime or offl-nce against 
 the United States, the offender may, by any justice or Judge of the I Hit il 
 States, or by any justice of the peace, or other magistrate of any of the United 
 States, where he may be found, agreea'dy 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 ghall.be returned as speedily as may be into the clerk's office of 
 such Court, together with the recognisances of the witnesses for their appear- 
 ance to testify in the case ; which recognisances the magistrate, before whom 
 {he 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 oft-nee 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 offen- 
 der, 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 cases, 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 jus- 
 tice of the Supreme, or a Judge of a District Court, for an offence not punish- 
 able with death, shall afterwards procure bail, and there be no Judge of the 
 United States in the district to take the same, it may be taken by any Judge of 
 the Supreme or Superior Court of law of such State. 
 
 SECT. 34. And be, it further enacted, That the laws of the several States, 
 except where the Constitution, treaties, or statutes of the United States shall 
 ntherwise require or provide, shall be regarded as rules of decision in trials at 
 common law, in the Courts of the United States, in cases where they apply. 
 
 SECT. 35. And be it further enacted, That iu 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 eauses therein .
 
 ( 39 ) 
 
 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 parti- 
 cular 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 exclu- 
 sive jurisdiction given to them by the Constitution 
 over this description of persons, without the aid of 
 those laws. 
 
 It seems best, therefore, to adhere to the plain 
 and obvious sense of the section before us, and to 
 follow the trite but true maxim, ubi lex non distin- 
 guit, ibi et nos non distinguere debemus. 
 
 I now venture to approach with the greatest dif- 
 fidence the high authority which is generally, but, I 
 think, too hastily, considered as bearing against my 
 doctrine an authority to which I have long beeH 
 
 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 com- 
 pensation 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 ot 
 his office ; whose duty it shall be to prost-cute and conduct all suits in the Su- 
 preme Court, in which thu United States shall be concerned, and to give hi* 
 advice and opinion upon questions of law, when required by the President of 
 the United States, or when requested by the heads of any ot the departments, 
 touching any matters thai may concern their departments, and shall receive, 
 such compensation for his services as shall, by law, be provided
 
 accustomed to bow with profound reverence, in 
 short, no less a. one than that of the Chief Justice 
 of the United States. In the case of The United 
 States v. Aaron Burr, tried at Richmond, before 
 the Circuit Court, where the learned Judge pre- 
 sided, in the year 1807, he is reported to have ad- 
 vanced 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.* 
 
 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. prose- 
 cution contended that a capias was the proper mode, 
 according to the modern usage of the common law, 
 while their opponents insisted that a summons only 
 could be ordered, according to the course of ttie 
 law of Virginia. In support of this opinion they 
 cited the 34th section of the statute above men- 
 tioned. 
 
 * 2 Robertson's Report of Burr's Trial, 482.
 
 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 com- 
 mitted in violation of the national law, and that the 
 State law, when it applied was only to be the rule 
 on the trial of the cause, and not to prescribe the forms 
 of incidental proceedings. But the counsel thought 
 proper to go into a wide field of argument, and to 
 contend that the statute only intended to make the 
 State laws the rule in civil cases, and that it could 
 notbe so in any case of a criminal nature. The Court 
 neither awarded a summons nor a capias, but very 
 properly conceiving that the statute gave them 
 power by a necessary implication to devise the. pro- 
 per process in sucli case, they simply made an or- 
 der on the defendant to give bail or stand com- 
 mitted ; thus deciding in the true spirit of the 
 American common law, which abhors unnecessary 
 forms, and is averse to putting an accused party to 
 unnecessary expense. 
 
 In delivering his opinion, the Chief Justice ex- 
 pressed himself in the terms above mentioned, that 
 the laws of the several States cannot be regarded 
 as rules of decision in trials for offences against the 
 United States ; so far 1 think he was perfectly cor- 
 rect. Taking his last expression according to what 
 1 conceive to be its true meaning, I do not find that 
 it militates at all against my opinion, which ex- 
 tends no farther than the words of the statute,
 
 ( 4* ) 
 
 which makes the State lawn the rule of decision 
 on-ly in cases where they apply. But those laws 
 could not apply to an offence properly and sole- 
 ly against the United Slates, being a violation 
 of the national Constitution and laws, and not of 
 the local laws of any State. There, undoubtedly, 
 the laws of the United States were exclusively to 
 prevail, and that was a very different case from that 
 of a consul violating the municipal laws of the 
 place of his residence. 
 
 It is true that the learned Chief Justice, in giv- 
 ing his opinion on the same question, is also report- 
 ed to have said " that no man can be condemned or 
 prosecuted in the federal Courts on a State law." 
 1 think it is not treating a Judge fairly to bind him 
 down to the unguarded generality of an expression 
 which falls from him obiter in deciding suddenly 
 on an incidental motion at the end of a long and 
 tedious trial, and to which he is. perhaps, unneces- 
 sarily led by the devious course which counsel 
 sometimes think proper to follow in their argu- 
 ments. I will not do this injustice to the eminent 
 magistrate whose opinion I have thus respectfully 
 taken the liberty to advert to, 1 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 sud- 
 den thought then arising in bin mind. His words are, 
 "it seems to me" that this clause in the statute 
 does not refer to criminal proceedings. It is evi- 
 dent that he did not mean to advance this position
 
 as positive law, but as one that might be re-consi- 
 dered at a future day. 
 
 1 have often wondered how jurists will some- 
 times wander to a great distance in search of prin- 
 ciples which are close at their hand, and thus in- 
 volve 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 gov- 
 erns 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 jusfice 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 de- 
 cision in the trial of causes in cases where they 
 apply, and in no others ; as to the forms of pro- 
 ceedings in civil cases, it has adopted those which 
 are in use in the different States, under certain re- 
 strictions, and reserving to itself the power of alte- 
 ration and amendment. In criminal cas^s, the rule 
 is not so precise, but no inconvenience has resulted 
 from the practice which has been followed, and may 
 be now said to be established by usage.
 
 Before T quit this part of our subject, I beg leave 
 to refer you, gentlemen, to the able and luminous 
 opinion of our venerable patron, Mr. Chief Justice 
 Tilghman, in the case of The Commonwealth v. 
 Kosloff. Although he only pronounced decisive 
 judgment on the question immediately before him, 
 1 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 Con- 
 stitution that the Supreme Court shall have ju- 
 " risdiction in all cases affecting a consul. But 
 " how, or by what law is he to be punished ? Shall 
 " he be punished by the law of Pennsylvania, where 
 ' the offence was committed, inasmuch as there is 
 "no other express law which reaches his case? 
 " Does the 34th section of the Judiciary Act apply 
 " to the punishment of offences ?" (Here the learn- 
 ed Judge expresses a doubt merely about the pun- 
 ishment, not about the trial of the crime.) " May a 
 " person convicted," (again admitting the right to 
 convict,) "of a crime of the highest grade, con- 
 " cerning which Congress has made no provision, 
 << be punished, according to the opinion of Judge 
 " Story, by fine and imprisonment, on the princi- 
 " pies of the common law ? Or is the Constitution
 
 " to be so construed as to exclude the jurisdiction 
 t{ of all inferior Courts, and yet suffer the autho- 
 " rity 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 th-em, 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 JURIS- 
 DICTION IN A CASE WHICH AFFECTS A CONSUL 
 
 " IN EVERY THING SHORT OF LIFE, WHEN THE 
 " CONSTITUTION DECLARES, THAT THE SUPREME 
 " COURT SHALL HAVE JURISDICTION IN ALL CASES 
 "AFFECTING CONSULS." 
 
 Having shewn, as I think, in a satisfactory man- 
 ner, that where jurisdiction is given in personam, 
 every thing else that is necessary to its due exer- 
 cise necessarily follows, I hope it will not be dif- 
 ficult to prove that the same principle applies where 
 jurisdiction is given in subjectam materiam, 
 
 Suppose the federal Constitution had declared, 
 in general terms, that the judiciary of the United 
 States should have cognisance of all cases of violence 
 upon the persons of aliens; it is evident that this ju- 
 risdiction 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 Con- 
 gress had at the same time power given to them to 
 legislate upon those subjects, and then, until they
 
 ( 46 ) 
 
 had so legislated, the State law would still have 
 been the rule of decision. 
 
 The only difference, in the present state, of the 
 matter is, that the jurisdiction of the federal Courts 
 in criminal cases, is not every where HO precisely 
 described as in the above hypothesis hut is left in 
 many cases to inference from an authority generally 
 given. The whole jurisdiction of the federal j\\ 
 diciary in criminal matters is to be deduced di- 
 rectly or by inference from the generality of the 
 powers given in the second section of the third arti- 
 cle in the following words: 
 
 " The judiciary power shall extend to all cases 
 " in law and equity arising under this Constitution, 
 " the laws of the United States and treaties made, 
 "or which shall be made, under their authority, to 
 " all cases affecting ambassadors, other public 
 " ministers and consuls, and to all cases of admi- 
 "ralty 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 in- 
 ferences 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.* 
 
 One of the arguments that are used in favour of 
 this exclusion in the Unitefl States, that the com- 
 mon law of England is foreign to us as an united na- 
 tion, and that as it has been adopted in the different 
 States, it has suffered so many variations, that no 
 uniform system can be made out of the whole ; this 
 reasoning will be considered in its proper place ; 
 but the common law which I speak of at present 
 under the head of offences committed and tried 
 within the limits of the individual State, is the 
 common law of the State where the offence was 
 committed, and where it is tried, and why that, the 
 only means (where no other law exists applying to 
 the case) of administering justice and executing 
 the powers granted by the Constitution, and, as I 
 shall presently shew, by the laws of the Union, to 
 the judiciary, should be interdicted to them, is 
 what I never could conceive, and for which I have 
 heard as yet no satisfactory reason given. 
 
 The reason given for this exclusion by Mr. Jus 
 tice Johnson in delivering the opinion of the Su- 
 preme Court in the case of the United States v. 
 Hudson and Goodwin, is, that this common law 
 
 * This is in conformity to the maxim of the civil law : Cui jurisdictio data 
 est, ea quoque concessa esse vitlentur, sine quibus jurisdictio explicari non po- 
 test. ff. L. 2. tit. 1. 1. 2.
 
 ( .48 ) 
 
 jurisdiction, as it is called, has not been conferred 
 by any legislative act on the federal tribunals in 
 feriorto 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 them- 
 selves possess this common law jurisdiction, or 
 whether it is in the power of the Legislature to 
 confer this authority by a legislative act, he leaves 
 undetermined as unnecessary to his argument. 
 
 But nothing appears to me more easy than to 
 prqve, that if this common law jurisdiction is among 
 the powers granted by the Constitution of the fede- 
 ral judiciary, and if the Supreme Court of the 
 United States can exercise it by virtue of that in- 
 strument, the inferior Courts have the same autho- 
 rity 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 suf- 
 ficiently general to embrace all those granted by 
 the Constitution to the judiciary at large. 
 
 By the llth section of the Judiciary Act of the 
 24-th September, 1789, it is provided : " That the 
 " Circuit Court shall have exclusive cognisance of 
 " all crimes and offences cognisable under the au- 
 "thority of the United States, except as this Act 
 "otherwise provides, or the laws of the United 
 " States shall otherwise direct, and concurrent ju-
 
 ( 49 ) 
 
 "risdiction with the District Courts of the crimes 
 "and offences cognisable therein." 
 
 The exceptions to which the ahove section refers, 
 are no others than certain powers which the act con- 
 fers on the District Courts ; taking the whole toge- 
 ther, a jurisdiction is given and distributed be- 
 tween these two tribunals which is co-extensive 
 with that which the Constitution has bestowed on 
 the judiciary branch of the government; if, there- 
 fore, 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 riot included 
 within any of the grants of judicial authority which 
 the Constitution contains, or because, if included 
 here, it cannot be called info action without an act 
 of the Legislature, without any distinction between 
 superior and inferior Courts. 
 
 These would be important objects of discussion, 
 if the question stood on the point of common law 
 jurisdiction ; but as I conceive that the common 
 law has nothing to do with it, it would only mis- 
 lead us to pursue this argument further; having 
 shewn that the common law is only a means of ad- 
 ministering 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, 
 H
 
 i) various are the cases which this subject involves; 
 I shall take the course of examining separately 
 each particular case in which a decision lias been 
 given, and pointing out the diflerent 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 prin- 
 ciple, nor give rise to the same points of contro- 
 versy. It must be remembered at the same time 
 that I am at present only considering the extent of 
 the jurisdiction of the federal Courts when sitting 
 within the limits of or for the United States pro- 
 per, and that other views will be presented when 
 treating of their jurisdiction elsewhere. I shall 
 consider in its proper place whether the common 
 law, generally taken, is or not to be considered as 
 our national system of jurisprudence; at present I 
 speak only of the common law of the individual 
 States. 
 
 I shall divide the cases to be examined under 
 this head into two classes : 1st. Those of common 
 law. 2d. Those of admiralty and maritime juris- 
 diction. 
 
 The most prominent cases under the first head 
 are those of the United States v. Worrall,* and 
 the United States v. Hudson and Goodwin.^ They 
 shall be considered together, as they are analogous, 
 and appear to turn depend on the same principle. 
 
 2 Dall. 384. f 7 Cranch, 32.
 
 The first was the case of an attempt to bribe an 
 officer of the government of the United States ; the 
 second, that of a libel against the President and 
 Congress. Both offences were committed within 
 the limits of a State by private citizens thereof, 
 and both stated in the reports as offences at the 
 common law. 
 
 The first question to be examined in these cases, 
 is, whether jurisdiction of any kind was vested in 
 the Circuit Courts before whom these indictments 
 were brought to be tried, on any of the three 
 grounds which I have above mentioned. 
 
 Over the place, as 1 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 juris- 
 diction within their territory. Over the person 
 there was none, and as to the subject matter, it 
 being a rape in the one case and a libel in the other, 
 the Courts have clearly no jurisdiction in a gene- 
 ral point of view. The only ground on which they 
 could possibly claim it was, that the parties injur- 
 ed by the offences which were the subject of pros- 
 ecution were officers of the government of the 
 United States, in various stations. If this circum- 
 stance gave them jurisdiction, it was of that kind 
 which I have called jurisdictio in materiam ratione 
 personarum, or jurisdiction of the subject matter 
 limited by the description of persons affected by the 
 offence. 
 
 The first question, then, to have been, considered
 
 C os ) 
 
 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 Gon- 
 stilntinn 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 hy virtue of the 
 general judicial authority granted to them by the 
 Constitution, and apportioned in its full extent hy 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 com- 
 mon or statute law of the State where the offence 
 was committed, as a means without which their end 
 could not he accomplished. No such power ap- 
 pears to have been given, iu explicit terms ; if given 
 at all, it is to be implied from that clause in the 
 Constitution which enumerates, among other judi- 
 cial 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
 
 ( 53 ) 
 
 f 
 
 cases in which they are concerned, or by which 
 they are or may be affected, come under this gene- 
 ral 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 suffi- 
 cient 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 support- 
 ed. 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 li- 
 mitations. 
 
 The next question is, whether protection may be 
 afforded to those officers by the national Legisla 
 ture ? 
 
 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 knovv,
 
 and history will tell what disturbance its exercise, 
 not by an inferior Court, but by the federal Legis- 
 lature themselves, occasioned in the nation. I al- 
 lude to the act passed by Congress on the 14th of 
 July, 1798, commonly called the Sedition Act. 
 This law was brought forward in troublesome 
 times and in the most obnoxious shape to public 
 feelings, as it seemed to intrench on the people's 
 darling prerogative, the freedom of the press. The 
 consequences are well known. The people imbib- 
 ed 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, pre- 
 judices 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 gov- 
 ernment.* 
 
 But if, by a fair construction of the Constitution, 
 
 * 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 suc- 
 ceed him, and that a different part; from that which at that time had the gov- 
 ernment in their bands 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 gov- 
 ernment. 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 (his law to be appointed by his successor, he would 
 have conferred a lasting benefit upon the nation. Hut 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. Sinee 
 tbat time, every effort has been making to improve the judiciary organisation, 
 but without success.
 
 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 ju- 
 diciary 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, there- 
 fore, 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 tra- 
 velling 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 punish- 
 ment? 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, be- 
 cause I do not think it necessary for my purpose ; 
 I place the subject upon another and a different 
 ground. 
 
 Among the powers given by the Constitution to 
 the national government, without distinction of its 
 branches, some are imperative, while others are 
 merely potential or permissive. Thus, although 
 Congress have the power expressly granted to 
 them of making uniform laws on the subject of bank-
 
 ruptcy, they have only acted upon it temporarily, 
 and ever since have abstained from it exercise. 
 If this distinction is correct when applied to 
 powers expressly given, it is so a fortiori as to 
 those which are merely implied. The power of 
 protecting the officers of government from violence 
 and insult, is no where given in terms in the text 
 of the Constitution, although it may be fairly infer- 
 red from its whole context. Nor is it given to any 
 particular branch of the government. It is therefore, 
 in the nation at large, and lies dormant until it shall 
 be called into action by the national Legislature. 
 
 There is no absolute necessity for vesting imme- 
 diately the judicial branch of this power in the 
 federal Courts. The officers of the national gov- 
 ernment 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 tran- 
 siently reside. When it will be necessary to give 
 them a higher protection, it is not for the judiciary 
 to decide ; the Legislature alone is appointed to 
 watch over the welfare of the nation and provide 
 for its wants : when it shall think proper so to do, 
 it will be the duty of the federal tribunals to 
 execute the laws that it shall make. 
 
 On this ground my mind perfectly coincides with 
 the decision of the Supreme Court in the rase of 
 the United States v. Hudson and Goodwin* al- 
 though 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 he expected from their judicial talents. 
 
 I shall now proceed to treat of cases which come 
 within the scope of admiralty and maritime juris- 
 diction. It is necessary that I should speak some- 
 what at large upon this subject. 
 
 The admiralty jurisdiction in England is divided 
 into two separate and distinct departments, pro- 
 ceeding 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 i* a 
 .Doctor of the civil law. All proceeding there are 
 according to the forms prescribed by the Roman 
 Imperial Code, which, together with the general 
 maritime law and statutes of the realm, forms the 
 rule of decision. The criminal jurisdiction, on. 
 the contrary, belongs to what is called the Court of 
 Admiralty Sessions, which consists of commission- 
 ers of Oyer and Terminer appointed under the great 
 seal, consisting of the Judge of the Court of Admi- 
 ralty, who presides, and three or four other per- 
 sons, two of whom are to be common law Judges. 
 In this Court all trials are by jury, and the pro- 
 ceedings according to the course of the common law. 
 In ancient times, the Judge of Admiralty was pos- 
 sessed of criminal as well as civil jurisdiction in 
 the fullest extent, but the civil law mode of trial 
 I
 
 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.* 
 
 In the American colonies the whole admiralty 
 power was vested in a single Judge, as it was for- 
 merly in England ; in criminal causes, however, 
 the trials were by jury, and the proceedings ac- 
 cording to the forms of the common law. How 
 this practice was introduced I cannot tell ; proba- 
 bly 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 admi- 
 ralty 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, consider- 
 ed as inherent to the admiralty system, and as the 
 law of the land in relation to this subject. 
 
 The result of this system is, that the criminal de- 
 partment 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 pro- 
 ceedings, its principles have gradually become in- 
 terwoven with the whole criminal branch of the 
 
 " 4 Blac. Com. '-'69.
 
 ( 59 ) 
 
 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 com- 
 " milted on land, would have amounted to felony.' 7 * 
 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 contradistin- 
 guished from the common or municipal law, still 
 governs in every thing but the forms of proceedings 
 and mode of trial. 
 
 Such is the jurisdiction which has been trans- 
 ferred by the people of the United States, and by 
 the States, themselves, when they ratified the Con- 
 stitution, to the national government, to be exercised 
 by the judiciary branch of its administration. I do 
 not and cannot consider it as one of those potential 
 or permissive powers which 1 have above mention- 
 ed. It is of vital importance to the national safety 
 and even existence, and it lias been committed in its 
 fullest extent to the federal judiciary t by name, while 
 
 * 4B1M5. Com. 71.
 
 ( 60 ) 
 
 the power of the Legislature, over the subject was left, 
 except in the specific cases of piracy and prtze, to be 
 collected from implication and an matter of infer- 
 ence. If, therefore, the Congress had done no 
 more than to designate the par'icular Courts which 
 should exercise that jurisdiction, 1 do not think 
 that they should be bound to wait for particular 
 laws defining their powers or the mode of execut- 
 ing them before they proceeded to its exercise, nei- 
 ther should they wait for la\vs defining maritime 
 offences and affixing their punishment; for the ad- 
 miralty law ha* 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 provi- 
 sions in these matters, eveu as respects criminal 
 jurisdiction. Maritime offences are divisible into 
 two classes, felonies and misdemeanors. The for- 
 mer, under the general name of piracy, are suffi- 
 ciently defined by the law of nations and the com- 
 mon 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; hut 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
 
 { 61 ) 
 
 not to convict, unless the law was clear, as well as 
 the evidence. For, as Lord Bacon says, " De ca- 
 " pitalibus in quibuscunque curiis nisi ex lege nota 
 " & certa pronunciato. Indixit enim mortem Deus 
 "ipse prius; postea inflixit. Nee vita eripienda 
 " nisi ei qui se in suam vitam peccare prius nosset."* 
 Tims in the cases of the United States v. Gill 9 "\ 
 United States v. Bevan,$ and United States v. 
 Wiltbergpr,\\ 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 per- 
 petrated, the Courts, with great propriety, either 
 arrested the judgment after conviction or directed 
 an acquittal. 
 
 1 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 com- 
 plete right so to do, and that when they have so 
 done, their laws should be strictly and faithfully 
 executed ; but I think I am correct in asserting, 
 that where they have not legislated, the Judges are 
 nevertheless bound to execute the laws which apply 
 to the subjects within their jurisdiction to the best 
 of their judgment and understanding. 
 
 In cases of mere misdemeanour, I do not find 
 
 De Jure univ. Aphor. 39. f 4 Ball. 426. 
 
 * 3 Wheat. 336. 5 Wheat. 76.
 
 reason for the same scruples as in questions of life 
 and death. Therefore, I regret that the celebrated 
 case of the United States v. Coolidge.* should 
 have been given up without argument. It does not 
 appear to me, in the first place, that it turned at all 
 upon the question of common law jurisdiction, or 
 that this question was in the least involved in it. 
 It was the case of a rescue on the high seas of a 
 prize ship from the hands of the captor. It was, 
 therefore, a clear case of admiralty and maritime 
 jurisdiction, to be tried and punished, although by 
 a common law mode of proceeding, according to 
 the rules of the civil and maritime law. To say the 
 least of it, it was a contempt of the authority of the 
 prize Court; as it was intercepting property on its 
 way to the Court that was to adjudicate upon it, 
 and which was at that time to be considered as in 
 custodia legis.-\ In either way, it appears to me it 
 was punishable, whether the Court of Admiralty 
 had jurisdiction or not of common law offences. If 
 the case had been exhibited to the Court in this 
 point of view, I think 1 do not go too far in be- 
 lieving that the jurisdiction of the admiralty would 
 have been sustained. 
 
 Having thus gone through the observations I had 
 to make on the subject of the jurisdiction of the fe- 
 deral Courts, when exercising it within or for the 
 territory of the individual States, 1 shall now con- 
 sider its nature and extent when exercised without 
 that territory. The field is new and ample, and 
 leads to novel and interesting views ; I shall, how- 
 
 1 Wheat. 416. t Smart T. Wutff, 3 Durnf. & East, 323.
 
 ( 63 ) 
 
 ever, endeavour to condense what 1 have to say 
 within those hounds beyond which I could not ex- 
 pect to receive your attention. 
 
 SECTION II. The places without the jurisdic- 
 tional boundaries of the confederated States over 
 which the federal government has jurisdiction, arc 
 the following : 
 
 1st. The District of Columbia. 
 
 3d. The ceded Territories. 
 
 3d. The forts, arsenals, dock yards, &c. 
 
 AH these dominions have been acquired by ces- 
 sion from the individual States or from foreign 
 States, or purchased from individuals with the per- 
 mission of the former. They are all subject to the 
 exclusive jurisdiction of the national government. 
 No judiciary power is exercised there but what is 
 derived from federal authority. 
 
 We are, in the first place, to inquire whether 
 there is in these territories, as well as in the States, 
 a local law, which may be called the common law 
 of the place, to be administered by the judiciary of 
 the United States, and what that law is. We shall 
 be guided in this inquiry by the law of nations and 
 the common law of England, which profess the 
 same doctrines upon this subject. 
 
 It will not be denied that the law of nations is 
 a common law of the United States, or a law com- 
 mon to them in their federate and national character. 
 It is with another law, which shall be mentioned 
 in its place, the nexus which connects them toge-
 
 ther in their sovereign capacities in all cases which 
 the Constitution has not foreseen or provided for. 
 In their relations with their subordinate, or, if the 
 word may he properly used, subject dominions, the 
 law of nations still governs in all matters in which 
 their mutual or reciprocal rights are concerned, and 
 other laws do not supersede it. Ceded countries, 
 particularly, have been at all times under the spe- 
 cial protection of the law of nations. Let us see 
 what it provides with respect to them. 
 
 " A State," says Montesquieu, " that has con- 
 " quered another State, treats it in one of the four 
 (t following manners: 1. It continues to govern it 
 according to its laws, retaining only the adminis- 
 " tration of the civil and political government. 
 "2. It gives it a new civil and political govern- 
 " ment. 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 be 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 tbe more 
 
 Spirit of Laws, 13. 10. c. 3.
 
 ( 65 ) 
 
 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 con- 
 quest 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 tor- 
 ture 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 Coutame de Paris, 
 and the old French law generally, so far as it is 
 not modified by British or local statutes, have never 
 ceased, since the conquest, to be the law of the land. 
 But it may be said, that admitting these princi- 
 ples to he correct as relates to a conquered coun- 
 try, they may not be applicable to one that is trans- 
 ferred 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 
 K
 
 a territory by purchase or voluntary transfer. The 
 uncontrolled rights of force are,, in the first cane, 
 mitigated hy a rule which the law of nations has 
 established ; a law founded on a principle of mu- 
 tual 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. Beside*, it is a well 
 established maxim of the modern law of nations, 
 that it is not the conquest of a country or the pos- 
 session of it by force of arms that gives the con- 
 queror a rij;ht to its quiet dominion, hut the cession 
 that is made, of it to him by the treaty of peace. It 
 is only the cession which makes the acquisition 
 complete.* The military title which conquest 
 gives is merged in the civil title obtained by this 
 voluntary act, which alone gives to the conqueror a 
 legal permanent dominion over the ceded country. 
 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 CEDLD countries/' says that able 
 writer, " that have already laws of the.ir own, the 
 " King may, indeed, alter and change those, laws ; 
 " but till he does actually change them, the ancient 
 "laws of the country remain."! 1 admit that the 
 authorities hecites4 do not go the whole length of 
 
 Vaitel's Law of Nations, B 3. c. 1.1 197. t ' B1 " c ( ' om - l68 - 
 
 * They are, 7 Hep. 17, Calvin's case / Shower's Parl. Cases, 31, and Lord 
 Mansfield's argument in Campbell v. Half, Cowp. 204.
 
 ( 67 ) 
 
 his position, as they only refer to countries acquired 
 by conquest; but of this he was, no doubt, aware, 
 and nevertheless did not hesitate to lay down the 
 principle in its fullest extent ; so that his opinion, 
 though not supported by a direct adjudication at 
 Westminster Hall, is nevertheless entitled to the 
 the greatest respect as the deliberate and well con- 
 sidered sentiment of an enlightened common law- 
 yer and general jurist. 
 
 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 des- 
 potism. 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 sove- 
 reign has given up all his right, title, and jurisdic- 
 tion over the country, or from the moment of pos- 
 session delivered. If the cession avoids the laws 
 of the ceding power, how is the country to be gov- 
 erned until the new sovereign comes into posses- 
 sion? 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 infrac- 
 tion? If a single day is allowed to give time for 
 the promulgation, of the new system, my whole prin-
 
 ( 68 ) 
 
 ciple is granted, which is (hat the old laws remain in 
 force until new ones are introduced by some public 
 act of the sovereign in possession. 
 
 On this interesting sul>ject, I have been astonish- 
 ed to find none but vague and unsettled opinions 
 among the gentlemen of the profession whom 1 
 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 Black- 
 stone, 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 tak- 
 ing possession of the District of Columbia and the 
 territories of Louisiana and Florida, did not afford 
 me more satisfaction. I found there the same un- 
 certainty 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 legis- 
 lative sanction. In fact, if we except Blackstone, 
 this subject does not appear to have been much con- 
 sidered in Europe or in this country. 
 
 There is not much reason to be 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.
 
 ( 69 ) 
 
 In the despotic kingdoms of Europe, these matters 
 are very easily arranged ; but in this free and inqui- 
 sitive 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. 1 believe 1 may ven- 
 ture to assert that you will not find the principle 
 laid down by Blackstone any where contradicted, 
 much less will you find another substituted in its 
 place. It appears to me impossible to find one that 
 will not be at once tyrannical and unjust. 
 
 I shall therefore proceed to its application to the 
 subject before us, as respects the District of Colum- 
 bia, and the other Territories under the dominion 
 of the United States. 
 
 1. THE DISTRICT OF COLUMBIA. By the 17th 
 paragraph'of the 8th section of the*lst article of the 
 Constitution of the United States, the Congress is 
 authorised " to exercise exclusive legislation, in all 
 "cases whatsoever, over such District (not exceed- 
 " ing 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 Contention, offer- 
 ed 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
 
 ( 70 ) 
 
 that the operation of the State laws should not' 
 "be aflVcted by their acceptance, iiniil the time 
 " fixed for (lie removal of lh(> go\ eminent thereto, 
 ' and until Congress should otherwise by law pro- 
 "vide." 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 pro- 
 bably inserted as a matter of precaution to avoid 
 unnecessary discussion. 
 
 In the year 1800, the seat of government was re- 
 moved to Washington. On the 2;th of February, 
 in the following jear Congress passed an act, di- 
 recting " that the laws of the State of Virginia and 
 " Maryland, as they then existed, should continue 
 " in force within the parts of the District which had 
 " been ceded by those States respectively." This 
 act seems to have been unnecessary, as the former 
 statute had provided that those laws should remain 
 in vigour until they should be altered. It may, 
 however, be considered as corroborative, and as 
 declaratory of the existing state of things. 
 
 Be that as it may, there can be no doubt, that 
 whether in virtue of these acts of Congress, or of 
 the general law existing at the time they were made, 
 the common law of Maryland and that of Virginia as 
 they respectively apply have never ceased to be in 
 force within this District. Therefore, there can 
 be no question there, whether the Courts of the 
 United States do, or do not, possess what is called 
 common lair jurisdiction, either in criminal or civil 
 cases, and they have in fact been to this day in the
 
 ( 71 ) 
 
 constant exercise of it, without the aid of a special 
 statute for that purpose. The Congress did no 
 more than erect and organise the trihunals inferior 
 to the Supreme Court, and left them to exercise 
 their jurisdiction according to the existing local 
 laws. In the distribution of their power*, cogni- 
 sance was given in general terms to the Circuit 
 Court of "all crimes committed within the Dis- 
 "trict," without any distinction made between 
 statntary and common law offences. An appellate 
 jurisdiction was given to the Supreme Court from 
 all decrees, and judgments of the inferior trihunals, 
 but there was no express prohibition against their 
 exercising any other jurisdiction which the laws of 
 Virginia and Maryland had before the cession 
 vested in their Supreme Courts. 
 
 It is a question of no small importance, whether 
 by the cession of this District to the United States, 
 by Virginia and Maryland, and by rhe acts of 
 Congress continuing in force the existing laws of 
 those States, the Supreme Court of the United 
 States did not ipso facto succeed to all the powers 
 which were at the time vested in the Supreme 
 Courts of Maryland and Virginia, within the parts 
 of the District which had respectively belonged to 
 them, and whether an act of Congress giving them 
 certain specific powers, without any words of ex- 
 clusion as to others, can be construed to the dispa- 
 ragement of those they possessed before. It may 
 be questioned also whether the clauses in the Con- 
 stitution which restrict the jurisdiction of the fede
 
 ( 7* ) 
 
 ral tribunal*, 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 in no independent sovereign 
 ty to be protected, the nature, and extent of their ju- 
 risdiction may not be sometimes derived from another 
 source ? For my part, I acknowledge that I strong 
 ly incline to think, that the Supreme Court sitting 
 at Washington possesses two distinct capacities, 
 that of the Supreme Court of the United States, 
 and that of the superior judicature of the District. I 
 have always been astonished that this point was 
 not made in the celebrated cases of MARBURY v. 
 MADISON,* and Ex parte BOLLMAN,! in support 
 of the authority of the Court to grant a writ of 
 mandamus in the one case, and of habeas corpus in 
 the other. But I will not proceed further on this 
 delicate topic, which I acknowledge 1 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 na- 
 tions who have ceded, or may hereafter cede, ter- 
 ritories to the United States, if it really exists, 
 is of too great importance to the supreme tri 
 
 1 Crunch, 137. f * Cranch, 175.
 
 ( 73 ) 
 
 bunals of the Union, for them to yield it up with- 
 out full and mature itivt stigation. I consider it as 
 one of the fairest flowers in their judicial wreath. 
 
 1 beg your pardon for having thus somewhat 
 wanderer! from the immediate object in contempla- 
 tion ; but the subject of this digression does not ap- 
 pear to me to be entirely unconnected with it. It 
 seems naturally to flow from the great and preg- 
 nant principle laid down by Montesquieu and by 
 Blackstone. 
 
 I hope f have convinced you, that within this 
 District the Courts of the United States have cog- 
 nisance of the common law, in rriminal 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; butl 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 be- 
 tween the different tribunals, which could only be 
 made by the authority which created and organ- 
 ised them. I proceed now to the Territories. 
 
 2. OLD TERRITORY NORTH WEST OF THE OHIO. 
 
 Out of this extensive tract of country, three States 
 have already been formed, to wit, Ohio, Indiana, &nd 
 Illinois, who all, tacitly or otherwise, have adopted 
 the common law, in aid of the statutes w hich have 
 been enacted by the territorial authorities, and succes- 
 sively by their own Legislatures. It is needless to in- 
 quire into the state of things which produced that 
 which now exists, as it would not lead us to any 
 L
 
 ( 7* ) 
 
 practical result. The territory of Michigon, was 
 before the revolution a part of the Hriii-li 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 terri- 
 tory, except a few posts occupied by the troops of 
 the United States, is in the possession of the In- 
 dians. The common law 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 situa- 
 tion.* But 1 must not anticipate on another part 
 of my subject, to which I shall draw your attention 
 presently. 
 
 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 ap- 
 ply, will be their guide. 
 
 3. THE OLD TERRITORY SOUTH OF THE OHIO. 
 
 This tract of country, with some trifling additions, 
 now forms the two States of Mississippi and Ah 
 
 1 Blae. Com. 107.
 
 bama ; they have both adopted the common law. 
 The same principles will of course apply here which 
 govern in the other States. 
 
 4. THE OLD SPANISH PROVINCES OF LOUISIANA 
 AND THE FLORIDA s. Before I proceed to the ap- 
 plication of the principles which I have laid down 
 to the States and Territories which have heen 
 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 he found to be different from that 
 which was adopted with respect to the District of 
 Columbia, and will corroborate the observations 
 which I have made respecting the necessity of a 
 fixed principle in all such cases. 
 
 Louisiana was ceded by France to the United 
 States in the year 1803, and was taken possession 
 of at the end of the same year. On the 31st of 
 October, Congress passed a law, authorising the 
 President to take possession of and occupy that 
 territory, in which it was provided, that until the 
 expiration of the session, unless provision should 
 be sooner made for the temporary government of 
 the said Territories, all the military, civil, and ju- 
 dicial powers exercised by the officers of the exist- 
 ing government of the same should be vested in, 
 and be exercised by, such persons and in such 
 manner as the President should direct, for main- 
 taining and protecting the inhabitants of Louisiana 
 in the free enjoyment of their liberty, property, and 
 religion.
 
 ( 70 ) 
 
 By tliis act. Congress did no more than transfer 
 to the President tin- powers vested in the national 
 government by virtue of the treaty of (("-MOM. tak- 
 ing it for granted, of course, that the laws which 
 existed at the time should remain in force until al- 
 tered or repealed. Here note the. difference hetween 
 this and the special provision which was made for 
 maintaining the laws of Virginia and Maryland 
 within the District o Columbia. 
 
 On the 23th of February, 1804, another act was 
 passed extending to Louisiana the United States 
 law for registering ships, and entitling the inhabi- 
 tants to the ownership of American vessels. This 
 shews that Congress did not consider that the laws 
 of the United States superseded those which were 
 before established, either from the moment of the 
 cession or from the time of possession taken. 
 
 On the 26th of March following, Congress, by 
 another act, divided Louisiana into two territories, 
 and legislating for one of them, (the territory of 
 Orleans) extended to it several more statutes of the 
 United States. The legislative power was given 
 to the governor with the aid of a council, and they 
 were authorised to alter, modify, or repeal the laws 
 which might be then in force. An analogous power 
 was conferred on the governor and judges of the 
 northern section, which retained the name of Louisi- 
 ana. No other material change was made in the 
 existing laws of either district, but the introduction 
 of the writ of habeas corpus, trial by jury in all 
 criminal cases, and bail for offences not capital, and
 
 ( 77 ) 
 
 trial by jury in civil cases at the option of either 
 party. It was also provided that no cruel punish, 
 raents should he inflicted. In every thing else, the 
 territorial laws remained as they were before, with- 
 out any special provision to that effect. 
 
 The same course was pursued with respect to 
 Florida. By an act of Congress of the 3d of March. 
 1819, a discretionary power was given to the go- 
 vernor, in the same manner as had been done at 
 first with respect to Louisiana, and certain speci- 
 fied laws of the United States were directed to be 
 carried into execution within that territory. Not 
 a word was said of the then existing system of 
 laws, either to confirm or to repeal it. 
 
 This act, however, (except so much thereof as 
 merely authorised the President to receive posses- 
 sion of the Floridas) was only to be in force until the 
 end of the session of Congress of 1819 20, and 
 as those Territories were only delivered up to the 
 United Statesonthe lOthand 17th of July, 1831, that 
 part which provided for their temporary government 
 could not be legally carried into execution at that pe- 
 riod. 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 along period of com- 
 plete anarchy or of unauthorised despotism; 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
 
 % ( 78 ) 
 
 territorial government within those District*, which 
 was entitled a " Supplement'' to the one hefore re- 
 cited, a part of which continued in force, hut which 
 was lapsed as to every thing which related to the 
 government of the country. By this act the legis- 
 lative power was vested in a governor and council: 
 but the ancient laws were neither repealed, nor ex- 
 pressly maintained. This subject was passed en- 
 tirely sub silentio. 
 
 These variations in the laws of Congress for the 
 government of the different territories which have 
 been successively acquired by the United Stales, 
 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 1 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 recog- 
 nised at the same time by the law of nations, and 
 by the common law. 
 
 Suppose a murder had been committed in Flori- 
 da within those twenty months of absence of all 
 regular legislation ; if the andent laws of the terri- 
 tory bad 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, per- 
 haps, 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 re 
 course to such means, it is hotter 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 sa- 
 lutary ; 1 hope I have not attempted in vain to de- 
 monstrate it. 
 
 On this principle, therefore, Louisiana and the 
 Floridas were, at and after the times of their re- 
 spective 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 al- 
 ready arisen, one of which has resumed the ancient 
 name of the Spanish province, and the other is now 
 the State of Missouri. She was admitted into the 
 Union on the 10th of August, 1821. During the 
 first ten years of its territorial existence, that coun- 
 try was nominally subject to the Spanish law ; but 
 as there were few or no lawyers among them who 
 understood that system of jurisprudence, the com- 
 mon law gradually and almost insensibly super- 
 seded it, and at last, by an act of the territorial 
 Legislature, passed on the 19th of January, 1816, 
 it was proclaimed and established, and since has 
 continued to be the law of the land. Louisiana 
 pursued a different course.
 
 That country was principally inhabited hy peo- 
 ple of French origin, anil among them were several 
 lawyers of great eminence, attached, aa is natural, 
 to the system of laws which had heen the object of 
 their early studies, and as naturally averse to one 
 .which they did not understand. Among the Ame- 
 rican jurists who directed their steps to that newly 
 acquired dominion were also men of distinguished 
 talents, among whom I need only name Mr. ED- 
 WARD LIVINGSTON, whose genius and learning 
 have acquired so much fume to himself and to his 
 country. He perceived with a keen glance what 
 advantage could he. taken of the existing state of 
 things ; he and his American colleagues were de- 
 void of prejudice, and found the same liberal dis- 
 position in the French members of the bar of New 
 Orleans. This harmony produced a system of ju- 
 risprudence combining the excellencies of the com- 
 mon 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 ex- 
 tolling 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 satisfi d with it. 
 The Louisianians reject the common law as a 
 system ; they have even guarded by a special chase 
 in their constitution against its introduction among
 
 ( 81 ) 
 
 them.* But they do not reject its salutary princi- 
 ples when they find them applicable to their local 
 situation and circumstances. They are as much at- 
 tached as we arc to those great bulwarks of politi- 
 cal and civil liberty, the habeas corpus, the free- 
 dom of the press, trial, by jury in civil as well as 
 in criminal cases, and all those protecting forms 
 which are established among us as the safeguards 
 of liberty and innocence. 
 
 The, Louisianians have lately determined to be 
 governed entirely by written laws. Mr. Livings- 
 ton has been charged with the preparation of a 
 draft of a criminal code ; his able report to the Le- 
 gislature upon that subject is well known in this 
 country. He, in common with others, is also ap- 
 pointed to prepare a revised civil code, and thus 
 every branch of State jurisprudence is to be re- 
 duced to a text. But do what they will, legisla- 
 tors will never be able to provide for every possi- 
 ble 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 anti- 
 nomies not unfrequently occur in the decisions and 
 edicts which compose the body of the civil law. In 
 
 * " The existing laws in this territory, when this Constitution goes into efivct, 
 shall continue to he in force HI. til altered or abolished by the Legislature: Pro- 
 vided, however, that the Legislature shall never adopt any system or code of 
 laws hy general reference to the said syste ra or code ; but in all cases shall spe- 
 cif) the several provisions of the laws it may enact." Const, of Louisiana, art. 
 4. .11. 
 
 M
 
 I 8* ) 
 
 every country there is what the French c&M juris- 
 prudence, and we, common law; which i 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.* 
 
 But enough of Louisiana. The remainder of its 
 ancient territory, not long since a wilderness, forms 
 at present the territory of Arkansaw, separated 
 from Missouri in 1819, three years after the com- 
 mon law had been introduced by statute into that 
 State. It therefore remains subject to it. 
 
 The Floridas are yet nominally under the do- 
 minion of the law of Spain, unless their lately es- 
 tablished territorial governments have established 
 the common law by statutes as was done in Mis- 
 souri. 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 
 
 In France, although it abounds with codes, there are, nevertheless, volu- 
 minous collections of reports of judicial decisions, the knowledge of which is an 
 important branch of vhi- legal science, and is called la jurisprudence des arrets. 
 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 th;t country, and the parliaments, within their several districts, 
 often decided in contradiction to each other. The maxim at the bar then was, 
 judicial decisions are good for those in whose favour they were given. But 
 since a high Court for the correction of errors has been erected for the whole 
 kingdom, under the name ot cow de cassation, their opinions, though sometimes 
 contradictory, have obtained a much higher degree of respect, and a common 
 law is gradually establishing itself by the side of theancient and modern codes. 
 The degree of authority to which tht-se supreme decisions are entitled, has late- 
 ly become an important question among the French jurists. Seeoo this subject 
 the exerlltnl treatis~ o M. Dupin, one of the most eminent advocates of the 
 Paris bar, entitled " De In jurisprudence des arrets," Paris, 1822. He mam 
 tains the doctrine ot the great UACOX.
 
 ( 83 ) 
 
 system, to introduce that which is in use in the 
 governing country. 
 
 By whatever law these countries may he govern- 
 ed, that is their common law, and whenever it ap- 
 plies, it is that which the federal Courts are bound to 
 carry into execution. But in all cases in which the 
 local laws are net susceptible of application, these 
 States and territories are of course subject to the 
 same, law with the others, to the common and statute 
 law of the whole country. 
 
 I proceed now to the last division of this part of 
 my subject. 
 
 5. FORTS, ARSENALS, DOCK- YARDS, &c. By the 
 Constitution of the United States, art. 1. . 8. parag. 
 17. " Congress have the right of exclusive legisla- 
 " tion in all cases whatsoever, over all places pur- 
 " chased by the consent of the Legislature of the 
 " State in which the same shall be, for the erec- 
 t( tion 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 be- 
 fore 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 
 
 3 Bioren's L. Pennsylvania, 223.
 
 have been required by other Stales, and agreed 
 to by Congress. Whether individual States, when 
 they rede particular spots to the United States for 
 the important purposes of erecting forts, arsenals, 
 and other bulwarks of national defence, have a con- 
 stitutional right to reserve to themselves the exer- 
 cise 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 1 shall not here inquire into; 1 think it, with 
 Mr. J. Story at least, extremely doubtful;* but I 
 can see no reason why the laws which were in force 
 on (hose 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. 
 
 o o 
 
 Thus, there is no provision made for the definition 
 and punishment of the crime of arson, of all others 
 the most dangerous in places of this description ; 
 on the principles which I have laid down, this 
 crime may be punished by the United States ju- 
 diciary merely applying and executing the law on 
 this subject, by which the place was governed be- 
 fore the cession. 
 
 Having thus explained to you the meaning of 
 the word jurisdiction, and pointed out the va- 
 rious sources from whence the judicial authority in 
 general arises ; having moreover endeavoured to 
 
 U. 8. . Cornell, 2 Mason, 66.
 
 ( 85 ) 
 
 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 sub- 
 ject 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 Constitu- 
 tion, and the acts of the federal Legislature. 
 
 SECTION III. If, as I have endeavoured to 
 prove to you, there is in every State and in every 
 District or Territory, a common or local law which 
 takes effect in most cases in which Congress have 
 not legislated or have not the power to legislate to 
 the contrary, this question will probably appear to 
 you more curious in theory than useful in practice; 
 it is certain that if the principles which I have suc- 
 cessively laid down are admitted, the circle of ope- 
 ration 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 ap- 
 plication; nevertheless, the subject is too interest- 
 ing to pass unnoticed, and at the risk of trespassing 
 too much upon your patience, 1 will proceed in its 
 investigation. 
 
 I never could comprehend how a great country 
 like the United States, connected by manners, cus- 
 toms, habits, religion, and government, can exist to- 
 gether without a common law. The civil law is the 
 common law of Europe, and is so called; JIM com-
 
 ( 86 ) 
 
 mtiue. Earh separate governmeut has modified it 
 as it thought proper to suit its own local circum- 
 stances, or has introduced into its territories new 
 edicts, new laivs, and new codes, hut 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 
 Defoliations hetween sovereigns, the principles of 
 the civil law are constantly referred to, and their 
 authority never denied. It is, indeed, the founda- 
 tion on which the modern law of nations has been 
 erected. 
 
 Before the late French revolution there was a 
 tribunal at Rome, in many re- ports analogous to 
 our federal Courts. It was called the Rota. Its 
 Judges were appointed by the different Catholic 
 sovereigns of Europe out of the number of their 
 own subjects, and it took cognisance of all contro- 
 versies submitted to them from every country. Its 
 members were renowned for their integrity and 
 learning, and many causes of the greatest impor- 
 tance, even between princes, were brought before 
 them. Their judgments were every where respect- 
 ed. 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 tri- 
 bunal has been lately re-established. 
 
 In the same manner, and on stronger grounds, I 
 consider the common law of England as the jus 
 commune of the United States.
 
 ( 87 ) 
 
 Until the late revolution, the British colonies, 
 although separated by local governments, have 
 never ceased to make one whole with the remain- 
 der of the British empire. They were a part of 
 the English nation, hone of their hone and flesh of 
 their flesh. They brought with them, as Black- 
 stone says, into this new country, so much of the 
 English common law as was suited to their colo- 
 nial situation. They brought it as a birth-right, 
 and even after the declaration of their indepen- 
 dence, 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 le- 
 gislation, 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 juris- 
 prudence of England and her English colonies, 
 under such modifications as their peculiar situation 
 required. In all cases for which the local law had 
 not provided, or to which it was not applicable, this 
 national law was the rule of decision. As the civil 
 law is now in Europe, it was not, indeed, paramount
 
 ( 88 ) 
 
 to the local customs and statutes, but it was the 
 fruitful source from which principle* were drawn to 
 aid in the solution of all the. doubts and difficulties 
 which arose from them, and the rule by which un- 
 foreseen cases were decided. It was a general 
 system of jurisprudence, constantly hovering over 
 the local legislation and filling up ils interstices. It 
 was ready to pour in at every opening that it could 
 find. Like the sun under a cloud, it was over- 
 shadowed, 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 oc- 
 cupy. 
 
 In all national matters the law of England has 
 never ceased to he the rule of right and wrong. 
 The famous controversy between William Penn 
 and Lord Baltimore, was determined on its princi- 
 ples. 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, aud the 
 Judges would have been constantly embarrassed as 
 to what l.iws they were to apply. The common 
 law, therefore, in these cases must have been their 
 guide.
 
 ( 89 ) 
 
 It would take up too much of your time if I were 
 to multiply instances of this kind. Besides, I must 
 leave something for your future research. 
 
 The British colonies, now independent States, 
 have never ceased to be under a national superin- 
 tending government. Before the revolution, it was 
 that of the King and Parliament of Great Britain. 
 Their powers as to this country were, limited, and 
 scare those of the government which now supplies 
 their place. They were succeeded at the revolution by 
 a Congress whose jurisdiction was at first recognis- 
 ed by the individual States, and was more firmly 
 established afterwards by an express national com- 
 pact which at last gave place to the present federal 
 government. Under these various forms the limi- 
 tations 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 govern- 
 ed have never been repealed, either expressly or 
 by necessary implication. They have always con- 
 tinued to be in vigour as far as applicable to our 
 varying situations. 
 
 I think, then, I can lay it down as a correct 
 principle, that the common law of England, as it 
 was at the time of the declaration of independence. 
 K
 
 still ron tin tics to he the national Inw of this country, 
 so far a* 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 modifications result from 
 the uniform principles established by the Constitu- 
 tion nnd laws of the United States, and the Con- 
 stitutions nf the different States; the locnl altera- 
 tions which the States have thought proper to make 
 for their own purposes are no part of it, still it is 
 pervaded by the general spirit of the revolution, as 
 it was in England after the accession of William 
 and Mary, which is easy to perceive by comparing 
 the judicial decisions of those times with those that 
 took place in the reigns of the Stuarts. Our Judges, 
 in more liberal and enlightened times, are placed 
 precisely in the same situation as the English 
 Judges were at that period. 
 
 I know that nothing is easier than to start curi- 
 ous questions and raise imaginary difficulties. But 
 I will venture to say that none such will occur, 
 more than usually takes place in the ordinary ad- 
 ministration of the law. In civil cases, the com- 
 mon law is recurred to by general consent, and the 
 Judges have not experienced more than common 
 difficulties in the execution of their duty. In crimi- 
 nal matters, the laws of the United States have 
 provided for the most important and frequent oc- 
 currences ; and, after all, the sphere of action of 
 this national common law, beyond the operation 
 which it receives without opposition in daily prac
 
 ( 91 ) 
 
 tice is so narrow, and its application of so rare oc- 
 currence, that, as I have observed before, the, pre- 
 sent question is more one of curiosity than of prac- 
 tical use. The only real difficulties that it pre- 
 sented I hope I have satisfactorily removed. 
 
 But why need 1 go into such a wide argument to 
 prove what 1 consider a self-evident principle? 
 We live in the midst of the common law, we in- 
 hale 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 with- 
 out learning at the same time another language. 
 We cannot think of right or of wrong but through 
 the medium of the ideas that we have derived from 
 the common law. 
 
 We need but open the Constitution of the United 
 States and the laws which have beenjroade in pur- 
 suance of it, and we shall find the common law al- 
 most in every line. I shall not here trouble you 
 with numerous quotations, but I will ask you what 
 is the privilege of habeas corpus, which, by the 9th 
 section of the 1st article of the Constitution, is not 
 to be suspended but in certain cases, if the common 
 law is not there to explain its meaning? What cor- 
 ruption of blood is that which is mentioned in the 
 third section of the third article ? What are 
 the suits at common law mentioned in the 9th 
 amendment, and what common law is that which is 
 there referred to? What is meant by this expres-
 
 sion in the 13th section of the Judiciary Act of the 
 3-Uh Seplembrr. 17^9. that the Supreme Court may 
 issue writs of mandamus, in cases warranted by the 
 principles and usages of lmr, and in the 10th sec- 
 tion of i. lu same net, when it saves to suitors a com- 
 mon lair remedy in certain admiralty cases where 
 the common lav is competent to give it? What 
 law, indeed, but that which is so elegantly defined 
 by Mr. C J MnmliaU. in his opinion above refer- 
 red to. I understand," says he, "by the law 
 <( mentioned in the statutes of the United Slates, 
 " thse general principles and those general usages 
 " which are to be found not in the legislative acts 
 " of any particular Slate, but in that generally re- 
 " cognised and long established law, which forms 
 " the substratum of the laws of every State."* To 
 this high authority may be added that of Judge 
 Story, who, in the case of the United States v. Coo- 
 lidgerf 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 Uni- 
 ted 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 deci- 
 sions, lie delivered this opinion in the case of the 
 
 2 Burr's Trial, 482. f 1 Gallis. 488.
 
 United States v. Isaac Williams, which was an 
 indictment for accepting a French commission to 
 cruize, and capturing a British vessel in violation 
 of our neutrality, the defendant pleaded that he 
 was at the lime a French citizen by naturalisation, 
 but the Court over-ruled the plea, and C. J. Ells- 
 worth declared " that the common law of this coun- 
 " try 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 un- 
 fortunate decision, and may he compared in its ef- 
 fects to the sedition law. It wounded the feelings 
 and opinions of the American people, 'by denying 
 the right of expatriation and setting up the claim 
 of perpetual allegiance. Thus a sound doctrine 
 by being mixed with a doubtful, and at any rate an 
 unpopular principle, made the nation afraid of the 
 common law, which they thought turned their 
 country into a prison, and prevented them from mi- 
 grating 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. 
 
 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 
 
 * Sergeant's Const. Law, p. 263.
 
 correct. I have never been able to understand the 
 distinction which ha* been made between civil and 
 criminal case*, nor why, when we constantly apply 
 its principles in criminal as well as in civil trials, 
 we should hesitate to admit its definitions of offen- 
 ces 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 
 
 * Various circumstances have concurred after the revolution to create doubts 
 in the public mind respecting the operation of (he common law in this country 
 .is a national system, particularly in n -jnii.al cases. The bitter feeling of ani- 
 mosity against England which the revolutionary war produc. d wa not amongst 
 the least of these causes. The States m:ght recognise their own common law, 
 but to have been subject in any cane to the law of the enemy, sei rued in some 
 manner like a dereliction of the principle of independence, while ii was no 
 more so than the recognition of the binding force of the civi! law was in the 
 European States, a token of submission lo the sovereignty of the Roman Em- 
 perors, whose succession was still continued in Germany. In the year 1781, 
 Congress fell under an embarrassment which I can only ascribe to this popu- 
 ar feeling, and it is curious to observe how they extricated themselves. 
 By the articles of confederation (hey had the power given to them of 
 "appointing Courts for the trial of piracies and felonies committed on the 
 high seas," (.ir/. of Confeel. art. 9.) No power of legislation was annexed 
 to this, while in the case of captures jure belli, they were empowered, not 
 only to establish a Court of Appeals to decide those causes in the last resort, 
 but to establish rules for deciding what captures should be legal, and how 
 the proceeds should be distributed, which leads me to infer that in the 
 case of piracies and other felonies, it was meant to withhold from them 
 the power of legislation. It seems, therefore, that all they had to do was 
 to appoint the Courts for (he trial of those crimes, and to leave their Judges to 
 proceed according lo 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 tht 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 lo perceive tht they were under the 
 guidance of no solid principle, and the course they pursued was such as, surely, 
 would iiotbe imitated at this day; they resolved thai the punishment should be 
 the snrne us if the offence had been committed at land, and that the criminal 
 "should be utterly excluded the benefit of clergy, where the same was 
 rt taken away or not admitted for such like offence, committed within the body
 
 subject, it appears to me that these doubts have 
 their origin in the fear, lest it should lead the fe- 
 deral Courts to claim and exercise too extensive 
 a jurisdiction in criminal cases, which I think I 
 have sufficiently shewn cannot be the case, and per- 
 haps 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 beinflict- 
 " ed, ?? which word i( unusual" evidently refers to 
 the United States, and the time when the Consti- 
 tution was made, and therefore is not to be con- 
 founded with the same clause in the English bill 
 of rights, which referring to another period and to 
 another country, may have been differently con- 
 strued. The peine forte and dure, and burning in 
 the hand in cases of manslaughter are abolished, 
 and milder substitutes provided by our national 
 
 " of a county or at land, where the trial should be had."" Reso!. 5. April, 
 1781 7. Jour, of Cong 65. Thus a pirate taken by a vessel of the United 
 States, might if brought into New Hampshire, for instance, be hanged, and it 
 in Georgia, only be burned in the hand. In a former part of this discourse I 
 have explained at large the principles which I conceive alone to afford the 
 grounds of a sound and consistent legislation upon this subject. 
 
 It would be curious to know how the colonial Judges of the Courts of Admi- 
 ralty construed the statute of Henry VIII., which defines pirncy to be that 
 \vhich, if committed at land, would be felony. Did they take 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.
 
 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, man- 
 ners and usages, is as wholesome and as harmless 
 a system, in criminal as well as in civil cases, as 
 any that can be devised. 
 
 As to offences not capital, cruel and unusual 
 punishments being forbidden by our Constitution, 
 there remains none but fine, imprisonment and, per- 
 haps, whipping and the pillory. I hope I shall 
 hear nothing of the ducking stool and other obso- 
 lete 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 Con- 
 gress have thought proper to retain the latter pun- 
 ishment in their penal code, and we have seen it in- 
 flicted not long since in our city on an offender 
 against the laws of the United States. It is in the 
 power of the national Legislature to alter or amend 
 the law in this respect, as they shall think proper; 
 but until they do so, I see nothing inhuman in the 
 moderate infliction of either of these penalties, nor 
 any reason why we should reject the common law 
 on their account. 
 
 It may be said, perhaps, that there is too much 
 left to the discretion of the Judges as to the quan- 
 tum, and even the nature of the punishment and 
 sometimes also as to dec ding what i* or what is 
 not an indictable act. As to the quantum of pun-
 
 ( 97 ) 
 
 ishment, 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 pun- 
 ishments ; there may be cases in which imprison- 
 ment 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 doubt- 
 ful cases, whether a certain act be indictable or 
 not, if it is an evil, it is one to which our citi- 
 zens are all subject within their respective States, 
 and I do not see why any should be exempt- 
 ed from it, merely because they are not amena- 
 able 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 con- 
 sidered that the common law does not give juris- 
 diction to the federal Courts, but is merely direc- 
 tory of its exercise. So that it appears to me that 
 O
 
 the opponent* of this principle, l>y not viewing the 
 subject in all its bearings, have in fact been afraid of 
 dangers which are nut to be apprehended. 
 
 Thus a phantom has been raited which needs only 
 to be looked fully in the face to vanish into empty 
 air. The mure this question is investigated on its 
 true principles, the more I am satisfied that the in- 
 quiry will result in the conclusion* that I have 
 formed and which I commit to your future research. 
 
 Before 1 conclude, however, this part of my dis- 
 course, 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 arti- 
 cle of the Constitution it is provided, * that the ju- 
 "dicial power shall extend to all cases in law and 
 " equity arising (inter alia) under the laws of the 
 " United States." Now it may be said, that if the 
 common law is a law of the United States, it ne- 
 cessarily follows that the federal Courts are bound 
 to take cognisance of all offences committed against 
 it, whether or not Congress has made provision by 
 statute for their trial and punishment. 
 
 To this objection, which 1 a< knowledge is not 
 entirely devoid of force, 1 venture to answer: That 
 the section of the Constitution from which this pro- 
 vision is taken, is altogether restrictive, and was 
 intended to confine the powers of the federal judi- 
 ciary 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 
 bad 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 ex- 
 pression all cases arising under the common law 
 would have given them such a wide and undefined 
 extent of jurisdiction as cannot he supposed t.o have 
 been in contemplation. By the words in law or 
 equity, however, they have clearly shewn that they 
 did not mean to exclude the common law as a means 
 of exercising such jurisdiction as Congress might 
 think proper to commit to the Judges in pursuance 
 of the Constitution ; for the law which is there 
 spoken of can he no other than the common law. 
 It has been supposed that the word law was em- 
 ployed here in contradistinction to equity, and 
 therefore was meant to be applicable only 10 civil 
 cases. But if it were so, how could the judiciary 
 take cognisance of offences created by national sta- 
 tutes, if the very clause which gives them jurisdic- 
 tion 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 ? Ac- 
 cording to this construction the clause would read
 
 ( 400 ) 
 
 thus : " All civil cases arising under the Constitu- 
 " tion and laws of the United States." But when 
 the Constitution gave to Congress the power to de- 
 fine 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 be well conceived that it should have meant 
 to confine the judiciary to tho execution of such 
 parts of those laws only as were of a civil nature, 
 to matters of law in strict contradistinction to mat- 
 ters of equity. 
 
 It appears to me clear, therefore, that while the 
 Constitution did not mean to vest in the judiciary 
 an unlimited power to take cognisance of offences 
 at common law, it still recognised the common law 
 as their guide in all cases, whether civil or crimi- 
 nal, 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 at- 
 tempts to bribe an officer of the United States, 
 without defining the offence or affixing its punish- 
 ment, the Judges in such cases should be bound to 
 administer the common or any other law that ap- 
 plied to the subject. 
 
 It must not be forgotten, however, that the re- 
 strictions which are thus imposed by the Constitu- 
 tion on the federal judiciary, were only intended to 
 guard against encroachments on the sovereignty of
 
 ( 101 ) 
 
 the individual States, and therefore are solely ap- 
 plicable to cases in which that sovereignty may be 
 affected ; otherwise, it appears clear to me that the 
 limitations of the judiciary power must proceed 
 from other sources. 
 
 On the whole, therefore, I think 1 may venture 
 to assert 
 
 i. 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 Con- 
 stitution of the United States and the statutes made 
 in pursuance of it. 
 
 2 That when the federal Courts are sitting in or 
 for the States, they can, it is true, derive no juris- 
 diction from the common law, because the people of 
 the United States, in framing their Constitution, 
 have thought proper to restrict them within certain 
 limits; but that whenever by the Constitution or the 
 laws made in pursuance of it, jurisdiction is given 
 to them either over the person or subject matter, 
 they are bound to take the common law as their 
 rule of decision whenever other laws, national or 
 local, are not applicable. 
 
 3. But that the limitations of the judiciary power 
 which are the safeguards of the sovereignty of the 
 States, do not apply to the judiciary when sitting 
 in or for the Districts or Territories which acknow- 
 ledge 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.
 
 1 am well aware that this doctrine of the nation- 
 ality of the common law will meet with many op- 
 ponents. There is a spirit of hostility abroad 
 against this system which cannot escape the eye of 
 the most superficial ohserver. It began in Virginia 
 in the year 1799 or 1800, in consequence of an op- 
 position 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 Stales. 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 pam- 
 phlets were published to instigate them to that 
 measure.* The whole, however, ended in a law for 
 determining all suits by arbitration in the first in- 
 stance, at the will of either party, and another pro- 
 hibiting the reading and quoting in Courts of jus- 
 tice of British authorities of a date posterior to the 
 revolution. Both these statutes, as you well know, 
 are still in force. 
 
 It was not long before this inimical disposition to- 
 wards the common law made its way into the State 
 of Ohio. In the year 1819, a learned and elaborate 
 work was published in that Statef, in which it was 
 
 This spirit was considerably checked by a well written pamphlet puMish- 
 cd at the time by Joseph Hopkinson, Esq. of this city, in which he demonstra- 
 ted the absurdity of the project of abolishing the common law. 
 
 f Historical sketches of tin- principles and maxims of American Jurispro- 
 <li noe, in contrast with the doctrines of the English Common Law on the sub- 
 ject ol c< imes and punishments. By John Milton Goodeno\r, 428 pp. 8vo. 
 Steubtmille, 1819.
 
 ( 103 ) 
 
 endeavoured to prove not only that the common 
 law was not the law of the United States, hut 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; never- 
 theless as it is learnedly and elaborately written, 
 it cannot but have had a considerable degree of in- 
 fluence. 
 
 In other States, attacks upon the common law, 
 more or less direct, have appeared from time to time.* 
 
 " Among those some persons seem to consider the address lately delivered be- 
 fore the Historical Society of New York, by my excellent friend Mi 1 . William 
 Sampson. For my part, 1 rather bilieve that he meant to point (he keen ar- 
 rows of his wit against the superstition, not against the pure religion of the 
 common law. Mr. Sampson is an Icoiwclastes 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 the ancient worship of Thor and Woden. 
 But every liberal common lawyer willttpplau.il the sentiments which he ex- 
 presses in the following eloquent passage, which I beg leave to quote at large 
 from his address : 
 
 " Our law is justly dear to us, and why ? because it is the law of a free peo- 
 ple, and has freedom for 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 Hges, 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 bube 
 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 (I raws near, we feel the cheering certitude, that those we love 
 and leave shall possess the goods that we possessed, and enjoj the same secu- 
 rity in which we livt-d and died. But that we aie 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 vir- 
 tuous patriots, many of whom have bled and died for it: we owe it to fortu- 
 nate occasion and favouring providence." Sampson's Disc. p. 60.
 
 ( '04 ) 
 
 Its faults (for it is not free from them) are laid bold 
 of and exhibited in the roost glariug light ; its an- 
 cient 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 institu- 
 tions 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 re- 
 ceived 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 pre- 
 sume that they are not without effect on the public 
 mind. 
 
 That there are real and serious inconveniences 
 in our actual system of jurisprudence, is what no 
 candid man will deny ; but none of them is, nor 
 are all of them sufficient to induce the abolition of 
 the common law. Were it abolished, a still 
 greater difficulty must arise, to fill up the im- 
 mense chasm which would be produced by its 
 absence. Not all the codes of all the Benthams 
 would be capable of producing that effect. 
 
 The task of legislation is not so easy a one as some 
 people seem to imagine. The immortal Bacon was
 
 ( 105 ) 
 
 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 enlarg- 
 ed. He thought that this business could only be 
 safely confided to statesmen, as being best acquaint- 
 ed with mankind.* For my part, lam 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 su- 
 perior legislative talents to any other, I assert, 
 without the fear of contradiction, that it is impos- 
 sible to abolish the common law. Make as many 
 codes as you will, this second nature will still 
 force itself upon you : 
 
 "-- " Expellas furca tamen usque recurret." 
 
 In proof of this, I shall adduce a very recent and 
 very striking instance. The emperor Napoleon, 
 gave to the French a new and uniform code of laws, 
 which has been now in force about twenty years. 
 It is admitted to be as complete as a work of this 
 
 * Qui de legibus scripserunt omnes, vel tanquam philosophi, vel tanquam 
 jurisconsult!, argumentum illuil tractaverunt. Atque philosophi proponunt 
 tnulta, dictu pulchra, srd ab usu remota. Jurisconsult! autem, suas qmsque pa- 
 tnselegum, vel i tiam Romanarum,aut Pontificaruirj,placiiib obnoxii tiaodicti, 
 judicio sineero nun utuntur, scd tanquam e viuculis sermocinantur. Certe 
 cognitio ista ad viros civiks proprie spectat ; qui oplirr.& norunt, quid t'-rat 
 socieias humana, quid salus populi, quid sequitas uaiuruhs, quid g titium mores, 
 quid rt-rumpublicarum formce diversse; ideoque possiiitde It gibus, ex pi-'iicipiis 
 et prc-ptis, tarn sequitatis naturalis, quam politices, decernere. De augm. 
 Scient. 1.8 c. 3. 
 
 P
 
 ( 106 ) 
 
 kind can tie, 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 di- 
 gests and code of Justinian, the former laws 
 and ordinances of (he kingdom, and the immense 
 collection of the works of the civilians and French 
 jurists are not less quoted at present in the law- 
 yers' pleadings than they formerly were, and so it 
 would be with us if we were to abolish the com- 
 mon law. We should still recur to it for principles 
 and illustrations, and it would rise triumphant 
 above its own ruins, deriding and defying its impo- 
 tent enemies. 
 
 The common law maybe 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. View- 
 ed altogether, it presents a rude and mis-shapen 
 mass, rudis indigestaque moles. Like certain 
 works of art, its separate parts must be dwelt upon, 
 for some time before its beauties or its defects can 
 be justly appreciated. It is not to be wondered at, 
 therefore, if it has warm enthusiasts and violent 
 enemies. It would require a consummate artist to 
 delineate it as it ought to be ; as I do not possess 
 the requisite talent, I shall content myself with a 
 plain statement of my ideas upon the subject. 
 
 1 admire and I venerate the common law ; not.
 
 indeed, the common law of the Saxons,* Danes, 
 and Normans, nor yet that which prevailed in Eng- 
 land during the reigns of the Plantagenets, the 
 Tudors, and the first Stuarts, bnt that which took 
 its rise at the time of the great English revolution, 
 in the middle of the 17th century, to which the se- 
 cond revolution in 1(388 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 Bri- 
 tain. In former times, its present defects except- 
 ed, it hore no resemblance to what it is now. 
 
 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 
 
 I shall cite only two of the laws of Alfred, the greatest of the Siixon kings, 
 to shew how far they are deserving of the eulogies that have bees lavished up- 
 on his times, and what liberty and equality there was in England under his reign. 
 
 "If a man have connection wj'h the wife of one worth 1200s he shall pay 
 120.; if with the wife of one worth 600s he shall pay 100s ; and if with the 
 wife of a yeoman, 40s. for the redemption of his hi-ad. This fine shall be 
 levied on the chattels of the delinquent, and he shall not be sold for it." 
 LL JElf. c. 10. 
 
 " It any one shall strike his man or his maid servant, and he or she do not 
 die the same day, but live two or three days, he shall not be equally guilty, 
 because his slave is his money ; but if he or she die the same day, then the 
 guilt shall rest upon him." LL. JElf. c. 17.
 
 ( 108 ) 
 
 her parliament, of her nations liad their States, their 
 Cortes, .UK! their Diets, hut all weighed down by 
 the supreme authority of the sovereign, by virtue of 
 the dispensing power, borrowed from the example 
 of the emperors and popes, and strengthened by 
 the famous maxim of the imperial law, Quod principi 
 placuit, Ifgis habet vigorem. The celebrated writ 
 of habeas corpus was a part of the English code, 
 but the civil law had also its title, De liberis exhi- 
 "bendia,* and neither of them was adequate to the 
 protection of the subject against the attempts of ar- 
 bitrary power. Even trial by jury was no safe- 
 guard to the innocent, when powerful men thirsted 
 for his life ; the history of those ages offers no ex- 
 ample of those independent juries who distinguish- 
 ed themselves in later times by the noble stand 
 which they made against tyranny and oppression. 
 AH 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. 
 
 The civil jurisprudence was a complex system in 
 which the Judges lost themselves in refinements 
 and distinctions without end. The method of rea- 
 soning by induction, which Bacon recommended 
 and exemplified, and which the celebrated Stewart 
 
 ff. lib. 43. tit. 30. Dc % liberis exhibendis, item ducetulis.
 
 ( 109 ) 
 
 and the philosophers of the Scotch school have so ele- 
 gantly elucidated, was then unknown, or not under- 
 stood; the logic of the schools prevailed, and every 
 thing was discussed by syllogisms in Barbara and Ba- 
 ralipton. A highly complicated system oilitiscontes- 
 tatioy or, as we call it, pleading,* overdriven to ex- 
 cess, 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 deci- 
 ded upon some nice point of form. This artificial lo- 
 gic produced the same effects in England, which the 
 
 * The gr^at Lord Mansfield has said, that " the substantial rules of pleading 
 are founded in strong sense, nnd in the soundest and closest logic." This is 
 undoubtedly true ; but Lord Mansfield do^s not tell us what are those substan* 
 tial rules, while at the same time he confesses that even those " by being mis' 
 " understood and misapplied, are often made use of as instruments of chicane." 
 Robinson v. Jtaky, 1 Burr. 319 
 
 In the same manner the substantial rules of the Aristotelian system of Dia- 
 lectics are founded in strong sense, and in the soundest and closest logic. There 
 is noth'n.g 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 (hey 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 everv 
 one, when great inconveniences may arise from their unskilful or designed per - 
 version. 
 
 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 
 Oth of March last, which is so appropriate to my purpose, that I cannot help 
 nserling it here: " He took the opportunity,'' he said " of observing upon the 
 ' intricacy of legal pl-ndings. In former times, these pleadings were extreme- 
 ' ly simple, but by modern practice, they had been rendered most complica- 
 ' ted. It had been thought advisable to assimilate the pleadings of Scotland, 
 ' the length and intricacy of which had been much complained of, to those ot 
 ' England ; but it appeared to him that the pleadings of this country were now 
 ' nearly as intricate as those of Scoiland, and therefore little would be gained 
 ' by this assimilation." The editor who reports this extract adds these empha- 
 tical words : " We rejoice most unf.-ignedly that the CHANCEHOU has enlisted 
 " himself on the side of COMMON SENSE. Land. Morn. Chron. March 8, 1824.
 
 Aristotelian Dialectics had produced in'Greece and 
 at Rom * ; ophiiry became in vogue, and Seneca, 
 if he had lived in those time*, mi-lit have applied 
 to the English lawyers and Judges what he may** of 
 the lioman sophists in his eighty-second letter to 
 Lucilius. The plain rules 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 Tho- 
 mas Aquinas, sojuri-prudence had her Coke; both 
 men of great mental powers, superior to most of 
 their co temporaries, but not to their age. One man 
 alone arose, whom no country and no age ever sur- 
 passed, who held up the torch of truth to a genera- 
 tion whose eyes were too weak to bear its resplen- 
 dence. This was the great BACON : 
 
 Qui genus humnnum ingenio superavit k omneis 
 Prsestinxit ; Stellas cxortus uti xthereus Sol.* 
 
 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 ad- 
 mirable treatise " l)e justitid universal*, seu de 
 fontibus juris." It is at the end of the third chap- 
 ter of the eighth book of his celebrated work " De 
 dignitate 8 augmentis scientiarum." It is divided 
 into ninety-seven aphorisms, every one of which 
 ought to be studied and meditated on by every 
 lawyer and statesman, and by every student who 
 aspires to become either. 
 
 Lucret.
 
 ( 111 ) 
 
 If we wish to have an idea of what the civil ju- 
 risprudence of England was towards the end of 
 the wars of the two Koses (and if we except the 
 bankrupt system, the acts of Elizabeth against 
 fraudulent conveyances, and perhaps, a few more 
 statutes, it was not much improved from that time 
 to the period of the revolution) we have only to turn 
 to the book of Chancellor Fortescue De laudibus 
 legum JUnglice, a work professedly written to prove 
 the superiority of the law of England overall others, 
 and particularly the civil law. Setting aside what 
 he says of the representative form of government 
 and of trial by jury, he adduces no instance of that 
 superiority, but the illegitimacy of ante nuptial 
 children, the maxim, quod partus non sequiturven- 
 trem, and the doctrine of feudal wardships, none 
 of which would be considered at this day as giving 
 an advantage to one system of law over another. 
 Yet Chancellor Fortescue was a very learned man, 
 and appears to have been equally skilled in the 
 civil and in the common law. 
 
 The true sera of the common law is the period 
 which followed the great revolution of 16*8, 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 authories have taken their respective 
 stations and known the extent of their several pow- 
 ers ; Judges have been rendered independent, and 
 juries have been freed from ignoble shackles. 
 The writ of habeas corpus has been made effectual, 
 a fair and unexceptionable mode of trial has been, 
 provided for cases of high treason. The press 
 has been freed from the unhallowed touch of State 
 licensers, religious toleration has been established. 
 The hand of arbitrary power has been paralysed, 
 and man has been taught to walk erect and to feel 
 the dignity of his nature. Civil jurisprudence has 
 also been considerably improved, and is in a pro- 
 gressive state of further amendment. 
 
 These are the great features of the English Com- 
 mon law, by which that country has been raised 
 above the other nations of Europe. 1 am now to 
 shew the. improvements which have taken place in 
 the United States. 
 
 I shall not speak here of the difference which 
 exists between the forms of government of the two 
 countries; Mich comparisons are invidious and en- 
 tirely useless to iny purpose. 1 do not want to 
 raise our nation at the expense of another which 
 in all probability, had she been placed in our situa- 
 tion, would have acted precisely as we have done, 
 and it may well be doubted whether in her circum- 
 stances we should have done better than she has. 
 Besides, it is the law alone, not the national organi- 
 sation that I have in view : 1 need not say that
 
 America has adopted all the improvements of the 
 mother country, I shall only shew what ameliora- 
 tions she has herself made in the system. Not 
 only religious toleration, but religious equality has 
 been established. Treason has been constitutional- 
 ly defined, and by the same, instrument, as well as 
 by the Constitutions and laws of the several States, 
 a right has been secured to every accused party to 
 defend himself by counsel in all criminal cases, 
 without discrimination of fact or law. The benefit 
 of the writ of habeas corpus has not only been se- 
 cured in the same manner as in England, but its 
 remedy ban 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 have taken the place of the former 
 sanguinary code, and the interior economy of pri- 
 sons, and penitentiaries has been suited to the hu- 
 manity 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 
 lie has by the existing laws ; that for instance, the 
 doctrine of liens will be further extended, and out- 
 standing debts made liable to attachment or execu- 
 tion, under suitable regulations. Nor will it be,
 
 ( 114 ) 
 
 perhaps politic to aboli*h it as to every description 
 of persons; but I should have too much to say if 
 1 were to proceed further on that important, hut 
 delicate and complicated subject. I shall only ob- 
 serve that it is closely connected with a system of 
 bankrupt law. 
 
 Civil jurisprudence has also been greatly im- 
 proved in the United States. Of the ancient feu- 
 dal system nothing remains but a few empty names 
 and forms,- while in fact the citizens may almost 
 be said to hold their property in pure allodium.* 
 All the lands sold by the State of New York have 
 been granted allodially in name as well as in sub- 
 stance, although from the force of mere habit, the 
 words " fee simple" are still used in the convey- 
 ances, from one purchaser to another. Estates tail 
 are every where (except in one State) either abo- 
 lished, or a simple form has been provided for con- 
 
 * The case of Pen-in . Blake, (4 Burr. 2579, Butler's notes on Co. Lit. 
 329,) has been anil I presume is still in Engl.md the source of endless dis- 
 cussions. It was decideil one way by the Court of King's Bench, another 
 by the Court nt Exchequer Chamber, and the parties having compromised 
 pending a writ of error to the House of Lords, it was not filially decided. At 
 the time when it was first discussed, says Mr. Fcarne, the law on the subject 
 was so far settled, that lawyers might, at least, form a probuble conjecture, if 
 not opinion, respecting questions of the same nature, (Fearne on Conting. Rem. 
 238); when it was argued in the King's Bench, says the reporter, "the cases 
 cited were many and difficult to reconcile, each side had a string oj them.'' 
 (4 Burr. 2586.) The doctrine in Shelly's case, (4 Co. 104. b.) which Lord 
 Mansfield's opponents strive to apply to this question, is admitted on all hands, 
 to have been intended to secure to the feudal lord, his rights of wardship, mar- 
 riage and relief, which have never been known in this country. How should 
 such a case be deckled on the principles of the American oommon law? A 
 good dissertation Tin this question would be of great value to our profes- 
 sion, and throw considerable light on the fundamental principles of our 7717- 
 tional system of jurisprudence.
 
 ( 115 ) 
 
 verting 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 esta- 
 blished in euery State. 
 
 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 com- 
 paratively 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 
 
 * The following 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 
 Statesfor the Statesof New Jersey, Pennsylvania, and Delaware. The volumes 
 which have already appeared of this work are extremely interesting, as they 
 bring together in one point of view the laws of the different States on the most 
 important subjects. The use of this collection will appear from the following 
 extract, made by a young gentleman of the law academy. 
 
 Of estates tail in the several States of the Union. fyQ. 
 
 In four States never known to have been in existence, viz. Vermont, Illi- 
 nois, Indiana, and Louisiana. 
 
 In one, viz. South Carolina, the statute de donis nerer was in force, but fees 
 conditional at common law prevail. 
 
 In twelve they have been abolished or converted by statutes into fee simple 
 absolute, viz. Ntw York, Ohio, Virginia, North Carolina, Georgia Missouri, 
 Tennessee, Kentucky, Connecticut, Alabama, Mississippi, and New Jersey, but 
 in the last four, a kind of estate tail still exists, being for the life of one donee 
 or a succession of donees then living. 
 
 In six they may be barred by deed, acknowledged before a Court or some 
 magistrate, viz. Rhode Island, Maine, Pennsylvania, Massachusetts, Mary- 
 land, and Delaware, but in the last four may also be barred by fine and com- 
 mon recovery. 
 
 And in one only do they exist as in England with all their peculiar incidents 
 viz. New Hampshire.
 
 all practical purposes. Even in England, plead- 
 ing in at present but the shadow of what it once 
 wag ; in most personal actions, the declarations de- 
 clare nothing, as in ejectment, and in actions of 
 general indcbitatus assumpait, 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 be admitted, however, that it has 
 produced the forms of criminal indictments still 
 iu use, the excellence of which cau only be duly 
 appreciated by comparing them with the acts of 
 accusation of other countries.* 
 
 I have before me the indictment or acte (Faccusation, in the case of the 
 tnurilt Tt-TS ol Fualclt-s, on the.r second trial at Alhv,iii France, in the year 1818. 
 It is of immense length, and tins length is not produced by harmless tautology 
 Or the repetition of nitre words of form, nor b) suiting the case in different 
 ways, in order to inaki the allegations and p> oofs exactly agree ; but it is a 
 minute and c : rcuimlai<lial narrative, not only ol the particulars which at- 
 tended the perpetration of t lie criminal act, but of all the evidence with its suc- 
 cessive variations, the conduct of the accused and of (he witnesses on their ex- 
 aminations ; and all the- gossip which occni red in the course of the preparatory 
 proceedings. AH this is narrated in an inflated, rhetorical style, well larded 
 with epithets, and stuffed with declamation, and every thing iu the instrument 
 appears designed for theatrical effect, and calculated to make a strong impres- 
 sion upon the jury and the public against the accused. A few extracts will 
 show what 1 mean. 
 
 After relating the circumstances of the murder with all their disgusting de- 
 tails, the Attoi ney General proceeds : 
 
 "After the unhappy Fualdus had lost his life in the most barbaroiu manner, 
 his corpse was wrapped in a sheet and blanket, tied up, like a bale of goods, 
 with cords of the thickness ol a finger," &c. The remainder of the details it 
 in the same style. 
 
 The accused being all joined in the same indictment, the part which each 
 took in ihe murder is separately noticed : the following is the charge against 
 Jlnite JUetioit,oni of them. 
 
 "Anne B< noilco-hhbited with Baptist'- Collard, in the house which was the 
 theatre of the crime. On the 19th of March, about 8 o'clock in the evening, 
 she was found concealed in the street Hebdomadiers near the house of Mis-
 
 Thus far.we have improved on the common law, 
 the honour of further improvements is still in re- 
 serve for us. While the common law is and ever 
 will he the hest system of political and criminal 
 legislation that has ever heen known, I cannot say 
 
 sonnier. By her own avowal, the fatal handkerchief with which the unhappy 
 Fualdes was gagged, belongs to her ;she blushed when somebody told her that 
 no doubt she had lent it to Bnptiste Co\\&r<\,\\trprete?ided husband, to strangle 
 therewith the Sieur Fualdes." 
 
 Madame Manson, originally a witness in the cause, but in consequence of 
 having wavered and varied in her depositions, now charged as an accomplice, 
 in order, by working upon her fears, to extract from her more explicit testi- 
 mony, is indicted in these words : 
 
 " A woman named Manson, born Enjelran, after having declared before the 
 prefect of the Aveyron, that she had been an eye witness to the murder cf 
 Fualdes, that she was in Bancal's house at the moment when it was commit- 
 ted, that she had been axposed 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 con- 
 tradicted by her countenance, her looks and for gestures, the sight of (he ac- 
 cused produced in her convulsions, and real or simulated faintings, several 
 times during the sitting, she fell, or appeared to fall into a swoon / the words 
 ' dagg-r' ' murder' escaped from her lips," &c. concluding that because 
 she has thus varied in her testimony, she is now indicted as an accessary to 
 the murder. 
 
 The whole is in the same style, calculated to overwhelm the accused, and 
 to present them to the jury, not so much for trial as for conviction. 
 
 This form of indictment is not borrowed from the civil law ; for the civilians 
 maintain that such an instrument ought to contain only what is material and 
 indispensably necessary to understand the true grounds of the accusation, 
 which they express by the following doggerel line : 
 
 Quis, quid, ubi, quibus atixiliis, cur, quomodo, quando. 
 
 This is in fact all that is necessary to be stated; but the French altornies ge- 
 neral have preferred adopting the inquisitorial form now in use, which is, Un- 
 doubtedly, better calculated for the display of eloquence than for the attain- 
 ment of justice. 
 
 At the same tim<> I must acknowledge that there is in the present mode of 
 administering criminal justice in France something well worthy of imitation, 
 ven in this country. In the discussions which take place, whether on a trial 
 or law argument, the accused always has the last wtrd. It is so likewise fa 
 'Scotland.
 
 ( "8 ) 
 
 J think it entitled to the game praiae in what may 
 properly be, called \\H\JHM civile, I mean that part 
 of the law which governs the construction of con- 
 tracts between man and man, and establishes the 
 rules of meum and tuum. In this part of the oys- 
 tem too much remains of (hose subtle and nice dis- 
 tinctions 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 indis- 
 criminately to almost every case.* Thus the rule ca- 
 veat emptor, borrowed from the civil law and appli- 
 ed there only, for obvious reasons, to sales of slaves, 
 horses, and cattle, | is applied in England to all 
 species of dealings, to the great detriment of com- 
 merce. | Thus a distinction is raised between obli- 
 gations 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 rnle which is not founded 
 
 Pickering v. Bush, 15 East, 44. Martins v. Colet, IM.lt Selw. 146. 
 
 \ ff lib 2t. De .K.lililio Edictn, tit. 1. 
 
 Chandler v. Lo/ius, Cro. Jac. 4. Bree v. Jlelbcch, Doug. 655. Parkinson 
 v. Lea, 2 East, 314, ami numerous olh< r cases. This doctrin is approved of 
 even in a Treatise on Equity, \ Fonb. 380, in note. Mr. Wooddeson calls it 
 on unconscientioiis maxim. 2 Wood, li-ct. 415. In South Carolina, it is not 
 considered to he law, even as respects the s:ile of slaves, Timrod v. Shoolbred, 
 \ Bay, 319 ; Whitfidd v. M'Leod, 2 Bay, 380 ; Litter v. Exrs. of Graham, 
 1 Rep. Const. Court, 182.
 
 either on reason or justice.* It is said that Judges 
 are not to make contracts for the parties, but to ex- 
 plain them. This is perfectly true, hut it is not 
 perceived that thin literal construction leads to the 
 very error which is wished to he avoided; for nei- 
 ther 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, iu 
 my opinion, overruled this doctrine in the case of 
 Pollard v. Shaffer,^ and it seems it was also for- 
 merly denied to be law in the Court of Chancery 
 
 in England.^ 
 
 These and other similar rules, however unjust, 
 
 might perhaps be tolerated in a mere municipal code; 
 but when we find them introduced into the commer- 
 cial and maritime law, as for instance in the case of 
 Cook v. Jennings^ and other subsequent cases, in 
 which the elegant doctrine of freight pro rataitine- 
 
 * So late as the year 1802, Lord Alvanley, Chief Justice of tlie English 
 Court of Common Pleas, was pleased to say, that this doctrine, as laid down in 
 the case of Jane v. Paradyne, Alleyn, 26, is founded on MUCH GOOD SEXSE. 
 Touteng v. Hubbard, 3 Bos & Pul. 800. I have often derived much plea- 
 sure and instruction from the opinions of this learned Judge and eminent jurist; 
 I am therefore the more astonished at his having gone so tar 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 preju- 
 dices, particularly when seconded by the soft whisperings of national pride. 
 
 tl Ball. 210, * 3 Bur. 1639, 2 Term Rep. 381.
 
 ria, laid down by Lord Man*fieldintheca*eof Luke 
 ctal\.Lyde* in made toy if Id to the niceties of i he Nor- 
 man school, we lament that this benutiful system of 
 
 
 
 general jurisprudence, which belongs not to one na- 
 tion, but to all the world. f should be disfigured by a 
 forced adaptation to certain local theories. This is 
 what I am sorry to say has happened in England. 
 The law of freight, insurance, &c. is, in many im- 
 portant 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 in- 
 
 2 Bur. 889. 
 
 f Thus in mercantile questions, such as bills of exchange and the like ; in all 
 marine causes relating to freight, average, demurrage, insurances, boitomry, 
 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 ull disputes r< luting 
 to prizes, to shipwrecks, to hostages, and ransom bills, tin-re is no other rule 
 of decision but the great univenal lute, collected from history and usage, <nd 
 such writers of all nations and languages as are generally approved and Allow- 
 ed of. 4 Hlack. Com. 67. 
 
 The maritime law is not the law of a particular country, but the generallaw 
 of nations; non erit lex alia Romse, &c. Lord MANSFIELD, in Luke et al. v. 
 Lydff. 2 Bur. 887. 
 
 C'est pur le droit ties gens (jue la navigation a toujours etc r6gie. Elle est le 
 lien de la socieH6 des poupl>-s. Chez leg nations commerf antes, l-s loix ma- 
 i itiines snnt a peu pres I-s niemes, attendu IK reciprocite des intoi ets. On doit 
 done aro'T recours aux Loix drs autres peuples, oit pow rnieux connoitre 
 1'Ksprit des ordonrnnces du liojaiiitie. suit pour decider les cas qu'clles n'ont 
 pas pr^ru. 1 Emerigoti, 21.
 
 surance.* 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 allow- 
 ed the benefit of the clause in a policy of insurance 
 against barratry of the master,! thus enabling him 
 to throw upon third persons the responsibility which 
 the law imposes upon him for the acts of his ser- 
 vant; also that which impairs the obligation of a 
 first contract of insurance, by compelling succes- 
 sive underwriters to contribute, when the property 
 is overinsured ;| the narrow construction given to 
 
 * Bernardi v. Motteux, Dougl. 554. Lothianv. Henderson ,3 Bos. & Pul.499. 
 
 | Havelock v. Hancill, 3 Term. Rep. 277. 
 
 \ Marshall on Insurance, 146. There is no maxim better established in 
 English jurisprudence and, indeed, in that of all the world, than tliat Judges are 
 not to make the law, but to expound it, and that they are by no means to 
 substitute for it their own ideas of right or wrong. But here is a very strong 
 example to the contrary. The law had been settled in England in the case 
 of the African Company v. Bull, (1 Shower, 132. Gilb. 238,) an- the cus- 
 tom, says the reporter, had been proved plainly and fully by all the eX' 
 change, that the first underwriter in a case of over insurance, were to 
 pay the loss to the extent of their policy, and the others successively, un- 
 til the whole loss was satisfied. Yet, Loni Mansfield, yielding to a sud- 
 den notion of superior equity, in two successive cases at Nisi Prius, Rogers 
 v. Davis, and Davis v. Gilbert, (Beawes L. M. 242.) thought proper 
 to set aside the established law, and to introduce the principle of contribution, 
 because there was something equalising in it that struck his fancy. If he had 
 taken the trouble to consult the foreign writers, with whose works at other 
 times he appeared familiar, he would have found that the rule which he thus 
 abolished, was not only the law of England, but that of all the commercial 
 world, and if he had reflected upon the subject, which he was well able to do, 
 he would have been satisfied that he was not at liberty to modify the contract 
 between the insured and the first underwriters, it being a complete bargain 
 and sale of eventual profit on the one side and of indemnity on the other. 
 (lioccus, de assec. note 3.) His reputation, however, sanctioned ill tiew prin- 
 ciple, I am sorry to say, not Only in England but in this country, aud the con- 
 
 E
 
 the words " perils of the sea"* and a multitude of 
 other anomalies differing from the general law re- 
 ceived by all the commercial world besides, and 
 which in theory, at least, is a part of the common 
 law."f 
 
 sequence li bern that our underwriters are compelled lo insert in their 
 policies, a special clause which makes I)IP old iloctrinc the rule between (Item 
 and (In- insured. I presume thnt the same thing takes place in England. 
 Mr. Marshall remmks tliat the custom proved by all the crcliange seems 
 now to he forgotten. (Marsh. 149.) They may , however, flo in England as 
 they please; but the question in this country is, arc we bound by such decisions' 
 I leave the answer to those who are competent to give it. 
 
 Marshall, 487. . 
 
 f Mr. Ingersoll, in hi interesting Discourse on the influence of America on 
 the rnind, delivered before the American Philosophical Society, on the I8lh of 
 October lust, has justly observed -that " British commercial law is, in many re- 
 ' spects, inferior to that of the continent of Europe." p. 35. Wheo it is con- 
 sidered that Gr ( >at Britxin is beyond a doubt the first commercial nation in the 
 world, this assertion may appear very hold, 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 farthertiack than Lord Holt's decision in Clerlce v. Martin (ZU. Raym. 
 757,) in which that preat 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 bt-tn invented by the brokers, 
 in Lombard street ; while it is well known that even the canon law recog- 
 nisi-d them as mercantile instruments and as a species of bills of exchange, so 
 early as the year. 1571. (See Pragmatic of Pope Pius V. De C 'ambits /) 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 pro- 
 missory notes were recognised and classed with bills of exchange, and in fact 
 they had been in use for more than one hundred years among merchants 
 throughout Europe. And yet at this day it would, perhaps, be error in an English 
 Court to declare, on these notes as on the custom of merchant*. Lord Mansfield 
 is celebrated for his improvements on English mercantile law ; he was certain- 
 ly a man of the most extraordinary genius; but he was not sufficiently acquaint- 
 ed with the subject either by study or by experience, and so committed a 
 number of mistakes, and his successors have done the sam-, often by pretend- 
 ing to correct his decisions in cases in which his luminous mind had directed 
 him right. It is important to Americans to know these troths : If I am allowed 
 life and leisure,! may one day develop them in such a manner as will leave no
 
 ( 123 ) 
 
 Whatever may be the cause from which these 
 defects arise, they disfigure a system which, with- 
 out them, would be the most perfect, and even with 
 them, is, taken all in all, the nohlest in the universe. 
 It is in our power to correct these faults, to shew 
 to a great, learned, and intelligent nation their own 
 common law improved by their sons, and thus to 
 repay them for the benefit they have bestowed by 
 imparting it to us. 
 
 It is understood that Congress are seriously think- 
 ing of exercising the various and important legisla- 
 tive 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 ma- 
 ritime and commercial code, and that in preparing 
 it they will avail themselves of the wisdom of all 
 the commercial nations. They will remember 
 what was said by the great Lord Mansfield in the 
 case of Hamilton v. Mendez, " that the daily ne- 
 gotiations of merchants ought not to depend on 
 niceties and subtleties, but on rules and principles 
 founded on the dictates of common sense. 77 * 
 
 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. 
 
 * 2 Bur. 1214. Sixteen years afterwards, the same illustrious Judge, in the 
 case o: Butter v. Harrison, in an unguarded moment, ventured to assert, that 
 " it is of much more consequence that mercantile questions should be fully set- 
 " tied and ascertained, than which -way the decision *'s." Cowp. 567. This last 
 opinion has been but too much followed, while the fiist seems to have been 
 almost entirely forgotten, and yet, nothing is more certain than that of all the 
 branches of jurisprudence, there it none more easily reducible to clear princi- 
 ples than mercantile law.
 
 ( IS* ) 
 
 If American jurists wish to obtain the resppct of 
 those of Great Britain, it is not by servilely echo- 
 ing tlieir decisions and opinions ; it is by shewing 
 them that the science of jurisprudence is not exclu- 
 sively theirs, by decently contradicting them when a 
 proper occasion offers, and by correcting their errors 
 when discovered, at the same time submitting to 
 their just correction of our own. 
 
 It must not be believed that the writings and opi- 
 nions of our jurists are not noticed by the men of 
 mind of our profession in that country. In the year 
 1808, the doctrine, of conclusiveness of the sentences 
 of foreign Courts of admiralty was to all appear- 
 ance finally and solemnly settled, on long and ela- 
 borate arguments, in the House of Lords, in the 
 case of Lothian v. Henderson.* About that time 
 this doctrine, fatal to our neutral interests, was 
 murh 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, notwith- 
 standing the solemn determination that 1 have 
 mentioned, we find this doctrine shaken almost to its 
 foundation by two decisions of the Court of King's 
 Bench in Pinker v. Ogle and Donaldson v. Thomp- 
 son f In one of those cases, Lord Ellenhorough 
 observed, that "it was by an overstrained comity that 
 foreign sentences had been received as evidence of 
 the facts which they averred;*' and in the other, that 
 " he should die with Lord Thurlow in the opinion 
 
 3 Bos. & Pull. 499. f l Caropb. N. P. 418. 429.
 
 ( 125 ) 
 
 that they should not have been so received." This 
 sudden change of sentiment in the English Supreme 
 Bench can only be ascribed to the effect of the 
 writings of American jurists. About the same 
 period, but before these decisions were given, Sir 
 Charles Abbott, now chief justice of that Court, 
 was writing his able treatise on the law relative to 
 merchant ships and seamen, in which this doctrine 
 of the conclusiveness of foreign sentences came in- 
 cidentally under his view. After stating, as usual, 
 that it is founded on an " established rule of the 
 law of nations," he concludes, nevertheless, with 
 saying, that the Courts of justice in his country 
 have adhered to it " with the dignity belonging to 
 regular and permanent establishments"* It is im- 
 possible not to perceive that this apology and the 
 sarcasm that accompanies it were not meant for his 
 countrymen. If the doctrine in question was found- 
 ed on an established rule of the law of nations, it 
 wanted no apology of any kind, much less was it 
 necessary to speak of the " dignity of regular and 
 permanent establishments." This was evidently 
 meant as a proud answer to the American jurists 
 who had written on this question and had demon- 
 strated the injustice which was done to neutral sub- 
 
 * " It would be unjust to charge the master or owners for some cases ol 
 omissioi", upon which ships were condemned in France during the late war. 
 although the terms of the coudemnaiion weie such as to discharge the insu- 
 rers from their rrgponsibility, according to the rule of the LAW OF JTATIOKS, 
 which holds the sentence of a foreign Court (o be conclusive of ihefact on 
 which it is founded, ami to which rule the Courts of justice in this country 
 adhered -with the dignity belonging to regular and permanent establish- 
 ments." Jlbbottw Shipping, 263. See above, p. 15.
 
 ( 1*6 ) 
 
 jects who caused their property to be insured iu 
 Great Britain. Such indirect marks of respect, 
 proceeding from such sources, however they may 
 be disguised, are truly flattering lo u in a national 
 point of view, and ought, for Home lime at least, to 
 be sufficient to satisfy our reasonable amhition, and 
 encourage us to proceed in the investigation of 
 science, by which we shall not only spread in*truc- 
 tion among ourselves, but (Inseminate light beyond 
 the bounds of our own country. 
 
 But to return to our subject 
 
 General jurisprudence is a part of the common 
 law, but its rules and principles are not exclusively 
 to be found in common law writers. That science 
 ought to be studied, particularly in this country, 
 where a light is to be held to the judiciaries of 
 twenty-four different States. Whence is this light 
 to proceed, but from the writings and discussions of 
 liberal and learned jurists ? The conflict of opi- 
 nions 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 scan- 
 ned, and its defects pointed out; the excellent prin- 
 ciples 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 jus- 
 tice, not in form merely, but iu substance is a debt 
 which is due by every government to its citizens. 
 
 Sir William Jones, in England, endeavoured to
 
 ( 127 ) 
 
 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 prepa- 
 red for his doctrines, the lights that he shed on our 
 science were too strong for the eyes of his coterapo- 
 raries ; he was sent to India in honourable exile, 
 there to waste his gigantic powers in curious, 
 indeed, but fruitless disquisitions on oriental lan- 
 guages and antiquities. Romilly did much while he 
 lived. Mackintosh is still alive for the good of 
 his country and of mankind.* 
 
 Those who wish to see uniformity of jurispru- 
 dence in this widely extended union, ought to re- 
 member that nothing is uniform but sound princi- 
 ples, and that false theories and false logic lead in- 
 evitably to contradictory decisions. In England, 
 there is in fact but one great judicature, sitting at 
 Westminster. Although divided into different tri- 
 bunals, 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 su- 
 preme judicatures, with a countless number of in- 
 ferior tribunals, dispersed over an immense extent 
 of territory. Beyond them there is no authority 
 whose decisions are binding in all cases. The Su- 
 preme Court of the United States is limited in its 
 
 * In this country we have to regret that Chancellor REST, one of the great- 
 est luminaries of our science, by the effect of n impolitic provision in the Con- 
 stitution of his own State, has been displaced from the office which he so many 
 years filled with honour, because he was sixty years old.
 
 ( 1*8 ) 
 
 jurisdiction and powers, and except iii certain mat- 
 ters of national concern, State Judges do not con- 
 ceive themselves bound to conform to their opinions. 
 In short, there is no polar star to direct our uncer- 
 tain wanderings. We must then either tacitly sub- 
 mit to receive the law from a foreign country, by 
 adopting the opinions of the English Judges, how- 
 ever they may vary from our own, or even from 
 those which they formerly entertained, .or we must 
 find some expedient to preserve our national inde- 
 pendence, and at the same time to prevent our na- 
 tional law from falling into that state of confusion 
 which will inevitably follow from the discordant 
 judgments of so many co-ordinate judicial autho- 
 rities. Already the evil is felt in a considerable 
 degree ; it will be more so in process of time, and 
 it is to be feared, that in the course of fifty years 
 the chaos will become inextricable, unless a speedy 
 remedy is applied. 
 
 The only remedy that I can think of is to en- 
 courage the study of general jurisprudence, and ot 
 the eternal and immutable principles of right and 
 wrong ; of that science by which Cicero enlight- 
 ened, not only the praetors 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 dis- 
 seminated, they will fructify, and statutes and judi- 
 cial decisions will gradually take (heir colour from 
 them System will be introduced where itis wanted. 
 Sound theories will take the place of false ones, and
 
 the rules of genuine logic will direct their applica- 
 tion to particular cases. All this will be done gra- 
 dually 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 wh ch I have mentioned are gene- 
 rally felt, and that the spirit of innovation is abroad; 
 a spirit which manifests itself by rash and undi- 
 gested experiments, and sometimes by demolish- 
 ing without re-building, so that at last we shall be 
 reduced to a state of confusion worse confounded. 
 
 It is therefore incumbent on the rising genera- 
 tion to apply themselves to the study of those ge- 
 neral principles^ which, if that spirit should conti- 
 nue to exist, will enable them at least to direct it 
 into its proper channel, and prevent the axe from 
 being applied at last to the root of the tree. 
 
 Those who may think that there is an advantage 
 in the science of the law being involved in myste- 
 ries and artificial theories, are egregiously mista- 
 ken. The science of medicine was so once, when 
 genius lashed it with the pen of Moliere. Since 
 it has abandoned its senseless nostrums and for- 
 mulas, and fixed itself firmly on the basis of fact 
 and experiment, it has considerably gained in re- 
 spect, honour, and emolument. By pursuing a 
 similar course, the legal profession will receive si- 
 milar rewards. 
 
 I do not mean to say that theory should at once 
 S
 
 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 exer- 
 cises 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 'lie decisions 
 of our tribunals. But on this occasion, 1 cannot for- 
 get that there are some of you who are destined to 
 be one day the Judges and legislators of our coun- 
 try. To those who are fired with this noble ambi- 
 tion, I have particularly addressed the preceding 
 observations, not to diminish the respect which 
 they owe to the laws by which we are governed, 
 but to shew the utility of the principles of general 
 jurisprudence, and what benefits may be derived 
 from them. 
 
 Nor must it be believed that I am a friend to 
 rash and sudden innovation ; on the contrary, I am 
 well convinced that amendments in the laws ought 
 to be gradual and almost insensible, and that the 
 delicate chisel, and not the rough axe, is the instru- 
 ment 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 Praxi- 
 teles, which have been in part mutilated or defaced 
 by the hand of time : an able sculptor, and not a 
 a stone mason, should be called upon to repair it.
 
 The true principles of jurisprudence, in order to 
 fructify, ought first to take root in the minds of the 
 members of the legal profession. Then, and not 
 till then, will false principles gradually give way, 
 as the ripe fruit falls from the tree. But in order 
 to produce that effect, we ought to invite each 
 other to reflection on these important subjects by 
 learned treatises and free discussions, and the la- 
 bours of the jurist ought not to be confined to mere 
 compilations. In short, jurisprudence ought to be 
 treated as a philosophical science. If Montes- 
 quieu 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 Eu- 
 rope, and sanguinary codes would not almost 
 every where have given way to mild punishments. 
 All the amendments which Blackstone in his Com- 
 mentaries suggested to be made in the common law, 
 have been adopted, and some of them improved 
 upon in this country, and it is only to be regretted 
 that he did not suggest more. 
 
 But as I have observed, these suggestions ought 
 to come from those who have made legislation their 
 peculiar study, and ought to be made in the grave 
 and solemn manner which the subject requires. 
 They ought to be addressed to the understanding 
 of those who are best able to judge of them. 
 
 Therefore, I address myself exclusively to the 
 profession; by whom I expect to be understood
 
 and appreciated. To their tribunal I submit the 
 obs. rvations I have ventured to make, soliciting 
 only brotherly indulgence. 
 
 The common law is destined to acquire in this 
 country the highest degree of perfection of which 
 it is susceptible, and which will raise it in all re- 
 spects above every other system of laws, ancient 
 or modern. But it will not have fully reached that 
 towering height, until the maxim shall be com- 
 pletely established in practice as well as in theory, 
 
 THAT PURE ETHICS AND SOUND LOGIC ARE ALSO 
 PARTS OF THE COMMON LAW.
 
 ADDENDA. 
 
 CONTAINING, 
 
 I. A BRIEF SKETCH OF THE NATIONAL JUDICIARY POW- 
 ERS EXERCISED IN THE UNITED S TATES, FUOM THE 
 FIRST SETTLEMENT OF THE COLONIES TO THE TIME 
 OF THE ADOPTION OF THE PRESENT FEDERAL CON- 
 STITUTION BY THOMAS SERGEANT, Esq. 
 
 II. AN ADDRESS DELIVERED AT THE OPENING OF THE 
 LAW ACADEMY OF PHILADELPHIA, BEFORE THE 
 TRUSTEES AND MEMBERS OF THE SOCIETY FOR THE 
 PROMOTION OF LEGAL KNOWLEDGE, IN THE HALL OF 
 THE SUPREME COURT, ON WEDNESDAY, THE SISTOF 
 FEBRUARY, 1821. BY PETER S. DUPONCEAU, LJL.D.
 
 ADDENDA. 
 I. 
 
 A BHIEF SKETCH OF THE NATIONAL JUDICIARY POWERS EXER- 
 CISED IN THE UNITED STATES, FROM THE FIRST SETTLE- 
 MENT OK THE COLONIES TO THE TIME OF THE ADOPTION 
 
 OF THE PRESENT FEDERAL CONSTITUTION. BY THOMAS 
 
 SERGEANT, Esq. VICE PROVOST OF THE LAW ACADEMY OF 
 PHILADELPHIA. 
 
 THE States of which our Union was at first com- 
 posed, during the period antecedent to the adoption 
 of the Constitution, while they were colonies of the 
 British empire, and while they were connected to- 
 gether at first hy 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 tri- 
 bunals constituted by themselves, and governed by 
 the common law, the principles of equity, their own 
 acts of Assembly and usages, and such British sta- 
 tutes as had been extended to or adopted by them, 
 But, during this period, there were judicial con- 
 troversies 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 pos- 
 sessing a general jurisdiction.
 
 ( 136 ) 
 
 This period may he divided into three partg 
 
 1. The government and jurisdiction of (In* crown 
 of England began with the ettlement of the colo- 
 nie, and continued until the 5th September, 1771. 
 when a Congrews firm me I to < onsider of the pub- 
 lic grievances, and gradually prepared for and 
 repelled hostilities. At thin era the revolution 
 commenced. 
 
 2. The government by a Congress continued till 
 the 1st March, 1781, when ihe articles of Confede- 
 ration were finally ratified. 
 
 3. On the 4th March, 1789, the articles of Con- 
 federation were superseded by the adoption of the 
 present Constitution. 
 
 It is proposed to consider the subject under these 
 three divisions. 
 
 I. Of the period that elapsed while the colonies 
 were dependent upon the crown of England. 
 
 During the period antec.rdent to the revolution, 
 Courts of vice-admiralty Here established in some, 
 and probably in all of the Slate-, by the crown of 
 Great Britain; in some instances, by a right reserv- 
 ed in their charters, and in others without. The 
 nature and extent of their jurisdictions depended on 
 the commissions of the crown, and acts of parlia- 
 ment conferring additional authorities. The com- 
 missions of the crown gave the Courts which were 
 established a most ample jurisdiction o\er all mari- 
 time, contracts, and over torts and injuries a* well 
 in ports as upon the high seas : and acts of parlia- 
 ment enlarged, or rather recognised this jurisdic-
 
 ( 437 ) 
 
 lion, by giving or confirming cognisance of all sei- 
 zures for contraventions of the revenue laws.* 
 
 * De IMVIO v. Soil, 2 Gall. 470. In the charter of Massachusetts, in 1692, 
 there is an express reservation of the exclusive right in the crown lo establish 
 Admiralty Courts by virtue of commissions issued tor this purpose, ib. No 
 such reservation, however, is contained in the charter of William Penn, grant- 
 ed the 4th March, 1680. On the contrary, it gives to William Penn and his 
 heirs, their deputies and lieutenants, power to appoint and establish any Judges 
 and justices, magistrates and other officers whatsoever, for what causes soever, 
 (for the probates of wills and for the granting of administrations,) with what 
 power soever, and in such forms as to them should seem most convenient : and 
 by judges by them delegated to award process, hold pleas, and determine all 
 actions, suits, and causes whatsoever, as well criminal as civil, real, personal, 
 and mixed. Sec. 5. By a 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 for not paying the damages awarded by 
 the Courts of Westminster. Sec. 14. A Court of vice-admiralty was, notwith- 
 standing, 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 fraud's Hist. Penn. 486, and continued till the revolution. 
 1 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 oc- 
 casionally occurred, the proceedings were carried on in the name of the Lords 
 Commissioners for executing the office of Lord High Admiral of Great Britain. 
 .Brown, in his Civil and Admiralty Law, says, that all the powers of vice-ad- 
 miralty 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 Ad- 
 miralty are authorised to erect Courts of vice-admiralty in North America, the 
 West Indies, and the settlements of the East India Company. 2 JBro. Civ. 
 and Jldm. Law. 
 
 It is presumed, says Judge STORT, in the note to his learned opinion in De 
 Lorio v. Jioit, 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 offen- 
 ces, 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 be- 
 tween merchants, or between owners and proprietors of ships and other ves- 
 
 T
 
 In England (he Court of Admiralty m-vn- pos- 
 sessed any jurisdiction in revenue causes; that was 
 
 els, and merchant*, or others whomsoever, with lueh own*r and proprietors 
 of hips iiml all other vessels whMisocv-r, employed or used within the mari- 
 time juridiction of our vice-adm.raltv of our mill province, 8cc. or bet ween any 
 othi-r persons, hoi s"rver had, made, begun, or contract* d, for any matter, 
 thing, cause, or biiMn< s* whatsoever done or to be done within our maritime 
 jurisdiction aforesaid, he. &cc. and moreover in ll and singular complaints, 
 contracts, agreements, cnusrs, and Imsinesses, civil :ui<l rrnniiinr, lobe per- 
 formed hej on A the sen or contracted there, however arising or happening," 
 with many other general power*. And it declares the jurisdiction to extend 
 " throughout all and every the sea shores, public streams, ports, fresh water*, 
 rivers, crv< ks and arms as w< II of the sea :ts of the rivers and coasts whatsoever 
 of our said province," Stc In point of fact, the Vice-admiralty Coiirt of Mas- 
 sachusetts, before the revolution, exercised a jurisdiction far more extensive 
 than that of the Admiialty in England. De l^mio v. Boil, '2 Gall. 470, 471, 
 note. See also the JJttte Jof, Stewart's .Id. Rep. 394. 
 
 The commission to (he Governor of N>-w 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 
 repeated occasions, complaining of these extensions by the crown, in order to 
 enforce the obnoxious statutes passed to impose duties for the purpose of rais- 
 ing a revenue in America. The declaration and resolves of Congress of -the 
 14th October, 1774, mention, among other grievances, that the British Parlia- 
 ment had extended the jurisdiction of the Courts of Admiralty, not only for 
 collecting the said duties, but for the trial of causes merely arising within the 
 body of H county, 1 Ji>urn. Cong. '27., and that the acts of 4 Geo. 3. c. 15, and 
 c. 34, 5 Geo. 3. c 25, fi Geo. 3. c. 52, 7 Gfo. 3. c. 41, and c 46, & 8 Geo. 3, 
 extended the power ol the Admiralty Courts beyond their ancient limits. 
 ib. 50 Set- also id. 41 . 47. In th< address to the inhabitants of the colonies, of 
 Outob' r 21st, 1774, it is stated, that in the >ear 1768 a statute was made to es- 
 tablish Courts ot Ad'niralty and vice-admiralty on a new model, expressly tor 
 the. end of more effectual :y recovering the penalties and forfeitures inflicted 
 by nets ol Parliament formed for the purpose of raising a revenue in America. 
 ib. 48. See also ib. 51 190. 
 
 B* ih>- records ot ih- Vice-admiralty Court of Pennsylvania, &c. from 1735 
 to 1746, before referred to, it appears, lhat the business was inconsiderable It 
 consisted of proceedings by the Collector by information against Vessels and 
 goods for breaches of the ads of Parliament relating to the revenue : libels for 
 se:.m.i.'s wages; orders for surreys of damaged vessels anil goods, and of 
 wrecks, and appraisement thereof, with power to the commissioners appointed, 
 to adjust the salvage in the cas. s of wrecks; records of protests ; and, towards 
 the end of the lime, registers of letters of maique granted by the Gov. rnor, 
 and prize proceedings, against ressels captured from the French and Spaniard?.
 
 ( 1*9 ) 
 
 x 
 
 appropriated by the common law to the Court of 
 Exchequer. Uut the vice admiralty Courts iu this 
 country when colonies, and in the West Indies, ob- 
 tained, by the provisions of the statute of 13 Car 2, 
 commonly called the navigation act, and 7 and 8 
 Will. 3. c. 22, a jurisdiction in revenue causes to- 
 tally foreign lo the original jurisdiction of the ad- 
 miralty, and unknown to it; though it was held 
 that appeal* lay from them in such causes to the 
 admiralty in England.* 
 
 There is one proceeding to authorise persons lo take an inventory of the effects 
 in a vessel, the master of which WHS drowned in the Delaware alter arrival, 
 and one other on a bottomry. It may be remarked, that although the proceed- 
 ings are very formal, no instance appears of an answer or claim by a defendant 
 or claimant on oath or affirmation. 
 
 " 2 Bro. Civ. anil Mm. IMV>, 491. Yet the extent of the jurisdiction of the 
 Admirall) Courts in the colonies s ems lo have been, for some time, a subject 
 of considerable discussion and difference of opinion in England. In Chalmers's 
 collt ction ot the opinions of eminent lawyers on various points of jurisprudence, 
 chi< fly concerning the colonies, fisheries, and commerce of Greal Britain, pub- 
 lished at London in 1814, there are several opinions to be found on this subject. 
 In July, 1702, Sir John Cooke, advocate -general, gave an opinion, that penal- 
 ties and forfeitures under the act of navigation, 12 Cur. 2, c. 18, the act for the 
 encouiagement of trade, 15 Car. 2. c. 7, ihe act for preventing planting tobac- 
 co in England, and for regulating the plantation tradr, 22 and 23 Cur. '2. c. 26, 
 might be prosecuted in the Admiralty Courts of the plantations, as well as pe- 
 nalties and forfeitures under the act relating to the plantation trade, 7 and 8 
 Will. 3. 2 Chalm Opinions, 193. 
 
 In August ot the same year, the Attorney general, JVortfiey, gave it as his 
 opinion to the board of trade, that the jurisdiction of ihe Admiralty Courts of 
 the colonies extended only to prosecutions under the 7th and 8lh Witt. 3. 
 and did not embrace cases arising under the statutes of Car. 2. above men- 
 tioned, ib 187. ' 
 
 In 1720, however, Mr. Went, who was assigned as counsel to the Commis- 
 sioners of trade and plantations, was of opinion, that the statutes 13 Rich. 2. 
 c. 5., 15 Rich. 2. c. 3 , 2 Hen. 4. c. 11. and 27 /tz. c. 11, by which the ad- 
 miralty jurisdiction in England was limited and confined, were not introductive 
 .of new laws, but only declaratory of the common law, and were, therefore, ot" 
 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
 
 In questions of prize in the vice admiralty Courts 
 an appeal lay to the commissioners of appeals con- 
 sisting chiefly of the privy council. In instance 
 and revenue causes, it lay to the High Court of Ad- 
 miralty in England, and thence to the delegates.* 
 The power of the High Court of Admiralty to re- 
 ceive appeals from the vice admiralty Courts in 
 revenue causes had been disputed, on the ground 
 that they were not in their nature causes civil or 
 maritime, but that it was a jurisdiction specially 
 given to the vice admiralty Courts by the statute 
 of 7 and 8 Will. 3. c. 22, 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 
 
 Controversies between two of the provinces con- 
 cerning the extent of their charter boundaries or 
 the like, came before the King in his privy council, 
 who exercised original jurisdiction therein, upon 
 the principles of feodal sovereignty.^ Thus in July 
 
 that exercised by the High Court of Admiralty at home. He was also of opi- 
 nion, that the superior Courts of common law in New England had a power to 
 grant prohibitions to the admiralty Courts, and states tLat prohibitions were the 
 remedy constantly applied there to prevent their encroachment, ib. 200. 
 
 It is stated b) the Attorney general Northey, in the above mentioned opinion , 
 that an action of trover had been brought and was then depending in the 
 Queen's Bench, against Col Quarry, the Judge of the Admiralty in Pennsyl- 
 vania, for condemning in his Court an unregistrrcd vessel for trading there. 
 
 1 Wheat. 19. 2 Bro. Civ. andAdm. Lam. 493. Blackstone, (3 Com. 70,) 
 says, an appeal also lay to the King in council. But this opinion of his seems 
 to be relinquished. 2 Bro. Civ. and Mm. law, 493. 
 
 I 2 Bro. Civ and Mm. Lav, Wo, note. tRob. 248. Seethe note of Mr. 
 Wheaton to the case of the Sarah, 8 Wheat. 396. 
 
 *1BI. Com. 331. IVez. 444.
 
 -j the King in privy council approved the re- 
 port 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 be- 
 tween those provinces, and ordered and declared? 
 the western banks of the river Connecticut to be 
 the boundary line.* 
 
 A general superintending power by way of ap- 
 peal 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 pro- 
 vince, 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 ac- 
 cordingly by the King in council. f And such ap- 
 peals from the highest Court in Pennsylvania, and 
 in the other colonies to the King in council were 
 common before the revolution. J 
 
 * 3 Belknap's Hist. N. Hampshire, 296. Appendix, No. XI. 
 
 f Ibid. 345. Appendix, XLI. 
 
 r It would seem, however, that in some instances the appeal was first to the 
 Governor and council, and from thence to the King in council. See the case 
 of Gordon v. Lowther, 2Ld. Ray. 1447, a case of thai 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 dismiss, d under this rule. In Pennsylvania, (which was a pro- 
 prietary government) no such appellate jurisdiction was entertained by the 
 Governor and council before the revolution.
 
 II Of the period during which the national au- 
 thority tras exercitted by Congress. 
 
 As a necessary consequence of the revolution, 
 the judicial power of the crown in the then colonies, 
 as well as all its other authority, ceased; and from 
 the commencement of the war in April 1775, Con- 
 gross with the approbation of the colonies ami peo- 
 ple, 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 dis- 
 tribution 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 es- 
 sential to the sovereign power, which might be im- 
 plicated 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 No- 
 vember 1775, first authorised the capture of Kng- 
 lish vessels of war, and of other vessels employed 
 in the service and supply of the English armies, by 
 vessels to he commissioned by Congress or their 
 authority, they recommended to the several Legis- 
 latures of the united colonies, as soon as possible 
 to erect Courts of justice, or give jurisdiction to 
 
 . Doane'$ adnis. 3 Dull. 80.
 
 ( 1*3 ) 
 
 those in being, to determine concerning sneh cap- 
 tures ; 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 ap- 
 peals, under certain provisos as to the time of de- 
 manding, and lodging the appeal, and giving se- 
 curity.* 
 
 The application to Congress on appeal was by 
 petition, which, at first, was usually referred to a 
 special committee appointed in each case, consist- 
 ing of five members. But on the 30th January 
 1777> Congress resolved to appoint a standing com- 
 mittee to consist of five members, to hear and de- 
 termine these appeals, and to them the petitions 
 were referred when presented f Three members 
 were added in May, but in October following the 
 number was restored to fijfe ; they, or any three, to 
 hear and determine. 
 
 The resolution of Congress of November 177#> 
 above mentioned, was complied with by several 
 States; some allowing appeals to Congress on a 
 larger, some on a more contracted scale. Jn some 
 instances the acts passed by the States on the sub- 
 ject gave rise to questions concerning; the respective 
 authority of Congress, and of the States, which oc- 
 
 * 1 Journ. Congress, 259, 260. The Si ate Courts of Admiralty also exer- 
 cised jurisdiction in instance onuses. See H'tfikinson's n-ports. 
 
 f Journ Congress. The first standing c'>mmit'ee of appeals, which was ap. 
 pointed on the SOth January. 1777, consisted of Mr. Wilson, Mr. Sergeant, 
 Mr. Ellery, Mr. Chase, aud Mr. Sherman.
 
 ( 444 ) 
 
 casioned much debate and difference nf opinion in 
 Congress, and elsewhere ; and Home of thee ques- 
 tions were not finally determined till after the adop- 
 tion of the present Constitution. In July 1776, 
 the Legislature of the State of New Hampshire 
 passed an act which allowed an appeal to Congress, 
 or persons appointed by them, only when the ves- 
 sel 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 citi- 
 zens of New Hampshire, in October 1777 > cap- 
 tured 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 mari- 
 time, 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 verdi<-t 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 
 
 In November, 1779, the Legislature of New Hampshire extended the li- 
 cense of appeal to Congress to every cas? wherein the subject of any foreign 
 nation in amity with the United States should be interested in the dispute, and 
 allowed it no further.
 
 of New Hampshire, and in the year 1795? the Su- 
 preme Court of the United States, on appeal from 
 the Circuit Court of New Hampshire, carried into 
 effect the decree of the Court of appeals.* 
 
 In 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 Con- 
 gress, and the committee of appeals, in March, 
 1779, reversed the decree, and ordered process to 
 issue out of the Court of Admiralty of Pennsylva- 
 nia, to carry the decree of reversal into effect. The 
 Judge of the Court of Admiralty refused to con- 
 form 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-exam- 
 ination or appeal ; and that an appeal was permit- 
 ted only from the decree of a Judge. Congress, 
 however, resolved, in March, 1779, that their com- 
 mittee 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 commit- 
 tee of appeals was enforced in the Courts of the 
 United States.f 
 
 * Penhattoio v. Doane^s adms. S Dall. 80. 
 
 j- See United States v. Peters, 5 Crunch. 115. Ress v. Itittenhouse, 2 Dall. 
 I CO, United States v. Bright and others, 3 Hull's Law Journ. 225. 
 
 u
 
 fn January, 17^0, Congress resolved to estab- 
 lish a Court for (he (rial of all appeals from the 
 Court* of Admiralty of (he States in ca*es of cap- 
 ture, to conMitit of three Judges with salaries, ap- 
 pointed and commissioned hy Congress, two of 
 whom should constitute a quorum The Court was 
 empowered to appoint a register. The trials (here- 
 in were to he according to the usages of nations, 
 and not hy jury : and they fixed the place of their 
 firt session at Philadelphia, and afterwards at 
 such times and places a 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 Williamsburg, 
 in Virginia. On the 2Sd January, they elected the 
 Judges hy ballot.* The style of th' Court it was 
 subsequently resolved, should be the Court of Ap- 
 peals in cases of capture ; and regulations were 
 made as to the oaths of the Judges and Register, 
 the time of entering and lodging appeals, and giv- 
 ing security ; and the causes depending, and the 
 papers, were ordered to be transferred to this 
 Court.f 
 
 Applications were sometimes made to Congress 
 to order this Court to receive appeals. In Sep- 
 tember, 17^1, we find an application to Congress, 
 and instructions by them to the Court, to receive 
 an appeal, where, by the indisposition and death 
 
 Mr Wythe. Mr. Pacu, and Mr. Jhsmer, wrr elected. Mr. JFytfo af- 
 terwards dcclini <t, and Mr. Cyrui Griffin was elected in his place, 
 t 6 Journ. Cong. 156.
 
 ( 147 ) 
 
 of the Register of the Court of Admiralty of Penn- 
 sylvania, the stipulations were not executed in due 
 form, and in due time.* In February, 1785. a reso- 
 lution was adopted in another case, authorising the 
 appeal. f On the other hand, they refused to in- 
 terfere after the decision of the Court, J or in favour 
 of a suitor in the Court of appeals v\ hen a loss \vas 
 occasioned hy such suitor or his friend. 
 
 In February l?8b', 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 per diem allowance was ordered during the 
 sitting of the Court and the time employed in tra- 
 velling to and from the same ^J 
 
 In several instances applications were made to 
 Congress, in relation to controversies between Slates 
 concerning the rights of soil and jurisdiction. In 
 December 1779* 'hey resolv< d, 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 
 
 7 Joitrn. Cong. 1 80. f & 27r - * Ib - 25 lh - 271 
 
 || 11 Jonrn. Cong. 35. 
 
 1 Ib. 123. By the act of Congress of the 8th May, 1792, sec.12, the records 
 anil proceedings of this Court are oi-dered to be deposited in tht- office of the 
 Clerk of the Supreme Court of the United States, who is authorised to give 
 copies ; and sucli copies are to have like faith and credit as all other proceed- 
 ings of said Court.
 
 recommended to the contending parties, 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 be atmcubly settled by both States, or brought 
 to a just <!eci-ion by the intervention of Congress ; 
 that possessions forcibly taken be restored to the 
 original possessors, and things placed in the situa- 
 tions in which they were at the commencement of 
 the war. without prejudice to the claims of either 
 party.* 
 
 So, the disputes existing between the States of 
 New York, New Hampshire, and Massachusetts, 
 and the people inhabiting the present State of Ver- 
 mont, then styled the New Hampshire grants, were 
 brought before Congress by their applications, and 
 Congress reromtiietided laws to be passed by the 
 respective States, expres^y authorising Congress 
 to hear and deteroiine 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. 
 
 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 
 
 5 Jo'im. Cong. 456.
 
 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 
 bonafide, &c.* 
 
 During this period there existed nothing resem- 
 bling the appellate authority from the tribunals of 
 the respective colonies, previously exercised by the 
 King in council. 
 
 III. Of the government of the Union under the 
 articles of confederation. 
 
 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 fol- 
 lowed by the establishment of a regular govern- 
 ment, amongst whose different departments these 
 powers might be distributed. Accordingly, the 
 day after that on which the declaration of indepen- 
 dence was resolved upon by Congress in a com- 
 mittee of the whole, (June llth 17?6) a proposi- 
 tion was made, and a committee appointed, to pre- 
 pare and digest the form of a confederation, to be 
 entered into between- the colonies. | The articles 
 of confederation were agreed to in Congress on the 
 15th November 17774 ou ^ were not to be conclu- 
 sive until they were approved by the Legislatures 
 of all the States. , 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 Con- 
 
 7 Jonrn. Cong: 364. 9 Journ. Cong. 64. f 2 Journ. Cong. 207. 
 
 4 3 Jonrn. Cong. 50-2. Article 13.
 
 ( 150 ) 
 
 on the 23d Murrh, and the government com- 
 menced t operations 
 
 By the article of confederation, the judicial 
 power of tlie United States was defined and some- 
 what extended, though it wan still restricted to 
 very narrou limits. The ninth article provided, 
 that the United States in Congress a-*,. milled, 
 should have the *ole and exclusive right and 
 power, 1st. Of appointing Courts for the trial of 
 piracies and felonies committed on the high Hens. 
 8d. Of establishing Courts for receiving and deter- 
 mining appeals in all cases of captures: provided, 
 that no memherof Cbngress 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 exer- 
 cised 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 ori- 
 ginated antecedent to such settlement of jurisdic- 
 tion, were, on the petition of either party to Con-
 
 ( 151 ) 
 
 gress, to be finally determined, as near as might he, 
 in the same manner as the foregoing. Thus limit- 
 ed was the judicial power under the confederation. 
 
 i. An ordinance was very soon passed* for es- 
 tablishing Courts for the trial of piracies and felo- 
 nies committed on the high seas, hy 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 judica- 
 ture, and Jndgp of the Court of Admiralty of the- 
 several and respective States, or any two or more of 
 them, were thereby appointed Judges.-]- The pun- 
 ishment 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 su- 
 preme executive power of the State was to com- 
 missionate one (of them,) exclusively, to join in 
 performing the duties required by the ordinance. 
 All forfeitures were to go to the State, when con- 
 viction took place. 
 
 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 exe- 
 cuted, on conviction, by the order of the Sheriff.$ 
 
 * JlprilSth, 1781. 7 Journ. Cong. 65. 
 
 j- Bj an ordinance passed in March, 1783, a Judge of the Admiralty was 
 alwajs to form one of th> Court. 8 Journ. Cong 146. 
 
 \ 2 vol. Debates of Cangrets, in 1789, page 286, speech of Mr. Smith of 
 South Carolina.
 
 %. 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 cap- 
 ture, seems, however, to have been narrowed consi- 
 derably by the construction given to the articles of 
 confederation in the State Courts. Thus in Penn- 
 sylvania, by an act of the Legislature passed prior 
 to the complete ratification of the articles of confe- 
 deration, a Court of appeals was constituted " for 
 reviewing, re-consideririg, and correcting the defini- 
 tive sentences and decrees of the Court of Admi 
 ralty of that State, other than in cases of capture 
 upon the water in time of war from the enemies of 
 the United States. 7 ' 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 cap 
 turt>d as prize, in which the State Court of Admi- 
 ralty 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 establish- 
 ing of Courts for receiving and determining finally 
 appeals in all cases of capture, meant captures as 
 prize, when such prize was brought infra prcesidia 
 of the United States, and, as the prize in this case 
 was not brought infra prcpsidia of the United 
 States, but was afterwards re-captured by the Bri-
 
 ( 153 ) 
 
 tish, that Court had no jurisdiction. 3d. 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 de- 
 fect of justice.* 
 
 3. A Court consisting of five commissioners, or- 
 ganised under the articles of confederation, sat at 
 Trenton, in November and December, 1782, to de- 
 cide the controversy which had long subsisted be- 
 tween 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 unani- 
 mously, that the State of Connecticut had no right 
 to the lands in controversy, and that the jurisdic- 
 tion and pre-emption of all the territory lying within 
 the charter boundary of Pennsylvania claimed by 
 Connecticut, of right belonged to the State of Penn- 
 sylvania, f 
 
 Proceedings also took place in the year 1786 
 and 1787? for constituting Courts to determine con- 
 troversies respecting territory, between the State of 
 Massachusetts and New York, and also between, 
 the States of South Carolina and Georgia : but 
 they were never completed, as these States amica- 
 bly adjusted the disputes. 
 
 Talbot v. Commanders, &c. of three brigs. 1 Datt. 95. 
 f 8 Journ. Cong. 83. The Court consisted of William Whipple, Welcome 
 Arnold, Wm. C. Houston, Cyrus Griffin, and David Brearly, Esqrs. 
 M2 Journ. 
 
 X
 
 An well before as after the articles of confedera- 
 tion, Congress, by the exercise of an appellate ju- 
 rittdiction 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 go- 
 vernments. 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 mat- 
 ters and things in certain publications and transac- 
 tions, 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 Le- 
 gislatures of the States to pass laws punishing in- 
 fractions of the laws of nations, committed by vio- 
 lating safe conducts or passports granted by Con- 
 gress ; by acts of hostility against persons in amity 
 with the United States : by infractions of the im- 
 munities of ambassadors : by infractions of treaties 
 or conventions : and to erect a tribunal, or to vest 
 one already existing with power, to decide on of- 
 fences against the law of nations, and to authorise 
 suits for damages by the party injured, and for 
 compensation to the United States for damage sus- 
 tained by them, from an injury done to a foreign 
 power by a citizen. f 
 
 In the case of De Longchamps, who was convict 
 
 5 Journ. Cnng. 367. In the cane of Cornelius Sweers in the year 1778, 
 reported 1 Dull. 41, Congress employed counsel to prosecute in the State 
 Court. 4 Journ. Cong. 494. See also 5 Journ. Cong. 883, in the year 1779. 
 
 | 7 Journ. Cong. 234.
 
 ( 155 ) 
 
 ed and sentenced in the Court of Oyer and Termi- 
 ner of Pennsylvania in the year 17&4 1 ? for commit- 
 ting 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 muni- 
 cipal law of Pennsylvania, and it seems enforced 
 it.* No act appears to have been passed in this 
 State in pursuance of the recommendation of Con- 
 gress. After the arrest of De Longchamps the su- 
 preme executive council of Pennsylvania gave in- 
 formation of it in a letter to Congress, and requested 
 their advice, f and the committee of States approv- 
 ed thereof. :f 
 
 On the S'tth 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, giv- 
 ing to him or them aid or comfort ; and recom- 
 mended it to the Legislatures of the colonies, to 
 pass laws for punishing persons proveably attaint- 
 ed of open deed by people of their condition. We 
 find several instances of persons convicted in Penn- 
 sylvania in the year 177$, under the laws of that 
 State, for treasons committed in that Staie. 
 
 * Respublica v. De Longchamps, 1 Dall 111. 
 
 t 9 Journ. Cong. 277. t 9 Jtntrn. Com. of States, 6, 
 
 Seel Dall. 35. 39.
 
 In the ordinance passed in October, 1782, for 
 regulating the post offices of the United States, 
 (the power to establish and regulate post offices 
 throughout the United States being vested in Con- 
 gress 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 oflence was committed. But, generally speak- 
 ing, they had no power to exact obedience or punish 
 disobedience either by pecuniary mulcts or other- 
 wise, 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 1733, calling on the Legislatures of the 
 States to pass laws, to empower commissioners ap- 
 pointed by Congress to settle the accounts of the 
 military department, to call for witnesses and ex- 
 amine them on oath or affirmation, touching the ac- 
 counts.* It was even necessary to pass a resolu- 
 tion to request them to enact laws, to enable the 
 United States to recover from individuals debts 
 due, and effects belonging to the United States. f 
 And in July, 1784, we find the committee of States, 
 (who sat during the recess of Congress,) complain- 
 ing, that none of the State Legislatures had made 
 the provision requested agreeably to their recom- 
 
 4 Journ. Cong. 83, in 1778. 5 Journ. Cong. 296, in 1779. 7 Journ. Cong. 
 '298, in 1782. 
 t 7 Jovrn. Cong. 298.
 
 ( 157 ) 
 
 incndation, 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 earnestly 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 sus- 
 tain.* 
 
 Hence it appears, that all cases of national or 
 local import were decided by the State jurisdic- 
 tions 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.f 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.! 
 
 Under the confederation, no tribunal was vested 
 with the appellate authority which before the re- 
 
 * 9 Journ. Cong. Com. of States, 29. 
 f Nathans v. Commonwealth of Virginia. 1 Dall. 77. 
 % See causes ot this description reported 1 Dull, 62, 197. In Pennsylvania 
 they were tried by jury.
 
 ( 153 ) 
 
 volution was exercised by the King in council from 
 the decisions of the Courts of the respective colo- 
 nies.* 
 
 The only judicial power analogous to this i, tin- appellate jurisdiction vett- 
 ed in the Supreme Court of the UniU-d Snu-s, under ihr present Conuiiution, 
 from the highest State Courts, in ca*ea arising under the Constitution, laws, or 
 treaties. 
 
 Since the chief part of the above was printed, I 
 have met with the form of a commission of Vice Ad- 
 miral from the crown to a Governor, which corres- 
 ponds with that mentioned by Judge STOKY in his 
 note to J)e Lovio v. Boit. 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 Ame- 
 rica," published at London in 1783, by Anthony 
 Stokes, 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 inter- 
 
 esting. 
 
 COMMISSION OF VICE-ADMIRAL. 
 
 George the Third, fyc. Greeting : 
 
 WE confiding very much in your fidelity, care, and cir- 
 cumspection 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 De- 
 puty in the office of Vice Admiralty in our province of F - 
 aforesaid, and the territories depending thereon in America,
 
 ( 159 J 
 
 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 , and the territories depending thereon, 
 
 and maritime paris of the same and adjoining to them what- 
 soever, according to the ordinances and statutes of our High 
 Court of Admiralty in England. 
 
 And we do hereby remit and grant unto you the aforesaid 
 A. B. our power and authority in and throughout our province 
 
 of F 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 whatso- 
 ever of our said province of F , and the territories de- 
 pending 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, ac- 
 counts, charter-parties, agreements, suits, trespasses, inju- 
 ries, extortions, and demands, and business civil and mari- 
 time 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 jurisdic- 
 tion of our Vice Admiralty of our said province of F , 
 
 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, depen- 
 dencies, annexed or connexed causes whatsoever or how- 
 soever, and such causes, complaints, contracts, and other the
 
 premises above said, or any of them, which mav happen to 
 arise, be contracted, had or done, to hear and determine ac- 
 cording to the rights, statutes, laws, ordinances, and customs 
 anciently observed. 
 
 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 , and the territories 
 
 depending thereon, and maritime parts thereof, and to the 
 same adjoining whatsoever; and generally, in all and sin- 
 gular all other causes, suits, crimes, offences, excesses, inju- 
 ries, complaints, misdemeanors, or suspected misdemeanors, 
 trespasses, regrating, forestalling, and maritime businesses 
 whatsoever, throughout the places aforesaid, within the ma- 
 ritime jurisdiction of our Vice Admiralty of our province of 
 
 F aforesaid, and the territories depending thereon by 
 
 sea or water, on the banks or shores of the same howsoever 
 done, committed, perpetrated, or happening. 
 
 And also to inquire by the oaths of honest and lawful men 
 
 of our said province of F , and the territories depending 
 
 thereon, and maritime parts of the same and adjoining to 
 them whatsoever, dwelling both within liberties and franchi- 
 ses and without, as well of all and singular such matters and 
 things, which of right, and by the statutes, laws, ordinances, 
 ami the customs anciently observed were wont and ought to 
 be inquired after, as of wreck of the sea, and of all and sin- 
 gular the goods and chattels of whatsoever traitors, pirates, 
 manslayers, and telons howsoever offending within the mari- 
 time jurisdiction of our Vice Admiralty of our province of 
 F aforementioned, and the territories depending there- 
 on, and of the goods, chattels, and debts of all and singular 
 their maintainers, accessaries, councillors, abettors, or as- 
 sistants whomsoever.
 
 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 mari- 
 time jurisdiction, wheresoever any such goods, debts, and 
 chattels, or any part thereof, by sea, water, or land in our 
 
 said province of F , and the territories depending 
 
 thereon, and maritime parts of the same and thereto adjacent 
 whatsoever, as well within liberties and franchises as with- 
 out, have been or shall be found forfeited, or to be forfeited, 
 or in being;. 
 
 And moreover, as well of the goods, debts, and chattels, 
 of whatsoever other traitors, felons, and manslayers where- 
 soever offending, and of the goods, debts, and chattels of 
 their maintainers, accessaries, counsellors, abettors, or assist- 
 ants, as of the goods debts, or chattels of all fugitives, per- 
 sons convicted, attainted, condemned, outlawed, or howso- 
 ever put or to be put in exigent for treason, felony, man- 
 slaughter, or murder, or any other offence or crime whatso- 
 ever ; and also concerning goods waived, flotson, jetsonj 
 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 whereso- 
 ever 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. 
 
 And also concerning anchorage, lastage, and ballast of 
 ships, and of fishes royal, namely sturgeons, whales, porpoi-
 
 , dolphins, kiggs, and grain pusses, and generally ef 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 as. 
 
 And to ask, require, levy, take, collect, receive, and ob- 
 tain 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 for- 
 feited 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 , and the territo- 
 ries 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 what- 
 soever, and forfeitures of all manner of recognisances, before 
 you or your Lieutenant, Deputy or Deputies in our said 
 
 province of F , and the territories depending thereon, 
 
 and maritime parts of the same and thereto adjacent whatso- 
 ever, 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. 
 
 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
 
 ( 163 ) 
 
 said Court, all ships, persons, things, goods, wares and mer- 
 chandises, 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 , 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 agree- 
 ments, causes, or debts, howsoever contracted or arising, so 
 that the goods or persons may be found within our jurisdic- 
 tion aforesaid. 
 
 And to hear, examine, discuss, and finally determine the 
 same, with their emergencies, dependencies, incidents, an- 
 nexed and connexed causes and businesses whatsoever ; to- 
 gether with all other causes, civil and maritime, and com- 
 plaints, contracts, and all and every the respective premises 
 whatsoever above expressed, according to the laws and cus- 
 toms aforesaid, and by all other lawful ways, means, and 
 methods, according to the best of your skill and knowledge. 
 
 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 afore- 
 said. 
 
 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. 
 
 And to fine, correct, punish, chastise, reform, and to im- 
 prison, and cause and command to be imprisoned in any 
 gaols, being within our province of F 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 contuma- 
 cious absenters, masters of ships, mariners, rowers, fisher- 
 men, shipwrights, and other workmen and artificers whatso- 
 ever exercising any kind of maritime affairs, according to the 
 rights, statutes, laws, and ordinances, and customs aaciently
 
 observed ; and to deliver and absolutely discharge, and 
 cause and command to be discharged, whatsoever persons 
 imprisoned in such cases, who are to be delivered. 
 
 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 so- 
 ever they be in our province of F aforesaid, and the ter- 
 ritories 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 king- 
 dom and dominions aforesaid, as of whatsoever fishes in- 
 creasing in the rivers and places aforesaid. 
 
 And also to keep, and cause to be executed and kept, in 
 our said province of K , and the territories depending 
 thereon, and maritime parts thereof and thereto adjacent 
 whatsoever, the rights, statutes, laws, ordinances and cus- 
 toms anciently observed. 
 
 And to do, exercise, expedite, and execute all and singu- 
 lar 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. 
 
 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 aforesaid, and the territories depending thereon, and 
 
 maritime parts of the same and thereto adjacent, used or ex- 
 ercised, within our maritime jurisdiction aforesaid whereso- 
 ever. 
 
 And to punish and correct the exercisers and occupiers 
 thereof, according to the statutes, laws, ordinances, and cus- 
 toms aforesaid. 
 
 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
 
 ( 165 ) 
 
 manner of ways respect or concern the sea, or passage over 
 the same, or naval or maritime voyages, or our said mari- 
 time jurisdiction, or the places or limits of our said Admi- 
 ralty and cognisance aforementioned, and all other things 
 done, or to be done. 
 
 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 in- 
 stance of any party, as the case shall require and seem con- 
 venient : and likewise with cognisance and decision of wreck 
 of the sea, and of the death, drowning, and view of dead bo- 
 dies of all persons howsoever killed or drowned, or murder- 
 ed, or which shall happen to be killed, drowned, or murder- 
 ed, 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, through- 
 out our aforesaid province of F , and the territories de- 
 pending thereon, and maritime parts of the same, and thereto 
 adjacent, or elsewhere within our maritime jurisdiction afore- 
 said. 
 
 Together with the cognisance of Mayhem in the aforesaid 
 places, within our maritime jurisdiction aforesaid, and flow- 
 ing 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. 
 
 And to do, exercise, expedite, and execute all and singu- 
 lar other things, which in and about the premises only shall 
 be necessary or thought meet, according to the rights, sta- 
 tutes, laws, ordinances, and customs aforesaid. 
 
 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 exe- 
 cution thereof in our said province of F , and the terri-
 
 ( 166 ) 
 
 lories depending thereon, and maritime parts of the same, 
 and thereto adjacent whatsoever. 
 
 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 aforesaid, 
 
 and the territories depending thereon, the right of appeal- 
 ing to our aforesaid High Court of Admiralty of England. 
 
 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 Arch- 
 angel and All Saints duly certify, and cause to be effectu- 
 ally certified (if you shall be thereunto required) to us, and 
 our Lieutenant Official, Principals, and Commissary-Gene- 
 ral 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. 
 
 Further we do, in our name, command all and singular 
 our Governors, Justices, Mayors, Sheriffs, Captains, Mar- 
 shals, Bailiffs, Keepers of all our Goals and Prisons, Con- 
 stables, 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, as- 
 sisting, submissive, and yield obedience, in all things as is
 
 fitting to you, the aforesaid A. B. our Captain-General and 
 
 Governor in Chief of our province of F 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 aforesaid, and the territories depending thereon, 
 
 and maritime parts of the same, and thereto adjoining, un- 
 der pain of the law, and the peril which will fall thereon. 
 
 Given at London, in the High Court of our Ad- 
 miralty of England aforesaid, under th$ Great 
 Seal thereof, &c.
 
 II. 
 
 AN ADDRESS DELIVERED AT THE OPENING OF THE 
 LAW ACADEMY OF PHILADELPHIA, BEFORE THE 
 TRUSTEES AND MEMBERS OF THE SOCIETY FOR THE 
 PROMOTJOV OF LEGAL KNOWLEDGE. IN THE HALL OF 
 THE SUPKEME COURT. OS WEDNESDAY, THE 2 1 ST OF 
 FEBRUARY, 1821. BY PETER S. DUPONCEAU, LL. D. 
 PROVOST OF THE ACADEMY. 
 
 Mr. President, Gentlemen, 
 
 You are assembled for the purpose of witnessing 
 and encouraging by your presence, the incipient 
 efforts of the Law Academy of Philadelphia. Un- 
 der 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 aud 
 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 ac- 
 Z
 
 quired ; 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 ex- 
 pand, 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 ; be- 
 cause the central situation of this city points it out 
 as the fittest spot for such an establishment, and be- 
 cause there are talents here collected fully adequate 
 to the important task. 
 
 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 amount- 
 ed 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 re- 
 gular education in any of the great branches of sci- 
 ence 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 other-
 
 wise. With eagle eyes they saw through the mists 
 of futurity, they felt 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 see it accomplished. 
 While this country shall remain alive to the feel- 
 ing 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. 
 
 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 ne- 
 cessity 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 rea- 
 sonable prospect of success. 
 It is true that we have no model for the institu- 
 
 * 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 
 bad not "salt to their porridge .."
 
 ( 17* ) 
 
 tion we contemplate in the country whence we have 
 derived the system of common law under \\lii<h 
 we live. There, hy what appear* at first sight a 
 strange anomaly, hut which can nevertheless he 
 satisfactorily explained, the civil law enjoys all the 
 patronage of government, regular professorships 
 for the instruction of \outh 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 neglect- 
 ed, and every attempt to raise seminaries for the 
 education of its students has hitherto unaccounta- 
 bly failed. The Inns of Court formerly so cele- 
 brated, have gradually degenerated from what they 
 once were, no points are now mooted there, no re- 
 gular exercise imposed upon the students, no lec- 
 tures 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 
 Inn* 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. 
 Kven the examination of candidates for admission 
 to the bar has become an empty formality. Nor 
 has a better fate at 'ended the celebrated chair which 
 Mr Viner's munificence established at the Univer- 
 sity of Oxford. The great Blackstone appeared
 
 there as a bright meteor, and by a single course of 
 lectures immortalised his name and rendered a sig- 
 nal benefit to the profession. He was followed by 
 Mr. Wooddeson, hand passibus cequis, and since 
 that time a dead silence has reigned in the hall 
 where the commentaries were first read to an ad- 
 miring audience. The Professorship has become 
 a sinecure. 
 
 In a country so enlightened as England, where 
 every branch of science is cultivated with unremit. 
 ted ardor and exemplary success, surh 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 academ- 
 ical instruction, is the only means through which 
 a competent knowledge of the civil law can be ac- 
 quired. The common law, on the contrary, rests 
 on a different foundation. It is preserved as a sa- 
 cred 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 judici. 
 ary orders, until you come down to the most infe-
 
 ( 17* ) 
 
 rior 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 
 Police,* while all civil matters and the cognisance 
 of great crimes are exclusively reserved to the Su- 
 preme 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 en- 
 tirely of a series of their own and th^ir predeces- 
 sors' 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 had 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 stu- 
 dies. The opinions of the Judges given at full length 
 as they have been since the days of Lord Mans. 
 
 * However (his may be in theory, it 'A certainly so in practice.
 
 field, 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. 
 
 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 sanc- 
 tuary as is provided for it there, nor such a body 
 of high priests entrusted with its exclusive guar- 
 dianship. Nor is there here, as in that country, 
 a sovereign legislature to whom alone it is per- 
 mitted 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 go- 
 vernment with limited powers. Each State, with 
 in a sphere that extends to all cases of ordinary 
 legislation, has its own legislators and its own ju- 
 diciary establishments, with a more or less gradu- 
 ated 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 land. 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 consi-
 
 tiered paramount and obligatory on the State judi- 
 ciaries. Twenty-four Supreme Courts, and an im- 
 mense number of inferior ones, in various grada- 
 tions, are dnily issuing their often contradictory de- 
 crees, on points arising out of the law which is 
 common to us all. 1 do not except Louisiana, 
 where, though the common law has not been esta- 
 blished 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 
 po\\ers to alter and new model the system of laws, 
 a power which they have not sparingly exercised ; 
 so that the common taw in its details has already 
 suffered many considerable changes, and in process 
 of time, unless speedy measures are taken to coun- 
 teract or at least to direct that spirit of innovation 
 which appears every where to prevail, *ill branch 
 out into us many different systems as there are States 
 in the union, in which the great features of the pa- 
 rent 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 anil equality upon all who are sub. 
 ject to it, which protects and punishes with an equal 
 Land the high and the low, the proud and the hum- 
 ble ; it is that law, whose magical wand bursts 
 open the prison doors, and delivers in an instant
 
 . ( 177 ) 
 
 the victims of arbi'rary authority; that law, which 
 boasts of twelve invisible Judges, wliom the eye of 
 the corruptor cannot see, and the influence of the 
 powerful ninnot 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, de- 
 termine, pronounce, and immediately disappear, 
 and are lo*-t in the crowd of their fellow citizens. 
 In short, it i* 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 '"common laic." 
 
 To preserve, at least, in their purity the essential 
 parts of this admirahle system ; to exhibit it con- 
 stantly as a whole, in the e t \es 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 sen- 
 tinels, who will constantly watch over the sacred 
 dt posit in the States which they may inhabit; to 
 prevent rash innovations and inconsistent decisions 
 in our numerous legislatures and Courts of judica- 
 ture, 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 acknowledg- 
 ed, is of the highest importance to our country, and 
 which we are satisfied, cannot be obtained by any 
 other means. 
 
 la fact, what other method could be proposed 
 Aa
 
 ( 178 ) 
 
 under the circa instances that 1 have described to 
 preserve the purity of the law in our extensive 
 country ? Are we to wait for every spring and au- 
 tnmn 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 prohibit- 
 ing 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 uni- 
 formity by a code which will bear his name. 
 
 The only sure preservative against these threat- 
 ened 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 genera- 
 tions that the vast body of American citizens can
 
 ( '79 ) 
 
 be most effectually acted upon. With a succes- 
 sion of able professors the genuine spirit of our law 
 may be preserved through a series of ages ; legis- 
 lative innovations, if not prevented, may be direct- 
 ed into a proper channel, and uniformity in judi- 
 cial decisions may be in a great degree, if not en- 
 tirely, 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 ap- 
 pears from the great number of elementary books 
 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 iu works of this descrip- 
 tion. 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. 
 
 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 coun- 
 try has been clearly, and I hope satisfactorily point- 
 ed out to you. 
 
 While the organisation of our judiciary renders
 
 ( 180 ) 
 
 it impossible to pursue Ihe antischnlastic sytcro 
 which England has hitherto followed ; on the other 
 luiihl it is free from the ob-t.-tclr*. \vhich would ren- 
 der our plan, iu Us full extent, absolutely imprac- 
 ticable iu 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 pro- 
 fessors of the common law. Hence have arisen 
 jealousies and feuds between the c vilians and com- 
 mon lawyers which are not entirely composed to 
 thi* 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 
 t a- superior elegance of Justinian's code, smiles at 
 what he calls the barbarous jargon of Westminster 
 11 ill. Yet those two systems, though different in 
 many respects, assimilate more than is generally 
 
 * The source of (his feeling lies deep in the history of the country The ef- 
 forts which wire made in former times to intnxlncf th-- civil law into England, 
 were with a view to destroy the liberties of that nation. The attachment of 
 the clergy (o Ihe Roman coile waa not so much on account ol its admirble 
 thi ory of contracts, as of the imperial texts in tnvour ofthi- unlimited authority 
 of church and km;;, ami the administration ot justice uithout a jury . on (he mo- 
 dels of ilte bt <r Chamber and High Commission Courts, which plainly shewed 
 what W'rtjld h:v been iht- judicial organisation <>f the kin^'lnm, if their doc- 
 trines dad prevailed. Nor can we blame the English nation lor enU-itainiog 
 the s.ime jealousy even at the present day, when we consider the tendency of 
 monarchical governments to Arbitrary power. In this republican couiiiry, no 
 such Danger is to be drend' d. and our common lawyers m:iy become acquaint- 
 ed wnh ih citil l:'w, :IIK| profit by its knowledge, without any fear of the in- 
 tnxl Ni-iion of monarchical principles, or of the torture being pteferred to trial 
 *y jury.
 
 believed, and at any rafe they are both, as they re- 
 spectively apply, constituent parts of the general 
 jurisprudence of the land. We have in this re- 
 spect an immense advantage over the Knglish na- 
 tion : the administration of the civil and the com- 
 mon 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 uilh the two codes, by which 
 means the law will become in their hands a more 
 expanded arid 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 nviy be 
 derived from an acquaintance with that beauiitul 
 system of moral philosophy applied to human af- 
 fairs. 
 
 The common law, the civil law,* the law com- 
 mercial and maritime, the law of nature and na- 
 tions, the constitutional and federal law of our coun- 
 try, 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, 
 
 * As far as it is a part of our \cg\ sjst m ; for there ought to he a selection 
 of those titles that are proper to be taught 'IP our scho-'ls of jurisprudence and 
 the rest, if studied at all, should or,l\ he considered as a mati> r of mere cu- 
 riosity. For this reason, ii is suggested that a re-publication of those parts of 
 the English translation of Domt's Civil Law, which are of r>al use, and an: 
 not in opposition to oui nMiional institutions, would be found of great advan- 
 tage to the profession. It might be comprised in one octavo volume.
 
 ( 182 ) 
 
 Mich a diversified field of knowledge can be well 
 or successfully cultivated without the aid of aca- 
 demical 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. 
 
 Kver since the establishment of the federal con- 
 stitution, the necessity of academical instruction for 
 the students of the law has been felt throughout 
 the United States. It was not long after that me- 
 morable 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. Un- 
 toward circumstances prevented him from longer 
 giving way to the zeal by which he was animated, 
 and the country will long lament that as a profes- 
 sor he was only shewn to the legal world. Fata 
 eum tantum ostenderunt. 
 
 The exertions of Judge Reeves were remarkably 
 successful in establishing in Connecticut a respec- 
 table law school, consisting of students from all 
 parts of the union. This is a proof of the eager- 
 ness with which the country is disposed to support 
 and patronise similar institutions. But we are in- 
 formed that Judge Reeves has given up his pro- 
 fessorship, and that it has fallen into other hands, 
 with what success we know not. 
 
 In the university of Cambridge, in the State of 
 Massachusetts, there is a law chair established,
 
 ( 183 ) 
 
 where lectures are regularly delivered by two pro- 
 fessors of eminent knowledge and talents,* but not 
 on different branches of the law. If that justly ce- 
 lebrated 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 ju- 
 risprudence. But their local situation, and that 
 alone, precludes every such hope ; for otherwise 
 the world well knows that they are neither want- 
 ing in inclination or ability to pursue any great ob- 
 ject that may redound to their fame and the benefit 
 of their country. 
 
 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 ap- 
 pointment 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 ta- 
 lents with which nature and a refined education 
 have endowed him. Unfortunately for us, his pri- 
 vate affairs called him to another part of the world, 
 
 * The Honourable Chief Justice Parker and the Honourable Asahel 
 Stearns.
 
 and thus was his useful career at least interrupted. 
 By thexe examples we wee that the most, eminent 
 talents have been successively exerted in these 
 I in nl Slates to attain that great ol.ject which the 
 country imperiously calls lor, which mnst at Home 
 day or other he carried into execution, and the ho- 
 nour of effecting which courts your acceptance. 
 In lime, when this institution shall have attained a 
 sufficient degree of maturity, it may he annexed to 
 the University of Pennsylvania, and shine there 
 by the side of our celebrated medical .school ; hut 
 the lii -i efforts must he made hy the profession, and 
 our infant academy must he reared under it* wings, 
 until it shall he worthy of being presented to our 
 alma mater, who, I am convinced, will be disposed, 
 in the mean lime, to afford us all the aid in her 
 power. 
 
 If I have succeeded in convincing you, gentle- 
 men, not only of the importance, but ot the neces- 
 sity of this institution, 1 may indulge a hope that 
 you will be disposed to support it with your pa- 
 tronage.* 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 toge- 
 ther under the denomination of a Law Society tor 
 the discussion of legal questions. Societies of this 
 description have long existed in London among the 
 students in the Temple ; but their object lias been 
 
 The bar ot Philadelphia was present by invitation.
 
 ( 185 ) 
 
 rather to exercise them selves in public speaking 
 than to increase their knowledge of jurisprudence. 
 For it is but little, after all, that unpractised scho- 
 ]ar can communicate to ea< % h other. Similar so- 
 cieties have been established in this city from time 
 to time ; but none of them have been ahle to boast 
 of long duration. At last, a number of young gen- 
 tlemen met together last autumn for the same pur- 
 pose, sensible of the inefficacy of similar associa- 
 tions 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 offiVe of their president, it struck me at 
 once that upon this foundation a school of jurispru- 
 dence might be raised, which, if successfully and 
 and firmly established, would redound to the ho- 
 nour 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 exe- 
 cution. It was agreed to form a society of such 
 members of the profession as ihould be inclined to 
 B b
 
 ( 186 ) 
 
 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-pro- 
 vost, and a board of trustees elected by the society, 
 which was to be styled " The Society for the pro- 
 motion of Legal Knowledge and Forensic Elo- 
 quence." Success has hitherto answered our most 
 sanguine expectation*. 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 So- 
 ciety, until the month of May next, when a gene- 
 ral election shall take place. A charter of incor- 
 poration was obtained, which, with our constitu- 
 tion, 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 obsta- 
 cle was thrown in our way, but, with an alacrity 
 and zeal that does them the greatest honour, they 
 unanimously agreed to surrender their indepen- 
 dence at the shrine of science, and to submit to aca- 
 demical 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, agree- 
 ably 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 re- 
 main members of the Academy, for the encourage- 
 ment 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. 
 
 The youth of the United States are peculiarly 
 adapted to receive instruction and profit by it. 
 They are sensible, intelligent, have quick percep- 
 tions, and are exeraplarily 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. 
 
 The means which are to produce these great ef- 
 forts are very simple. Small as are the contribu- 
 tions required of the members of the Society for 
 
 * 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 BARXES reads lectures 
 on the Common and Statute laws of Pennsylvania to the general satisfaction 
 of his hearers.)
 
 the promotion of legal Knowledge, yet their aggre- 
 gate i- u! infiuite importance in the infancy of tliis 
 eM ildi-limriii. It is therefore to he wished (hat 
 all the memhers of our profession should rome into 
 this association, so that the academy should derive 
 from it not only the ln-rnTn of a trilling pecuniary 
 aid, hut the, more important one of their support 
 and countenance. The student* of law should aUo 
 be induced to become fellows of the academy, for 
 on its increase depends the success of the institu- 
 tion, wh ch, 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 pros- 
 perity. 
 
 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 opi- 
 nion, 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 Eng- 
 lish 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 cele- 
 b, ated university, as Forteseue and Lord Coke style 
 it, ever did in its best days, it is worth the slu-
 
 ( 189 ) 
 
 dent'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 sup- 
 port 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. 
 
 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 con- 
 ceived 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 who-e 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 sup- 
 port of the profession will not be wanting to an in- 
 
 * See the note to p. 187.
 
 ( 190 ) 
 
 stitntion which has for its object the promotion of 
 the legal science, and the honour of those who 
 profess it. 
 
 Gentlemen of the Law Jlcademy, 
 
 I turn to you with pleasure, as the pillars on 
 which our ius'kution rests. You are the Corner- 
 stones of the edifice ; with your zealous co-opera- 
 tion every hope may he indulged : without iJ. every 
 endeavour of the venerable, patrons of' the establish- 
 ment must fail ; for it is in vain to support those 
 who will not support themselves. Continue, there- 
 fore, to show yourselves won by of the honour of 
 being considered as the founders oi' 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 re- 
 member 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 perse vjere with steady 
 courage in the work that you have begun, and may 
 the Great Legislator of the universe bless and di- 
 rect our endeavours to promote a science which, 
 under the revelations of h.s divine will, is the surest 
 guide to lead mankind into the ways of justice and 
 righteousness.
 
 APPENDIX.
 
 APPENDIX. 
 I. 
 
 CONSTITUTION 
 
 OF THE 
 
 UNITED STATES OF AMERICA. 
 
 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 Ses- 
 sion begun May 25, and ended September 17, 1787. 
 
 WE, the people of the United States, in order to form a 
 more perfect union, establish justice, insure domestic tran- 
 quillity, provide for the common defence, promote the gene- 
 ral welfare, and secure the blessings of liberty to ourselves 
 and our posterity, do ordain and establish this Constitution 
 for the United States of America. 
 
 ARTICLE I. 
 
 SECTION I. 
 
 All legislative powers herein granted, shall be vested in a 
 Congress of the United States, which shall consist of a Se- 
 nate and House of Representatives. 
 Cc
 
 ( 194 ) 
 
 SECTION. II. 
 
 1. The house of representatives shall be composed ot 
 members chosen every second year, by the people of the se- 
 veral States : and the electors in each State, shall have the 
 qualifications requisite for electors of the most numerous 
 branch of the State legislature. 
 
 2. No person shall be a representative, who shall not have 
 attained to the age of twenty-five years, and been seven 
 years a citi/.en of the United States ; and who shall not 
 when elected, be an inhabitant of that State in which he shall 
 be chosen. 
 
 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 per- 
 sons. 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 thou- 
 sand : 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 ; Con- 
 necticut five ; New York six ; New Jersey four ; Pennsyl- 
 vania eight; Delaware one; Maryland six; Virginia ten; 
 North Carolina five ; South Carolina five ; and Georgia 
 three. 
 
 4. When vacancies happen in the representation from any 
 State, the executive authority thereof shall issue writs of 
 election to fill such vacancies. 
 
 5. The house of representatives shall choose their speaker 
 and other officers ; and shall have the sole power of im- 
 peachment.
 
 ( ,195 ) 
 
 SECTION III. 
 
 \. 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. 
 
 . Immediately after they shall be assembled, in conse- 
 quence 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 se- 
 cond 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 exe- 
 cutive thereof may make temporary appointments until the 
 next meeting of the legislature, which shall then fill such 
 vacancies. 
 
 3. No person shall be a senator, who shall not have at- 
 tained to the age of thirty years, and been nine years a citi- 
 zen *of the United States; and who shall not, when elected, 
 be an inhabitant of that State for which he shall be chosen. 
 
 4. The vice-president of the United States shall be pre- 
 sident of the senate but shall have no vote unless they be 
 equally divided. 
 
 5. The senate shall choose their other officers, and also 
 a president pro tempore, in the absence of the vice-presi- 
 dent, or when he shall exeicise the office of president of the 
 United States. 
 
 6. The senate shall have the sole power to try all im- 
 peachments. 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. 
 
 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 punish- 
 ment according to law. 
 
 SECTION IV. 
 
 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. 
 
 2. The Congress shall assemble at least once in every 
 year, and such meeting shall be on the first Monday in De- 
 cember, unless they shall by law appoint a different day. 
 
 SECTION V. 
 
 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 autho- 
 rised to compel the attendance of absent members, in such 
 manner and under such penalties as each house may pro- 
 vide. 
 
 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. 
 
 3. Each house shall kerp 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. 
 
 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.
 
 ( 197 ) 
 
 SECTION VI. 
 
 1. The senators and representatives shall receive a com- 
 pensation 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 ses- 
 sion 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. 
 
 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. 
 
 SECTION VII. 
 
 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. 
 
 2. Every bill which shall have passed the house of repre- 
 sentatives and the senate, shall, before it become a law, be 
 presented to the president of the United States ; if he ap- 
 prove, 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 adjourn- 
 ment, prevent its return, in which case it shall nut be a law. 
 
 3. Every order, resolution, or vote, to which the concur- 
 rence of the senate and house of representatives may be ne- 
 cessary t (except on a question of adjournment,) shall be pre- 
 sented 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 third* of <ie 
 senate and house of representatives, according to the rules 
 and limitations prescribed in the case of a bill. 
 
 SECTION VIII. 
 
 The Congress shall have power 
 
 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, im- 
 posts, and excises shall be uniform throughout the United 
 States. 
 
 2. To borrow money on the credit of the United States. 
 
 3. To regulate commerce with foreign nations, and among 
 the several States, and with the Indian tribes. 
 
 4. To establish an uniform rule of naturalisation, and uni- 
 form laws on the subject of bankruptcies throughout the 
 United States. 
 
 5. To coin money, regulate the value thereof, and of fo- 
 reign coin, and fix the standard of weights and measures. 
 
 6. To provide for the punishment of counterfeiting the 
 securities and current coin of the United States. 
 
 7. To establish post offices and post reads. 
 
 8. To promote the progress of science and useful arts, by 
 securing, for limited times, to authors and inventors, the ex- 
 clusive right to their respective writings and discoveries. 
 
 9. To constitute tribunals inferior to the supreme court 
 
 10. To define and punish piracies and felonies committed 
 on the high seas, and offences against the law of nations. 
 
 11. To declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water.
 
 ( 199 ) 
 
 12. To raise and support armies : but no appropriation of 
 money to that use shall be for a longer term than two years. 
 
 13. To provide and maintain a navy. 
 
 14. To make rules for the government and regulation of 
 the land and naval forces. 
 
 15. To provide for calling forth the militia to execute the 
 laws of the union, suppress insurrections, and repel inva- 
 sions. 
 
 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 discip- 
 line prescribed by Congress. 
 
 17. To exercise exclusive legislation in all cases whatso- 
 ever, 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 pur- 
 chased, 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, 
 
 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. 
 
 SECTION IX. 
 
 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 thou- 
 sand eight hundred and eight, but a tax or duty may be im- 
 posed on such importation not exceeding ten dollars for each 
 person. 
 
 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.
 
 ( aoo ) 
 
 3. No bill of attainder, or ex post facto law, shall be 
 passed. 
 
 4. No capitation or other direct tax shall be laid, unless 
 in proportion to the census or enumeration herein before di- 
 rected to be taken. 
 
 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 uf 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. 
 
 6. No money shall be draw n from the treasury, but in con- 
 sequence 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. 
 
 7. No title of nobility shall be granted by the United 
 States ; and no person holding any office of profit or trust un- 
 der them shall, without the consent of the Congress, accept 
 of any present, emolument, office, or title of any % kind what- 
 soever, from any king, prince, or foreign state. 
 
 SECTION X. 
 
 1. No State shall enter into any treaty, alliance, or confe- 
 deration ; 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. 
 
 2. No State shall, without the consent of the Congress, 
 lay any imposts or duties on imports or exports, except \vhat 
 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 trea- 
 sury 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. 
 
 ARTICLE II. 
 
 SECTION I. 
 
 1. The executive power shall be vested in a president of 
 the United States of America. He shall hold his office dur- 
 ing the term of four years, and, together with the vice-presi- 
 dent, chosen for the same term, be elected as follows: 
 
 2. Each State shall appoint, in such manner as the legis- 
 lature 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 re- 
 presentative, or person holding an office of trust or profit 
 under the United States, shall be appointed an elector. 
 
 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 cer- 
 tify, 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 num- 
 ber 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 represen- 
 tatives 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 
 
 Dd
 
 ( 202 ) 
 
 State having one vote ; a quorum for this purpose shall con- 
 sist 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. 
 
 4. The Congress may determine the time of choosing the 
 electors, and the day on which they shall give their votes ; 
 which day shall be the same throughout the United States. 
 
 5. No person, except a natural born citizen, or a citizen 
 of the United States at the time of the adoption of this co^n- 
 stitution, 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. 
 
 6. In case of the removal of the president fTom 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. 
 
 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. 
 
 8. Before he enter on the execution of his office, he shall 
 take the following oath or affirmation : 
 
 "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."
 
 ( 203 ) 
 
 SECTION II. 
 
 1. The president shall be commander in chief of the army 
 and navy of the United States, and of the militia of the se- 
 veral 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 par- 
 dons, for offences against the United States, except in cases 
 of impeachment. 
 
 2. He shall have power, by and with the advice and con- 
 sent 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. 
 
 3. The president shall have power to fill up all vacan- 
 cies that may happen, during the recess of the senate, by 
 granting commissions, which shall expire at the end of the 
 their next session. 
 
 SECTION III. 
 
 He shall, from time to time, give to the Congress in- 
 formation 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
 
 ( 20* ) 
 
 He shall take care that the laws be faithfully executed j aud 
 shall commission all the officers of the United States. 
 
 SECTION IV. 
 
 The president, vice-president, and all civil officers of 
 the United States, shall be removed from office, on impeach- 
 ment for, and conviction of, treason, bribery, or other high 
 crimes and misdemeanors. 
 
 ARTICLE III. 
 
 SECTION I. 
 
 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 interior 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. 
 
 SECTION. II. 
 
 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 fo- 
 reign States, citizens or subjects. 
 
 2. In all cases, affecting ambassadors, other public minis- 
 ters, and consuls, and those in which a State shall be party,
 
 ( 205 ) 
 
 tlie 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. 
 
 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. 
 
 SECTION III. 
 
 1. Treason against the United States shall consist only 
 in levying war against them, or in adhering to their ene- 
 mies, giving them aid and comfort. No person shall be 
 convicted of treason unless on the testimony of two wit- 
 nesses to the same overt act, or on confession in open court. 
 
 2. The Congress shall have power to declare the punish- 
 ment of treason ; but no attainder of treason shall work cor- 
 ruption of blood, or forfeiture, except during the life of the 
 person attainted. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 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, pre- 
 scribe the manner in which such acts, records, and proceed- 
 ings, shall be proved, and the effect thereof. 
 
 SECTION II. 
 
 1. The citizens of each State shall be entitled to all 
 privileges and immunities of citizens in the several States. 
 
 2. A person charged in any State with treason, felony, ov
 
 ( 206 ) 
 
 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 re- 
 moved to the State having jurisdiction of the crime. 
 
 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 tte due. 
 
 SECTION III. 
 
 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. 
 
 2. The Congress shall have power to dispose of, and 
 make all needful rules and regulations respecting the terri- 
 tory or other property belonging to the United States ; and 
 nothing in this constitution shall be so construed as to pre- 
 judice any claims of the United States, or of any particular 
 State. 
 
 SECTION IV. 
 
 The United States shall guarantee to every State in 
 this union a republican form of government, and shall pro- 
 tect each of them against invasion ; and, on application of 
 the legislature, or of the executive, (when the legislature 
 cannot be convened,) against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, whenever two-thirds of both houses shall 
 deem it necessary, shall propose amendments to this con- 
 stitution ; or, on the application of the legislatures of two- 
 thirds of the several States, shall call a convention for pro- 
 posing amendments, which, in either case, shall be valid to
 
 ( 207 ) 
 
 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. 
 
 ARTICLE VI. 
 
 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. 
 
 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 con 
 trary notwithstanding. 
 
 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 affirma- 
 tion 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. 
 
 ARTICLE VII. 
 
 The ratification of the convention of nine States shall 
 be sufficient for the establishment of this constitution be- 
 tween the States so ratifying the same. 
 Done in convention, &c.
 
 ( 208 ) 
 
 AMENDMENTS. 
 
 The following articles in addition to, and amendment of, 
 the Constitution of the United States, having been rati 
 fied by the legislatures of nine States, are equally obli 
 gatory with the Constitution itself. 
 
 ARTICLE I. 
 
 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 hun- 
 dred, after which the proportion shall be so regulated by 
 Congress, that there shall be not less than one hundred re- 
 presentatives, 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 tli^re shall not be 
 less than two hundred representatives, nor more than one 
 representative for every fifty thousand persons. 
 
 ARTICLE II. 
 
 No law varying the compensation for the services of the 
 senators and representatives shall take effect, until an elec- 
 tion of representatives shall have intervened. 
 
 ARTICLE III. 
 
 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. 
 
 ARTICLE IV. 
 
 A well regulated militia being necessary to the security 
 of a free state, the right of the people to keep aiul bear 
 arms shall not be infringed.
 
 ( 209 ) 
 
 ARTICLE V. 
 
 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. 
 
 ARTICLE VI. 
 
 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 affirm- 
 ation, and particularly describing the place to be searched, 
 and the persons or things to be seized. 
 
 ARTICLE VII. 
 
 No person shall be held to answer for a capital or other- 
 wise 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 wit- 
 ness against himself; nor be deprived of life, liberty, or 
 property, without due process of law ; nor shall private pro- 
 perty be taken for public use, without just compensation. 
 
 ARTICLE VIII. 
 
 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 ascer- 
 tained by Jaw ; 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 wit- 
 nesses in his favour ; and to have the assistance of counsel 
 for his defence. 
 
 E e
 
 ARTICLE IX. 
 
 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 accord- 
 ing to the rules of the common law. 
 
 ARTICLE X. 
 
 Excessive bail shall not be required ; nor excessive fines 
 imposed ; nor cruel and unusual punishments inflicted. 
 
 ARTICLE XI. 
 
 The enumeration, in the constitution of certain rights, 
 shall not be construed to deny or disparage others, retained 
 by the people. 
 
 ARTICLE XII. 
 
 The powers, not delegated to the United States by the 
 the constitution, nor prohibited by it to the States, are re- 
 served to the States respectively, or to the people. 
 
 ARTICLE XIII. 
 
 The judicial power of the United States shall not be con- 
 strued 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. 
 
 ARTICLE XIV. 
 
 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 pre- 
 sident 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 num- 
 bers not exceeding three on the list of those voted for as 
 president, the house of representatives shall choose immedi- 
 ately, by ballot, the president. But in choosing the presi- 
 dent, 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 neces- 
 sary to a choice. And if the house of representatives shall 
 not choose a president whenever the right of choice shall de- 
 volve upon them, before the fourth day of March next fol- 
 lowing, then the vice-president shall act as president, as in 
 the case of the death or other constitutional disability of the 
 president. 
 
 The person having the greatest number of votes as vice- 
 president, shall be vice-president, if such number be a ma- 
 jority of the whole number of electors 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 num- 
 ber shall be necessary to a choice. 
 
 But no person constitutionally ineligible to the office of 
 president shall be eligible to that of vice-president of the 
 United States.
 
 ( S13 ) 
 
 II. 
 
 (EXTRACT.) 
 
 THE UNITED STATES v. WORRALL. 
 
 In the Circuit Court of the United States for the Penn- 
 sylvania District. 
 
 APRIL SESSIONS, 1798. 
 
 Present CHASE and PETERS, Justices. 
 (2 Dallas, 384.) 
 
 The defendant was charged with an attempt to bribe 
 Tench Coxe, the Commissioner of the Revenue, and the in- 
 dictment, containing two counts, set forth the case as fol- 
 lows : (Here follows the indictment at large, with a statement 
 of the evidence and the arguments of counsel on some inci- 
 dental points which arose on the trial.) 
 
 Verdict Guilty on both counts of the indictment. 
 
 Dallas, (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 excep- 
 tionable, in as much as it recited the act of Congress, mak- 
 ing 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 faith- 
 ful execution of an official public trust, which was the gist 
 of the prosecution. But, he contended, that the force of the 
 objection to the jurisdiction, superseded the necessity of at- 
 tending to matters of technical form and precision, in pre-
 
 ( 214 ) 
 
 scnting 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 Constitu- 
 tion. It is, therefore, incumbent upon the prosecutor to shew, 
 that an ofler to bribe the Commissioner of the Revenue is a 
 violation of some constitutional or legislative prohibition. 
 The Constitution contains e.tprcss provisions in certain cases 
 which are designated by a definition of the crimes ; by a re- 
 ference 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 cha- 
 racter of a federal officer, and the place where the present 
 offence was committed, do not form any part of the consti- 
 tutional express provisions, for the exercise of judicial autho- 
 rity in the Courts of the Union. The judicial power, how- 
 ever, extends, not only to all cases, in law and equity, aris- 
 ing under the Constitution, but, likewise, to all such as shall 
 arise under the laws of the United States, (art. 3. *. .) 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 pro- 
 per 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." (art. 1. s. 8.) Whenever 
 then, Congress think any provision necessary to effectuate 
 the constitutional power of the government, they may esta- 
 blish it by law ; and whenever it is so established., a viola- 
 tion of its sanctions will come with the jurisdiction of this 
 Court, under the lilh section of the Judicial Act, which de- 
 clares, that the Circuit Court "shall have exclusive cogni- 
 sance of all crimes and offences cognisable under the autho- 
 rity of the United States," &c. 1 Vol. Swiff s edit. p. 55. 
 Thus, Congress have provided by law, for the punishment 
 of treason, misprision of treason, piracy, counterfeiting any 
 public certificate, stealing or falsifying records, &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. 1 Vol. 
 Swift's edit. p. 100. Ibid. p. 236, s. 66. Ibid. p. 327. s. 47. 
 But in the case of the Commissioner of the Revenue, the Act 
 constituting the office does not create or declare the offence, 
 
 2 Vol. p. 112, s. 6.; it is not recognised in the Act under 
 \vhich proposals for building the Light-house were invited, 
 
 3 Vol. p. 63; and there is no other Act that has the slightest 
 relation to the subject. 
 
 Can the offence, then be said to arise under the Consti- 
 tution, 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 of- 
 fice may be supposed to enter into a compact to be answer- 
 able to the government which he serves for any violation of 
 his duty ; and, having taken the oath of office, he would un- 
 questionably be liable, in such case, to a prosecution for per- 
 jury in the Federal Courts. But because one man, by his 
 own act, renders himself amenable to a particular jurisdic- 
 tion, shall another man, who has not incurred a similar obli- 
 gation, be implicated ? If, in other words, it is sufficient to 
 vest a jurisdiction in this Court, that a federal officer is con- 
 cerned; 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; 
 a. source of jurisdiction is opened, which must inevitably 
 overflow and destroy all the barriers between the judicial
 
 ( 216 ) 
 
 authorities of the State and the general government. Any 
 thing 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 juris- 
 diction of this Court ; and, considering the constant disposi- 
 tion of power to extend the sphere of Us 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 King's Bench 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 Exchequer : 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, pre- 
 cedents 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. 
 
 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 
 United States, in cases that arise under their authority. 
 The nature of our Federal compact, will not, however, tole- 
 rate this doctrine. The 12th article of the amendment, 
 stipulates, that " the powers not delegated to the United 
 Stales 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 United States are enumerated and 
 fixed. Congress may provide for the punishment of coun- 
 terfeiting the securities and current coin of the United 
 States ; and may define and punish piracies and felonies 
 committed on the high seas, and offences against the law
 
 ( 217 ) 
 
 of nations. Art. 1. s. 8. And, so, likewise Congress may 
 make all laws which shall be necessary and proper for car- 
 rying 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 ren- 
 der 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 legis- 
 lative ; and, consequently, it is not a subject on which the 
 judicial authority of the Union can operate. 
 
 The cases that have occurred, since the establishment of 
 the Federal Constitution, confirm these general principles. 
 The indictment against Henfield, an American citizen, for 
 enlisting and serving on board a French privateer, while she 
 captured a Dutch merchant ship, &c. expressly charged the 
 defendant with a violation of the treaties existing between 
 the United Stales and the United Netherlands, Great Britain, 
 &c. which is a matter cognisable under the Federal autho- 
 rity by the very words of the Constitution. The jurisdic- 
 tion in the indictment against Ravara, was sustained by 
 reason of the defendant's official character as consul.* And 
 in a recent prosecution by the State of Pennsylvania against 
 Shaffer, in the Mayor's Court of Philadelphia, a motion in 
 arrest of judgment was over-ruled by the Recorder (Mr. 
 Wilcocks] though the offence consisted in forging claims to 
 Land -Warrants, issuable under the resolution of Congress; 
 anci although the cognisance of all crimes and offences, cog- 
 nisable under the authority of the United States, is ex- 
 clusively vested in the District and Circuit Courts.t 
 
 Eawle (the Attorney of the District) observed, that the 
 exception, taken in support of the motion in arrest of judg- 
 ment, struck at the root of the whole system of the national 
 
 " 2 DaiUis, 97. f 4 Dallas, Append. xi. 
 
 Ff
 
 government; for if opposition to the pure, regular, and effi- 
 cient 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 incon- 
 veniency and mischief of the exception ; for, the otlence 
 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 prin- 
 ciples 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 cog- 
 nisable before any State tribunal. The true point of view 
 for considering the case, may be Ascertained, by an inquiry, 
 whether, if Mr. Coxe 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 animad- 
 version before the same judicial authority. The precedents 
 cited by the defendant's counsel, arc distinguishable from the 
 present indictment. The prosecution against Henfield was 
 not expressly on the treaty, but on the law of nations, which 
 is a part of the common law of the United Statps ; and the 
 power of indicting for a breach of treaty, not expressly pro- 
 viding '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 of- 
 fence, where no specific penalty was to be found in the treaty 
 would, therefore, remain unpunished. So, likewise, with re- 
 spect to Ravara, although he held the office of a consul, he
 
 ( 219 ) 
 
 was indicted and punished at the common law. The offence 
 charged in Respublica v. Shaffer\.d\A not arise under the 
 laws of the United States ; but was simpty 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 do- 
 nation claims, and not in regard to any act directed by law 
 to be performed. But a further distinction presents itself. 
 The donations to the soldiers were founded upon resolutions 
 of the United States in Congress, passed long before the 
 adoption of the present Constitution. The Courts of the se- 
 veral 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 ex- 
 pressions in the Constitution, " cases arising under the Con- 
 stitution and laws of the United States," &c. nor has it been, 
 expressly provided for by any act under the present Consti- 
 tution. The criminal jurisdiction of the Circuit Court, 
 which, wherever it exists, must be exclusive of State juris- 
 diction, cannot, perhap?, fairiy be held to operate retrospec- 
 tively, by withdrawing from the State judicatures powers 
 they held, and duties they performed, previously to the Con- 
 stitution, from which the Circuit Court derived its birth. 
 
 CHASE, Justice. 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. 
 
 Rawle, answering in the affirmative, CHASE, Justice, stop- 
 ped M. Levy, who was about to reply, in support of the mo- 
 tion in arrest of judgment; and delivered an opinion to the 
 following effect. 
 
 CHASE, Justice. This is an indictment for an offence 
 highly injurious to morals, and deserving the severest pun- 
 ishment ; but, as it is an indictment at common law, I dis-
 
 ( 830 ) 
 
 miss at once every thing that has been said about the Con 
 Stitutiou and laws of the United Stales. 
 
 In this country, every man sustaing a two-fold political 
 capacity ; one in relation to the State, and another in rela- 
 tion to the United States. 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 United Stales : For, the Constitution of the 
 Union ia 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 : Whether the Courts of the United States can 
 punish a man for any act, before it is declared by a law of 
 the United Stales 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 crimi- 
 nal, or to pronounce a sentence on conviction. 
 
 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 United 
 States, 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 United States can be supposed, for a moment, to have a
 
 common law, it must, I presume, be that of England ; 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 American 
 colonies were first settled by our ancestors, it was held, as 
 well by the settlers, as by the Judges and lawyers of Eng- 
 land, that they brought hither, as a birth-right and inheri- 
 tance, so much of the common law, as was applicable to their 
 local situation, and change of circumstances. But each co- 
 lony 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 England 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 England, 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. 
 
 But the question recurs, when and how have the Courts 
 of the United States acquired a common law jurisdiction, in 
 criminal cases? The United States must possess the com- 
 mon law themselves, before they can communicate it to their 
 judicial agents : Now, the United States did not bring it 
 with them from England; 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 England ; or modified as 
 it exists in some of the States ; and of the various modifica-
 
 lions, which are we to select, the system of Georgia or New 
 Hampshire, of Pennsylvania or Connecticut ? 
 
 Upon the whole, it may be a defect in our political insti- 
 tutions, 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 govern- 
 ment of the United Slates, 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, with- 
 out prescribing a punishment, 1 should still have thought 
 it improper to exercise a discretion upon that part of the 
 subject. 
 
 PETERS, Justice. Whenever a government has been es- 
 tablished, 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 pre- 
 carious, it could no longer be called an independent govern- 
 ment, if, for the punishment of offences of this nature, tend- 
 ing to obstruct and pervert the administration of its affairs, 
 an appeal must be made to the State tribunals, or the of- 
 fenders must escape with absolute impunity. 
 
 The power to punish misdemeanors, is originally and 
 strictly a common law power; .of which, I think, the United 
 States 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 judi- 
 cial proceeding. Whenever an offence aims at the subver- 
 sion of any Federal institution, or at the corruption of its 
 public officers, it is an offence against the well being of the 
 United States; from its very nature, it is cognisable under 
 their authority ; and consequently, it is within the juris-
 
 ( 2S3 ) 
 
 diction of this Court, by virtue of the llth section of the 
 judicial act. 
 
 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 Su- 
 preme 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, 
 
 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 prose- 
 cution paid. '
 
 ( 225 ) 
 
 III. 
 
 INSTRUCTION 
 
 FROM THE GENERAL ASSEMBLY OF VIRGINIA TO THE SENA- 
 TORS FROM THAT STATE IN CONGRESS, JANUARY llth, 
 1800. 
 
 (I Tucker's ftlackstone, Appendix, p. 438.) 
 
 THE General Assembly of Virginia would consider them- 
 selves 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 gov- 
 ernment of the United States. It is not, at this time, pro- 
 posed to expose at large the monstrous pretensions resulting 
 from the adoption of this principle. It ought never, how- 
 ever, 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 sub- 
 jects 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.
 
 ( S26 ) 
 
 Deeply impressed with these opinions, the general assem 
 bly of Virginia instruct the senators, and request the repre- 
 sentatives from this State, in Congress, to use their best 
 efforts 
 
 To oppose the passing of any law, founded on, or recog- 
 nising 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 Consti- 
 tution, 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.
 
 IV. 
 
 (EXTRACT.) 
 
 THE UNITED STATES v. AARON BURR. 
 
 In the Circuit Court of the United States for the Virgi- 
 nia District. 
 
 (2 Robertson, 481.) 
 THURSDAY, September 3, 1807. 
 
 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. 
 
 The question now before the Court is, whether bail be de- 
 mandable 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 an- 
 swer the indictment, if, in point of fact, he were not before 
 the Court. 
 
 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.
 
 ( S28 ) 
 
 The 34th section of the Judicial Act, it is contended, has 
 made this adoption. 
 
 The words of that section are, "that the laws of the seve- 
 ral States, except where the Constitution, treaties, or sta- 
 tutes, of the United States shall otherwise require or pro- 
 vide, shall be regarded as rules of decision in trials at com- 
 mon law in the Courts of the United States, in cases where 
 they apply." 
 
 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 contradistinguish- 
 ed from criminal prosecutions, as well as to suits at com- 
 mon law as contradistinguished from those which come be- 
 fore the Court sitting as a Court of equity or admiralty. 
 
 The provision of this section would seem to be inapplicable 
 to original process, for another reason. The case is other- 
 wise 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." 
 
 This section seems to me to give this Court power to de- 
 vise the process for bringing any person before it who has 
 committed an offence of which it has cognisance, and nut to
 
 refer it to the State law for that process. The limitation on 
 this power is, that the process shall be agreeable to the prin- 
 ciples ami 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 ind long established law, which 
 forms the substratum of the laws of every State. 
 
 Upon general principles of law it would seern 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 proba- 
 bility, 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 fur- 
 nish security that the person will be brought forward to sa- 
 tisfy the judgment of the Court. 
 
 Yet the course of the common law appears originally to 
 have been otherwise. It appears from Hawkins that the 
 practice of the English Courts was to issue a venire facias 
 in the first instance, on an indictment for a misdemeanor. 
 This practice, however, is stated by Blackstone to have been 
 changed. He says, (voi. 4, p. 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 capias immediately, in order to 
 bring in the defendant." 
 
 It is then the English construction of the common law, 
 that although in the inferior Courts the venire facias might 
 be the usual course, and although it had prevailed, yet that
 
 ( 230 ) 
 
 a Judge of the King's Bench might issue a capias in the first 
 instance. 
 
 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. 
 
 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 refer- 
 ence 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 con- 
 templated 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. 
 
 In a subsequent part of the same section it is enacted, 
 " that upon all arrests in criminal cases bail shall be admit- 
 ted, except where the punishment may be death." 
 
 There is no provision for leaving the person at large with- 
 out bail ; and 1 have ever construed this section to impose 
 it as a duty on the magistrate who proceeds against any of-
 
 ( 231 ) 
 
 lender against the United States to commit or bail him. I 
 perceive in the law no other course to be pursued. 
 
 This section, it is true, does not respect the process upon 
 an indictment But the law would be inconsistent with it- 
 self if it required a magistrate to arrest for any offence 
 against the United States if it commanded him on every 
 arrest to commit or to bail, and yet refused a capias and 
 permitted the same offender to go at large, so soon as an in- 
 dictment was found asraiust 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. 
 
 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. 
 
 The only difficulty I ever felt on this question was pro- 
 duced by the former decision of Judge Iredell. 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. MundeWs case was a civil 
 suit; and the decision was, that the State rule respecting bail 
 in civil actions must prevail. Sinclair's case was indeed a 
 case similar to this ; and in Sinclair's case a venire facias 
 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. 
 
 In Calender's case, a capias, 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 Cullender's case ap- 
 pears to me to be correct. 
 
 I think the capias the more proper process; it is conform- 
 able to the practice of England at the time of our revolu-
 
 ( 233 ) 
 
 lion, and is, I think, in conformity with the spirit of the 33d 
 section of the Judicial Act. I- shall therefore adopt it. 
 
 To issue the capias 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 
 capias. The only difference between proceeding by capias 
 and by order, which I can perceive, would be produced bv 
 making the writ returnable to the next term.
 
 ( 233 ) 
 
 REPORT 
 
 OF THE CASE OF THE UNITED STATES V. HUDSON & GoOD- 
 WIN, AS DECIDED IN THE SUPREME COURT OF THE UNITED 
 
 STATES, FEB. 15TH, 1812. 
 
 (7 Crunch, 32.) 
 THE UNITED STATES v. HUDSON * GOODWIN. 
 
 Absent WASHINGTON, Justice. 
 
 THIS was a case certified from the Circuit Court for the 
 district of Connecticut, in which, upon argument of a gene- 
 ral demurrer to an indictment for a libel on the President 
 and Congress of the United States, contained in the Con- 
 necticut Courant, of the 7th of May, 1806, charging them 
 with having in secret voted two millions of dollars as a pre- 
 sent to Bonaparte for leave to make a treaty with Spain, the 
 Judges of that Court were divided in opinion upon the ques- 
 tion, whether the Circuit Court of the United States had a 
 common law jurisdiction in cases of libel ? 
 
 Pinkney, Attorney General, in behalf of the United States, 
 and Dana for the defendants, declined arguing the case. 
 
 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 JOHNSON, J. 
 
 The only question which this case presents is, whether 
 the Circuit Courts of the United States can exercise acorn- 
 
 H h
 
 ( *** ) 
 
 inon 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. 
 
 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. 
 
 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 conces* 
 sions from the several States whatever is not expressly 
 given to the former, the latter expressly reserve. The ju- 
 dicial power of the United States is a constituent part of 
 those concessions 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 juris- 
 diction 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. 
 
 It is not necessary to inquire whether the general govern- 
 ment, in any and what extent, possesses the power of con- 
 ferring 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. 
 
 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 much more extended in its nature 
 very indefinite applicable to a great variety of subjects 
 varying in every State, in the Union and with regard to 
 which there exists no definite criterion of distribution be- 
 tween the District and Circuit Courts of the same district? 
 
 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 pre- 
 serve its own existence and promote the end and object of 
 its creation, necessarily results to it. But without examin- 
 ing 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 go- 
 vernment ; 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. 
 
 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 N 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. 
 
 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 imprison for contumacy
 
 ( 286 ) 
 
 inforce the observance of order, &c. are powers which cau- 
 not be dispensed with in a Court, because they are neces- 
 sary to the eiercise 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.
 
 ( S37 ) 
 
 VI. 
 
 OF MR. JUSTICE STORY IN THE CASE OF 
 THE UNITED STATES v. COOLIDGE, 
 
 In the Circuit Court of the United States, for the District 
 of Massachusetts, October Term, 1813. 
 
 (1 Gallison, 488.) 
 Indictment for a Misdemeanor. 
 
 Whether the Circuit Court of the United States has jurisdiction over com- 
 mon law offences against the United States i 1 
 
 Story, J. 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. 
 
 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. 
 
 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
 
 ( 888 ) 
 
 which it shall be exercised, must be regulated by the rules 
 of the cummon law. In my judgment, the whole difficulty 
 and obscurity of the subject has arisen from losing sight of 
 this distinction. 
 
 Whether the common law of England, in its broadest 
 sense, including equity and admiralty, as well as legal doc- 
 trines, be the common law of the United States or not, it 
 can hardly ue doubted, that the Constitution and laws of 
 the United States are predicated upon the existence 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 United States, for instance, provides 
 that " the trial of all crimes, except in cases of impeach- 
 ment, 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," &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 habeas corpus shall not be suspended, unless when in 
 cases of rebellion or invasion the public safety may require 
 it. What is the writ of habeas corpus? What is the pri- 
 vilege which it grants ? The common law, and that alone, 
 furnishes the true answer. The existence therefore, of the 
 common law is not only supposed by the Constitution, but 
 is appealed to for the construction and interpretation of its 
 powers. 
 
 There can be no doubt, that Congress may, under the 
 Constitution, confide to the Circuit Court jurisdiction of all 
 offences against the United States. Has it so done ? The
 
 ( 239 ) 
 
 judicial act of 24th of September. 1789, ch. 20. sect. II, 
 provides, that the Circuit Court " shall have exclusive cog- 
 nisance of all crimes and offences cognisable under the au- 
 thority of the United States, except where that act other- 
 wise provides, or the laws of the United States shall other- 
 wise 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 United States,' 9 ' that is, of all crimes and offences, to 
 which by the Constitution of the United States, the judicial 
 power extends. The jurisdiction could not, therefore, have 
 been given in more broad and comprehensive terms. 
 
 The Court then having complete jurisdiction, the next 
 point will be to ascertain, what are crimes and offences 
 against the United States. And here 1 contend, that recourse 
 must be had to the principles of the common law, taken in 
 connexion with the Constitution, in order to fix the defini- 
 tion, 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 circum- 
 stances ; 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 United States would be left, in its exercise, to 
 the mere arbitrary pleasure of the Judges, to an uncontrolla- 
 ble 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. 
 
 The necessity and propriety of this principle will be ren- 
 dered still more apparentupon a farther consideration. There
 
 ( 240 ) 
 
 are a great variety of cases arising under the laws of the 
 United States, and particularly those which regard the ju- 
 dicial power, in which the legislative will cannot be effec- 
 tuated, 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 dis- 
 posed of. For example, in Massachusetts no Courts of Equi- 
 ty 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 United States, which provides for the process, 
 the pleadings, or the principles of adjudication. By what 
 rules then shall the Court proceed ? Certainly all reason- 
 ing and all practice pronounce, by the rules of equity re- 
 cognised and enforced in the equity Courts of England. 
 The illustration is yet more decisive, as to causes of ad- 
 miralty and maritime jurisdiction ; for these exclusively 
 belong to the United Stales, and nothing in the laws or prac- 
 tice of the respective States can regulate the proceedings 
 or the principles of decision. In my judgment, nothing is 
 more clear, than that the interpretat' j\i and exercises gf the 
 vested jurisdiction of the Courts of the United States must, 
 in the absence of positive law, be governed exclusively by 
 the common law. 
 
 I would ask then, what are crimes and offences against 
 the United Slates, under the construction of its limited so- 
 vereignty, by the rules of the common law ? Without pre- 
 tending to enumerate them in detail, I will venture to as- 
 sert generally, that all offences against the sovereignty, the 
 public rights, the public justice, the public peace, the public 
 trade, and the public police OF THE UNITED STATES, are 
 crimes and offences against the United Slates. From the 
 nature of the sovereignty of the United States, 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 di- 
 rected against the sovereignty or powers confided to the 
 United States, it is cognisable under its authority. Upon 
 these principles and independent of any statute, I presume 
 that treasons, and conspiracies to commit treason, embez- 
 zlement 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 rob- 
 bery and embezzlement of the mail of the United Stales, 
 would be offences against the United Slates. At common 
 law, these are clearly public offences, and when directed 
 against the United States, they must upon principle be deem- 
 ed offences against the United States. 
 
 If then it be true, that these are offences against the 
 United States, and the Circuit Court have cognisance there- 
 of, 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 pro- 
 hibiting 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 judg- 
 ments 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 
 United States 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 prac- 
 tice or laws of the States has been authorised by Congress, 
 or sanctioned by the Courts of the United States. The in- 
 variable usage of these Court* has been, in all cases not go- 
 verned by State laws, to regulate the pleadings and pro- 
 nounce 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. 
 
 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 K-gislature prohibits any act without annexing any 
 punishment, the common law considers it an indictable of- 
 fence, and attaches to the breach the penalty of fine and 
 imprisonment.* 1 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 with- 
 out punishment by the act of Congress, I have no doubt, that 
 the punishment by fine and imprisonment must have attach- 
 ed to the offence. 
 
 Upon what ground the common law can be referred to, 
 and made the rule of decision in criminal trials in the 
 Courts of the United States, and not in the judgment or 
 punishment, 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 exrent of the crime, in 
 some cases the right of challenge, and in all the admission 
 
 Com. Dig. Indict. I). 8 Co. 60.6. 2 Imt. 131. Bac. Abrid. fine D.
 
 and rejection of evidenc-s 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 
 in casibus omissis peremptory upon the Courts. 
 
 The privilege of the writ of habea* corpus 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 United 
 Slates, 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. 
 
 I might enforce the view which I have already taken of 
 this subject, bv an examination in detail of the organisation 
 and exercise of the judicial powers of the Courts of the 
 United States, with reference to their equity, admiralty, and 
 legal jurisdiction ; but it cannot be necessary. If I am right 
 in the positions, whict. I have already assumed and ex- 
 plained, there is an end of the question, which has been sub- 
 mitted. If I am wrong, the error is so fundamental, that I 
 eannot hope to reach its source by any merely illustrative 
 process. 
 
 The result of my opinion is, 1. That the Circuit Court 
 h s cognisance of all offences against the United States. 
 2. That what those offences are, depends upon the common 
 law applied to the sovereignty and authorities confided to 
 the United States. 3. That the Circuit Court, having cog- 
 nisance of all offences against the United States, may punish 
 them by fine and imprisonment, where no punishment is 
 specially provided by statute. 
 
 I have considered the point as one open to be discussed,
 
 notwithstanding the decision in the United Slates \. hud- 
 ton 4' Goodwin, 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 United States ; a juris- 
 diction 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, a? 
 I conceive, settled the question now before the Court, so far 
 as it respects offences of admiralty and maritime jurisdic- 
 tion. The Constitution has given to the judicial power of 
 the United States the jurisdiction as "to all cases of admi- 
 ralty 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 suc- 
 cessfully 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 ju- 
 risdiction are exclusively cognisable by the United States, 
 it follows that all such offences are offences against the 
 United States. 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 r 
 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 United States;" for crimes and offences within the 
 admiralty jurisdiction are not only cognisable but cognisa- 
 ble exclusively under the authority of the United States. 
 And Congress, in punishing certain offences upon the high 
 seas, which are neither piracies nor felonies, have undoubt- 
 edly 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 United States, there can be 
 none as to admiralty offences. 
 
 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. 
 
 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. 
 
 See 4 Bl Com. 5, 44, 263. 2 Bro. Civ. and Adm. Law. 
 
 Davis, J. 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. 
 
 See act 21th Sept. 1789, ch. 20, sect. 12, 13, 16, 17, tf c.
 
 VII. 
 
 REPORT 
 
 OF THE CASE OF THE UNITED STATES V. CoOLIDGE, AS 
 
 DECIDED ON APPEAL IN THE SUPREME COURT OF THE 
 UNITED STATES, FEBRUARY TERM, 1816. 
 
 (1 Wheaton, 415.) 
 (CONSTITUTIONAL LAW.) 
 
 THE UNITED STATES v. COOLIDGE, et al. 
 
 Queere, whether the Courts of the United States have jurisdiction of offences 
 at common law against the United States ? 
 
 THIS was an indictment in the Circuit Court of the dis- 
 trict of Massachusetts, against the defendants, for forcibly 
 rescuing a prize, which had been raptured and taken pos- 
 session of by two American privateers. The captured 
 vessel was on her way, under the direction of a prize mas- 
 ter 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 di- 
 vided in opinion. 
 
 The Attorney General stated that he had given to this 
 case 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, de- 
 livered at February term, 1813, in the case of the United
 
 Slates v. Hudson and Goodwin. That considering the point 
 as decided in that case, whether with, or without, argu- 
 ment, 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. 
 
 Story, J. I do not take the question to be settled by 
 that case. 
 
 Johnson, J. I consider it to be settled by the authority 
 of that case. 
 
 Washington, J. Whenever counsel can be found ready 
 to argue it, I shall devest myself of all prejudice arising 
 from that case. 
 
 Livingston, /. 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 United States v. 
 Hudson and Goodwin must be taken as law. 
 Johnson, J. delivered the opinion of the Court 
 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 cir- 
 cumstances the Court would not choose to review their 
 former decision in the case of the United States v. Hudson 
 and Goodwin, or draw it into doubt. They will, therefore, 
 certify an opinion to the Circuit Court in conformity with 
 
 that decision. 
 
 Certificate for the defendant.
 
 ( 249 ) 
 VIII. 
 
 (EXTRACT.) 
 
 The Commonwealth of Pennsylvania v. KOSLOFF. 
 
 In the Court of Oyer and Terminer of the city and county 
 of Philadelphia, January session, 1816. 
 
 (5 Serg. Sr Rawle, 545.) 
 
 Tilghman, C. J. The grand inquest for the city and 
 county of Philadelphia, having preferred a bill of indict- 
 ment against Nicholas Kosloff, Consul General of his Impe- 
 rial 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 Ju- 
 risdiction. 1. That the privilege of immunity from crimi- 
 nal prosecutions, is conferred on consuls by the law of na- 
 tions. 2. Thit by the Constitution of the United States, 
 exclusive jurisdiction in all cases affecting consuls is vested 
 in the Courts of the United States. 
 
 Mr. C. J. Tilghman decided the first question in the nega- 
 tive ; but his argument on this point not relating to the mat- 
 ters treated of in this work, it is here omitted. On the second 
 question, the Chief Justice proceeded to deliver his opinion as 
 follows. 
 
 2. A more difficult question remains to be considered- 
 Is the jurisdiction of this Court taken away, by the Consti- 
 tution and laws of the Unite I 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 
 wliich this question arises. An agent of a foreign govern- 
 ment, accused of a crime committed in the State of Penn- 
 sylvania, claims, not an exemption from trial, but the right 
 
 Kk
 
 ( 2&0 ) 
 
 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 Kmperor 
 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 com- 
 plaint, cases may be easily supposed, in which the Presi- 
 dent 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 tederal Union, and we shall 
 soon perceive, that the statesmen who framed it, were per- 
 fectly aware of the importance of placing all foreign public 
 agents, Consuls included, under the complete superinten- 
 dance of the Federal Government. It was through the ju- 
 dicial power, that those persons could principally be affect- 
 ed. Accordingly we find it provided, by the 2d sect of the 
 3d article of the Constitution, that the judicial power shall 
 extend "to aU cases affecting Ambassadors, other public 
 ministers, and Consuls." Words more comprehensive can- 
 not be devised 'Ihey include suits of every kind, civil and 
 criminal. This is uot 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 concurrent jurisdiction with the Courts of the United
 
 ( 251 ) 
 
 States ; or rather, that in the case before us, the State 
 Courts alone have jurisdiction, because, Congress having 
 passed no Jaw 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, viz. "in one Supreme Court, and in such inferior 
 Courts as the Congress may from time to time ordain and 
 establish." 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. " 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 origi- 
 nal 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 re- 
 strictions, 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 r 
 The opinion of the Supreme Court, Marbury v. Madison, 
 1 Crunch, 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 hail given origi- 
 nal 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 Consti-
 
 "tution 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, negative of other objects than those affirmed, and 
 " in this case, a negative, or exclusive 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 fur- 
 "ther than to provide for such cases, if no further restriction 
 "on the power of Congress had been intended. That they 
 "should have o/)/)e//a/ejuiisdiction in all other 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 uncon- 
 stitutional and void. And, if it was intended by the Con- 
 stitution, 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 Ravara, 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 ex- 
 clusive jurisdiction ; let us see whether Congress has not 
 excluded the State Courts by the judiciary act, passed 24th 
 September, 1789. By the 9th section, the District Courts are 
 vested exclusively of the Courts of the several States, with 
 cognisance of "all crimes and offences that shall be cogni-
 
 ( 353 ) 
 
 sable 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 ex- 
 ceeding 100 dollars, or a term of imprisonment not exceed- 
 ing 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 Man- 
 hardtv. Soderstrom, (1 Sinn. 138.) Then comes the llth 
 section ; by which the Circuit Courts are vested with exclu- 
 sive cognisance 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 there- 
 in." 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 Con- 
 gress 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 Constitu- 
 tion, that the Supreme Court shall have jurisdiction in all 
 cases affecting a Consul. 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 Pennsylvania, where the of- 
 fence was committed, inasmuch as there is no other express 
 law which reaches his case ? And it is on account of the 
 person only 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 Con- 
 stitution, treaties, er statutes of the United States shall
 
 otherwise require or provide, shall be regarded as rules of 
 decision in trials at common law, iti the Courts of the 
 United States, in cases where they apply r" May a person 
 convicted in a Court of the United States, of a crime of the 
 highest grade, concerning which Congress has made no pro- 
 vision, be punished, according to the opinion of Judge STOKY> 
 in Tht United Stales v. Conlidge, 1 Galliaorfs Hep. 488, 
 by fine and imprisonment, on the principles of the common 
 law. Or is the Constitution to be so construed, as to ex- 
 clude the jnrisdiction 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 neces- 
 sary to be answered here. No embarrassment, however, 
 could equal that into which this Court would be thrown, 
 should it determine, that no Court of the United States has 
 jurisdiction, in a case which affects a Consul in every thing 
 short of life, when the Constitution declares, that the Su- 
 preme Court shall have jurisdiction in all cases affecting 
 him. Upon full consideration, 1 am of opinion that the in- 
 dictment should be quashed, because this Court has no ju- 
 risdiction. 
 
 Brackenridge, J. concurred in the opinion to quash the 
 indictment, because exclusive jurisdiction 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. 
 
 Indictment quashed.
 
 ERRATA. 
 
 This mark -\ is intended to shew that the lines are to be counted from the 
 top of the page, ami this from the bottom of the text. The letter n, means 
 that 'the error is in the notes. 
 
 Page 1 , line 4 J. after the words " of the same State," add " claiming lands 
 
 under grants of different Stales." 
 P. 3, line 5 1 n. for " into," read " in." 
 P. 4, line 1 f lor " appears," read " appear." 
 P. 7, line 17 f for "on which it was called," read "which it was called 
 
 u|ion." 
 
 line 7 j. after the word " law," add a note of interrogation, ? 
 
 P. 1'2, line 10 4. for " obites," read " obiter." 
 
 P. 15. line 7 t ". tr "Mb," read " ibid." 
 
 P. 50, line 1 4.<fefe"turn." 
 
 P. 57, line 16 | for ' proceeding," read " proceedings." 
 
 line 19 f for " forms," read " is.'* 
 
 P 82, line 8 t for " A'kausaw," read " Arkansas." 
 
 1 - lines 14, 15 t for "governments have," read "government has" 
 
 and for " statutes," read" statute." 
 P. 187, lines 2, 3 j. for " efforts," read " effects."
 
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