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

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

The opinions of the Judges, in the four cases above mentioned, are inserted at large in the 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 been discussed in the course of our exercises, I mean the nature and extent of the jurisdiction of the Courts of the United States, and the various laws by which they are governed. Twice, within these three years, you have debated the questions, whether the federal tribunals have jurisdiction or cognisance of crimes and offences at common law? and incidentally, whether there is a common national law in this country? These are weighty questions, which have called forth the exercise of the first abilities of the land, and yet at this moment are not completely settled. For, I do not consider them to be so by the decisions in the cases of the United States v. Hudson and Goodwin, and the United States v. Coolidge. I take no point to be settled by the first of these cases, but that the federal Courts can derive no jurisdiction from the common law, which doctrine has my full and unqualified assent; but it does not appear to me to follow that they cannot, in any case, take cognisance of offences at common law,

⚫ 7 Cr. 32.

1

† 1 Wheat. 416.

D

nor that the common law is not in other respects than giving jurisdiction, the national law of these United States; the last case was given up by the counsel for the prosecution on a mistaken impression of the bearing and effect of the Court's decision in the first, and the Judges expressed a disposition to hear the question argued again whenever a proper opportunity should offer. I therefore consider the subjects which I have undertaken to treat of as still open to our modest and respectful inquiry.

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

in a new and complicated system of constitutional law, which as it has not its equal in excellence, has not its like in the order and distribution of its powers.

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

In the next place, questions ought not to be put in loose and vague terms, but in such as admit of a clear and definite answer. In the case of the United States v. Hudson and Goodwin, above cited, the question was as stated by the reporter, whether the federal tribunals could exercise common law jurisdiction in criminal cases? It appears to me to have been here ambiguously expressed, because the words common law jurisdiction, admit of different interpretations, and consequently of dif ferent answers. If it is meant by them to ask whether the Courts possess any jurisdiction derived from the common law, which seems to be the sense in which they were understood in that case by the Supreme Court, the answer is clearly to be

given in the negative; because, the Courts of the United States, being the creatures of the Constitution, cannot have or exercise any powers but what they derive from or through it. Of this there can be no doubt. But, if this undeniable proposition is carried so far as to infer, that those Courts cannot in any case whatever, take cognisance of an offence which is only made such by the common law; and this is the sense in which it seems to be generally taken by the profession, in consequence of some obiter expressions fallen from the bench; then I am bound to say, that neither the Constitution nor the laws of the United States, nor yet the rules of sound logic, warrant such an application of the principle. Because the Courts have not jurisdiction from the common law, it does not follow that they have not jurisdiction of the common law. This is what I shall endeavour to prove to you in the present dis

course.

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

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