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also to reconcile with the rejection of the common law as a national system of jurisprudence, the searching into it with so much industrious care, for forced analogies to 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 subjectam materiam. The subjects of this branch of jurisdiction are various as the law itself, since it embraces every thing which properly comes within the sphere of legislation. In general, they are crimes and punishments, natural and social relations, contracts, obligations, duties, rights and wrongs. In order to facilitate the administration of justice, the cognisance of these various matters is commonly distributed among dif ferent tribunals. Hence there are civil, criminal, ecclesiastical, military, maritime, commercial, matrimonial, and testamentary Courts, Courts of Equity, of revenue, and of international law. Some of these Courts take the civil, some the canon law, while others take the common or municipal law of the country as their general rule of decision; but it is not on the use of one or other of these codes that their right of jurisdiction rests. These are but the means or instruments, through which they exercise it, nor are they limited to the exclusive use of any one of them; for when proper cases present themselves, they expound, and decide on any system of jurisprudence, that may be found applicable. Thus,

our Courts of common law often apply the rules and principles of equity, while our Courts of Equity are even bound by the decisions of the common law. Thus all Courts of justice, when called upon to decide on foreign contracts, take the law of the foreign country, the lex loci contractus as their guide, and decide according to its principles. The jurisdiction over the particular case being vested in them, on one of the three grounds that I have above mentioned, they become entitled to use all the means and instruments that are necessary to its correct exercise, and among those, unless there should be a special prohibition or exclusion, are the laws which are applicable to the subject matter before them.

Let us not be deceived, therefore, by those familiar expressions which are used at the bar, and sometimes even on the bench, to describe and designate certain tribunals, but not to define their jurisdiction. Thus, the admiralty is called a Court of civil law, and the ecclesiastical tribunals Courts of canon law; but these denominations have nothing to do with the nature or extent of their jurisdictional rights, which are generally founded on the subject matter. The admiralty has cognisance of things done at sea, and of certain contracts and other matters of a maritime nature, such as bottomry, mariner's wages, salvage, &c. and of crimes, and offences committed on the high seas. Court of prize, it entertains jurisdiction of captures jure belli and their incidents, and in the United

States it is also a Court of revenue. The jurisdiction of the English ecclesiastical Courts comprehends various matters concerning the church establishment, such as substraction of tythes, oblations, mortuaries, and various other subjects relating to church discipline; also the probate of wills, granting letters of administration, marriage contracts, consanguinity, divorces, alimony, &c. but the parliament might forbid them the use of either the civil or the canon law, and their jurisdiction would still remain the same, their means of exercising it would only be narrowed, or in some cases, perhaps, entirely taken away, but their right over the subject matter would not be in the least diminished. Thus, when the Legislature of Pennsylvania prohibited our State Courts from taking certain adjudications of the English tribunals as their rule of decision, they did not mean to abridge their jurisdiction in the smallest degree, but left it unimpaired as it was before.

It may be said, however, that the various branches of jurisdiction may be limited and restricted in such manner as the legislator thinks proper, and it will be inferred as necessary consequence that jurisdiction of crimes, and offences ratione materiæ, may be limited to certain criminal acts, while others may be excluded, and these designated by the particular code of laws which constitutes them crimes or offences. I admit both the proposition and the inference. But the question is not whether such a thing may be done, but whether it has been done;

it is so different from the usual course of legislation that it ought not to be presumed, but the intention of the law giver should be clear and manifest, which I take not to be the case in the present instance. There is no such distinction made in any part of the Constitution of United States; on the contrary, all the jurisdictions that it creates are founded on the natural, and legal grounds of person, place, and subject matter, without any, the least reference to any particular code, except that the common law is sometimes mentioned or referred to as the rule of 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 jurisdiction of offences at common law, if the jurisdiction of those Courts was really deficient, it must have arisen from other causes, and the defect of jurisdiction must have been founded on other grounds than that which has been assumed.

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

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

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

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

The two above mentioned branches of jurisdiction are, in my opinion, extremely different. The one is unlimited, except by the acts of the federal legislature, where they apply, the other is restricted within precise limits by the Constitution itself: these limitations, it is evident, were expressly introduced for the purpose of guarding and protecting so much of the sovereignty of the States as they have thought proper to retain; but where the Constitution gives to the federal government an 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 Maryland, exercises its jurisdiction over one of the confederated States, and therefore is strictly to be considered as the Supreme Court of an union of independent Republics, limited and restricted by those branches of sovereignty which they have not parted with; when, on the contrary, it is sitting for the District of Columbia or the territory of Michigan, where there are no reserved rights that can be encroached upon, although still acting under the national authority, it is in those instances exercising the powers of the Supreme Court of the district or

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