territory, which powers, I humbly conceive the Constitution never meant to limit. This distinction I consider to be all important for the understanding of what is to follow.

I shall then in the first instance consider the jurisdiction of the federal Courts as it relates to the States properly so called, that is to say, as exercised within or for their proper territory.

SECTION I.-Within the actual limits of the States properly so called from which I except forts, arsenals, &c. over which the United States, by a special provision of the Constitution, have exclusive jurisdiction, the federal Courts cannot be said to possess jurisdiction in locum, unless by way of limitation of the extent of their judicial action. The general jurisdiction over the territory is in fact vested in the States themselves, by virtue of their sovereignty, and that of the federal Courts, derived from the Constitution alone, is merely permissive and consequential on certain specific powers. It is given to them, not as connected with, or flowing from, any right that they have over the territory, but as a means necessary to the exercise of their jurisdiction over persons and subject matter. It is, therefore, from persons and subject matter only, that their whole jurisdiction is derived within these precincts, and they possess no judicial authority whatever, unless it vests in them from one or the other of these two sources.

I shall, therefore, in the consideration of this part of my subject confine myself to the jurisdiction that is derived from either person or subject matter.

I shall endeavour to prove to you, that it is not true as a general principle, that the judiciary whether in criminal or civil cases, have not jurisdiction of the common law, or cannot take cognisance of common law offences; that, on the contrary, whenever jurisdiction is completely vested in them from either of the sources above mentioned, they have cognisance of the law, whatever it may be, that is necessary to give effect to that jurisdiction, and they are not in all cases to wait until Congress have legislated upon the subject.

It must not be believed that our Constitution has given to the national legislature powers co-extensive with those that it has conferred upon the judiciary. There are many cases in which the judiciary can act, nay, when it must act, on subjects which the legislation of Congress cannot reach. Thus, in civil matters, the federal Courts have jurisdiction of all controversies between two or more states, between a state, plaintiff, and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of 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 power to legislate on all the various subjects that may give rise to those controversies, although the judiciary are authorised to decide on all and every of them, whenever properly brought within their ju

* Const. U. S. art. 3. §. 2.

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 include criminal as well as civil jurisdiction. But it is clear that Congress have not the power given to them to legislate upon all matters that may affect those personages. Their legislative powers are confined within a circle traced by the Constitution itself, beyond which their authority ceases, while that of the Judiciary continues. Thus Congress may protect, by laws, the persons and property of ambassadors, public ministers, and consuls, and provide, as far as the law of nations permits, for their punishment, when guilty of certain offences but the States also may bind consuls by their municipal laws, criminal as well as civil, in all cases in which the law of nations, or treaties, do not exempt them from the effects of ordinary legislation ; and it cannot be imagined that the Constitution meant to give the power to Congress to interfere there, to make complete codes of civil and criminal law, and even police regulations, applicable only to that class of persons, and to release them from all subordination to the municipal laws of the States in which they reside. But the smallest as well as the greatest penalty incurred by a consul by the infringement of the municipal law of a State, is ex

F

clusively cognisable in the federal Courts, and the State tribunals cannot exercise upon them even the least degree of jurisdiction.

If these principles are correct, it seems to me to follow as a natural consequence, that in all cases in which jurisdiction is vested in the federal Courts, either over the person or subject matter, those tribunals must either take the law applying to the particular case, whatever it may be, as their rule of decision, or the jurisdiction cannot be exercised.

Proceeding now to illustrate this doctrine by examples, I shall first consider its application to cases of jurisdiction in personam. The Constitution has given to the Supreme Court, but not exclusively, cognisance of all cases affecting ambassadors, other public ministers, and consuls; and an Act of Congress has conferred the same authority, as far as respects the latter of those public characters, on certain inferior Courts; here is then a complete jurisdiction given by reason of the person. If a consul commits an offence against the common or statute law of the State where he resides, how is that jurisdiction to be carried into effect, but by means of those laws which have been violated? How is it to be in a case in which Congress cannot possibly legislate within the State's territorial limits, as if a consul offends against the health laws, against an Act forbidding clandestine marriages, lotteries, unlawful games, the violation of days set apart for religious worship, &c. I see no answer to be given, but

that the federal tribunal is to stand precisely in the place of the State Judges, and to administer justice in the particular case, as these should have done, if the jurisdiction had not been taken from them, and vested elsewhere.* For the adjudicating power alone has been transferred from one tribunal to another, every other authority, as applying to the subject matter, remaining as it stood before, except where express or implied legislative powers are granted to Congress by the Constitution.

Three cases only have been decided (at least that have come to my knowledge) which bear upon this part of my argument. They are Mannhardt v. Soderstrom,† The United States v. Ravara,‡ and The Commonwealth of Pennsylvania v. Kosloff. 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 have jurisdiction of offences against the peace and dignity of the individual States, and whether these can be said to be against the peace and dignity of the United States? But I see no difficulty in laying such an offence in an indictment, as against the peace and dignity of both; for it appears to me that in the political as in the physical body, whoever offends a part, offends the whole. But suppose this plain and obvious principle should not be deemed applicable to the case before us, the question then would be, whether this formidable objection is to prevent the execution of the powers exclusively vested by the Constitution in the federal Judiciary, and whether the Constitution is to bend to the technical forms of the common law, or these to be modified so as to suit the exigency of the case? I leave the answer to every sensible and rational jurist.

† 1 Binn. 138.

2 Dall. 97.

§ 5 Serg. & Rawle, 545.