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 so precisely described as in the above hypothesis, but is left in many cases to inference from an authority generally given. The whole jurisdiction of the federal judiciary in criminal matters is to be deduced directly or by inference from the generality of the powers given in the second section of the third article in the following words:

"The judicialy 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 inferences to which it leads, as it is to be adverted to in another part of this discourse; it is enough for me at present to have shewn that the Constitution contains no exclusion of the common law, either as

a basis of jurisdiction, (if such it could be,) or as a rule or medium of judicial decision. From all that appears, the judiciary are not limited as to the use of any of the means that may be necessary to the exercise of the powers conferred upon them.*

One of the arguments that are used in favour of this exclusion in the United States, that the common law of England is foreign to us as an united nation, and that as it has been adopted in the different States, it has suffered so many variations, that no uniform system can be made out of the whole; this reasoning will be considered in its proper place; but the common law which I speak of at present under the head of offences committed and tried within the limits of the individual State, is the common law of the State where the offence was committed, and where it is tried, and why that, the only means (where no other law exists applying to the case) of administering justice and executing the powers granted by the Constitution, and, as I shall presently shew, by the laws of the Union, to the judiciary, should be interdicted to them, is what I never could conceive, and for which I have heard as yet no satisfactory reason given.

The reason given for this exclusion by Mr. Justice Johnson in delivering the opinion of the Supreme 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 videntur, sine quibus jurisdictio explicari non potest. f. L. 2. tit. 1. 1. 2.

jurisdiction, as it is called, has not been conferred by any legislative act on the federal tribunals inferior to the Supreme Courts. He admits that the Supreme Court may exercise the judicial powers granted to them by the Constitution, (which, by the bye, except in a few specified instances, are appellate powers,) without the aid of a legislative sanction; but whether the Supreme Court themselves possess this common law jurisdiction, or whether it is in the power of the Legislature to confer this authority by a legislative act, he leaves undetermined as unnecessary to his argument.

But nothing appears to me more easy than to prove, that if this common law jurisdiction is among the powers granted by the Constitution of the federal judiciary, and if the Supreme Court of the United States can exercise it by virtue of that instrument, the inferior Courts have the same authority vested in them by an express act of the national Legislature, and this may be done by shewing that the powers given by the Legislature to the inferior Courts in criminal cases are couched in terms sufficiently general to embrace all those granted by the Constitution to the judiciary at large.

By the 11th section of the Judiciary Act of the 24th September, 1789, it is provided: "That the "Circuit Court shall have exclusive cognisance of "all crimes and offences cognisable under the 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

"risdiction with the District Courts of the crimes "and offences cognisable therein."

The exceptions to which the above section refers, are no others than certain powers which the act confers on the District Courts; taking the whole together, a jurisdiction is given and distributed between these two tribunals which is co-extensive with that which the Constitution has bestowed on the judiciary branch of the government; if, therefore, any particular jurisdiction is not vested in the inferior tribunals, it cannot arise from a defect of legislation with respect to them; but it must be either because the power in question is not included within any of the grants of judicial authority which the Constitution contains, or, because, if included here, it cannot be called into action without an act of the Legislature, without any distinction between superior and inferior Courts.

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 mislead us to pursue this argument further; having shewn that the common law is only a means of administering justice, which follows of course when the end is granted, I must now explain in what manner men of highly gifted minds have been led to consider the subject in this point of view; for which purpose it is my duty to point it out in its proper and precise shape; but this cannot be so easily done by general principles and arguments, H

so various are the cases which this subject involves, I shall take the course of examining separately each particular case in which a decision has been given, and pointing out the different points of view in which each of them should, in my opinion, have been considered in order to arrive at the precise questions on which they severally depended. It will be seen that they do not all turn on the same principle, nor give rise to the same points of controversy. It must be remembered at the same time that I am at present only considering the extent of the jurisdiction of the federal Courts when sitting within the limits of or for the United States proper, 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 jurisdiction.

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.