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 I 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 jurisdiction 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 general point of view. The only ground on which they could possibly claim it was, that the parties injured by the offences which were the subject of prosecution were officers of the government of the United States, in various stations. If this circumstance 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

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 Constitution 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 by virtue of the general judicial authority granted to them by the Constitution, and apportioned in its full extent by 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 common or statute law of the State where the offence was committed, as a means without which their end could not be accomplished. No such power appears to have been given, in explicit terms; if given at all, it is to be implied from that clause in the Constitution which enumerates, among other judicial 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

cases in which they are concerned, or by which they are or may be affected, come under this general 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 sufficient 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 supported. 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 limitations.

The next question is, whether protection may be afforded to those officers by the national Legislature?

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 know,

and history will tell what disturbance its exercise, not by an inferior Court, but by the federal Legislature themselves, occasioned in the nation. I allude 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 imbibed 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, prejudices 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 government.*

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 succeed him, and that a different party from that which at that time had the government in their hands 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 this law to be appointed by his successor, he would have conferred a lasting benefit upon the nation. But 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. Since that 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 judiciary 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, therefore, 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 travelling 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 punishment? 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, because 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