ruptcy, they have only acted upon it temporarily, and ever since have abstained from its exercise. If this distinction is correct when applied to powers expressly given, it is so à fortiori as to those which are merely implied. The power of protecting the officers of government from violence and insult, is no where given in terms in the text of the Constitution, although it may be fairly inferred from its whole context. Nor is it given to any particular branch of the government. It is therefore, in the nation at large, and lies dormant until it shall be called into action by the national Legislature.

There is no absolute necessity for vesting immediately the judicial branch of this power in the federal Courts. The officers of the national government have long lived, and, it is to be hoped, will long live, under the safe protection of the laws of the States where they may permanently or transiently reside. When it will be necessary to give them a higher protection, it is not for the judiciary to decide; the Legislature alone is appointed to watch over the welfare of the nation and provide for its wants when it shall think proper so to do, it will be the duty of the federal tribunals to execute the laws that it shall make.

On this ground my mind perfectly coincides with the decision of the Supreme Court in the case of the United States v. Hudson and Goodwin, although I do not concur in all the reasoning which is reported as forming the grounds of their decision. The question was not propounded to them in such

clear and precise terms as to lead them directly to the essential point on which it turned. Yet this point did not escape their discriminating minds, and they have decided on it in such a manner as was to be expected from their judicial talents.

I shall now proceed to treat of cases which come within the scope of admiralty and maritime jurisdiction. It is necessary that I should speak somewhat at large upon this subject.

The admiralty jurisdiction in England is divided into two separate and distinct departments, proceeding by different laws and different forms of judicial inquiry. The original cognisance of civil matters is exclusively vested in the High Court of Admiralty, consisting of a single Judge, who is a Doctor of the civil law. All proceeding there are according to the forms prescribed by the Roman Imperial Code, which, together with the general maritime law and statutes of the realm, forms the rule of decision. The criminal jurisdiction, on the contrary, belongs to what is called the Court of Admiralty Sessions, which consists of commissioners of Oyer and Terminer appointed under the great seal, consisting of the Judge of the Court of Admiralty, who presides, and three or four other persons, two of whom are to be common-law Judges. In this Court all trials are by jury, and the proceedings according to the course of the common law. In ancient times, the Judge of Admiralty was possessed of criminal as well as civil jurisdiction in the fullest extent, but the civil law mode of trial

I

which was practised in his Court, in criminal as well as in civil cases, being justly complained of as a grievance, the present system was established by statute 28 H. 8, c. 15, which to this day continues in force.*

In the American colonies the whole admiralty power was vested in a single Judge, as it was formerly in England; in criminal causes, however, the trials were by jury, and the proceedings according to the forms of the common law. How this practice was introduced I cannot tell; probably in imitation of the usages of the mother country, possibly also the Judges were so directed in their commissions, or in the orders which they received from the Lords Commissioners. When the admiralty jurisdiction was transferred to the State Judges at the revolution, and subsequently to the federal tribunals, this mode of proceeding was so well established that it was, and is still, considered as inherent to the admiralty system, and as the law of the land in relation to this subject.

The result of this system is, that the criminal department of the admiralty jurisdiction in England and in this country, presents a singular mixture of the civil and common law, in which the latter, however, predominates. Although the statute of Henry VIII. introduced it merely for the purpose of regulating the mode of trial and form of proceedings, its principles have gradually become interwoven with the whole criminal branch of the

4 Blac. Com. 269.

admiralty law. To this the common law definition of the crime of piracy has not a little contributed. It defines this offence to be "those acts of robbery ❝and depredation committed at sea, which, if com"mitted on land, would have amounted to felony."* This reference to the common law for the definition and qualification of particular acts, threw the law of nations and the civil law so much into the back ground that it was even doubted whether piracy by the law of nations only, and not coming precisely with the common law definition of this offence was cognisable by an admiralty Court. In crimes amounting to felony, therefore, the common law may be considered, if not as the exclusive, at least, as a legitimate and concurrent source of authority and rule of decision; but in offences of an inferior grade, the law civil and maritime, as contradistinguished from the common or municipal law, still governs in every thing but the forms of proceedings and mode of trial.

Such is the jurisdiction which has been transferred by the people of the United States, and by the States, themselves, when they ratified the Constitution, to the national government, to be exercised by the judiciary branch of its administration. I do not and cannot consider it as one of those potential or permissive powers which I have above mentioned. It is of vital importance to the national safety and even existence, and it has been committed in its fullest extent to the federal judiciary by name, while

4 Blac. Com. 71.

the power of the Legislature over the subject was left, except in the specific cases of piracy and prize, to be collected from implication and as matter of inference. If, therefore, the Congress had done no more than to designate the particular Courts which should exercise that jurisdiction, I do not think that they should be bound to wait for particular laws defining their powers or the mode of executing them before they proceeded to its exercise, neither should they wait for laws defining maritime offences and affixing their punishment; for the admiralty law has provided for all these matters, and the administration of that law was committed to them when the jurisdiction was transferred; for whoever gives the end gives the means. Nor do I think that so much inconvenience can arise as some have imagined from the defect of legislative provisions in these matters, even as respects criminal jurisdiction. Maritime offences are divisible into two classes, felonies and misdemeanors. The former, under the general name of piracy, are sufficiently defined by the law of nations and the common law. The latter are classed and defined in a well known scientific code, and their punishment generally results in fine and imprisonment as at common law. Doubtful and difficult cases, no doubt would have arisen, as in every other branch of the judicial functions; but it would have been the duty of the Judges to solve them as in other cases, subject to the revision of the Supreme Court of the Union. In matters of life and death, they would have taken care