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instance. From the opinion of Judge Chase and the doubt of Mr. Chief Justice Marshall, an unsettled notion was formed and spread abroad among the profession, that "the Courts of the United States had not jurisdiction of the common law." Such was the language in which the idea was expressed, in which no distinction was made between the common law as a source of jurisdiction, and as a rule or means for its exercise.*

It is not astonishing that this confusion of ideas should have prevailed. In England, the jurisdiction of almost every tribunal is derived from the common law, that is to say from ancient usage. From the same source proceeds, at the same time, almost the whole of the English jurisprudence. Jurisdiction and law flow together in a mixed stream, which in that country there is little necessity to analyse in order to separate its component parts; while in this country, a phenomenon has suddenly appeared, of a national judiciary in a manner assimilated to municipal tribunals by the various limitations of its powers, not as between the different Courts of which it might be composed, and with a view to settle their respective bounds of authority, but as between them and the tribunals of component parts of the nation, which, though dependent to a certain extent on the national government in all its

* I did not, any more than others, escape the general contagion. It was not until after repeated discussions of these questions in the law academy, that I began to perceive that the words "common law jurisdiction," had no definite meaning, and was led to enter into this investigation of the subject.

branches, are still sovereign to all other purposes within their respective limits. The common law, therefore, is not the source to be recurred to to unravel the intricacies of this system.

Things remained in this situation until the year 1812, when a case was brought up to the Supreme Court from Connecticut on a division of the Judges, in which the question of common law jurisdiction was propounded in terms for the decision of the superior tribunal. It was the well known case of the UNITED STATES v. HUDSON and GOODWIN.* The defendant, a citizen of Connecticut, had been indicted for publishing a libel against the President and Congress of the United States. Whether the Circuit Courts had common law jurisdiction in cases of libel? was the question submitted to the Supreme Court, and on which it was called to decide.

The manner in which this question was worded seemed to imply that the Court in that case derived no jurisdiction either from the Constitution or a Statute of the United States. Could they assume such a power as derived only from the common law. The Court, through Mr. Justice Johnson, decided in the negative. They did not think it material to inquire whether the general government possessed the power of protecting themselves by providing for the punishment of such acts as this, nor to what extent they might possess it, but if they had this power, it did not follow that it was

*7 Cranch, 32.

concurrently vested in the judiciary; if the Constitution did convey certain implied powers to the government considered as a whole, it did not follow that the Courts of that government were vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. To this argument there seems to be no answer. It made at

once an end of the case.

The Court, however, did not stop there, but proceeded to say that in order to vest jurisdiction in the federal judiciary in criminal cases, it was necessary that Congress should not only define the offence, but also affix the punishment. Of this I have taken the liberty to express doubts in the ensuing discourse. It is certain that Congress, in their penal statutes, have designated several offences merely by their technical names, without otherwise defining them. Nor do I conceive that these matters are at all connected with jurisdiction, which may be conferred by simple words, such as are sufficient to describe the person or the subject matter over which authority is given. But I will not anticipate my argument.

The Court proceeded further, and in doing so, I must say, travelled, as the phrase is, extrà cancellos, or beyond the record. The question submitted to them simply was, whether the Courts of the United States had common law jurisdiction in cases of libel? The question which this case presents, said Mr. J. Johnson, "is whether the Circuit

"Court can exercise a common law jurisdiction in "criminal cases? We state it thus broadly," continued the learned Judge, "because a decision in "a case of libel will apply to every case, in which "jurisdiction is not vested in those Courts by sta"tute."

As the Court understood it, there can be no doubt of the correctness of this opinion. They spoke of jurisdiction only, properly so called. It is clear that it can be conferred on the federal tribunals only by the Constitution or by the statutes made in pursuance of it, and that setting aside the question whether those Courts may derive their rules of action from the common or any other law, yet they cannot derive from such a source their right to act; except where, as in cases of admiralty, and maritime jurisdiction, a general authority is given to them to administer in all cases a particular body of laws. But these words, and those of Judge Chase in the case of the United States v. Worrall, were taken by the profession in a much more extensive sense than the Court in this case appears to have had in contemplation.

This was made manifest in a case which presented itself in the following year (1813) before the Circuit Court of the United States for the District of Massachusetts. I allude to the case of the UNITED STATES V. COOLIDGE.* This was an indictment for forcibly rescuing on the high seas, a prize which had been captured and taken possession of by two

Cc

* 1 Gallison, 488. 1 Wheaton, 415.

American vessels, and was on her way, under the direction of a prize master, to the port of Salem, for adjudication. Whatever else it might be, it was clearly not a case of common law. It belonged to the admiralty jurisdiction, expressly committed by the Constitution to the federal judiciary, and distributed between the Circuit and District Courts by the statutes of the United States, made in pursuance of it.

It appears that the case of the United States v. Hudson and Goodwin, before mentioned, had been decided by the Supreme Court on an ex parte argument, the counsel for the defendant having declined the discussion of the point. This, Mr. Justice Story, who presided at the trial of the case we are now speaking of, very properly considered as leaving the whole question still open, and as by no means settling the law upon it; but as the learned Judge was well aware of the difference between that case and the one before him, and that the jurisdiction of the Court could be sustained in the latter on much stronger grounds than in the former, it is much to be regretted that he thought it necessary to travel out of his straight path, and to abandon an impregnable fortress to seek battle in the open field. I can only account for his taking that course by the strong desire which I suppose he felt that the general question of common law jurisdiction should be considered by the supreme tribunal with the solemnity due to its importance, and that it should be finally settled after a full re