them.* But they do not reject its salutary principles when they find them applicable to their local situation and circumstances. They are as much attached as we are to those great bulwarks of political and civil liberty, the habeas corpus, the freedom of the press, trial by jury in civil as well as in criminal cases, and all those protecting forms which are established among us as the safeguards of liberty and innocence.

The Louisianians have lately determined to be governed entirely by written laws. Mr. Livingston has been charged with the preparation of a draft of a criminal code; his able report to the Legislature upon that subject is well known in this country. He, in common with others, is also appointed to prepare a revised civil code, and thus every branch of State jurisprudence is to be reduced to a text. But do what they will, legisla

tors will never be able to provide for every possible case, and much will still have to be left to the sound discretion of the constitutional expositors of the laws. The celebrated code of Justinian is not free from obscure laws, on the true sense of which commentators have not yet agreed, and even antinomies not unfrequently occur in the decisions and edicts which compose the body of the civil law. In

"The existing laws in this territory, when this Constitution goes into effect, shall continue to be in force until altered or abolished by the Legislature: Provided, however, that the Legislature shall never adopt any system or code of laws by general reference to the said system or code; but in all cases shall spe. cify the several provisions of the laws it may enact." Const. of Louisiana, art. 4. §. 11.

M

every country there is what the French call jurisprudence, and we, common law; which is nothing else than the aggregate of the successive decisions of Judges on points which the textual laws have not foreseen, or have not sufficiently explained.*

But enough of Louisiana. The remainder of its ancient territory, not long since a wilderness, forms at present the territory of Arkansaw, separated from Missouri in 1819, three years after the common law had been introduced by statute into that State. It therefore remains subject to it.

1

The Floridas are yet nominally under the dominion of the law of Spain, unless their lately established territorial governments have established the common law by statutes as was done in Missouri. At any rate the common law, if it does not already, must soon prevail in these Territories. It is a sound, and a wise policy where there is not a large and important population attached to another

In France, although it abounds with codes, there are, nevertheless, voluminous collections of reports of judicial decisions, the knowledge of which is an important branch of the legal science, and is called la jurisprudence des arréts. These decisions, although they are not considered paramount to the textual law, have nevertheless great authority. Before the late revolution, they were not so much respected as they are at present, because there was no supreme judiciary in that country, and the parliaments, within their several districts, often decided in contradiction to each other. The maxim at the bar, then was, judicial decisions are good for those in whose favour they were given. But since a bigh Court for the correction of errors has been erected for the whole kingdom, under the name of cour de cassation, their opinions, though sometimes contradictory, have obtained a much higher degree of respect, and a common law is gradually establishing itself by the side of the ancient and modern codes. The degree of authority to which these supreme decisions are entitled, has lately become an important question among the French jurists. See on this subject the excellent treatise of M. Dupin, one of the most eminent advocates of the Paris bar, entitled "De la jurisprudence des arrêts," Paris, 1822. He maintains the doctrine of the great BACON.

system, to introduce that which is in use in the governing country.

By whatever law these countries may be governed, that is their common law, and whenever it applies, it is that which the federal Courts are bound to carry into execution. But in all cases in which the local laws are not susceptible of application, these States and territories are of course subject to the same law with the others, to the common and statute law of the whole country.

I proceed now to the last division of this part of my subject.

5. FORTS, ARSENALS, DOCK-YARDS, &c.-By the Constitution of the United States, art. 1. §. 8. parag. 17. "Congress have the right of exclusive legisla❝tion in all cases whatsoever, over all places pur"chased by the consent of the Legislature of the "State in which the same shall be, for the erec"tion of forts, magazines, arsenals, dock-yards, "and other needful buildings." The States by their cessions have sometimes thought proper to limit this right of exclusive legislation, and even to retain the whole of the jurisdiction which they before possessed. Thus Pennsylvania, in the act of Assembly of the 15th of April, 1795, by which she cedes Mud island, and the fortifications thereon erected, to the United States, has inserted a proviso

that her jurisdiction over the island, in civil, "and criminal cases, shall be the same as before "the passing of that act."* Other modifications

3 Bioren's L. Pennsylvania, 223.

have been required by other States, and agreed to by Congress. Whether individual States, when they cede particular spots to the United States for the important purposes of erecting forts, arsenals, and other bulwarks of national defence, have a constitutional right to reserve to themselves the exercise of the legislative and judicial power over those places, and thus be enabled to defeat the military operations of the general government, is a question which I shall not here inquire into; I think it, with Mr. J. Story at least, extremely doubtful ;* but I can see no reason why the laws which were in force on those particular spots before they were ceded, should not continue to govern, until Congress shall think proper to alter them; to be executed, however, by the authorities of the United States, and by no others, otherwise, anarchy must prevail there, in all cases for which Congress have not legislated. Thus, there is no provision made for the definition and punishment of the crime of arson, of all others the most dangerous in places of this description; on the principles which I have laid down, this crime may be punished by the United States judiciary merely applying and executing the law on this subject, by which the place was governed before the cession.

Having thus explained to you the meaning of the word jurisdiction, and pointed out the various sources from whence the judicial authority in general arises; having moreover endeavoured to

* U. S. v. Cornell, 2 Mason, 66.

elucidate the principles on which I conceive that every question respecting the jurisdictional rights of the federal Courts ought to be discussed, so as to lead to rational as well as legal conclusions, I shall proceed to consider another not less important subject by examining with you, whether there is in the United States a common or national system of laws, other than the law of nations, the Constitution, and the acts of the federal Legislature.

SECTION III.-If, as I have endeavoured to prove to you, there is in every State and in every District or Territory, a common or local law which takes effect in most cases in which Congress have not legislated or have not the power to legislate to the contrary, this question will probably appear to you more curious in theory than useful in practice; it is certain that if the principles which I have successively laid down are admitted, the circle of operation of this common or national law (if it exists) will have been very much narrowed, and but very few cases will remain susceptible of its direct application; nevertheless, the subject is too interesting to pass unnoticed, and, at the risk of trespassing too much upon your patience, I will proceed in its investigation.

I never could comprehend how a great country like the United States, connected by manners, customs, habits, religion, and government, can exist together without a common law. The civil law is the common law of Europe, and is so called, jus com