statutes; corruption of blood, trial by battle, all other modes of trial, but trial by jury in criminal cases are also abolished; in short the common law as modified by our Constitution, by our laws, manners and usages, is as wholesome and as harmless a system, in criminal as well as in civil cases, as any that can be devised.

As to offences not capital, cruel and unusual punishments being forbidden by our Constitution, there remains none but fine, imprisonment and, perhaps, whipping and the pillory. I hope I shall hear nothing of the ducking stool and other obsolete remains of the customs of barbarous ages. The pillory and whipping, I know, are out of use in most of the States, imprisonment at hard labour having been substituted in lieu of them. Yet Congress have thought proper to retain the latter punishment in their penal code, and we have seen it inflicted not long since in our city on an offender against the laws of the United States. It is in the power of the national Legislature to alter or amend the law in this respect, as they shall think proper; but until they do so, I see nothing inhuman in the moderate infliction of either of these penalties, nor any reason why we should reject the common law on their account.

It may be said, perhaps, that there is too much left to the discretion of the Judges as to the quantum, and even the nature of the punishment and sometimes also as to deciding what is or what is not an indictable act. As to the quantum of pun

ishment, I know no system of laws in which some discretion at least is not left to the Court according to the greater or lesser magnitude of the offence. It is impossible to avoid this inconvenience by any legislation. The same thing may be said of the authority to choose between two or three mild punishments; there may be cases in which imprisonment would be death to the party, and when a fine may be inflicted upon him with greater effect; others when the reverse may be the case. With respect to the power of deciding in some doubtful cases, whether a certain act be indictable or not, if it is an evil, it is one to which our citizens are all subject within their respective States, and I do not see why any should be exempted from it, merely because they are not amenaable to a State jurisdiction. If it were so, it would follow, that the federal Constitution has loosened in a strange manner the bands of society which existed at the time of its adoption, and that it proclaimed impunity to every crime which the State authorities could not reach, until by the gradual and slow process of legislation, Congress should provide for every case that might in future arise. Such is the inevitable consequence of the principle that the United States have no national common law, while the doctrine that I contend for is entirely harmless, particularly when it is considered that the common law does not give jurisdiction to the federal Courts, but is merely directory of its exercise. So that it appears to me that 0

the opponents of this principle, by not viewing the subject in all its bearings, have in fact been afraid of dangers which are not to be apprehended.

Thus a phantom has been raised which needs only to be looked fully in the face to vanish into empty air. The more this question is investigated on its true principles, the more I am satisfied that the inquiry will result in the conclusions that I have formed and which I commit to your future research.

Before I conclude, however, this part of my discourse, I must take notice of an argument which is not without plausibility, and which may possibly be urged against the doctrine which, in a former part of this discourse, I have been endeavouring to establish. By the second section of the third article of the Constitution it is provided, "that the ju"dicial power shall extend to all cases in law and "equity arising (inter alia) under the laws of the "United States." Now it may be said, that if the common law is a law of the United States, it necessarily follows that the federal Courts are bound to take cognisance of all offences committed against it, whether or not Congress has made provision by statute for their trial and punishment.

To this objection, which 1 acknowledge is not entirely devoid of force, I venture to answer: That the section of the Constitution from which this provision is taken, is altogether restrictive, and was intended to confine the powers of the federal judiciary within certain fixed bounds, and therefore its language is to be taken in its natural restrictive

sense, and not as extending authority beyond the bounds prescribed by the instrument. It appears to me also that by the words "the laws of the United States," the framers of the Constitution only meant the statutes which should be enacted by the national Legislature; otherwise, if they had intended to include the common law, they would have expressed themselves otherwise, and no doubt have also specifically described those powers under the common law which they meant to confide to the judiciary, for the general expression all cases arising under the common law would have given them such a wide and undefined extent of jurisdiction as cannot be supposed to have been in contemplation. By the words in law or equity, however, they have clearly shewn that they did not mean to exclude the common law as a means of exercising such jurisdiction as Congress might think proper to commit to the Judges in pursuance of the Constitution; for the law which is there spoken of can be no other than the common law. It has been supposed that the word law was employed here in contradistinction to equity, and therefore was meant to be applicable only to civil cases. But if it were so, how could the judiciary take cognisance of offences created by national statutes, if the very clause which gives them jurisdiction in cases arising under the laws of the United States, restricts them by the technical construction of one of the terms which it employs to cases merely civil, even though arising under those statutes? According to this construction the clause would read

thus: "All civil cases arising under the Constitu❝tion and laws of the United States." But when the Constitution gave to Congress the power to define and punish treason, piracy, and a variety of other crimes, and to make laws, such as a bankrupt law, embracing criminal as well as civil matters, it cannot be well conceived that it should have meant to confine the judiciary to the execution of such parts of those laws only as were of a civil nature, to matters of law in strict contradistinction to matters of equity.

It appears to me clear, therefore, that while the Constitution did not mean to vest in the judiciary an unlimited power to take cognisance of offences at common law, it still recognised the common law as their guide in all cases, whether civil or criminal, in which they had jurisdiction given to them over the person or subject matter, either by its own provisions, or by the laws which should be enacted by Congress in pursuance to the authority vested in them. Thus, if Congress should make a law authorising the District or Circuit Courts to take cognisance of all prosecutions for bribery or attempts to bribe an officer of the United States, without defining the offence or affixing its punishment, the Judges in such cases should be bound to administer the common or any other law that applied to the subject.

It must not be forgotten, however, that the restrictions which are thus imposed by the Constitution on the federal judiciary, were only intended to guard against encroachments on the sovereignty of