given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts.1 On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bankruptcy if there be no national bankrupt law.2 State laws for

3

organizing and disciplining the militia are valid, except as they may conflict with national legislation; and the States may constitutionally provide for punishing the counterfeiting of coin and the passing of counterfeit money, since these acts are offences against the State, notwithstanding they may be offences against the nation also.

The tenth amendment to the Constitution provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. And it is to be observed of this instrument, that being framed for the establishment of a national government, it is a settled rule of construction that the limitations. it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned. As illustrations, the sixth and seventh amendments to the Constitution may be mentioned. These constitute a guaranty of the right of trial by jury; but, as they do not mention the States, they are not to be understood as restricting their powers; and the States may, if they choose, provide for the trial of all offences against the States, 816, 427; Weston v. Charleston, 2 Pet. 449. See cases collected, post, pp. 590, 591.

1 Martin. Hunter's Lessee, 1 Wheat. 304; The Moses Taylor v. Hammons, 4 Wall. 411; The Ad Hine v. Trevor, 4 Wall. 555. And see note to these cases in the Western Jurist, Vol. I. p. 241.

2 Sturges v. Crowninshield, 4 Wheat. 122; McMillan v. McNeill, 4 Wheat. 209. And see post, pp. 356, 357.

3 Houston v. Moore, 5 Wheat. 1, 51.
4 Harlan . People, 1 Doug. (Mich.)

207.

Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560. And see Hendrick's Case, 5 Leigh, 707; Jett v. Commonwealth, 18 Grat. 933; State v. Rankin, 4 Cold. 145; Moore v. People, 14

How. 13.

6 Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 469; Fox

v. Ohio, 5 How. 410; Smith v. Maryland, 18 How. 71; Kelly v. Pittsburgh, 104 U. S. 78; Presser v. Illinois, 116 U. S. 252; Spies v. Illinois, 123 U. S. 131; Buonaparte v. Camden & Amboy R. R. Co., Baldw. 220; James v. Commonwealth, 12 S. & R. 220; Barker ». People, 3 Cow. 686; Colt v. Eves, 12 Conn. 243; Jane v. Commonwealth, 3 Met. (Ky.) 18; Lincoln v. Smith, 27 Vt. 328; Matter of Smith, 10 Wend. 449; State v. Barnett, 3 Kan. 250; Reed v. Rice, 2 J. J. Marsh. 45; s. c. 19 Am. Dec. 122; North Mo. R. R. Co. v. Maguire, 49 Mo. 490; Lake Erie, &c. R. R. Co. v. Heath, 9 Ind. 558; Prescott State, 19 Ohio St. 184; State v. Shumpert, 1 S. C. 85; Commonwealth v. Hitchings, 5 Gray, 482; Bigelow v. Bigelow, 120 Mass. 320; Boyd v. Ellis, 11 Iowa, 97; Campbell v. State, 11 Ga. 353; State v. Carro, 26 La. Ann. 377; Puryear

as well as for the trial of civil cases in the State courts, without the intervention of a jury, or by some different jury from that known to the common law.1

With other rules for the construction of the national Constitution we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legislative debates, which are familiar alike to the legal profession and to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts. jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction. upon the Supreme Court by name. And although the courts of the United States administer the common law in many cases,2 they can recognize as offences against the nation only those acts which are made criminal, and their punishment provided for, by acts of Congress. It is otherwise in the States; for the State

v. Commonwealth, 5 Wall. 475; Twitchell v. Commonwealth, 7 Wall. 321.

1 Twitchell v. Commonwealth, 7 Wall. 321; Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U. S. 90; Munn v. Illinois, 94 U. S. 113; Huston v. Wadsworth, 5 Col. 213. See Butler v. State, 97 Ind. 378; People v. Williams, 35 Hun, 516. A State may give a court of equity jurisdiction of a suit to establish an equitable interest in land. Church v. Kelsey, 121 U. S. 282. The seventh amendment has no application to demands against the government, or to counter-claims. McElrath v. United States, 102 U. S. 426.

2 Townsend v. Todd, 91 U. S. 452; Elmwood v. Marcy, 92 U. S. 289; Railroad Co. v. Georgia, 98 U. S. 359.

3 Demurrer to an indictment for a libel upon the President and Congress. By the court: "The only question which this case presents is whether the circuit courts can exercise a common-law jurisdiction in criminal cases. . . . The general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of

reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several States: whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constitutional part of these concessions: that power is to be exercised by courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that created them, and can be vested with none but what the power ceded to the general government will authorize it to confer. It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in

courts take notice of, and punish as crimes, those acts which were crimes at the common law, except in a few States where it is otherwise expressly provided by statute or Constitution.

CHAPTER III.

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS.

THE Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was then exercising the powers of government under some form of written constitution, and that instrument would remain unaffected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict; and as to those, the latter would modify and control the former. But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for the various relations of life which cannot be properly incorporated in a constitution, but must be left to the regulation of the ordinary law-making power.

By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the colonists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country, brought at last to so fortunate a conclusion.

The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, control, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new inventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people themselves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these

1 Livingston . Van Ingen, 9 Johns. 507; State v. Cape Girardeau, &c. R. R. Co., 48 Mo. 468; Mayor, &c. of Mobile v.

Dargan, 45 Ala. 810; Neal v. Delaware, 103 U. S. 370.

laws whenever they should transfer their domicile from one country to another.

To eulogize the common law is no part of our present purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine,1 gave birth to many of the maxims of the common law; aud some of these, long after that system has passed away, may still be traced in our law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung to it with wonderful tenacity, even after the most stupid could perceive their inconsistency with justice and civilization. But, on the whole, the system was the best foundation on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recognized the worth, and sought especially to protect the rights and privileges, of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs; and arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives.2 The system was the opposite of servile; its features implied boldness and independent self-reliance on the part of the people; and if the criminal code was harsh, it at least escaped the inquisitorial features which were apparent in criminal procedure of other civilized countries, and which have ever been fruitful of injustice, oppression, and

terror.

For several hundred years, however, changes had from time to time been made in the common law by means of statutes. Originally the purpose of general statutes was mainly to declare and reaffirm such common-law principles as, by reason of usurpations. and abuses, had come to be of doubtful force, and which, therefore, needed to be authoritatively announced, that king and sub

1 "A feudal kingdom was a confederacy of a numerous body, who lived in a state of war against each other, and of rapine towards all mankind; in which the king, according to his ability and vigor,

was either a cipher or a tyrant, and a
great portion of the people were reduced
to personal slavery." Mackintosh, His-
tory of England, c. 3.
2 See post, p. 364.