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These were criminal prosecutions for offences in which the peace and dignity of the United States seemed to be involved, but the jurisdiction of which was not given to the federal tribunals, either by the Constitution or by any of the statutes made in pursuance of it. These offences, however, were known to the common law, which had defined them and had provided for their punishment. It was, therefore, contended that the Courts could here exercise over them what was called a "common law jurisdiction." The Constitution, it was admitted, had not expressly provided for the preservation of the national peace and dignity by criminal prosecutions in such cases, nor had it vested any authority in the tribunals for that purpose; but it was insisted that that power was indispensable to our national existence, and therefore must be considered as necessarily implied. The federal Courts had a right to interpret the doubtful parts of the Constitution, they were the expounders of the common law, the common law had provided for the punishment of such offences, the safety of the country required that they should be punished, the Courts were, therefore, not only authorised but bound to execute the common law. On the other side, it was easily perceived that

if the federal Judges were to assume this power, there was no knowing where they might stop, that they would not only have an almost unlimited authority over the lives and fortunes of the citizens, but might, in a great degree, impair, if not destroy, the sovereignty of the States, which the Constitution had meant to preserve, and even had guaranteed. Great were the embarrassments which these questions produced; sometimes it was said that the common law was not the law of the United States in their national capacity, at other times that it was so in civil, but not in criminal cases; but no one seemed fully aware of the distinction between the common law considered as a source of jurisdiction, and as a means for exercising it. The Judges, however, unwilling to extend the limits of their authority, generally declined to assume this jurisdiction, justly considering that they were only to look for the extent of their powers to the Constitution and the laws made under it. But this opinion, correct as it was, was not unanimous, nor was it satisfactory to the profession, because in consequence of some obiter dicta of the Judges, it was understood in too wide a sense, and its application was carried to an extent which the Court had not probably contempla

ted: a case of which they had full and complete jurisdiction given to them in the most express terms by the Constitution and the acts of the national legislature, was by the consent of all parties considered as out of the limits of their authority, and this exclusion was confirmed by the improvident sanction of a solemn judicial decree. On the whole, after so many decisions, this question of common law jurisdiction has remained and still remains as unsettled as before, several of the Judges in the last case of this description, which came before them, having expressed a wish that it should be fully and solemnly discussed.

I have endeavoured in the following essay to sift to the bottom this complicated question, and to establish sound and legal principles which may lead to the solution of all similar ones that may hereafter arise. I do not flatter myself to have fully succeeded in this arduous undertaking; I hope, however, that I have opened the way for its further and more successful investigation. The distinction which I have assumed between the common law as a source of power and as a means for its exercise is the foundation of my argument. From the common law considered in the first point of view, I contend that in this country no ju

risdiction can arise, while in the second every lawful jurisdiction may be exercised through its instrumentality, and by means of its proper application.

Having thus, as I conceive, disarmed the common law of its only dangerous attribute, the power giving capacity, I have no hesitation in asserting that as a system of jurisprudence it is the national law of this Union, as well as that of the individual States. In this respect I consider it as perfectly harmless in a political point of view and as beneficial in all others. I shall not here anticipate the reasons which I have given for this opinion.

At the same time that I have bestowed upon the common law all the praise to which I think it justly entitled, I have been very free in my observations on the points in which I think it deficient. I have done so because I think it susceptible of being carried to the highest degree of perfection, and because I believe that the honor of producing this result is reserved to the jurists of the United States, and is an object well worthy of being pursued by them. Being no longer so intimately connected with our political existence, we are more at liberty to examine into the merits of this system and to correct its defects.

In the observations that I have made on the defects of the common law I have not touched upon what I consider as mere inconveniencies, such, for instance, as the numerous fictions with which it abounds. I consider it as of very little consequence whether an ejectment suit is brought in the fictitious names of John Doe and Richard Roe, or in the real names of the plaintiff and defendant, provided justice is done to the parties in the end. But what I think is not to be tolerated in any system of law, is actual injustice: it is in vain to say that the law is so established and that it is better that it should be certain than that it should be just; I answer that no laws can be certain that are not founded on the eternal and immutable principles of right and wrong; that false theories and false logic lead to absurdities, which being perceived, lead to endless exceptions and to numerous contradictions, and that from the whole results that very uncertainty which is so much wished to be avoided. I have instanced the law of merchants as the part of the common law the defects of which in this respect are the most glaring, because while we profess to be ruled in those matters by the general law of the commercial world we are more and more every day receding

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