President alone, in the courts of law, or in the heads of departments, it does not authorise congress, though both houses and the President should unanimously concur, itself to appoint immediately by law. This would really be construing the constitution like an old pleading, without allowing the benefit of the statutes of feofails. Qui cadit a syllaba, cadit a tota causa. A rational construction, it would seem, would authorise congress to do itself what it can, at its pleasure, authorise an inferior body or an individual to do; but that is not the question. It may be safely admitted, that congress cannot directly by law appoint an officer whom it can authorise an in one hundred in a year in all the states) it would be necessary to appoint and scatter over their vast territory many thousands of justices of the peace, coroners, constables, &c. The attempt to execute the power, would be as impracticable as it would be ludicrous. But it is said the states are to watch with jealousy the acts of the general government, (a monstrous heresy in the politics of this country) and if it use the agency of the officers of the states, it will have a tendency to a consolidation of the state governments. Exactly the reverse is the sound conclusion. The necessary dependence, practically, of the general government on the states, in many particulars, is one of the points individual to appoint, and yet the which its weakness has been most obvious and most lamented. difficulty will not occur in this case. This is not the case of an appointment. The magistrates of the state are not, by the act of congress, constituted officers of the United States. They are mere The case may be easily conceived in which a magistrate of a foreign state may, by act of congress, be The counsel for the prisoner, taking it to be granted or proved that the act of the magistrate was a judicial act, contended that the constitution had established a modely authorised to do a certain act. in which all judicial officers were to be appointed, and that an act of congress, giving authority to the magistrates of the state, was a vio-authorised to exercise an equivalation of this provision of the con- lent power. That it is not an apstitution. It would not follow, how-pointment, in the sense of the conever, if the function were judicial, stitution, will be proved by rethat the appointment must be ference to the undisputed practice made by the president and senate, of some of the state governments. for the constitution authorises congress, by law, to vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments; but the function is not judicial-the officer consequently not judicial; and, therefore, the argument, as urged, does not apply. But it may, perhaps, be insisted that though the constitution doth authorise congress by law, to vest the appointment of inferior officers in the The constitution of Pennsylvania provides that the governor shall appoint justices of the peace (article 5. sec. 10.) and that they shall be commissioned during good behaviour. But by an act of the legislature of that state, passed 20th March, 1810, all the powers of justices of the peace, are vested in all the aldermen of the city of Philadelphia, who, I believe, are elected annually by the people of that city. So, in New York, justices of the peace are appointed by the governor and council, according to the express requisition of the constitution, and hold their offices during the pleasure of the governor and council. But by act of the legislature of that state (2d vol. Laws of New York, 508.) the aldermen of the cities of New York, Albany and Hudson, are vested with the same powers as justices of the peace. By the constitution of South Carolina, justices of the peace shall be nominated by the senate and house of representatives, jointly, and commissioned by the governor ( Brevard 568, 2 Brevard 175.) Yet the clerks of the courts, the wardens of the city of Charleston, and many other officers of the state, are vested, by act of the legislature, with the powers of justices of the peace. The like case probably occurs in almost every state of the union, and the argument of unconstitutionality, which we are now examining, will equally apply to them all. I am then satisfied that, in relation to the case before me, the 33d section of the act of congress, commonly called the Judiciary Act, is constitutional and expedient, though I reject the argument of expediency from the grounds on which I rest my decision. It is not a case in which I have a right to weigh it. 3d. I might here leave the case, but I deem it proper to consider the third ground. I think I have no jurisdiction over the case. I am aware of but three cases in which this question had been made. The case of Almeida already mentioned; the case of Emanuel Roberts, (2 Hall's Law Journal 192) in Maryland; and the case of Jeremiah Ferguson, in New York (6 Johns. Rep. 239.) In the first case, jurisdiction was assumed and the prisoner discharged. The second was the case of a minor enlisted into the service of the United States, and Nicholson, Ch. J. determined against the jurisdiction. He does, indeed, say, in speaking of an extreme case which was put by counsel, of great oppression and injustice, that he would interpose and discharge the prisoner in the case supposed, but he adds-" If in such a case I should exceed the technical limits of my authority, I should have the approbation of all good men, for resisting oppression under the colour of law." This is certainly no argument in favour of jurisdiction, while the judgment in the case is on the want of it. In the last, which was also the case of a minor, who had been enlisted, the court refused to interfere on other grounds-but chief justice Kent declares explicitly that the state courts have not jurisdiction where the arrest is under the authority of the United States. In this opinion I concur. If there be cases in which the state courts have jurisdiction of the principal matter, I am of opinion they may entertain an incidental or collateral question-they may, therefore, in such cases, release under a writ of habeas corpus, on the ground of illegal confinement, because the prosecution is groundless, or for other sufficient cause. This authority may, perhaps, be exercised by courts having a su perintending power, though they may not have jurisdiction for the purpose of trial, for they have authority to restrain and annul the acts of inferior jurisdictions. But in a case like the present, where the state courts in no case and under no circumstances can take cognizance of the offence charged, to punish or acquit, and where the functionary appealed to is himself in all questions under the laws of the United States, subject to the control of their high tribunals, all pretence of jurisdiction seems to vanish. I cannot, nor can all the judicial authority of the state, discharge a defendent in a civil suit who has been held to bail in the courts of the United States, however illegal the arrest may be, because I have no jurisdiction-and yet it is seriously imagined that I have, at my chambers, authority to take their criminal jurisdiction, which is, by their laws, expressly exclusive, out of the hands of their tribunals, and to determine the acts of the national legislature uncon⚫stitutional and void? Nay more, in this state any two justices of the peace, one of whom shall be of the quorum, have authority to carry the habeas corpus act into execution, and have on the subject all the authority I enjoy. They too, then, have a right to determine on the constitutionality of the acts of congress, and to release those who are amenable to the United States in their criminal courts. But the pretence for all this is, that the liberty of the citizen is to be preserved inviolate. Is it meant by this, that he shall be exempt from all the usual modes of trial instituted for the preservation of that very liberty? That the march of justice is to be divested of every thing staid and sober? That, instead of her solemn and learned judgments, we are to have pie-poudre expositions of the great act of our national union? But against whom do we seek this protection? The government of the United States, the government of the people themselves, whose greatest power returns into their hands bienially, and all of it at short intervals. A A government as able, as much bound, and no doubt as willing to protect the citizens as the govern ment of the states. A government, which has its habeas corpus act, and its judges bound under the most solemn sanctions to execute it. A government to which the states constitutionally look up for the preservation of their free institutions. That jealousy which we sometimes see recommended, is bad law and worse policy. I deny that it is inculcated by a true understanding of the constitutions of the states; that is necessary to the preservation of state rights or that it can conduce to national happiness, or national greatness. It may make us busy about some little factious privileges which are in no danger. But a regulated liberty, under the protection of stable institutions, will be best and longest secured to us, by regarding the government of the union in a spirit full of confidence-in a temper devoid of jealousy. Finally, I am of opinion I have no jurisdiction of the case. Let the prisoner be remanded. Edward P. Simons, Esq. counsel for the prisoner. Thomas Parker, Esq. for the United States. SELECTION OF OBITUARY NOTICES. DR. ADAM FERGUSON, the last | country, and the degree of Doctor of those writers of the 18th century whose works have reflected honour on their age and country, was the youngest son of the Rev. Adam Ferguson, minister of Logierait in Perthshire, where he was born in 1724. After acquiring the rudiments of education at the school of Perth, he removed in 1739 to the university of St. Andrew's, and thence proceeded to Edinburgh. Here he became a member of a small society for literary improvement and philosophical disquisition, in which were enrolled, among others, the distinguished names of Robertson, Blair, Home, Carlyle, and Wedderburne, since better known as Lord Loughborough, and Earl of Rosslyn. After passing through his academical studies with great credit, he became in 1745 chaplain to the 42d regiment then recently raised, in which he remained till 1757. On leaving the regiment, he accepted the situation of private tutor in the family of Lord Bute. In this capacity he continued till 1759, when he was appointed to the chair of natural philosophy in the university of Edinburgh, which he exchanged in 1764 for that of moral philosophy. In 1767, he published his " History of Civil Society," 4to, which obtained for the author a place among the first literati of his of Laws. In the same year he married Miss Burnet, (a niece of the celebrated Dr. Black,) by whom he had a numerous family. His "Institutes of Moral Philosophy, or Synopsis of Lectures," published in 1769, served as a text book to his pupils, and presented to others a general chart of science preparatory to the particular delineation of human nature and moral philosophy. In 1773, the literary renown of Dr. Ferguson procured for him an application from the friends of Lord Chesterfield, to go abroad with that nobleman as tutor, on a settlement of 2001. per annum for life. After an absence of a year and a half, he returned to the Professor's chair. In 1776, Dr. Ferguson answered the tract on Civil and Religious Liberty, by Dr. Price, from whom he differed chiefly on the ground of the inapplicability of his doctrines to society and to imperfect man, as known from experience. In 1778, he being the intimate friend of Dr. Franklin, was selected by Lord North to accompany the Earl of Carlisle, Mr. Eden, (afterwards Lord Auckland,) and Governor Johnstone, appointed Commissioners to treat with the American Congress for concluding a peace with Great Britain, as secretary to the Commission; and on the failure of that mission resum not only of duly appreciating, but also of illustrating his learned labours, by means of a most interesting correspondence, which lasted for many years. Died at Cheltenham, Sept. 10th, 1816, in his 81st year, RICHARD REYNOLDS, of Bristol, a member of the Society of Friends; who, in the full possession of those facul ties which had long been dedicated with humble piety to the service of his Redeemer, full of faith, of days, of riches, and of honour, was gathered to his fathers, as a shock of corn fully ripe. His remains were interred on the 17th of Sept. in the grave-yard of the Friends' Meeting-house in the Friars, in Rosemary-street, when the most heartfelt testimonies of respect and regret were paid by all ranks to their common benefac tor.-Mr. Reynolds was formerly an eminent manufacturer in Bristol; and afterwards in the concern well known by the name of ed his former functions. The grand work by which the name of Dr. Ferguson will be handed down to posterity, his "History of the Progress and Termination of the Roman Republic," appeared in 1782, in 3 vols. 4to. Two years afterwards he resigned the chair of moral philosophy, and retired on the salary of the mathematical. He now applied himself to prepare for the press his instructive lectures, which he published in 1793, under the title of "The Principles of Moral and Political Science, being chiefly a retrospect of Lectures delivered in the College of Edinburgh," 2 vols. 4to; and afterwards made a tour in Italy, with a view to collect in the libraries of that country, such materials as might be useful for a new edition of his Roman history, to which he made considerable additions. This was his last literary effort for the public benefit, and indeed his very advanced age justly entitled him to an exemption from farther toils. Dr. Ferguson was not merely a speculative philosopher, but a practical moralist. He was distinguished for integrity, benevolence, and the other qualities of the heart which render the possessor amiable and estimable. Although the salaries of the Edin-ent parts of the country, whose burgh professors are but small, yet in order to stimulate exertion, his generosity often bestowed gratuitous admission. His income, therefore, was less than it might have been; but a pension from government, together with the returns from his works and other emoluments, rendered him easy in his circumstances, though not opulent. He has left several MSS. presented some years since to a worthy and amiable baronet (Sir John Macpherson,) who had been one of his pupils, and is capable, The Coalbrooke-Dale Company,' from which he had retired many years. This good man's charities were unparalleled in Bristol since the days of Colston: but they were not confined to that city, for he had agents established in differ business it was to seek for cases |