constant exercise of it, without the aid of a special statute for that purpose. The Congress did no more than erect and organise the tribunals inferior to the Supreme Court, and left them to exercise their jurisdiction according to the existing local laws. In the distribution of their powers, cognisance was given in general terms to the Circuit Court of all crimes committed within the Dis"trict," without any distinction made between statutary and common law offences. An appellate jurisdiction was given to the Supreme Court from all decrees, and judgments of the inferior tribunals, but there was no express prohibition against their exercising any other jurisdiction which the laws of Virginia and Maryland had before the cession vested in their Supreme Courts.

It is a question of no small importance, whether by the cession of this District to the United States, by Virginia and Maryland, and by the acts of Congress continuing in force the existing laws of those States, the Supreme Court of the United States did not ipso facto succeed to all the powers which were at the time vested in the Supreme Courts of Maryland and Virginia, within the parts of the District which had respectively belonged to them, and whether an act of Congress giving them certain specific powers, without any words of exclusion as to others, can be construed to the disparagement of those they possessed before. It may be questioned also whether the clauses in the Constitution which restrict the jurisdiction of the fede

ral tribunals, were not solely intended to protect the retained sovereignty of the States from being encroached upon, and whether when those Courts are sitting in or for the District of Columbia or the Territories, where there is no independent sovereignty to be protected, the nature and extent of their jurisdiction may not be sometimes derived from another source? For my part, I acknowledge that I strongly incline to think, that the Supreme Court sitting at Washington possesses two distinct capacities, that of the Supreme Court of the United States, and that of the superior judicature of the District. I have always been astonished that this point was not made in the celebrated cases of MARBURY V. MADISON,* and Ex parte BOLLMAN,† in support of the authority of the Court to grant a writ of mandamus in the one case, and of habeas corpus in the other. But I will not proceed further on this delicate topic, which I acknowledge I have not yet sufficiently considered; all that I shall say is, that these questions never having been directly brought before the Supreme Court of the United States, cannot be said to have been finally decided on, and cases may yet arise in which much will depend on their being determined one way or the other. At any rate, this derivative power from the Constitution and laws of the States or nations who have ceded, or may hereafter cede, territories to the United States, if it really exists, is of too great importance to the supreme tri

* 1 Cranch, 137.

4 Cranch, 175.

bunals of the Union, for them to yield it up without full and mature investigation. I consider it as one of the fairest flowers in their judicial wreath.

I beg your pardon for having thus somewhat wandered from the immediate object in contemplation; but the subject of this digression does not appear to me to be entirely unconnected with it. It seems naturally to flow from the great and pregnant principle laid down by Montesquieu and by Blackstone.

I hope I have convinced you, that within this District the Courts of the United States have cognisance of the common law, in criminal as well as in civil matters. It is true, it may be said that they possess it by virtue of the acts of Congress above cited; but I have endeavoured to prove to you, and I hope not without success, that they would have been entitled to that jurisdiction, even if those acts had never been passed, saving its distribution between the different tribunals, which could only be made by the authority which created and organised them. I proceed now to the Territories.

2. OLD TERRITORY NORTH WEST OF THE OHIO.— Out of this extensive tract of country, three States have already been formed, to wit, Ohio, Indiana, and Illinois, who all, tacitly or otherwise, have adopted the common law, in aid of the statutes which have been enacted by the territorial authorities, and successively by their own Legislatures. It is needless to inquire into the state of things which produced that which now exists, as it would not lead us to any

practical result. The territory of Michigon, was before the revolution a part of the British province of Quebec, and governed by the French law in civil and the common law in criminal cases. Since it has become the property of the United States, the common law has been introduced into it, no matter by what means. The remainder of the old territory, except a few posts occupied by the troops of the United States, is in the possession of the Indians. The common law will probably make its way into it, as it has done into all the other parts, and indeed, it cannot be otherwise, as soon as it is inhabited by an American population. They will carry into it, as American citizens, as much of the common law as will be suited to their local situation.* But 1 must not anticipate on another part of my subject, to which I shall draw your attention presently.

Within those parts of this tract of country that have been erected into States, the powers of the federal judiciary are the same that they have been shewn to possess in the other States of the Union; in the territory of Michigan, and in the territorial governments that may be established in the now desert country, the local law, whatever it may be, and the laws of the United States where they apply, will be their guide.

3. THE OLD TERRITORY SOUTH OF THE OHIO.This tract of country, with some trifling additions, now forms the two States of Mississippi and Ala

* 1 Blac. Com. 107.

bama; they have both adopted the common law. The same principles will of course apply here which govern in the other States.

4. THE OLD SPANISH PROVINCES OF LOUISIANA AND THE FLORIDAS.-Before I proceed to the application of the principles which I have laid down to the States and Territories which have been formed out of this vast extent of country, it will not be improper to take notice of the course which Congress has pursued on obtaining possession of them. It will be found to be different from that which was adopted with respect to the District of Columbia, and will corroborate the observations which I have made respecting the necessity of a fixed principle in all such cases.

Louisiana was ceded by France to the United States in the year 1803, and was taken possession of at the end of the same year. On the 31st of October, Congress passed a law, authorising the President to take possession of and occupy that territory, in which it was provided, that until the expiration of the session, unless provision should be sooner made for the temporary government of the said Territories, all the military, civil, and judicial powers exercised by the officers of the existing government of the same should be vested in, and be exercised by, such persons and in such manner as the President should direct, for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion.