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DREFACE.

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The questions which are the subject of the following Discourse, are some of the most important that have been agitated under the Constitution of the United States. In whatever way they may be finally determined by the competent authorities, the decision will have considerable influence on our general jurisprudence, and even on the ultimate shape which our federal Constitution may be destined to assume.

That there are implied, as well as express,

powers granted by the Constitution of the
United States to the national government, is
what it is at this day impossible to deny
or even to doubt. Some of those have
already been acted upon, and are in the full
course of actual exercise ; others are prepar-
ing to be carried into execution. It is too late
now to controvert the doctrine of implied con-
stitutional authority.
But while these implied powers are admit-
ted on all hands to exist in the federal govern-
ment to a greater or lesser extent, a question
has arisen, whether it is competent for the judi-

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soarinent, whose sphere of action the Conso via as Deen peculiarly careful to limit and coe, o assume rights to themselves by their cuscus, oriori, and to carry them provision... is towere, into effect, before the legislature has made any law upon the subject, or has sos, them the special authority which seems * c required. In other words, the inquiry s whether the Federal Courts have a right soendent of the people of the United States so their representatives, by virtue of some occult power supposed to be derived from the &omon law, to mould the Constitution as they please, and to extend their own jurisdiction beyond the limits prescribed by the national compact There would have been but little difficulty in solving this simple question, if, by a carelessness of expression unfortunately too common in our legal language, it had not been clothed in the ambiguous words common law jurisdiction, which have been the source of all the doubts and all the hesitation that it has produced, because it was not considered that these words are susceptible of a double interpretation, implying in the one sense, a jurisdiction perfectly lawful, and in the other a power in direct opposition to the letter and

spirit of our national charter; so that the controversy has been to maintain or reject altogether, and in every sense, this common law jurisdiction, while a proper distinction would probably have reconciled all conflicting opinions upon the subject. In order that this may be clearly understood, it is necessary to enter into some preliminary explanations. In England, the country from whence we have derived, not only our system of jurisprudence, but most of our civil and political institutions, there is a metaphysical being called common law, which originally was a code of feudal customs, similar to the coutumes which, until lately, governed the dif. ferent provinces of the neighbouring kingdom of France, but which, by gradual steps, and by the force of circumstances has become incorporated and in a manner identified not only with the national jurisprudence, but, under the name of Constitution, with the political government of the country. The king's prerogative and the rights of the subject are alike defined and limited by the common law. The various and often conflicting jurisdictions of the dif. ferent tribunals in which justice is administered are also said to be derived from it, although in many instances they are known to i =i-al and successive assump- - -e- out tose having been estab. . ...so fared by time are now be... --e. This ens rationis is a part - ... and political institution, and

- scorected with the government of . . . . . , s said to be a part of it. Thus ... oasiusis, the law merchant, the ma... so, one constitution and even the relio, , oe vigolom, are considered to be parts ... ... is of the common law. It pervades . . . . nos, and everythingisinterwoven with it. is vot sunlimited, its bounds are unknown;

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... es won the successions of ages, and takes

is oeu, from the spirit of the times, the ea, os of the age, and the temper and disso sea of the Judges. It has experienced s eas changes at different periods, and is deso to experience more. It is from its very oau, euncertain and fluctuating; while to vuls: eyes it appeals fixed and stationary. UnJet the Tudors and the first Stuarts forced \ass, wardships, purveyance, monopolies, les'ssion by royal proclamations, and even the Su Qhamber and High Commission Courts, and slavery itself, under the name of villenage, were outs of the common law. At the revohow it shook off those unworthy fetters, and

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