PREFACE.

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 preparing to be carried into execution. It is too late now to controvert the doctrine of implied constitutional authority.

But while these implied powers are admitted on all hands to exist in the federal government to a greater or lesser extent, a question has arisen, whether it is competent for the judi

cial department, whose sphere of action the Constitution has been peculiarly careful to limit and define, to assume rights to themselves by their decisions à priori, and to carry them provisionally, as it were, into effect, before the legislature has made any law upon the subject, or has given them the special authority which seems to be required. In other words, the inquiry is, whether the Federal Courts have a right independent of the people of the United States or their representatives, by virtue of some occult power supposed to be derived from the common 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 al. together, and in every sense, this common law jurisdiction, while a proper distinction would probably have reconciled all conflicting opinions upon the subject.

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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

be founded on gradual and successive assumptions of power; but those having been established and consolidated by time are now become common law. This ens rationis is a part of every civil and political institution, and every thing connected with the government of the country, is said to be a part of it. Thus the law of nations, the law merchant, the maritime law, the constitution and even the religion of the kingdom, are considered to be parts and parcels of the common law. It pervades every thing, and every thing is interwoven with it. Its extent is unlimited, its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the Judges. It has experienced great changes at different periods, and is destined to experience more. It is from its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary. Under the Tudors and the first Stuarts forced loans, wardships, purveyance, monopolies, legislation by royal proclamations, and even the Star Chamber and High Commission Courts, and slavery itself, under the name of villenage, were parts of the common law. At the revolution it shook off those unworthy fetters, and