Imatges de pàgina
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proconsular governments have had, to abuse and oppression."

V. The State Courts and Magistrates are in some cases invested by Congress with cognizance of cases arising under the laws of the United States. It seems, indeed, that Congress, in the course of its legislation upon the subjects intrusted to it, may commit the decision of causes arising under a particular act, solely, if deemed expedient, to the courts of the Union; but in every case in which the state courts are not expressly excluded, they may take cognizance of causes growing out of an act of Congress : and although Congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and its own laws, yet the state courts may exercise it in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the Federal Courts.*

Various duties have been imposed by Congress on the state courts and magistrates; and they have been invested with jurisdiction in civil suits, and in complaints and prosecutions for fines, penalties, and forfeitures, accruing under the laws of the United States. In civil suits, the state courts entertain such jurisdiction; but in criminal and penal cases they have in several instances declined it. In what cases, and to what extent, they will exercise criminal jurisdiction under the laws of the Union; and under what circumstances, and how far, the judges of the state courts have power to issue a Habeas Corpus, and decide on the validity of a commitment or detainer under the authority of the National Government, are questions which have been variously determined in the states, and have never been definitively settled in the Su

* 5 Wheaton, 1.

preme Court of the United States, where the ultimate right of determining them resides. The doctrine, however, seems to be admitted, that Congress cannot compel a state court to entertain jurisdiction in any case. It only permits such of those tribunals as are competent, and have inherent jurisdiction adequate to the case, to entertain such suits in given cases; and they do not thereby become Superior Courts, in the sense of the Federal Constitution, because they are not ordained and established by Congress. The state courts are left to consult their own duty, from their state authority and organization; but if they do voluntarily entertain jurisdiction of causes cognizable under the authority of the United States, they do it upon the condition that the appellate jurisdiction of the Federal Courts shall apply.* Their jurisdiction of Federal causes must, nevertheless, be confined to civil actions, for civil demands, or to enforce penal statutes. They cannot hold criminal jurisdiction over offences exclusively against the United States; for every criminal prosecution must charge the offence to have been committed against the sovereign whose court sits in judgment upon the offender, and whose authority can pardon him.

From the survey I have now completed of the organization of our Federal judicial establishment, you will have perceived that the leading features of the system are to be found in the act so often referred to, passed in 1789, at the first session of the first Congress under the present Constitution. It was understood to have been drawn up by Mr. Oliver Ellsworth, a senator from Connecticut, and has stood the test of severe experience since that time, with very little alteration or improvement; a fact which affords

* 14 Johns. Reps., 95.

the strongest evidence of the wisdom of the plan, and its skilful adaptation to the interests and convenience of the country. It was evidently the result of much profound reflection and great legal knowledge; and the system thus formed and reduced to practice, has been so successful and beneficial in its operation, that the administration of justice in the Federal Courts has been constantly rising in influence and reputation. In this review of the most important points which have arisen with respect to the constitutional powers of the judicial department, we have seen that it is competent, not only to pronounce on the constitutionality of laws of the United States, and on the validity of the constitutions and laws of the several states, and to declare either of them void, when repugnant to the Federal Constitution, or to a law or treaty of the Federal Government, but also to revise the judgments of a state court, enforcing any unconstitutional ordinance. We have seen, moreover, that the Federal Courts must either possess exclusive jurisdiction in all cases affecting the Constitution, laws, and treaties of the Union, or they must have power to review the judgments rendered on all such questions by the state tribunals; and that, so far as the latter power has hitherto been controverted, it has been sustained by the supreme national tribunal with great ability and success, and with equal learning, dignity, and discretion.

LECTURE VII.

ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT, RELATIVE TO SECURITY FROM FOREIGN DANGER.

We are now to enter upon the second general division of our subject, which relates to "the nature, extent, and limitation of the powers vested in the Federal Government, and the restraints imposed by the Constitution on the states."

The powers conferred on the National Government may be reduced, as I have already mentioned, to different classes, as they relate to the following different objects, viz.:

First. Security from foreign danger.

Second. Intercourse with foreign nations.
Third. Harmony among the states.

Fourth. Miscellaneous objects of general utility. Fifth. Restrictions on the powers of the states; and, Sixth. Provisions for giving efficacy to the powers vested in the Union.

As security from foreign danger is one of the primary objects of civil society, so it was an avowed and essential purpose of the union of the states; and, accordingly, the powers requisite to attaining it were effectually confided to the National Government, and consist,

1st. Of the powers of declaring war, and granting letters of marque and reprisal.

2d. Of making rules concerning captures by land. and water.

3d. Of providing armies and fleets, and of regu

lating and calling forth the militia of the states; and, as connected with these, the substantive and distinct power of levying taxes and borrowing money.

I. The right of self-defence is a part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property. This is a fundamental principle of every social compact; and it is laid down by all approved writers on public law, that on this principle, an injury done or threatened to the perfect rights of a nation, or any of its members, and susceptible of no other redress, is just cause of war. But as the evils of war are certain, and its results doubtful, both wisdom and humanity require that every possible precaution should be taken, and every necessary preparation made, before engaging in it. It was formerly usual to precede hostilities by a public declaration communicated in form to the enemy; but in modern times this practice has been discontinued; and the nation proclaiming war now confines itself to a declaration within its own territory, and to its own people.

The power of declaring war is vested by the Constitution of the United States in Congress; without whose consent no state can engage in war, unless actually invaded, or in such imminent danger of invasion as will not admit delay. So that this power of Congress is not only of its own nature exclusive, but its concurrent exercise is expressly prohibited; nor is it easy to conceive where else but in Congress it could be properly and prudently deposited. Although Congress alone, by its solemn act, passed, like other laws, according to the forms of the Constitution, can subject the nation to the hazardous events of war, yet the interposition of a smaller portion of the government has power to restore peace.

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