JOS. W. HAMPTON,
VOLUME 1,^
Trr — B—aniwmui ■■CTTg—
“ ^^tnll chug to the pillars of the C^nstiHdim, and if it mvst fnll, m’IIperish nr,wist the ruins."
CHARLOTTE, N. C., MARCH 30, 184L
Editor and Publisher.
T E U M S
Tho *' ^Jecklaxhur':^ JdJT^rsunian” is puolished wcfkly, at
Tiro Dollars and Fifty Cents, if pnid in advance; or Tkvct
Dollan-', if not pnid before llie oxpirafion of thbek months
from the time of subscribing. Any pi rson who will j)rocurc
.•>?> sii])scribers and beronic rcsponsiblo for thdr subscriptions,
saal] liave a copy of the paper grati?^;—or, a club of ten sub
scribers may have the paper one 3aar fur ’Ficcnfy Dollars in
auvancc.
No paper will be ulsooniiaiu'd wullc tiic subsoribor owcis any
thin", if he is able to pay;—and a failure to notify the I^ditor
nf a wish to diecontinuc at least one month before the (xpirn-
T:on of the time paid for, will be considered a new engagement.
Afh'crilccrncnti- will be coiisjiicuously and correctly inscri-
^•u at Ont /W/ar per squar>' for the fnst ins. rtion. and Tircn-
t'j-Jlre. Cents for cach continunncc—except Court and oth^r
judicial adv* rtiscnients, ^vhi•■h will b-' chnrixid ticcnt>j-Jii-cper
•'cnt. hitdi'-r than the abuve rat .-=, (owlnj to the d-. lay, gcne-
raily, attendant upon collections). A liberal discount will be
made to those who advj rtisj by the }■• ar. Adv. rtisements sent
jri lor tiublicaiion, iuust be marked with t!i'> num!)cr of ins.r-
^^rBLfCAIV
PRIXC^^
latfiS^TSS!; I sy&r—- • *»
1 lie All.:., r.ct docl.ir, ?, “ll.ut Siiall be Jav. lul ’I'lic fuiulumci.tul p.iucipie of the llovoluiion was.
t T ^ ^ \ /'V I > 1 ^ ^ « w • - _ 1*. «
! NUMBER 4.
^:on-s desired, cr th' y v.-ili bo published until forbid and charg-
'■d ac. ordiuyly.
r.' to til- F.iiitor, uni; s? con;a.’n!n;j i;ior.c\' in
of /Vr.- Dnllarf, or ov r, nui: con; • tr> e of posfair’, or th(
.iijicunt paid a: ihi oiiice lit.r will becharyid tothowriu r,
evtrv" in.'tanc*', and collected as otlii'r accounts.
PROj?PFX'TrS OF THE
3%rrfelrnl)«i's Scffrr.9cuinH
I' tii»' fir.-: oi'brt tlint lin.- liorn niiulo
fl- tn tvtabli^h an at lut> hirili-j^laco of Ann'-
ri:':;TL IiuiojH;n(h‘!ice, throuirii which l!f doc’riin s
Uic Dcniorratio Party conll In* iVci Iv proiaulir;'.ti\l
and ilcll'iulcd—ill which the irnai priV-cij-h's oi’ ia:i-
• Ti\ aild p4cniality tor ^vhi^’h tho tin*
Poi.K:', and flirir heroic
31r. 31ii(lisoii*.s Report—Contixi ;:d
One arr’-umrnt fnv the power of the C^eneral Go-
^einnv ut lu rc uiovr alit'ns. woukl iiave been jKi.'^.sed
lu sii nee, it it had ap]>eared under any authority
ini.'rior to tJiat ol a r' port. made during- the ].l^t .sts-
^^ion ol Con;rr,:ss, to the House of Jvej)rei-’eniativ*
by a con-iuiittee, ;uid approved i)y tlie [ lo:j.> \ 'f'h;
doctrine on which this arrumt'in is Ibunded, is of
so ncu- and so (.yaanrdinary a ch-iracler. aiul siriivt
radically a: tiie ptMitical >vstfin of Anit ric.K iJuit
it li pioper to stale il in tii.' 'very v/oid.s of the n-
]10Vt.
1 .h a( t (co:i' ''inaig-aiK r.s) is saiu to ijc inieoii-
stilutionul, bccau:^e to n niov.- aii: ns, is a (hreel
breacii of the Cotivjtutiun. which })rovid. s, by the
Jth ^t-Ctloa oi tilt 1m aiticle i.tliat tiie nnlrl•^(i^JJl y-
iinpo.t.aion ol suja j,eis .ns ;is any of ihe Stat s
SiMll t.unk proper to adai.t, sh dl n^t b- prohibit- i
by til. Cjui^4e?:s, prior lotiiu ytar l -si.S. '
AtaoniT tiir aiiswc ^iv. n to the objection to tu^
coi.'th' 1 a'ii.ii.ty d iii‘ ;.i,’t. tiie loiiow a; .f \’i ly >\-
liia. !iui)k' oiK- IS (. xi.acu ti; ^
“'i'iii;div, tiiat as the constitution J.asirivt n to
for the Pn sident to onkr all such aliens as lie snail
j:;dgp (laiiq-orous to the pracc and sail-tv ofVae Uni
ted Statc.s, or shall hr.v ' i -nsoiiable j^rotnid to sus
pect, are concerned in any Iroasonabl *, o.-srcrrt ma
chinations against the J;v . i-nnient thereof, to de-
piJ/’ v!vc. ’
Could a po vver he 'weil driven in terms less definite,
oS p^i til.I. an l less jj' cis'*? o be (hrni^cr-
ou^ io ,'■/(' public suf:///; to be S’/r.pcclcl of sccret
mac'nnatlons a.f^ain^t fh>‘ (.iovcrnment, tii.se can
never be m!st;ikin for I. :;,;! rules or ceifain de/ini-
h'ave every tiling-to the President.—
ii!S Will IS the law.*'
Hut, it is not a Legisi.-. ive povv'er only thnt is
p.iv( n to the iVesid. nt. 1 le is to stand in'the ])l,ice
ol the JuJicary also. Mis suspicion is the cnlv
I' Vid-nee wln'.di is to conv:‘t;hi.s order, the only
I ja Iq'iuf t:t iiich is to bo r\^ c:it( d.
i J iiu.-, it js th'^ Presidtn; who.se will is to desirr-
uat('ih> ofi’nvive conduct; i: is his will that is To
i>c j(a:n the indi\ iduals on ivl; )in it is changed'
aa-.4 it !.'' hi', wiil (hat js li> r !use the s^ntt rice to lie
It i.' riirlilly ati'.’int'd, flu rcfore, that the
L- irisl.ittve and j iicial pow; rs to iliose
coijij;atriot.--periiled rh‘ir all ( xi.j.ui-,, luat a? uic consmuiion j^as ''ivt ii
on r}ir ::V(h M.'iy, 1773, could at all tinu's find an i ti Stat s no pouer lo it move ahi us (hriii'r ttie
mi.:ir;nKini^ advocate. Its succes. rests duoily^vitli | pe.i. d of ti.-‘ iunit;-ui uh.lcr cons.d-^itum] m tlir
tii.‘ KepuMu'an party of Meekiei.bur j—ar.d lo'them.
and the Pepuhlicans of the surroaading cou.ury the
ajipeal ro\v made I'or .support.
^ The iii'r^oiiian v.'ill a^:.nmi(' a.« it.-^ political cn'rd.
landniark.^ of the RepuhHcan Party, the doc-
jnni's set lorth in the Kentucky and ViriTinia R* so-
JuTion:: ol 1798—lydieving. as the tiinlersigned does,
that the autliors ofthc.se papers, who bore a conspicu-
pi'.rt in IraniinLr onr system ot’Government, were
b^*fet qurdilie I to hand down to posterity a correct ex-
po.^ition oi it,-; tru*' .'spirit—the hi rt iiidiies of what
power.-^ ivere delen'ated by, and what reserved to
t;.e ►^tatr.'^. * '
^ P Avill oppose, as dnnrrrrons to our free institutions,
tac spirit ot monopoly, which lia.- been stealtnilw hut
Pteadiiy ir.crra.-:inir in the country Iroin the foiiiida-
rion ol our Govenmient. The most odious feature
:a tins s's stem i.^. tlint it rol>s tlie v vnv. iivprrnptiiih/
■ enncii the ft clothe.s a fev.'v.-ealthy indivi-
• lU.iis with power not only to co’.drol the waives of
nic laaorintr nv.m, Imt tdso nt their plervsxiro to Intente , v wii i xi.-j is c an o. i n i
or depress t.io commerce and bnsi^.^^s of the whole ! tho-itv xX \ T i
romitry—rxcitinir a .spirit of exfravairanre, whicli it ' • ' Lnder
t rniinates in pecuniary niin, a?id too often the mor
al de;jradafjon of it.^ viciims. Tliis s*ysfem must fx'
thorovrhly roformed^ before we cfin hope to see set •
til'd prosperity smile alike upon rdl our citizens. To
aid in prodncinor this reform, will be one of the main
oojocts ot the Jeffersonian. It will war airainst er-
i hi~'>n 0 prii'i'effe.'^. cr partial lc"i.'lat ijn, under wJiat-
• ver g-ui.ic f^ranted by our LeLnsiatun s : and, there-
lore, will oppose the charteriuL'of a Tnited States
xjank, Internal Improvements by the Federal Gov-
^'rmnent, a revival of tlie Tarifi'System, and the new
i*‘deral scheme ot the General Gover iment assum-
me to pay to foreign money chansrers tiro hundred
millions o/c/oZ/ar.'.-, borrov.-ed by a lew States lor
local purposes.
As a question of viud importance to the Souili
and otie which, from various causes, is every day
ass-nmin^ a more moni'nlous and awltil aspect, tin*
. ellt isoiiian ■\\ill nf>t lail to keep its readers reirularlv
and accurately advised ot‘ the movements of the
Aort.iern Abolitionist.^j. It must be evident to all
candid observer.^s, that a portion of the party press of
the South have hitherto been loo .‘.ilent on' this sub
ject. We shall, therefore, without the f.*ar of bein^r de
nounced a.s an alarmist, lend our linndde aid to jfssist
m awakening the People of the South to due vio>i-
Jatice and a sense o* their real danger. ^
\V hile a portion of the columns of the .leirersonian
M'lil be devoted to political discussion, the nrvwt inte-
rest.^ of Morals, LiTER.\Tt RE, ArxRicn/n nE. and
the Mechamc Arts, sliali not be neijrlected. With
the choicest selections on tliesc stdijr*ct.s. aiid a due
quannty of liglit readinsr, the Editor hopes to render
lus sheet agreeable and protitedde to all rla'‘;es in
society.
.) ‘r', yW'W, ad.Ircsso.l to
n 1 of tlie Jclicrsoiiiuii, Charlulte, K. C."
Will be promptly complied with.
Postmasters are requested to act as Agents for
the paper, in receiving and forwarding the'iianies oi
t^uhscribers ;md their snbscri|)tions.
The Terms of the paper will be found al.ove.
ru t ** HAMPTON.
'charlotte, March o, ISll.
PLANTERS’ HOTEL,
(LATE DAVIS’.)
iyajiie
AVIIVG purchased the Hotel formerly Davis’,
- will continue the establishment on the same li
beral scale as heretofore, and will exert themselves
to make it a desirable residence for BOARDERS
'Uid TRAVELLERS, as their Table will be al-
■^yjiys supplied with the best the market atibrds, and
v!^ with the best Liquors, and their Stables
‘th attentive Ostlers and abundant provender.
rpi 1 .
lue establishment will be under the exclusive
unugcment of Thomas A. Hague, formerly of the
and his long experi-
conrulently hoped, enable him to give
general Butisfuction. ^ ’
Camden, S.^January 29, 1841. 1—6m
Cftbiiict of Minerals for Sale.
^JPAdministrator of the late
I\ET rkf TVi/vrn A valuable CAB-
the dectared.' A^m^idc’r'u"®'''? '"
-rcranaTrtoc^' himself, with much
i*Fu SrLVER, Cop-
iiations selected y^inous natural combi-
country be«;idp3 - 1 i^iineral regions of this
purchase tho wh«i mstittitions wishing
^ have Srtfc^^^ part of the Cabinet
dersigncd. application to the
Salib'buryj Dec. 4, isil ^VHEELER, Admr.
• • 1—p
nu an tmu‘, on liit cuiist,ucii0ii u^sulri( i,l, tht rc would
i)'-“ no autiioi’iiy in the cuuiiJiy, t nij)cu\it.d to .send
away d ui^ *ous alit ns, whicn cannot Ix.- ii.lhiiii. d. ’
1 ii ‘ 1' as 'liiii j; Uc-re usi ti, v. ould not in any view
bo con hijiv.', because t.'iere iii ' jHiwers exeicis. d
by mo>i other goyernni. nts, >vhich. in the Un;ti d
ai(• w.thti il by the people, bwili fioin the
LJencral (rovi imn* nt and honi llie iiiale l iovern-
in-iits. Uf this s«nt are many of the pov/ers pio-
uibil'd by the d; claratijns uf piv hx*-d to \he
L.)njituti’.ns, or by theclausis ui the Constitutions,
ill tile iiature oi sucii declarations. iVay, so li.ir is
the political s\'sleni ot the Unitetl Stat.s distin_ruitli
able fiom that ol otiur countries, by tli:' castion
itii which ptAvcrs arr* dt l' gat*^! and d'lin» d. ilial
in 'il? \ I V ia'ipo.t.lnt C ■. ul Cal..ui; iCtal rt- i
;,fi!lation and revenue, the power is absolut ly lock-
'■d up against tlie li.ai Is oi both Liovernnu nty. A
tax on exports can b ' laid by no constitutional au
thority what* ver. Under a system thu^j }>» culiar-
b'there coul.l surely be no absurdity in
sujjposiiig tiiat alien friends, wiio il' jy^inlty ot trea
sonable inachinutions may be punished, or if suspt c-
t* d on probrible grounds, may be secured by pledg-
s or nnpi isomai nt, ill hk* manner with pernia-
11' 111 citizi ns, \\ ei e iiLy( r ni- ant to be subjected to ban-
ibhni' lit by an arbitrary and unusu il process, either
under tlie one go\t rninerit. oi tiie otlur.
Lut. it is not the inconciusiveness of the guicral
reasoning in the passage, which chieliy c:dls the at
tention to it. It is the principle assumed by it, that
the powers held by the St.ites, are given to them
by tiie Constitution of tin Uniti d State s ; and the in
ference f.oin tnis principle, that the pow( rs su])pos-
td to be lieci ssary which are not so givf n to the
Statu Ciovern:a( nts. must reside in the Government
of tne United Stat('s.
liie ri‘spcct which is f- It for every jiortion of the
constituted authox ities, lorbids some of the r* tlectirjiis
\yliich this singular paragraph mighi (‘xcite; and
thry are the more rtadilv suppressed, as it may be
pi-( sumt d, which juMice‘p.-i iiups, as well as caiidor,
that madveitencf may have had its share m the er
ror It wouid be an unju.stiliabk^ d. Ucacy, n. ver-
thelrss, to pass by so poitenlous a claim, ploceedmo-
lioni so high an authority, \vithout a njonitory no
tice ot the tatal tendencies with which it wouli be
picginnt.
LiStiy. it is s-iid, that a law on the same suhiect
wjtlMhe alien act, pa.ssed by this State originally in
1785, and re-enacttd in 17‘j;i, is a [)roof that a suiu-
maiy removal of suspected ahciis, was iioi iiereto-
loie regarded 1 y the V^irghiia Legislature as lia
ble to the objections now urged against such a
measure.
'Phis charge against Virginia vanish; s before the
simj)le: remark, liiat tiie l.nv of Virginia rtd ites to
• susp.cious p'j.son.-, being the subject oi any foi cign
povvi'i or stale, wiio ^hail have p/a.-.U' a. dcciaraUoa
07 i/Yc/-, or actually com me need haaiUdica, fiom
whom the l*iesident shall apprehend hostile dan-
prs; vyhereas the act of Congress relates to aliens
being the subjects ol ioieigii powers and states, Avho
ha\e iieitlier declared war nor commenced liostili-
Ues, nor from ^vhom hostile; dangeis are appreheii-
11. It IS next nfnrmed of the Ailcn act, tliat it un-
1 es egibliitive judicial, and executive pow'^rs in the
hands ol tne President.
However diflicull it may be to mark, m every
case, AMtxi cIt ainess and certainty, the line which
divides Legislative power from the other depart
ments of power; all will agree, that the powers re-
ferrc'd to tin se departments may be so general and
undelincd, as to be 01 a Legislative, not of an Ex
ecutive or Judicial nature; and may for tiiat reason
be uncoiistitutional. Details to a certain degree
a;e asseruial to the nature and character of a law;
and on Ciiminal suijjLCts, it is proper, that details
should leave as little as possible to the discre'tion of
those who are to apply aiid execute the law. II
nothing more were rt quire d, in exercising a Leg
islative tiiJSt, than a general convryance ol authori-
t)^, Avithouflayingdown any precise rules, by which
the authoiity coimyed, siiould be carrird into ef
fect, it would follow, that the whole power of legis
lation might be transferred by the Legislature fiom
itself, proclamations might become substitutes Ibi
laws. A delegation of power in this latitude, wouid
not be denied to be a union of the dili'ertnt powers.
To determine, then, whether the appropriate pow
ers of the distinct departments are uniteni by the act
authorizing the Executive to remove aliens, it must
be inquhed whether it contains such ditails, defi
nitions and rules, as appertain to tlie true character
of a la>w; especially, a law by which personal lib-
e.\ec-it d
;i',‘t um;:
of the K\; culivo.
111. It is ailinnf'd. that t.-ii.s muon of power sub-
K1the if iieral juiiicijd ! h'( e govi ijmi *;t.
P h.is I) ii*. axio n ai tb“ science ol govern-
111 11!. that a s- p-iration of {t.e f/ gi.';l:iiive. Ex. cu-
tivtv an 1 Ju l.t'i.il d ’pa.tiui n'i:. is ii> c-.s.?:»ry to the
pv ?.-, vaU(.ii (.j ptiblic libfi:,'. Xov. hc're has this
avion b in b; k, r mil rst.; I in t!icory, or more*
I i'...I.y J;;i.^u d in p’.i;eii'f. than in tiie United
^::it s.
I: IS airi.'Hud tiiat s:k1i a uv.i-n of powrrs
subvfifs the p-nticular o. 'iuization and pe^sitive
pjo\ is;ei;is oi tlie bt.deKil C ':istitut]i>n.
^ AccMiding to th«‘ ))articuiir organiz:ition of the
C-mcrtiution. its L-gislafive j-nveis an vt st'd in the
C'ongievj;. its E\t ('utive po.,'ors in th(' Pn .sid. nt
:ini its .lu hciai pjw. rs in ti; supreme and inli rioi
tiibun iK. i ii(' unicm ol any two ol these powers,
j and s‘iil mc.e ol all th.i’ee, ij, any one of these de-
I }au!a lits, as has been sli ) .;i to be done by the
Alii n Act, must cons, qu udy subvert the consti
tutional orgnnization of theK^
That positive piOvisie)ns i,i the Constitution, se-
cuiinir t'j in livi iu ils the I; adits of lair trial, are?
also viol.ited by th ' umon o' powers in the Alien
\ct. ii» c s.*:arilv i( suits from th»' two f;»ets, that the
act ;I l it-S t.) alien nlit a fiie-nds
b( ing uu'ier the miinicipal luvr only, are entith.fl to
;t.' prott ction.
The sero/rl ftbject acrainst which the rtsolution
j'.r* t ;r?s. is the Sedititiii Act.
(Jl this act it is aiiirmed, 1. 'I’iiat it exorcists in
like manner a power not d> Icgat 1 by the Constitu
tion. 2. 'Piiat the power, on the contrary, is t‘X-
pressly and positively lorbidd 11 by ciic of the
aimndments e*f the Constitution. 0. 'J'hat this is a
power, which more than any other, ought to pro
duce univ( rs.il alarm. b;'ca:iso it is lev. lled against
that riglit of iVeely examinin:,^ public charcters and
mesiU' s. and of free commimication thereon, which
has ever been justly dec med :hj only etllctual guar
dian of every other right.
1. 'Phat it exercises a power not d-legated by the
Constitution.
■re again, it will be proper to recolle'ct, tliat
the Federal (.Jovernnifnt being composed of powers
sp' cilically granted v/itli a reservation of all others
to the States or to the Pt'oj h'.the positive authority
under which the Sedition Act couM be passed must
be pro hiced by those v/ho assert its consitutionality.
In v.diat pirt of the Constitution, then, is this au
thority to be luund ?
Several atte-;npts have been made to answer tliis
question, which will bo examiiK'd in their order.
'Phe (Jommitti'e will begin with one. which has
fill' d thf in with e(|ual astonishnunt and apprehen
sion, and whiLdi till y cannot but p.ersu ide themselves
must have tli!> s uiie etllci on all. who will consider
it with coohi' ssand imparti;;lity, and with a reve
rence le»r enir (. e>nslitutie)ii, jii the true character in
which it iosuc'd from the sovereign authority of the
People. 'I’he (.'o'uiiiittej' refer to th-' doctrine late
ly advanc-‘d as a sanction to the Sedition Act,
tiia. tne coljiiifs were co-ordinate members with
each other, and vnth (,:frcat j^ritain : of an empire, 1
united b^ a common Exc'cutive S'ovcrci.^Ti, but not
united by any common L‘\gisl itive sc/errign. The
L' gislati\e^ pouer ^vas mniatained to he 2s com-
pl( to in eacii American Parh-unent, as in tho Bri
tish i ailiameiit. And tiu' royal ]M’erogative was in
force in each coh,ny. by viiiue of its acknowledo-.
ing the King for its P^xecutivt'' j\Ligistrnte. as it was
m Great liiitain, by virtue of a like acknowlrdn--
ment there. A denial of these principles by Great
Britain, and ijie assertion of them by America pro
duced the revohition.
^ X here was a time indeed, when an exception tc/
tne Legislati\e separation to the several component
aI1 1 co-f tpial pails of the empire, olitained a degree
of acquiesceri'*'^. I he Jjritish Parliament was al
lowed to regulate the trade with forci^gn nations,
and b; tween the difiu-rcnt parts of the empire. This
was, however, mere practice without right, and con
trary to the true th(ory of the Constitution. The
conveniency ofsomeregulatienis, in both those cases,
V\ as apparent; and as there v.'as no Tj''gis],itiirc
One of those descriptions comprehends the case*'^
growing otit of the restrictions on the Lcgislativo
power of the States. For example, it is provided
that ‘‘no State shall emit bills of credit,” or “make^
any thing but gold and silver coin a tender in pay-
iTfont of debts.’’ ShouH fliis prohibition be viola
ted, and a suit hclwceii ci.tizcKx of the same
be the consequence, this would be a case arisin^"^
iindor the Constitution bofjre the Judicial pov.'cr of
the United States. A sccond description compre
hends suits between citizens and foreigners, or citi
zens of difTerent States, to bo decidcd according to
the State or foreign laws; but submitted by^fho
Constitution to the Judicial power of the United
States; the ,Tudicial power being, in several instan
ces, extended beyond the L'^gislativc power cf the
United States.
J o this explanation of the text, the follovriiig ob*
sc r vat ions may be added:
The (vpiYssion ‘-'cnscs in law and equity,” i;j
manite'Stly confined to oases of a civil -nature; and
u'ould exclude c.nsrs of criminal jurisdiction. Crimi
nal eases in Inw and equity yy'ould be a lanc'uao'e
miknown to the law. °
The succecding paragraph of the same scctie u
m il.w. z _ T. • • 1
wiU. .-KJwer over .ho whoij/i " conirucio.. 1, is in.he.
prc-cininnice among ilic L''ffi£latiir.'s ol'ihe s- vor.-ii I' i r Ambas.5a(lors, ether
ran.?, il was n:ili.a;il for th-' L-ishi.jrc of th-it !f =»'■> .-ind iho.-^c in v/hich
|ia.iicMlii- paa wl.ich v.-as ;lio tll a an 1 ln'r,si to i 'i‘ Court slial!
a.-smne this function, a.iJ for the othcTS to’acnui- r'T other eas s
I„ I, Tliis laci. .•,rra„-r,-.,„,„, i.'n^ 'If i " I ,n l.av an-1 canily ariynff nnd.r
the '»uidic burder.s, and were regarded as an in
de^miiiiicatioii e*f its advaii’C'S for tho Cnlier part."?
As long as tiiis rrcruliiting rovv Cr was crn*'>
’ ,1 •
i his piragrapii. b}’expressly g'lViiig an appcl-
^ to . jurisdiction, in cases of law and equity aris
ing under tlie Cojistitiition, to fact, asweli as to I iw,
tne two object.- of coiiveai! iicy and equity, it v/as i Const it iitior
not complained of. nor mucir enquired into! But. ' cxcludr'-s criminal eases, where the trial b\
no sooner was it ner.frt.d m ih,. c-, in..r j’^O'is secured ; becau.se '
no sooner was it per.ert.d to the selfiish aIivvs of
the party assuming it, than the injured ])aities be
gan to fee 1 and to reflect; and the moment the claim
to a direct and indefinite power was ingrafted on
the ])receihnt of the regulating power, the vrhole
chaim Vv’as dissolved, and every eye opened to tho
usurpatiem. The assv.ition by Great l^ritain cf a
po\\ ei to make laws for the fithor meinbers of the
cmpiic 1,'vn.ll eases en led m tho discove
ry that she had a right to make laws for them in no
cases 'ichatsocvcr.
Such being the ground of our revolution, no sup
port nor color can be drawn from it, for the doctrine
that the common law is binding on these Statrs as
one socif ty. Tho dactrijio. -.»i eonfiavv. i--> • vi
den.tly repugnant to tho ftmdam^itai pnLcinie of
tlic revolution.
The articles of conft. derat ion,
of inf^.irmation on this subject.
the fact, in such eases,
not a sabjcct of appeal. And, although the appeal
is liable to such exceptations and regulations rs
i Congiots may adopt, yet it is not to be suppo.sed
' that t
uo comnii n or mi''>”ri tcn law.'' a I iw of vast
rxtt'iil and complexity, and inbfacing ulmcst every
subject of logisl.uion, both civil and criminal, makes
a part of the law of these States, in their united
and national capacity.
PJie novelty, and in tho judgment of the Com
mittee, the extravngmce of this pretension, would
have consigned it to the silence, iu whicli they have
passe'd by other arguments, which on extravag.mt
zeal for the act has drawn into the discussion. But,
the auspicc's under ^yhich this innovation presents
the revolution and the final ratitlcation of these ar
ticles, tiic iiituic and c'xtent (>f the Union v/as de
termined by the circumstances of the crisis, rather
than bj any accurate dehneaiion of the general au-
thoiit\. It Will not be alle'dged, that the ‘"com
mon law" could have had any legitimate birth as a
law' of the United Statens during that stat3 of things.
If it cjiiiiG Qs such into oxistciico ut all, the c]i[irtcr
of confederation must have been its parent.
Here again, however, its pretensions are abso
lutely de“Stitute of foundation. ^Phis instrument
does not contain a sentence or syllable that can be
tortured into a count* nance of the idea, that the
paiiies to it were, with resjiect to tho objects of the
common law, to form one commimity. No such
law is named or inipli vl, or tillud.'d to. or bring in
force, or as brought into force by that compact.
No provision is made by which such a law could
be carried into operation • whilst, on the riher hand,
every such inference or pretext is a]n^ohitely pre
cluded by article ‘2d, which deckires, ‘-that cach
State> letains its sovereignty, fre'edoin and mdepcn-
d. nee, and every jiower, juri.sdiction and right,
which is not by this confederation expressly dele
gated to tiie United States, in Congress assoinbled.”
'i'hus far it appears, thit not a vestirro of this
that an exception of all criminal eases could le
contemplated; as well because a discretion in Con
gress to make or omit the exception v/ould bo im
proper, as because it would liave been iinneccssay.
The exception could as easily have born made b\^
the Constitution itself, as referred to the Congress. '
Once more; the amendment last addc-d to (he
Constitution, deserves attention, as throwing light
on this subjVct. ‘-The Judicial power of the Uni
ted w.tates shall not be construed to extend to any suit
m /,7 ?.r or t ^ov.MTlcivccd or pi U.-5CCU’>-d
I ^ 'T' States, by citizens of another
I or subjects of any foreign pow-
are the next sourcc j As u will not be pretended that any criminal
In .he iniorval Unveiii the conimrncttncr.; cf|l"rai/flni ore.juitt/, must uSeraofS !'
Jujate to cifU, in c.\ch!sion to
n-,rt it is fvidont, tll.1t thi.s
M-n I it coul-1 he applied
at all 10 tne rurposo for uliich it had Wen cited,
nou.d not include any cases whatever of a crimi
nal n.iture; and consequently, would not authorise
die iniorence from it, that the Judicial authority ex
tends to ojenccs arising under the Constitution.
It is further to be considered, that even if this
pa/t of t:ie Constitution could be strained into an
app ication to every common law case, criminal as
no cfTect in justifyino-
tiie Scaition Act: which is an exerciso of^ L'^ffislrf-
tivo and not of Judicial power: and it is the Judi
cial power only of which tjie extent is defined in
tiiis part of the Constitution.
There are two passages in the Constitution, in
which a description of the laws of the U. States is
found, dho first is contained in Art III Sec 2
m the worels following: ‘-This Constitution, the
laus oi tne United States, and treaties made, or
which s.iall be made under their authority.” The
sccond is contained in the 2d para^ph of Art. VI.
as follows; This Constitution and the laws of the
united States. Avhich shall be made in pursuance
thereof, and all tic\aties made, or which shall be
e..t,ao,dtnary doctrine can he f.und tn the or,gin .nado, o„:4r\i;o ofl uSm
or nroirre.'^s of Amon.M-.i mc:i i... .1 1 , V >
or progre\^s of American institutions. 'Phe evi
dence against it has, on t!ie contrary, o-i-own strons*-
er at every step, till it has amounted to a formal and
pe^sitive exclusion, by written articles ed comp:ict
among the parties concerned.
Is this exclusion revoked, and the common la.v
introduced as a n:itional law, by tl'.e prer,^ nt Consti
tution of the United Status ? 'i'his is the ihial
question to betxamjied.
It is readily admuti d, that particular pai’ts of the
common law may have a sanction from the Consti-
^iiion, so far as thi'y are nec. ss irily comprehended
in the technical phrases which express the })0wers
delegated to the government; and so fir also, as
itself have constrained the committee to bestow on if ntiipr^ as
it aa attention, which other coiisideration. v.n'.rht I'J' Congress as
it an attention, wdiich other considerations might
have forbidden.
In executing the task, it may be of use to look
back to the colonial state of this country, prior to
the Revolution : totracc theefl'ect of the revolution
which converted the colonies into independent
States ; to inquire into the iinixirt of the articles of
confeKieration, the first intrimient by Avhicli the
union of the States was regularly established; and
finally, to constilt the Constitution of 1788, wdiich
is the oraclc that mustde^cide, the important quc’stion.
In the State prior to the Revolution, it is certain
that the common law, under diflferent limitations,
made a part of the colonial code's. But whether it
bo understood that the original colonists brought
the law \vith them, or made it their law by adop
tion, it is equally certain, that it was the separate
law of each colony within its respective limits, and
Vv’as unknown to tlicm, as a law pervading and ope
rating through the whole, as one society.
It could not possibly be otherwise. The com
mon law was not the same in any two of the colo-
niis; m some, the moelifications were materially
and extensively different. There was no comrron
Legisluture, by which tlie common will could be
e xprtssed in the form of a law ; nor any common
magistracy, by v*diich such a lc»v/ could be carried
into practice. The v. ill of cach colony, alone and
St paratc ly, had its organs lor these purposes.
This stage of our political history, furnishes no
foothold lor the patrons of this new doctrine.
Did then the principle or operation of the great
event which made the colonies independent States
necessary and proper for carrying ‘into execution
the powers expressly delegated. But the question
does not relate to either of these portions of the
common law. It relates to the common law' be
yond these limitations.
The only part of the Constitution which seems
to have been relied on in this case, is the 21 sect. of
Art. III. “ The judicial power shall extend to all
eases, in law and equity, arising snider this Coasti-
iution, the laws of the United States, and treaties
made or wdiich shall be made under their autho
rity.”
It has been asked what cases, distinct from those
arising under the laws and treaties of the United
States, can arise under the Constitution, other than
those arising under the common lavr; and it is in
ferred, that the common l;iw is accordingly adopt
ed or recognized by the Constitution.
Never, perhaps, "was so broad a construction ap
plied to a text so clearly unsusceptible of it. If
any color for the inference could be foimd, it must
be in the impossibility of finding any other eases in
law and equity, within the provision of the Consti
tution, to satisfy the expression; and rather than re
sort to a construction affecting so essentially the
whole character of the government, it would per
haps be more rational to consider the expression as
a mere pleonasm or inadvertance. But, it is not
necessary to decide on such a dilemma. The ex
pression is fully satisfied, and its accuracy justified,
by two descriptions of cases, to which the Judicial
authority is extended, and n^'ither of which implies
tliat the conomon law is the laiv of the U. Stitt's.
shall be the supreme law of tiie land.” The first
of these descriptions was meant as a guide to the
Judges of the United States; the second, as a ruid.^
to the Ju Iges of the several States. Both of Ihem
consi.st of an enumerntion, y.diich was evidently
meant to bo precise and complete. If the common
law had been undf^rstood to be a law of the United
St ttr-s, it jS not possible to assign.'a satisfactory rea-
Si,n w.hy i* wris not exprejsecl fn the enumeration.
In ni.i.of th‘SO subjects-, thVdidlculties and con-
fusion insrpaval le from a consfriictive introduction
of the common law', weuld aflbrd powerful rcasoiis
against it.
Is it to be the cammon law \rith, or whhout tlie
British Statut's?
If without the statutory amendments, the vices of
the c:xio vrould be insupportable.
If With these amendmb’nt'Sj what period is to be
fixed for limiting the -British authority over our
laws?
Is it to be the dn^y of tho eldest or the yonnf^c:t
of the colonies ? ' '• * *
Or are the elates to be thrown together, and a m ■
dium deduced ?
Or is Our indoprndence to be taken for tlie d-ite .?
Is, again, regard to bo had to the various chan
ges in the e^onomon law made' by the local codes of
America 2
Is regard to be had to such changes, suts^queiif.
as well as priorj to the rst iblishment of the Con-:!:-
tution ?
regard to be had to' fulure, as well as pa.*;?
changes?
Is the law to be dhfcrent in every State, as differ
ently modified by itscodt^, or are the me>di tic aliens
of any particular. State to be: applied to all ?
And on the latter supposition, which among the
State codes form the standard ?
Questions of this sort miglit be multiplied with
as much ease as there would be ditficulty in an-
sv/ering them.
The consequences flowhig fiom the proposed
construction, lurnish other objections equally con
clusive; unless the text were peremptory in its mean
ing, and consistent Vv ith other parts of the instru
ment.
Those conscquonc^'s may be in relation to tlie le
gislative authority of the United States; te« the ex-