was as much a coasting voyage, as from Boston to NewBedford.

Under the power to regulate commerce, it has been further decided, that a state law requiring every importer of goods, by wholesale, bale, or package, to take out a license, and pay for it, under certain penalties or forfeitures for neglect or refusal, was repugnant to the constitution of the United States, and void ; inasmuch as it belonged to Congress to regulate foreign commerce, and no state can lay a duty on imports. So it is held, that if Congress, in execution of the power to regulate commerce, should pass a statute controlling state legislation in erecting dams over small navigable creeks where the tide ebbs and flows, it would be valid and binding. It is admitted, however, that the grant to Congress to regulate commerce on the navigable waters of the several states, contains no cession of territory, or of public or private property; and that the states may by law regulate the use of fisheries and oysterbeds within their territorial limits, though upon navigable waters, provided the free use of the waters for purposes of navigation and commercial intercourse be not interrupted.

I have now finished the second general division of this progress of course of lectures, relating to the government and constitu- jurisprutional jurisprudence of the United States. Though I have considered the subject in a spirit of free and liberal inquiry, as the series of decisions in the federal courts have been brought under examination, I have uniformly felt, and it has been my invariable disposition to inculcate, a strong sentiment of deference and respect for the judicial authorities of the Union. No point or question of any moment, touching the construction of the powers of the government, and which


a Brown v. State of Maryland, 12 Wheaton, 419.

b Wilson v. The Black-Bird Creek Marsh Company, 2 Peters' U. S. Rep. 245.

c Corfield v. Coryell, 4 Wash. Cir. Rep. 371.

has received an authoritative determination, has been intertionally omitted. There are several important constitutional questions which remain yet to be settled; but if we recur back to the judicial annals of the United States for the last thirty years, we shall find that many of the most interesting discussions which had arisen, and which were of a nature to affect deeply the tranquillity of the nation, have auspiciously terminated.

The definition of direct taxes within the intendment of the constitution; the extent of the power of Congress to regulate commerce with foreign nations and among the several states; the power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; the power of Congress over the militia of the states; their power of exclusive legislation over districts and ceded places; the mass of implied powers incidental to the express powers of Congress, such as the power to institute and protect an incorporated bank, to lay a general and indefinite embargo, and to give to the United States, as a creditor, priority of payment, have all received elaborate discussion in the Supreme Court, and they have, to a certain extent, been ascertained and defined by judicial decisions. So, also, the extent of the constitutional prohibitions upon the states not to pass ex post facto laws; and not to pass laws impairing the obligation of contracts; and not to impede or control, by taxes, or grants, or any other exercise of power, the lawful authorities, or institutions, or rights and privileges depending on the constitution and laws of the United States, has been explored, and declared by a series of determinations, which have contributed, in an eminent degreee, to secure and consolidate the Union, and to elevate the dignity and enlarge the influence of the national government.

The power of the president to remove all executive officers at his will and pleasure, has been settled, not indeed judicially, but perhaps as essectually, by the declared sense of the legislature, and the uniform acquiescence and practice of the government. The absolute and uncontrollable

efficacy of the treaty-making power, has also been definitively established, after a struggle against it on the part

of the house of representatives, which, at one time, threatened to disturb the very foundations of the constitution.

The comprehensive claims of the judicial power, as being co-extensive with all cases that can arise under the constitution, and laws, and treaties of the Union, have, in several instances, been powerfully and successfully vindicated. The appellate jurisdiction of the Supreme Court, over the judgments and decrees of the state courts, under certain circumstances, was defined with great accuracy and precision in the 25th section of the act of 1789, establishing the judicial courts; and the free and independent exercise of that jurisdiction, so essential to the maintenance of the authority and efficiency of the government of the United States, in criminal as well as in civil cases, has been hitherto happily sustained. The means of enforcing obedience, when not voluntarily rendered, to the decisions of this appellate jurisdiction, have not been required to be practically applied; and therefore it is a question, which the court has not thought it incumbent on them, as yet, to decide, whether the exercise of that jurisdiction would permit compulsory process to the state courts, with the ordinary methods of enforcing process. The act of Congress provided only that on appeal from the judgment or decree of a state court, the writ of error should have the same effect, as if the judgment or decree had been rendered or passed in a Circuit Court, and the proceeding upon a reversal should be the same, except that the Supreme Court, instead of remanding the cause for a final decree, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. And, with respect to other branches of the judicial power, it may

[blocks in formation]

be generally observed, that the extensive sway of admiralty and maritime jurisdiction; the character of the parties necessary to give cognizance to the federal courts; the faith and credit which are to be given in each state to the records and judicial proceedings in every other state; the sovereignty of Congress over all its territories, without the bounds of any particular state ; and the entire and supreme authority of all the constitutional powers of the nation, when coming in collision with any of the residuary or asserted powers of the states, have all been declared (as we have seen in the course of these lectures) by an authority which claims our respect and obedience.

In the first ten or twelve years after the institution of the national judiciary, or from 1790 to 1801, the scanty decisions of the Supreme Court are almost all to be found in the third volume of Dallas's Reports. The first great and grave question which came before them, was that respecting the liability of a state to be sued by a private creditor; and it is a little remarkable, that the court, in one of its earliest decisions, should have assumed a jurisdiction which the author of the Federalist had a few years before declared to be without any colour of foundation. During the period I have mentioned, the federal courts were chiefly occupied with questions concerning their admiralty jurisdiction, and with political and national questions, growing out of the revolutionary war, and the dangerous influence and action of the war of the French revolution upon the neutrality and peace of our country. It was during this portion of our juridical history, that the principles of the doctrines of expatriation, of ex post facto laws, of constitutional taxes, and of the construction and obligation of the treaty of 1783 upon the rights of British creditors, were ably discussed and firmly declared.

The reports of Mr. Cranch commence with the year 1801, and the nine volumes of those reports cover the business of a very active period, down to the year 1915. The

Supreme Court was occupied with many great and momentous questions, and especially during that portion of the time in which the United States had abandoned their neutral, and assumed a belligerent character. It is curious to observe in these reports, the rapid cultivation and complete adoption of the law and learning of the English admiralty and prize courts, notwithstanding those courts had been the constant theme of complaint and obloquy in our political discussions for the fifteen years preceding the war. In the last three volumes of Mr. Cranch, the court was constantly dealing with great questions, embracing the rights and the policy of nations; and the prize and maritime law, not of England only, but of all the commercial nations of Europe, was suddenly introduced, and deeply and permanently interwoven with the municipal law of the United States. We perceive, also, in these volumes, the constant growth and accumulation of cases on commercial law generally, and relating to policies of insurance, negotiable paper, mercantile partnerships, and the various customs of the law merchant. The court was likewise busy in discussing and settling important principles growing out of the limited range of other matters of federal cognizance, and relating to the law of evidence, to frauds, trusts, and mortgages. They were engaged also with the doctrine of the limitation of suits, the contract of sale, and with the more enlarged subjects of domicil, of the lex loci, of neutrality, and of the numerous points of international law.

By the time of the commencement of Mr. Wheaton's reports, in 1816, the decisions of the Supreme Court had embraced so many topics of public and municipal law, and those topics had been illustrated by so much talent and learning, that, for the first time in the history of this country, we were enabled to perceive the broad foundations and rapid growth of a code of national jurisprudence. That code has been growing and improving ever since, and it has now become a solid and magnificent structure; and it seems destined, at no very distant period of time, to cast a shade

« ForrigeFortsett »