Commentaries on American Law (1826-30)

Chancellor James Kent

Of Constitutional Restrictions on the Powers of the Several States

WE proceed to consider the extent and effect of certain express constitutional restrictions on the authority of the separate states.

“No state,” says the constitution1 “shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; nor lay any duty on tonnage, keep troops or ships of war in the time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

Most of these prohibitions would seem to speak for themselves, and not to stand in need of exposition. I shall confine myself to those cases in which the interpretation and extent of some of these restrictions have been made the subject of judicial investigation.

(1.) No state can pass any ex post facto law.

In Calder v. Bull,2 the question on the meaning of an ex post facto law, within the prohibition of the constitution, was extensively discussed.

The legislature of Connecticut had, by a resolution or law, set aside a decree of the Court of Probates rejecting a will, and directed a new hearing before the Court of Probates, and the point was, whether that resolution was an ex post facto law prohibited by the constitution of the United States.

It was held, that the words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when done, criminal; or which aggravated a crime, and made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. The Supreme Court concluded, that the law or resolution of Connecticut was not within the letter or intention of the prohibition, and was, therefore, lawful. Afterwards, in Fletcher v. Peck,3 it was observed, that an ex post facto law was one which rendered an act punishable in a manner in which it was not punishable when it was committed. This definition is distinguished for its comprehensive brevity and precision, and it extends equally to laws inflicting personal or pecuniary penalties, and to laws passed after the act, and affecting a person by way of punishment, either in his person or estate.

(2.) No state can control the exercise of any authority under the federal government.

The state legislatures cannot annul the judgments, nor determine the extent of the jurisdiction of the courts of the union. This was attempted by the legislature of Pennsylvania, and declared to be inoperative and void by the Supreme Court of the United States, in the case of The United States v. Peters.4 Such a power, as we have heretofore seen, necessarily resides in the supreme judicial tribunal of the nation. It has also been adjudged, that no state court has authority or jurisdiction to enjoin a judgment of the Circuit Court of the United States, or to slay proceedings under it. This was attempted by a state court in Kentucky, and declared to be of no validity by the Supreme Court of the United States, in McKim v. Voorhies.5 No state tribunal can interfere with seizures of property made by revenue officers, under the laws of the United States; or interrupt by process of replevin, injunction, or otherwise, the exercise of the authority of the federal officers; and any intervention of state authority for that purpose is unlawful. This was so declared by the Supreme Court in Slocum v. Mayberry.6 Nor can a state court issue a mandamus to an officer of the United States. This decision was made in the case of McCluny v. Silliman,7 and it arose in consequence of the Supreme Court in Ohio sustaining a jurisdiction over the register of the land office of the United States in respect to his ministerial acts as register, and claiming a right to award a mandamus to that officer, to compel him to issue a final certificate of purchase. The principle declared by the Supreme Court was, that the official conduct of an officer of the government of the United States can only be controlled by the power that created him.

There is one case that may seem to be repugnant to this doctrine of the federal courts. In Mills v. Martin,8 the Supreme Court of this state sustained an action of replevin for goods taken by a deputy marshal of the United States, under a warrant from a court martial composed of militia officers in the service of the United States. The court martial was organized and convened under acts of congress for the trial of such persons of the militia as had neglected or refused to rendezvous and enter the service of the United States, according to orders of the governor of this state, issued in compliance with the requisitions of the president of the United States; and it had assessed a fine upon the plaintiff, for having neglected or refused to enter the service of the United States as a soldier in the militia. The court held, that the rules and articles of war did not apply to the case of a delinquent who had never actually entered the service, nor did they apply in time of peace to militia men for delinquencies during war. Congress do not, by any existing laws, assume a right to subject the militia to martial law, except while they are in the actual service and pay of the United States. The court therefore gave a remedy against the assessment and process of the court martial, on the ground that the plaintiff was not amenable to a court martial of the United States, and that the court martial had no jurisdiction in the case. The whole proceeding was void, and the taking of the plaintiff’s property a trespass. If a court of special and limited jurisdiction exceeds its authority, and takes cognizance of a case not within it, the proceeding is coram non judice, and void. This was the doctrine of the court in that case, and it is apparently at variance with the principle laid down by the Supreme Court of the United States in the case of the United States v. Peters, that the power of determining the extent of the jurisdiction of the federal courts resides in the supreme judicial tribunal of the nation. It is also apparently at variance with the doctrine of the same court in Slocum v. Mayberry, where it is said, that a party supposing himself aggrieved by a seizure made by an officer of the United States, cannot replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer had a right to seize under the laws of the United States, the question whether I he forfeiture has been actually incurred, belongs exclusively to the federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts, whether such seizure is to be deemed rightful or tortious. And if it be adjudged to be tortious, then the party may proceed by suit at common law, in the state courts, to recover damages for the illegal act.9

The distinction which would appear to reconcile all these decisions, is this: if the officer of the United States who seized, or the court which awarded the process to seize, had jurisdiction of the subject matter, then the inquiry into the validity of the seizure belongs exclusively to the federal courts. But if there was no jurisdiction in the instance in which it was asserted, as the Supreme Court of this state held in the case of the court martial assuming cognizance over the delinquency of a member of the state militia, then the state courts have jurisdiction to protect the person and the property so illegally invaded; and it is to be observed, that the jurisdiction of the state court in Rhode Island was admitted by the Supreme Court of the United States in the case cited, and upon that very ground.

In the case of the United Slates v. Barney,10 the district judge of Maryland carried to a great extent the exemption from state control of officers or persons in the service of the United States, and employed in the transportation of the mail. He held, that an innkeeper had no lien on the horses which he had fed, and which were employed in the transportation of the mail. The act of congress of March, 1790, prohibited all wilful obstruction of the passage of the mail; and a claim for debt would not justify the stopping of the mail, or the means necessary to transport it, either upon principles of common law or upon the statute.

The judge stated in this case, that even a stolen horse found in the mail stage could not be seized; nor could the driver, being in debt, or having committed an offense, be arrested, in such a way as to obstruct the passage of the mail. But in a subsequent case in the Circuit Court of Pennsylvania,11 it was held, that the act of congress was not to be so construed as to endanger the public peace and safety. The carrier of the mail driving through a. populous city with dangerous rapidity, and contrary to a municipal ordinance, may be stopped, and the mail temporarily detained by an officer of the city. So, if the officer had a warrant against a felon in the stage, or if the driver should commit murder in the street, and then place himself on the mail stage box, he would not be protected from arrest, though a temporary stoppage of the mail might be the consequence. The public safety in the one case, is of more moment than the public inconvenience which it might produce in the other.

But while all interference on the part of the state authorities with the exercise of the lawful powers of the national government, has been, in most cases, denied, there is one case in which any control by the federal over the state. courts, other than by means of the established appellate jurisdiction, has equally been prevented. In Diggs and Keith v. Wolcott,12 it was decided generally, that a court of the United States could not enjoin proceedings is a state court, and a decree of the Circuit Court of the United States for the district of Connecticut was reversed, because it had enjoined the parties from proceeding at law in a state court. This decision is not to be contested; and yet the district judge of the northern district of New York, in the spring of 1823, in the case of Lansing and Thayer v. The North River Steam Boat Company, enjoined the defendants from seeking in the state courts, under the acts of the state legislature, the remedies which those acts gave them. This would appear to hove been an unwarrantable assumption of the power of control over the jurisdiction of the state courts, and one in direct hostility to the doctrine of the Supreme Court of the United States. In the case of Kennedy v. Earl of Cassillis,13 an injunction had been unwarily granted in the English Court of Chancery to restrain a party from proceeding in a suit in the Court of Sessions in Scotland, where the parties were domiciled. It was admitted, that the Court of Sessions was a court of competent jurisdiction, and an independent foreign tribunal, though subject to an appeal, like the Court of Chancery, to the House of Lords. If the Court of Chancery could in that way restrain proceedings in the Court of Sessions, the Sessions might equally enjoin proceedings in Chancery, and thus stop all proceedings in either court. Lord Eldon said, he never meant to go further with the injunction, than the property in England; and he, on motion, dissolved it in toto.

(3.) No state can pass any law impairing the obligation of contracts.

We come next to a prohibition of great moment, and affecting extensively and deeply the legislative authority of the states. There is no prohibitory clause in the constitution, which has given rise to more various and able discussion, or more protracted litigation, than that which denies to any state the right to pass any law impairing the obligation of contracts. I shall endeavor to give a full and accurate view of the judicial decisions defining and enforcing this prohibition.

The case of Fletcher v. Peck,14 first brought this prohibitory clause into direct discussion. The legislature of Georgia, by an act of 7th of January, 1795, authorized the sale of a large tract of wild land, and a grant was made by letters patent in pursuance of the act, to a number of individuals, under the name of the Georgia Company. Fletcher held a deed from Peck for a part of this land, under a title derived from the patent; and in the deed Peck had covenanted, that the state of Georgia was lawfully seized when the act was passed, and had good right to sell, and that the letters patent were lawfully issued, and the title had not since been legally impaired. The action was for breach of covenant; and the breach assigned was, that the letters patent were void, for, that the legislature of Georgia, by act of 13th of February, 1796, declared the preceding act to be null and void, as being founded in fraud and corruption. One of the questions presented to the Supreme Court upon the case was, whether the legislature of Georgia could constitutionally repeal the act of 1795, and rescind the sale made under it.

The court declared, that when a law was in its nature a contract, and absolute rights have vested under that contract, a repeal of the law could not divest those rights, nor annihilate or impair the title so acquired. A grant was a contract within the meaning of the constitution. The words of the constitution were construed to comprehend executory and executed contracts, for each of them contains obligations binding on the parties. A grant is a contract executed, and a party is always estopped by his own grant. A party cannot pronounce his own deed invalid, whatever cause may be assigned for its invalidity, and though that party be the legislature of a state. A grant amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A grant from a state is as much protected by the operation of the provision of the constitution, as a grant. from one individual to another, and the state is as much inhibited from impairing its own contracts, or a contract to which it is a party, as it is from impairing the obligation of contracts between two individuals. It was, accordingly, declared, that the estate held under the act of 1795, having passed into the hands of a bona fide purchaser for a valuable consideration, the state of Georgia was constitutionally disabled from passing any law whereby the estate of the plaintiff could be legally impaired and rendered void.

The next case that brought this provision in review before the Supreme Court, was that of The State of New Jersey v. Wilson.15 It was there held, that if the legislature should declare by law, that certain lands to be thereafter purchased for the use of the Indians, should not be subject to any tax, such a legislative act amounted to a contract which could not be rescinded by a subsequent legislature. In that case, the colonial legislature of New Jersey, in 1758, authorized the purchase of lands for the Delaware Indians, and made that stipulation. Lands were accordingly purchased, and conveyed to trustees for the use of the Indians, and the Indians released their claim to other lands, as a consideration for this purchase. The Indians occupied these lands until 1803, when they were sold to individuals under the authority of an act of the legislature, and, in 1804, the legislature repealed the act of 1758, exempting those lands from taxation. The act of 1758 was held to, be a contract, and the act of 1804 was held to be a breach of that contract, and void under the constitution of the United States.

The Supreme Court went again, and more largely, into the consideration of this delicate and interesting constitutional doctrine, in the case of Terrett v. Taylor.16 It was there held, that a legislative grant, competently made, vested an indefeasible and irrevocable title. There is no authority or principle which could support the doctrine, that a legislative grant was revocable in its own nature, and held only durante bene placito. Nor can the legislature repeal statutes creating private corporations, or confirming to them property already acquired, under the faith of previous laws, and by such repeal vest the property in others, without the consent or default of the corporators. Such a proceeding would be repugnant to the letter and spirit of the constitution, and to the principles of natural justice.

But it was in the great case of Dartmouth College v. Woodward,17 that the inhibition upon the states to impair by law the obligation of contracts, received the most elaborate discussion, and the most efficient and instructive application. It was there held, that the charter granted by the British crown to the trustees of Dartmouth College in 1769, was a contract within the meaning of the constitution, and protected by it; and that the college was a private charitable institution, not liable to the control of the legislature; and that the act of the legislature of New Hampshire, altering the charter in a material respect, without the consent of the corporation, was an act impairing the obligation of the charter, and, consequently, unconstitutional and void.

The chief justice, in delivering the opinion of the court, observed, that the provision in the constitution never had been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with the government, and its funds were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake, in any degree, in the administration of civil government. It was the institution of a private corporation for general charity. The charter was a contract to which the donors, the trustees of the corporation, and the crown, were the original parties, and it was made on a valuable consideration, for the security and disposition of property. The legal interest in every literary and charitable institution is in trustees, and to be asserted by them, and they claim or defend in behalf of the religion, charity, and education, for which the corporation was created, and the private donations made. Contracts of this kind, creating these charitable institutions, are most reasonably within the purview and protection of the constitution. This contract remained unchanged by the revolution; and the duties, as well as the powers of the government, devolved on the people of New Hampshire, but the act of the state which was complained of, transferred the whole power of governing the college, from trustees appointed according to the will of the founder expressed in the charter, to the executive of New Hampshire, The will of the state was substituted for the will of the donors, in every essential operation of the college. The charter was reorganized in such a manner as to convert a literary institution, molded according to the will of its founders, and placed under the control of private literary men, into a machine entirely subservient to the will of government. This was, consequently, subversive of that contract, on the faith of which the donors invested their property; and the act of the legislature of New Hampshire was, therefore, held to be repugnant to the constitution of the United States.

The same course of reasoning, and leading to the same conclusion, was adopted and expressed by some of the other judges.

In the opinion given by Judge Story, he added some new and interesting views of the nature of the contracts which the constitution intended to protect. He denied the power of the legislature to dissolve even the contract of marriage, without a breach on either side, and against the wishes of the parties. A dissolution of the marriage obligation, without any default or assent of the parties, may as well fall within the prohibition of the constitution, as any other contract for a valuable consideration. A man has as good a right to his wife, as to the property acquired under a marriage contract; and to divest him of that right without his default, and against his will, would be as flagrant a violation of the principles of justice, as the confiscation of his estate. The prohibitory clause he also considered to extend to other contracts besides those where the parties took for their own private benefit. A grant to a private trustee, for the benefit of a particular cestui que trust, or for any special private or public charity, cannot be the less a contract, because the trustee takes nothing for his own benefit. Nor does a private donation, vested in a trustee for objects of a general nature, thereby become a public trust, which the government may, at its pleasure, take from the trust. Government cannot revoke a grant even of its own funds, where given to a private person, or to a corporation for special uses. It has no other remaining authority but what is judicial to enforce the proper administration of the trust. Nor is a grant less a contract, though no beneficial interest accrues to the possessor. Many a franchise, whether corporate or not, may, in point of fact, be of no exchangeable value to the owners, and yet they are grants within the meaning and protection of the constitution. All incorporeal hereditaments, as immunities, dignities, offices, and franchises, are rights deemed valuable in law, and whenever they are the subjects of a contract or grant, they are just as much within the reach of the constitution as any other grant. All corporate franchises are legal estates. They are powers coupled with an interest, and corporators have vested rights in their character as corporators. Upon this doctrine it was insisted, that the trustees of Dartmouth College had rights and privileges under the charter, of which they could not be divested by the legislature without their consent. The act of the legislature did impair their rights, and vitally affect the interest of the college under the charter. If a grant of franchises be made to A. in trust for a special purpose, the grant cannot be revoked, and a new grant made to A., B., and C., for the same purpose, without violating the obligation of the first grant. If property be vested by grant in A. and B., for the use of a general charity, or private eleemosynary foundation, the obligation of that grant is impaired, when the estate is taken from their exclusive management, and vested in them in common with ten other persons.

I have thus stated the substance of the argument of the Supreme Court in this celebrated case, and it contains one of the most full and elaborate expositions of the constitutional sanctity of contracts to be met with in any of the reports. The decision in that case did more than any other single act, proceeding from the authority of the United States, to throw an impregnable barrier around all rights and franchises derived from the grant of government; and to give solidity and inviolability to the literary, charitable, religious, and commercial institutions of our country.

The same prohibitory clause in the constitution came again under discussion in the case of Green v. Biddle,18 it was observed by the court, that the objection to a law, on the ground of its impairing the obligation of contracts, could never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are expressed, however minute or apparently immaterial in their effect upon the contract, or upon any part or parcel of it, impairs its obligation. Upon this principle it is, that if a creditor agrees with his debtor to postpone the day of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage.

The material point decided in that case was, that a compact between two states was a contract within the constitutional prohibition. The terms contract and compact were synonymous, and a contract is an agreement of two or more parties to do or not to do certain acts. The court declared, that the doctrine had been already announced and settled, that the constitution embraced all contracts executed and executory, and whether between individuals, or between a state and individuals; and that a state had no more power to impair an obligation into which she herself had entered, than she had to impair the contracts of individuals.

Another case which led to a very extensive inquiry into the operation and effect of the constitutional prohibition upon the states not to pass laws impairing the obligation of contracts, was that of Sturges v. Crowninshield.19 The defendant was sued in one of the federal courts upon two promissory notes given in March, 1811, and he pleaded his discharge under an insolvent act of New York, passed in April, 1811. This insolvent act was retrospective, and discharged the debtor upon his single petition, and upon his surrendering his property in the manner therein prescribed, without the concurrence of any creditor, from alt his preexisting debts, and from all liability and responsibility by reason thereof.

The chief justice, in the opinion which he delivered on behalf of the court, admitted, that until congress exercise the power to pass uniform laws on the subject of bankruptcy, the individual states may pass bankrupt laws, provided those laws contain no provision violating the obligation of contracts. It was admitted, that the states might by law discharge debtors from imprisonment, for imprisonment was no part of the contract, but only a means of coercion. It was also admitted, that they might pass statutes of limitation, for such statutes relate to the remedy, and not to the obligation of the contract. It was further stated by the court, that the insolvent laws of far the greater number of the states only discharged the person of the debtor, and left the obligation to pay in full force, and to this the constitution was not opposed. But. a law which discharged the debtor from his contract to pay a debt by a given time, without performance, and released hire, without payment, entirely from any future obligation to pay, impaired, because it entirely discharged, the obligation of that contract; and, consequently, the discharge of the defendant, under the act of 1811, was no bar to the suit.

The court held, that the obligation of a contract was not fulfilled by a cessio bonorum, for the parties had not merely in view the property in possession when the contract was made, but its obligation extended to future acquisitions, and to release there from being liable, impaired the obligation of the contract. There was a distinction, in the nature of things, between the obligation of a contract, and the remedy to enforce that obligation, and the latter might be modified, as the wisdom of the legislature should direct. But the. constitution intended to restore and preserve public confidence completely. It intended to establish a great principle, that contracts should be inviolable.

The case in which this decision was made, was one in which the contract was existing when the law was passed; and the court said, that their opinion was confined to the case. A distinction has been taken between the case of a contract made before, and one made after, the passing of the act. It was taken by the Supreme Court of this state, in Mather v. Bush,20 and by the chief justice of Massachusetts, in Blanchard v. Russell,21 and was relied on as a sound distinction by the Court of Chancery of this state, in Hicks v. Hotchkiss.22 The doctrine of these cases is, that an insolvent act in force when the contract was made, did not, in the sense of the constitution, impair the obligation of that contract, because parties to a contract have reference to the existing laws of the country where it is made, and are presumed to contract in reference to those laws. It is an implied condition of every contract, that the party shall be absolved from its performance if the event takes place which the existing law declares shall dispense with the performance. The decision in Sturges v. Crowninshield is supposed to be consistent with that distinction, when it establishes the principle, that an insolvent act discharging a debtor from his contract existing when the law passed, so that his future acquisitions could not be touched, is unconstitutional, and the discharge obtained under it void.

But the Supreme Court of the United States, in McMillan v. McNeill,23 went a step further, and held, that a discharge under a state insolvent law existing when the debt was contracted, was equally a law impairing the obligation of contracts, and equally within the principle declared in Sturges v. Crownshield. This was a discharge under the insolvent law of a different government from that in which the contract was made. It remains yet to be settled, whether it be lawful for a state to pass an insolvent law which shall be effectual to discharge the debtor from a debt contracted after the passing of the act, and contracted within the state making the law. The general language of the court would seem to reach even this case; but the facts in the cases decided do not cover this ground, and the cases decided are not authority to that extent. It will be perceived, that the power of the states over this subject is, at all events, exceedingly narrowed and cut down; and as the. decisions now stand, the debt must have been contracted after the passing of the act, and the debt must have been contracted within the state, or else a discharge will not extinguish the remedy against the future property of the debtor.

And while on this point, it may not be amiss to observe, that the cessio bonorum of the Roman law, and which prevail at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, or exempt the future acquisitions of the debtor from execution for the debt. The English statute, commonly called the Lords’ act,24 went no further than to discharge the debtor’s person; and it may be laid down as the law of Germany, France, Holland, Scotland, England, etc. that insolvent laws are not more extensive in their operation than the cessio bonorum of the civil law;25 and indeed in many parts of Germany, as we are informed by Huberus and Heineccius,26 a cessio bonorum does not even work a discharge ¯f the debtor’s person, and much less of his future property.

(4.) No state can pass naturalization laws.

By the constitution of the United States, congress have power to establish a uniform rule of naturalization. It was held, in the Circuit Court of the United States at Philadelphia, in 1792, in Collet v. Collet,27 that the state governments still enjoyed a concurrent authority with the United States upon the subject of naturalization, and that though they could not contravene the rule established by congress, or “exclude those citizens who had been made such by that rule, yet that they might adopt citizens upon easier terms than those which congress may deem, it expedient to impose.” But though this decision was made by two of the judges of the Supreme Court, with the concurrence of the district judge of Pennsylvania, it is obvious, that this opinion was hastily and inconsiderately declared. If the construction given to the constitution in this case was the true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the states individually of the power of naturalizing aliens according to their own will and pleasure, and thereby giving them the rights and privileges of citizens in every other state. If each state can naturalize upon one year’s residence, when the act of congress requires five, of what use is the act of congress, and how does it become a uniform rule?

This decision of the Circuit Court may be considered, as in effect, overruled. In the same Circuit Court, irk 1797, Judge Iredell intimated, that if the question had not previously occurred, he should be disposed to think, that the power of naturalization operated exclusively, as soon, as it was exercised by congress.28 And in the Circuit Court of Pennsylvania in 1814, it was the opinion of Judge Washington, that the power to naturalize was exclusively vested in congress.29 Afterwards, in Chirac v. Chirac,30 the chief justice of the United States observed, that it certainly ought not to be controverted, that the power of naturalization was vested exclusively in congress. In Houston v. Moore,31 Judge Story mentioned the power in congress to establish a uniform rule of naturalization, as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the states. The weight of authority, as well as of reason, may, therefore, be considered as clearly in favor of this latter construction.

(5.) The states cannot impose a tax on the national bank, or its branches.

The inability of the states to impede or control, by taxation or otherwise, the lawful institutions and measures of the national government, was largely discussed, and strongly declared, in the case of McCulloch v. The State of Maryland.32 In that case, the state of Maryland had imposed a tax upon the Branch Bank of the United States established in that state, and assuming the bank to be constitutionally created and lawfully established in that state, the question arose on the validity of the state tax. It was adjudged that the state governments had no right to tax any of the constitutional means employed by the government of the union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress, to carry into effect the powers vested in the national government.

To define and settle the bounds of the restriction of the power of taxation in the states, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking; but it appears to have been, in this instance, most wisely and most successfully performed. It was declared by the court, that it was not to be denied, that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount character of the constitution of the United States, that it had a capacity to withdraw any subject from the action even of this power, and it might restrain a state from any exercise of it which may be incompatible with, and repugnant to, the constitutional laws of the union. The great principle that governed the case was, that the constitution and the laws made in pursuance thereof were supreme, and that they controlled the constitution and laws of the respective states, and could not be controlled by them. It was of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their influence. A supreme power must control every other power which is repugnant to it. The right of taxation in the states extends to all subjects over which its sovereign power extends, and no further. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but it does not extend to those means which are employed by congress to carry into execution their constitutional powers. The power of state taxation is to be measured by the extent of the state sovereignty, and this leaves to a state the command of all its resources, and the unimpaired power of taxing the people and property of the state. But it places beyond the reach of state power all those powers conferred on the government of the union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. The power to tax would involve the power to destroy, and the power to destroy might defeat and render useless the power to create. There would be a plain repugnance in conferring on the government a power to control the constitutional measures of another, which other, with respect to those very measures, was declared to be supreme over that which exerts the control. If the right of the states to tax the means employed by the general government did really exist, then the declaration that the constitution and the laws made in pursuance thereof should be the supreme law of the land, would be empty and unmeaning declamation. If the states might tax one instrument employed by the government in the execution of its powers, they might tax every other instrument. They might tax the mail; they might tax the mint; they might tax the papers of the custom house; they might tax judicial process; they might tax all the means employed by the government to an excess which would defeat all the ends of government.

The claim of the states to tax the Bank of the United States was thus denied and shown to be fallacious; and that there was a manifest repugnancy between the power of Maryland to tax, and the power of congress to preserve the institution of the branch bank. A tax on the operations of the bank, was a tax on the operations of an instrument employed by the government of the union to carry its powers into execution, and was consequently unconstitutional. A case could not be selected from the decisions of the Supreme Court of the United States, superior to this one of McCulloch and the State of Maryland, for the clear and satisfactory manner in which the supremacy of the laws of the union have been maintained by the court, and an undue assertion of state power overruled and defeated.

But the court were careful to declare that their decision was to be received with this qualification: that the states were not deprived of any resources, of taxation which they originally possessed; and that the restriction did not extend to a tax paid by the real property of the bank, in common with the real property within the state; nor to a tax imposed upon t he interest which the citizens of Maryland might hold in that institution in common with other property of the same description throughout the state.

The decision pronounced in this case against the validity of the Maryland tax, was made on the 7th of March, 1819, and it was on the 7th of February preceding, that the legislature of the state of Ohio imposed a similar tax, to the amount of 50,000 dollars annually, on the Branch Bank of the United States established in that state. Notwithstanding this decision, the officers of the state of Ohio proceeded to levy the tax, and that act brought up before the Supreme Court a renewed discussion and consideration of the legality of such a tax.33 It was attempted to withdraw this case from the influence and authority of the former decision, by the suggestion that the Bank of the United States was a mere private corporation, engaged in its own business, with its own views, and that its great end and principal object were private trade and private profit. It was admitted, that if that were the case, the bank would be subject to the taxing power of the state, as any individual would be. But it was not the case. The bank was not created for its own sake, or for private purposes. It has never been supposed that congress could create such a corporation. It was not a private, but a public corporation, created for public and national purposes, and as an instrument necessary and proper for carrying into effect the powers vested in the government of the United States. The business of lending and dealing in money for private purposes, was an incite dental circumstance, and not the primary object; and the bank was endowed with this faculty in order to enable it to effect the great public ends of the institution, and without which faculty and business the bank would want a capacity to perform its public functions. And if the trade of the bank was essential to its character as a machine for the fiscal operations of the government, that trade must be exempt from state control, and a tax upon that trade bears upon the whole machine, and was, consequently, inadmissible, and repugnant to the constitution.

(6.) The state governments have no jurisdiction in places ceded to the United States.

The state governments may likewise lose all jurisdiction over places purchased by congress, by the consent of the legislature of the state, for the erection of forts, dock yards, light houses, hospitals, military academies, and other needful buildings.34 The question which has arisen on this subject, was as to the effect of a proviso or reservation, usually annexed to the consent of the state, that all civil and criminal process issued under the authority of the state, might be executed on the lands so ceded, in like manner as if the cession had not been made. This point was much discussed in the Circuit Court of the United States in Rhode Island, in the case of the United States v. Cornell.35 It was held, that a purchase of lands within. the jurisdiction of a state, with the consent of the state, for the national purposes contemplated by the constitution, did, ipso facto, by the very terms of the constitution, fall within the exclusive legislation of congress, and that the state jurisdiction was completely ousted. What, then, is the true intent and effect of the saving clause annexed to the cessions? It does not imply the reservation of any concurrent jurisdiction or legislation, or that the state retained a right to punish for acts done within the ceded lands. The whole apparent object of the proviso was to prevent the ceded lands from becoming, a sanctuary for fugitives from justice, for acts done within the acknowledged jurisdiction of the state; and such permission to execute process is not incompatible with exclusive sovereignty and jurisdiction. The acceptance of a cession, with this reservation, amounts to an agreement of the new sovereign, to permit the free exercise of such process, as being quoad hoc his own process. This construction has been frequently declared by the courts of the United States, and it comports entirely with the intention of the parties, and upon any other construction the cession would be nugatory and void. Judge Story doubted whether congress were even at liberty, by the terms of the constitution, to purchase lands, with the consent of a state, under any qualification of that consent, which would deprive them of exclusive legislation over the place. The courts of the United States have sole and exclusive jurisdiction over an offense committed within a ceded place, notwithstanding the ordinary reservation of the right to execute civil and criminal process of the state. That was no reservation of any sovereignty or jurisdiction.

Congress, in exercising powers of exclusive legislation over a ceded place or district, unite the powers of general, with those of local legislation. The power of local legislation carries with it, as an incident, the right to make that power effectual. Congress exercises that particular local power, like all its other powers, in its high character as the legislature of the union, and its general power may come in aid of these local powers. It is, therefore, competent for congress to try and punish an offender for an offense committed within one of those local districts, in a place not within such jurisdiction; or to provide for the pursuit and arrest of a criminal escaping from one of those districts, after committing a felony there; or to punish a person for concealing, out of the district, a felony committed within it. All these incidental powers are necessary to the complete execution of the principal power, and the Supreme Court, in Cohens v. Virginia,36 held, that they were vested in congress.

It follows asa consequence, from this doctrine of the federal courts, that state courts cannot take cognizance of any offenses committed within such ceded districts; and, on the other hand, that the inhabitants of such places cannot exercise any civil or political privileges under the laws of the state, because they are not bound by those laws. This has been so decided in the state courts.37 But if, in any case, the United States have not actually purchased, and the state has not, in point of fact, ceded the place or territory to the United States, its jurisdiction remains, notwithstanding the place may have been occupied, ever since its surrender by Great Britain, by the troops of the United States, as a fort or garrison. The Supreme Court of this state accordingly held, in the case of The People v. Godfrey,38 that they had jurisdiction of a murder committed by one soldier upon, another within Niagara fort. Nor would the purchase of the land by the United States be alone sufficient to vest them with the jurisdiction, or to oust that of the state, without being accompanied or followed with the consent of the legislature of the state. This was so decided in the case of The Commonwealth of Pennsylvania v. Young.39

(7.) The construction of the power of congress to regulate commerce among the several states.

I proceed next to examine the judicial decisions under the power given to congress to “regulate commerce with foreign nations, and among the several states;” and it trill be perceived, that the questions arising under this power have been of the utmost consequence to the interests of the union, and the residuary claims and sovereignty of the states.

The first question that arose upon this part of the constitution was, respecting the power of congress to interrupt or destroy the commerce of the United States, by laying a general embargo, without any limitation as to time. By the act of congress of 22d December, 1807, an embargo was laid on all ships and vessels in the ports and harbors of the United States, and a prohibition of exportation from the United States, either by land or water, of any goods, wares, or merchandise of foreign or domestic growth or manufacture. “There were several supplementary acts auxiliary to this principal one, and intended more effectually to enforce it under certain specific exceptions. In the case of The United States v. The Brigantine William, in the District Court of Massachusetts, in September, 1808,40 it was objected, that the act was unconstitutional, for that congress had no right, under the power to regulate commerce, thus to annihilate it, by interdicting it entirely with foreign nations. But the court decided, that the embargo act was within the constitutional provision. The power of congress was sovereign relative to commercial intercourse, qualified by the limitations and restrictions expressed in the constitution; and by the treaty-making power of the president and senate, congress had a right to control or abridge commerce for the advancement of great national purposes. Non-intercourse and embargo laws are within the range of legislative discretion; and if congress have the power, for purposes of safety, or preparation, or counteraction, to suspend commercial intercourse with foreign nations, they are not. limited as to the duration, more than as to the manner and extent of the measure.

A still graver question was presented for the consideration of the federal judiciary, in the case of Gibbons v. Ogden,41 decided by the Supreme Court of the United States in February term, 1824. That decision went to declare, that several acts of the legislature of this state, granting to Livingston and Fulton the exclusive navigation of the waters of this state in vessels propelled by steam, were unconstitutional and void acts, and repugnant to the power given to congress to regulate commerce, so far as those acts went to prohibit vessels licensed under the laws of congress for carrying on the coasting trade, from navigating the waters of this state.

It had been decided in the Court of Errors of this state, in 1812,42 that five several statues of this state, passed between the years 1798 and 1811, inclusive, and granting and securing to the claimants the sole and exclusive right of using and navigating boats by steam in the waters of this state, for a term of years, were constitutional and valid acts. According to the doctrine of the court in that case, the internal commerce of the state by land and water remained entirely and exclusively within the scope of its original sovereignty. It was considered to be very difficult to draw an exact line between those regulations which relate to external, and those which relate to internal commerce, for every regulation of the one will directly or indirectly affect the other. But it was supposed that there could be no doubt that the acts of the state which were then under consideration, were not within any constitutional prohibition, for not one of the restrictions upon state power, contained in the 9th and 10th sections of the 1st article of the constitution, appeared to apply to the case; nor was there any existing regulation of congress on the subject of commerce with foreign nations, and among the several states, which was deemed to interfere with the grant. It was declared to be a very inadmissible proposition, that a state was divested of a capacity to grant an exclusive privilege of navigating a steam boat within its own waters, merely because congress, in the plenary exercise of its power to regulate commerce, might make some future regulation inconsistent with the exercise of that privilege. The grant was taken, undoubtedly, subject to such future commercial regulations as congress might lawfully prescribe; and to what extent they might lawfully prescribe them, was admitted to be a question within the ultimate cognizance of the Supreme Court of the United States. The opinion of the court went no further than to maintain, that the grant to Livingston and Fulton, was not within any constitutional prohibition upon the states, nor was it repugnant or contradictory to any existing act of congress on the subject of commerce; and under those two restrictions, every state had a right to make its own commercial regulations. It was generally declared, that congress had not, in the understanding of the court, any direct jurisdiction over our interior commerce or waters, and that they had concurrent jurisdiction over our navigable waters only so far as might be incidental and requisite to the due regulation of commerce between the states and with foreign nations.

In this case, in 1812, the defendants, who objected to the validity of the state grant, did not set up any patent right, or any other right under any particular act of congress. They rested entirely on the objection, that the statutes conferring the exclusive privilege were absolutely unconstitutional and void. But afterwards, in the case of Ogden v. Gibbons,43 the defendant set up, by way of right and title to navigate a steam boat upon the waters of this state, in opposition to the grant, that his boats were duly enrolled and licensed under the laws of the United States, at Perth Amboy, in the state of New Jersey, to be employed in carrying on the coasting trade. The question in that case was, whether such a coasting license conferred any power to interfere with the grant; and it was decided in the Court of Chancery, and afterwards in the Court of Errors,44 that the coasting license merely gave to the steam boat an American character for the purpose of revenue, and that it was not intended to decide a question of property, or to confer a right of property, or a right of navigation or commerce. The act of congress regulating the coasting trade, was never intended to assert any supremacy over state regulations or claims, in respect to internal waters or commerce. It was not considered by our courts as the exercise of the power of congress to regulate commerce among the states. The law concerning the coasting trade was passed on the 18th of February, 1793, and it never occurred to any one during the whole period that the state laws were under consideration before the legislature, and in the councils of revision, and in the courts of justice, from 1798 down to, and including the judicial investigations in 1812, that the coasting act of 1793 was a regulation of commerce among the states, prohibitory of any such grant. Such latent powers were never thought of, or imputed to it. The great objects and policy of the coasting act were, to exclude foreign vessels from commerce between the states, in order to cherish the growth of our own marine, and to provide that the coasting trade should be conducted with security to the revenue. The register and enrolment of the vessel were to ascertain the national character; and the license was only evidence that the vessel had complied with the requisites of the law, and was qualified for the coasting trade under American privileges. The license did not define the coasting trade. Free trade between the states then existed, subject to local and municipal regulations. The requisitions of the coating act were restrictions upon the general freedom of that commerce, and not the grant of new rights. Steam vessels were subject to those regulations equally with any other vessels. If congress had intended that a coasting license should confer power and control, and a claim of sovereignty subversive of local laws of the states within their own jurisdictions, it was supposed they would have said so in, plain and intelligible language, and not have left their claim of supremacy to be hidden from the observation and knowledge of the state governments, in the unpretending and harmless shape of a coasting license, obviously intended for other purposes.

It was, therefore, upon considerations like these, that the courts of justice in this state did not consider the grant to Livingston and Fulton as disturbed by a coasting license under the act of 1793. The courts in this state did not, either in this case of Ogden v. Gibbons, or in any of the cases which preceded it, deny to congress the power to regulate commerce among the states, by express and direct provisions, so as to control and restrict the exercise of the state grant. They only insisted, that without some such explicit provision, the state jurisdiction over the subject remained in full force. This cause was afterwards carried up by appeal to the Supreme Court of the United States, and the decree reversed, on the ground, that the grant was repugnant to the rights and privileges conferred upon a steam boat navigation under a coasting license.45 The great question was fully and elaborately discussed; and though it would not be proper in this place to question the correctness of a final decision, yet it has always appeared to me, that sonic of the doctrines and expositions of the court would carry the powers of the general government, by construction, to a greater extent over the residuary claims and assumed rights of the states, than any decision which had hitherto been made.

In the construction of the power to regulate commerce, the court held, that the term meant, not only traffic but intercourse, and that it included navigation, and the power to regulate commerce was a power to regulate navigation. Commerce among the several states, meant commerce intermingled with the states, and which might pass the external boundary line of each state, and be introduced into the interior. It was admitted, that the power did not extend to that commerce which was completely internal, and carried on between different ports of the same state, and which did not extend to, or affect other states. The power was restricted to that commerce which concerned more states than one, and the completely internal commerce of a state was reserved for the state itself. The power of Congress on this subject comprehended navigation within the limits of every state, and it might pass the jurisdictional line of a state, and be exercised within its territory, sofa r as the navigation was connected with foreign commerce, or with commerce among the several states. This power, like all the other powers of congress, was plenary and absolute

within its acknowledged limits. But, it was admitted, that inspection laws relative to the quality of articles to be exported, and quarantine laws, and health laws of every description, and laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc. were component parts of an immense mass of legislation, not surrendered to the general government. Though congress may license vessels to sail from one port to another, in the same state, the act is supposed to be necessarily incidental to the power expressly granted to congress, and it implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police. The court construed the word regulate to imply full power over the thing to be regulated, and to exclude the action of all others, that would perform the same operation on the same thing.

After laying down these general propositions, and which (as I understand them) none of the judicial decisions in this state have ever controverted, the court proceeded to observe, that the acts of this state, granting exclusive privileges to certain steam boats, were in collision with the acts of congress regulating the coasting trade, and that the acts of the state must, in that case, yield to the supreme or paramount law. If the law of congress was made in pursuance of the constitution, (and of which there could be no doubt,) the state laws must yield to the supremacy of it, even though they were enacted in pursuance of powers acknowledged to remain in the states. A license under the acts of congress for regulating the coasting trade, was an authority to carry on that trade. The words of the act of congress directing the proper officer to grant to a vessel qualified to receive it, “a license for carrying on the coasting trade,” was considered as conveying an explicit authority for that purpose. It was the legislative grant of a right, and it conferred all the right which congress could give in the case, and it was not intended to confer merely the national character. It was further held, that the power to regulate commerce extended to navigation, carried on by vessels exclusively employed in transporting passengers, and to vessels propelled by steam, as well as to vessels navigated by other means.

This is the substance of the argument of the Supreme Court of the United States in the steam boat case. The only great point on which the Supreme Court of the United States, and the courts of this state, have differed, is in the construction and effect given to a coasting license. They did not differ in any general view of the powers of congress; and the Supreme Court expressly waived any inquiry or decision on the point, whether the exercise of the power assumed by the steam boat laws would have been illegal, provided there was no existing regulation of congress that came in collision with them. This was the very point and pith of the decision in Livingston v. Van Ingen. It was upon the assumption that there was no such regulation, that the decision in Livingston v. Van Ingen rested. I apprehend, that the steam boat laws would never have been passed, and the decisions under them which have been complained of, would never have been made, if it had been clearly understood by the authorities of this state, that the coasting license act was the actual exercise of a power in congress repugnant to such a privilege, and if the opposition boats in that case had produced such a license. The formidable effect which has been given to a coasting license, was a perfect surprise upon the judicial authorities of this state; and none of the persons concerned in the former decisions in our state courts on this subject ever entertained the idea, as I apprehend, that congress intended, by a coasting license, a grant of power that was to bear down all state regulations of internal commerce that stood in its way. The original and leading decision of Livingston v. Van Ingen, is not affected by this decision of the Supreme Court of the United States. None of the doctrines in that case are controverted by the Supreme Court, because, in that case, the opposition boats set up no license under the coasting act, and the whole controversy has turned and terminated upon the effect to be given to the coasting license.

But the decree of the Supreme Court seems to be broader than the facts in the case would warrant, The case related to a claim of right to steam boat navigation between Elizabeth Town, in New Jersey, and the city of New York, by a licensed boat; and the court decided, that the Jersey boat had a right to navigate the waters of this state for the purpose of carrying on the coasting trade, any law of this state to the contrary notwithstanding. The decree went on to declare, that so much of the several laws of this state as prohibited vessels duly licensed from navigating the wafers of this state by means of fire or steam, were repugnant to the constitution, and void. This language was too general and comprehensive for the case. The case related to a commerce between two states, which commenced in the one and terminated in the other, and the reasoning of the court did not go beyond the case. The decree; therefore, as I apprehend, could not have been intended to establish, that a steam boat licensed under the coasting act, was not subject to the laws of the state in respect to mere internal commerce, or that the steam boat privileges head under the laws of this state were not valid in respect to a purely domestic or internal commerce on the navigable waters of this state. The principle settled by the decision applies only to the case where the termini of the voyage or coasting trade rested in different states. The commerce or navigation protected by the coasting license must concern more states than one, in order to make it a commerce among the states. A vessel employed in the regular conveyance, of goods, wares and merchandise, or of passengers, from one given port or place within this state to another, as for instance, between the cities of New York and Albany, is as entirely employed in the internal commerce of the state, as it would be if the same vessel was employed in the same regular business between Albany and Troy, or upon the canal between Schenectady and Utica. A coasting license may, perhaps, reasonably, imply a trading from port to port within the same state, as part and parcel of one continuous voyage between different states. But if a coasting license, founded on the power in congress to regulate commerce among the several status, be held to imply a right to navigate regularly and permanently between two ports or places within the same state, and to allow the vessel to be confined essentially, and for all business purposes, entirely to the waters of the state, then there would be no distinction between commerce among the several states, and commerce confined entirely and exclusively within a state; and all state jurisdiction over its purely internal commerce would be utterly destroyed. This was never intended by the constitution, and it is what the Supreme Court itself appears to have disclaimed.46

I have now finished the second general division of this course of lectures relating to the government and constitutional 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 has received an authoritative determination, has been intentionally 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 constitutions, 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 degree, 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 effectually, 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 coextensive with all cases that can arise under the constitution, and laws, and treaties of the union, have been powerfully and successfully vindicated. The appellate jurisdiction of the Supreme Court, controlling and causing to bow to its supremacy, the highest courts of justice in the several states; 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 cash state to the records and judicial proceedings in every other state; the sovereignty of congress over all its territories, without the hounds 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’ 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 color 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 1815. 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 those respects, 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 wag 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 domicile, 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 Low become a solid and magnificent structure; and it seems destined, at no very distant period of time, to cast a shade over the less elevated, and perhaps we must add, the less attractive and ambitious systems of justice in the several states. The most interesting parts of Mr. Wheaton’s reports are those which contain the examination of those great constitutional questions which we have been reviewing; and I cannot conceive of any thing more grand and imposing in the whole administration of human justice, than the spectacle of the Supreme Court sitting in solemn judgment upon the conflicting claims of the national and state sovereignties, and tranquillizing all jealous and angry passions, and binding together this great confederacy of states in peace and harmony, by the ability, the moderations and the equity of its decisions.

There are several seasons why we may anticipate the still increasing influence of the federal government, and the continual enlargement of the national system of law in magnitude and value. The judiciary of the United States has an advantage over many of the state courts in the tenure of the office of the judges, and the liberal and stable provisions for their support. The United States are, by these means, fairly entitled to command better talents, and to look for more firmness of purpose, greater independence of action, and brighter displays of learning. The federal administration of justice has a manifest superiority over that of the individual states, in consequence of the uniformity of its decisions, and the universality of their application. Every state court will naturally be disposed to borrow light and aid from the national courts, rather than from the courts of other individual states, which will probably never be so generally respected and understood. The states are multiplying so fast, and the reports of their judicial decisions are becoming so numerous, that few lawyers will be able or willing to master all the intricacies and anomalies of local law, existing beyond the boundaries of their own state. Twenty-four independent state courts of final jurisdiction over the same questions, arising upon the same general code of common and of equity law, must necessarily impair the symmetry of that code.

The danger to be apprehended is, that students will not have the courage to enter the complicated labyrinth of so many systems, and that they will, of course, entirely neglect them, and be contented with a knowledge of the law of their own state, and the law of the United States, and then resort for further assistance to the never failing fountains of European wisdom.

But though the national judiciary may be deemed preeminent in the weight of its influence, the authority of its decisions, and in the attraction of their materials, there are abundant considerations to cheer and animate us in the cultivation of our own local law. The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity jurisdiction, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and we might almost say, the exclusive cognizance of the state governments. We look essentially to the state courts for protection to all these momentous interests. They touch, in their operation, every cord of human sympathy, and control our best destinies. It is their province to reward, and to punish. Their blessings and their terrors will accompany us to the fireside, and be “in constant activity before the public eye.” The elementary principles of the common law are the same in every state, and equally enlighten and invigorate every part of our country. Our municipal codes can be made to advance with equal steps with that of the nation, in discipline, in wisdom, and in luster, if the state governments (as they ought in all honest policy) will only render equal patronage and security to the administration of justice. The true interests and the permanent freedom of this country require, that the jurisprudence of the individual states should be cultivated, cherished, and exalted, and the dignity and reputation of the state authorities, sustained with becoming pride. In their subordinate relation to the United States, they should endeavor to discharge the duty which they owe to the latter, without for getting the respect which they owe to themselves. In the appropriate language of Sir William Blackstone, and which he applied to the people of his own country, they should be “loyal, yet free; obedient, and yet independent.”


     1.    Art. l. sec. 10.
     2.    3 Dallas, 386.
     3.    6 Cranch, 138.
     4.    5 Cranch, 115.
     5.    7 Cranch, 279
     6.    2 Wheaton, 1.
     7.    6 Wheaton, 596.
     8.    18 Johnson, 7.
     9.    The decision in Mills v. Martin was reversed on error to the Supreme Court of the United States, and its doctrine overthrown. Martin v. Mott, 12 Wheaton, 19.
   10.    3 Hall’s Law Journal, 128.
   11.    United States v. Hart, 1 Peters’ Rep. 390.
   12.    4 Cranch, 179.
   13.    2 Swanston, 330.
   14.    6 Cranch, 87.
   15.    7 Cranch, 164.
   16.    9 Cranch, 43.
   17.    4 Wheaton, 518.
   18.    8 Wheaton, l.
   19.    4 Wheaton, 122.
   20.    16 Johnson’s Rep., 233.
   21.    13 Mass. Rep. 1.
   22.    7 Johnson’s Ch. Rep. 297.
   23.    4 Wheaton, 209.
   24.    32 G. II. and 33 G. III.
   25.    Code, 7. 71. 1. Dig. 42. 3, 4. & 6. Voet ad Pand. 42. 3. 8. Heineccii Opera, tom. 5. p. 620. tom. 6. 384, 387. Code de Commerce, No. 568. Repertoire Universel et Raisonne de Jurisprudence, par Merlin, tit Cession de Biens. Esprit des Loix, tom. 1. 114. 16 Johnson’s Rep. 244. note.
   26.    Hub. Praelec. tom. 2. 1454. Heinecc. Elem. Jur. Civ. secund. ord. Pand. p. 6. 1. 42. tit. 3. Elem.,Jur. Ger. lib 2. tit. 13. sec. 387.
   27.    2 Dallas, 294.
   28.    United States v. Villato, 2 Dallas, 370.
   29.    Golden v. Prince, Wharton’s Digest, tit. Constitutional Law, 26.
   30.    2 Wheaton, 269.
   31.    5 Wheaton, 49.
   32.    4 Wheaton, 316.
   33.    Osborn v. Bank of the United States, 9 Wheaton, 738.
   34.      Const. art. 1. sec. 8.
   35.    2 Mason, 69.
   36.    6 Wheaton, 426-429.
   37.    Commonwealth v. Clary, 8 Mass. Rep. 72. Sane v. Young, 1 Hall’s Journal of Jurisprudence, 53.
   38.    17 Johnson, 225.
   39.    1 Hall’s Journal of Jurisprudence, 47.
   40.    2 Hall’s Law Journal, 255.
   41.    9 Wheaton 1.
   42.    Livingston v. Van Ingen, 9 Johnson’s Rep. 507.
   43.    4 Johnson’s Ch. Rep. 150.
   44.    17 Johnson, 488.
   45.    Gibbons v. Ogden, 9 Wheaton, l.
   46.    In Brown v. The State of Maryland, 12 Wheaton, 419, the Supreme Court of the United States decided, that a state law requiring every importer of goods by bale or package, and all others selling such 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, for it belonged to the congress to regulate foreign commerce, and no state can lay a duty on imports.