Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1840-11-27
POLITICS.
The Republican Flag.
4 Ii L = - ID L Id a 4 III y

III lHc lHleIYal DelWccn Tic commandments w TIT
revolution and the final ratification oftLese articles Tie
nature and extent Of the Union determined Ay the
circumstances OF the crisis, rather than by any accurate
Gelneaion of the general authority. II viii notbc al
legged that the common law could have had dny lc
climate birth Us law OF the L. s. during that state %
things. III it came such into existence ut all, trC
charter OF confederation must have been It's parenf.
| Here again, however, its preensions absolutely
destitute of foundation. This instrument dogs not
contain sentence syllable that can be tortured into
countcnancc Of the idea that the parties to ifwere
with respect the objects of the common law 10 form
one community. No such law is named or mpl;sd, oil
alluded TO, or being force, brought into force BY
that compact. No provision is made by which such
law could be carried into operation: whilst thnothcI
hand every such inference preteXt absolutely pre-
cGdedby article I'd, which declares tt;at each State
retains its sovereignty freedom and independence anu
every power jurisdiction and right, which is not by this
confederation expressly delegated to the U. s., in Con
gress assembled"
Thus far il appears, that not vcstigc Of this extra
ordinary doctrine he found in the origin or progress
Of American institutions. The evidence against it has
on the contrary, grown stronger at every STEP till il
has amounted 10 formal and positive exclusion, b.
written articles OF compact among the parties con
ccrncd.
Is this exclusion revoked, and The common law in
roduced national law, by the present Constitution
Of the United States: This is the final question TO be
examined.
1t is readily admitted, that particular parts Of the
common law may haze sanction from the Constitution
far tcy necessarily comprche ndcd in the tcc
meal phrases which express the powers delegated 10
the governments aud ar aso such other parts ma
be adopted by Congress necessary and proper for
carrying into execution the powers expressly delegated
But the question does not relate 10 either Of these por
tons Of the common law. 1t relates to the common law
beyond these limitations.
The only part Of the Constitution which seems 10 Ia sc
been relied in this case, is The II sect Of Art III
The judicial power shall extend 10 all cases. in'c
and eqnity arising under Ills Constitution the laws Of
the L. s.. and Treaties made winch shall be made
g under their authority.
It has been asked what cases, distinct from those
arising under the laws and treaties oihe L. 5, arise
under the Constitution, other than those arising under
The common Law; and il is inferred, that the common
llw is accordingly adopted recognized BY the Con-
st,gton.
Never, perhaps, so broad construction applied
10 text clearly mnsusccpble Of it. If any color
Tor the inference could be found, must be in the i'm
possibility Of finding any other cases in aw and equity,
within the provision of the Constitution TO satisfy the
expression and rather than resort TO construction
affecting 50 essentially the whole character Of the 20
vcrmmen, ii would perhaps be more rational TO con-
slider the expression mere pleonasm or nadvcr-
tcncc But, il is not necessary 10 decide such a
dilemma. The expression is fully satisfied and It's
accuracy justified, by two descriptions of cases, 10
winch the judicial authority is extended, and neither OF
which implies that the common law is the law OF the l.
eases growing out Of the restrictions on the Legislative
power oil The States For example, it IS provided that
''no Slate shall emit bills oil credit, or "nake any
thing but gold and silver con tender i'll payment o.!
debts Should this prohibition bc violated, and n
suit btttrcen cti-cns o The State be the conse-
Gucncc this would he arising under the Constl
tuition before the Judicial power OF the United States
second description conpreirnds suits between ci'i-
and foreigners, or citizens al different States, 10
be decided according To the State or foreign laws but
submitted b. the Constitution 10 the Judicial power OF
the United States lie Judicial power being, in sevc-
raj instances extended beyond the Legislative power
Of the United States.
10 this xpana,ion of the text the following obscr-
vatons may br added
The expression, scascs in law and equity is mani
testify confined to Of civil nature and would ex
cudc cases Of criminal jurisdiction Criminal cases
in Ia and equity would be 4 language unknown TO the
law.
The succeeding paragraph Of the same section is III
harmony with tins construction II IS III these words:
ain ali cases affecting Ambassadors, other public Minis
ters and Consus and those in winch State shall be a
party the Supreme Court shall have original jursdc-
ton In all the other including cases III law and
equity arising under the Constitution the Supreme
Court shall have appellate jurisdiction both as TO law and
fact with such exceptions, and under such regula-
tons, as Congress shall make.
This paragraph, by expressly giving an appel
late jurisdiction, in OF law and equity aris-
ing under the Constitution, to tact, well as to
law clearly excludes criminal cases, where the trial by
Jury secured because the fact in such cases, is not
subject appeal And, although the appeal IS liable TO
such cyccpt;0nS and regulations as Congress may adopt,
yet it is not 10 be supposed That exception Of all
criminal could be contemplated; rs well because
4 discretion in Congress to make or omit the exception
would be improper, as because would have been IN
necessary. The exception could as easily have teen
made by the Constitution itself, referred to the Con-
grcss.
Once moro: the amendment last added to the Con-
s,ution deserves attention. throwing light this
subject "The Judicial power oil the United States
shall not be construed to extend to any suit III lac or
f0uity commenced or prosecuted against one OF the
States by citizens of another State or by citizens or
subjects Of any foreign power. As it will not be pre-
tended that any criminal proceeding could take place
apainst State; the terms iao or equity, mnst be I'M
derstood as appropriate cir in exclusion Of criminal
cases.
From these considerations it is evident tia, this part
Of the Constitution, even if it could be applied At all
ia ihe purpose for which it had been cited, would
not include any cases whatever Of a criminal ma
ture: and consequently, would not authorize the infer
ence from it, that the Judicial authority extends to o.
fences against the common law offences arising un
der the Constitution
II is further to be considered, that even if this part
Of tho Constitution could be strained into appca
ton 10 every common law case, criminal rs well as
civil it could have effect in ustiiying the Seditior
Act: which is an exercise Of Legislative, and not o
Judicial power: and it is the Judicial power only o
which the extent is defined in this part of the Consti
tuition. .
There arc two passages in the Constitution, in wc!
n description Of the laws Of ike L. 8 is found Iht
first is contained in Art. III. ,, in the words 70!
lowing "This Constitution, TIE laws Of tie u >, ant
treaties made, which shall be made under their an
tliorty The second is contained i'll the ii paragraph
Of Art VI, as follows "1hs Constitution and th'
laws of the U. S, which shall be made in pursuance
thereof and all treaties made which shall be made
under the authority of the IT, S, shall be the supreme
law of the land" The first of these descriptions wa:
meant as guide to the Judges of the L. s.; the Sc
cond as guide TO the Judges in the several States
Both of them consist of an enumeration which va;
evidently meant he precise and complete II th'
common law had been understood TO be law OF TN
IT, S. il is not possible 10 assign satisfactory reason
why it was not expressed in the enumeration
In aid of these objections, the difficulties and con
fusion inseparable from constructive introduction
of the common law, would afford powerful reasons
against il.
is Ito be the common law with, or without the Bri
fish statutes:
If without the statutory amendments, the vices o
the code would bc nsuppoFtablc.