L. D. verb. office. It seems to be difficult to dis-buse of power intended to spring out of such setinguish between that which is thus defined to be paration. an office and the being “merely authorized to do certain acts" The author of the 81st number of the gress to the officer of a state, such person has no In the case of the transfer of power by act of conFederalist, who was himself a distinguished mem-other legal existence as an officer of the union, than ber of that convention,which formed the constitu- that which is given him by the law in which his powtion, appears to have been strongly impressed with a belief that the being thus "merely authorized to do a appointed by the law, officially created and commiser and person are both disignated; he is, therefore, certain act” would amount to an appointment, which sioned by it-In the one case, the rule is laid down there were some very substantial reasons should not as prescribed by the constitution, and the officer is be made. But why, it is asked, (says he) might not appointed according to a mode also prescribed eithe same purpose have been accomplished by the ther directly or indirectly, by the same constitution; instrumentality of the state courts? This admits but in the other case, the rule is laid down, and the of different answers-Though the fitness and com-person, who shall execute it, is designated by an ofpetency of these courts should be allowed in the ficial description, which is unknown to the constitu utmost latitude, yet the substance of the power intion and laws of that sovereignty, whose legislative question may still be regarded as a necessary part rules he is authorized to execute. The legislature may of the plan, if it were only to authorize the national create an office, and the right of appointing the offi legislature to commit to them the cognizance of cer will vest in the executive, or in the manner decauses arising out of the national constitution. Toclared by the constitution; or it may create a corconfer upon the existing courts of the several states|poration, with the assent of those to be incorporated, the power of determining such causes, would perhaps and prescribe the manner in which the corporators be as much "to constitute tribunals," as to create new shall elect or appoint their officers; and it may lay courts with the like power. But ought not a more down rules by which each class of officers shall be direct and explicit provision to have been made governed in the administration of justice, or in the in favor of the state courts? There are, in my opinion, substantial reasons against such a provision," &c. "That it is not, however, an appointment in the sense of the constitution will, it is said, be proved by reference to the undisputed practice of some of the state governments."

conservation of the peace. But the legislature canand such persons, designating them by name, places not, constitutionally pass a law declaring, that such of residence, professions, trades, or commissions, (held under other sovereignties) shall execute such law. In this respect their can be no difference be"By the constitution of South Carolina, justices of tween saying, that John, Thomas, &c. shall execute, the peace shall be nominated by the senate and the law, and declaring that all those men who hold house of representatives, jointly, and commissioned such a commission in such a state shall execine the by the governor-Yet the clerks of the courts, the laws of the union; because, the determination on, or wardens of the city of Charleston, and many other the execution of the legislative rules of the soveofficers of the state, are vested by acts of the legis. reignty is not in such case refered to the judicial or Jature with the powers of justices of the peace. The executive power of the same sovereignty, but to per like case probably occurs almost in every state of the sons designated by the legislature, and who derive union, and the argument of unconstitutionality, their authority wholly from its acts; and who are not which we are now examining, will equally apply to commissioned as those are, who, alone, the constituthem ali." tion declares, shall be intrusted with its judicial or There is not the least doubt, that this case does executive power Each constitution of the union has actually occur in every state of the union; and there is three separate departments of power; to each legisas little doubt, that it is perfectly correct and conlative body, there is assigned a judiciary, who shall stitutional-And this is the case cited to prove, that apply, and an executive, who shall execute the laws the legislature of one sovereignty may constitutionally promulged by such legislative body: and, therefore, transfer its judicial power to the officers of another so. to permit those laws to operate by any other means vereignty! Before the total dissimilarity of these than those constitutionally disignated agents, is to two cases are exhibited in contrast, it will be proper balances to be totally abolished. suffer its best principles and primary checks and to set down a few undisputed fundamental principics-All the American constitutions are predicated upon the separation of the departments of power; seen by adverting to the question propounded as But the great principles contended for, as will be all of them prescribe the manner in which their se- the text to these observations, are not confined to veral officers shall be appointed; not one of them au taorizes an appointment to be made in the form of legislative and executive as well as judicial power.— mere judicial powers and officers, it embraces all, a mere legislative act: The legislatures of each They are, that "every government ought to possess the state of the union has the power either according to means of executing its own provisions, by its own authe constitution or otherwise to establish courts of thority; that the peace of the whole, ought not to be left justice, and to authorize such courts to appoint their at the disposal of a part; that the general government own officers, clerks, &c. And the legislature of must carry its agency to the persons of the citizen; that each state also has the power to create and it must stand in need of no intermediate legislations; establish bodies politic and corporate with the assent but must itself be empowered to employ the arm of the of those to be incorporated, and may invest such ordinary magistrate to execute its own resolutions; that corporation with the power to make bye laws, it must have been the intention of the framers of the go. and to appoint or elect its own officers, who are to vernment of the union, that it should be provided with execute the municipal laws of the state and the bye powers fully commensurate to those great objects; and Jaws of the corporation within its own boundaries. also, that those powers should be so distributed among All these officers derive their power from the sume its own agents, us to enable it to act fi om itself by its sovereignty, yet they are neither those who made nor own motion; and not through the instrumentality of any the mere agents of those who made the law; they are other independent sovereignty.” clothed with power by means different from those of the legislators, and thus the separation of power warrant to arrest, it is asserted, is a ministerial or The authority of a justice of the peace to grant a is preserved, and also the political check to the executive act.-Let it be conceded, that it unques

tibnably is so-And what then? The ground is purpose of relieving the nation from all reliance on somewhat different, the scene is shifted-But is any the governments of the states, and from the neces thing gained? Change only a few words, and all sity of resorting to their agency in any cases whatthe argument against the transfer of judicial power ever, yet the judicial power of the union has hither. to a state officer, instead of being answered or to been but partially organize and the judiciaries weakened, rises again with renewed and added of the states have, of choice, been used as the only strength. The first section of the second article of instruments for executing a great portion of the lawis the constitution declares, that "the executive power of the nation. It is believed, that here is no position shall be vested in a president of the United States of which the history of these states will furnish more of America," and the same article then proceeds to ample, conclusive, and unanswerable proofs, than describe in what the executive power shall consist, that "the necessary dependence, practically, of the &c. Here then is the executive power of the Unit-general government on the states, in many parti ed States. The congress have no right to prescribe culars, is one of the points in which its weakness where this executive power shall or shall not vest; has been most obvious and most lamented." they may create executive offices and duties; but We are not without the most impressive examthey must be filled and discharged in the manner ples of how much may be effected by mere precedent, prescribed by the constitution, and in no other way. whether of the use, the abuse, or the absolute neAnd so we may proceed step by step to apply all glect of the provisions of a constitution. If, how the arguments that have been advanced respect-ever, example and precedent have exhibited in a ing the judicial power to this of the executive. strong point of view the uses of our constitution;

And the same kind of argument may be used that it is capable of a simplicity, and facility of ope against the capacity of congress to transfer its legis-ration far superior to what was expected; that it lative powers to the legislative functionaries of one possesses energies commensurate to the most peri'. of the states, or any other sovereignty; for the first ous seasons, and excellencies infinitely superior to section of the first article of the constitution having any form of government ever before known; if the declared, that "all legislative powers herein granted, experimental development of its perfections has shali be vested in a congress of the United States, drawn about it the attachment and warmest affecwhich shall consist of a senate and house of repre- tions of the people; the sacred and unerring oracles sentatives," congress can have no more right to all-of experience have also exhibited some of its weakthorize the legislature of a state to make laws for the inesses and failings, in a very melancholy point of union than it has to authorize any state officer to ex view, They prove, incontestibly, that however the ercise judicial functions, or to execute the laws of the influence of the general government may require to general government; for and in the name of the Unit-be constantly watched in some respects, to preve: t our inestimable institutions from falling into an in

ed States.

The denying to congress the right to invest the evitable and slow decay, yet that in its conflicts with justices of the peace of the states with power to those of the states immediate and general dissoluxecute the laws of the union has been considered tion and ruin present themselves, as certain and as leading to consequences the most alarming; as unavoidable. Experience has shewn, that in those likely to involve the nation in expences the most cases where the general government had the means, enormous; and, in addition to the patronage of the and could, and did resort to the same methods of executive already too strong, as arming that branch executing the powers, with which it was invested, with one, that will be altogether irresistible. It is that are possessed and exercised by the govern asserted, that "without the aid of the ministe-ments of the several states, the opposition from disrial officers of the states, to have the laws of orderly, refractory and seditious individuals was the United states effectually executed against easily overcome, and harmony soon restored; but a few offenders, (probably not one hundred in where a conflict arose between the government of a year in all the states,) it would be necessary the union and a state, the powers of the nation were to appoint and scatter over the vast territory paralized, the subversion of the whole was threatmany thousand of justices of the peace, coro-ened, and there seemed to be only the awful alterners, constables, &c. The attempt to execute the pow-native left of "substituting violence in the place of er, would be as impracticable as it would be ridicu- law, or the destructive coercion of the sword in the lous." There appears to be no reason to doubt the place of the mild and salutary coercion of the magissincerity of such an assertion. In reply to a fancy tracy." Since precedent and example are so powerso buoiant it would, however, be altogether idle to ful in developing and expounding, in fortifying and offer any thing like fact, calculation or argument.-undermining written constitutions, and in establish Yet one cannot, but wish, that the patriotic mind ing unwritten ones, they should be recollected and may somewhere find relief, from the terrible forbo-looked into with the most careful attention. dings with which such melancholy flights are too A frequent recurrence to first principles, also, is apt to fill it. recommended by some of the most sage political I have always been a decided advocate for confin-writers, and has been adopted as a fundamental ing the powers of the general government strictly axiom by some of the constitutions of the states. within the limits assigned to them. The federal To rely on state officers, who are no way respon government was, most certainly and obviously in-sible to the general government, for the execu tended to be a system complete within itself, and tion of the laws of the United States would be a in all its parts. Its power in all respects, those over departure from the first principles of the national the militia excepted, where it acts not from itself, constitution; and "would be, as has been said, to but by the instrumentality of the states, are amply restore the theory, principles and practice of the commensurate to all its objects. But in order, that old articles of confederation; the evils of which, its benefits should be fully understood and felt, it

should be completely organized in each of its bran- *By the constitution of Virginia the executive is ches, in its judicial, no less than in its executive, its required to appoint a secretary; yet no such office senate and house of representatives. Strange how-has existed in that state since the death of the ever as it may seem, it is nevertheless true, that al- in office at the formation of the constitution hough this government was formed for the express happened during the revolution.

in this respect, particularly, among many others, each other, till bounties grew to an enormous and this constitution was intended to remove." The insupportable size. The hope of a still further in, evils here alluded to seem to have been, in a great crease, afforded an inducement to those who were part, forgotten, or to be now considered as merely disposed to serve to procrastinate their enlistment; imaginary. It will be well, therefore, to recur to and disinclined them from engaging for any consithe actual history of our country and enumerate derable periods. Hence slow and scanty levies of some of them. This enumeration I shall extract men, in the most critical emergencies of our affairs literally from the papers called the Federalist, where they may be found very perspicuously displayed and ably elucidated.

short enlistments at an unparalleled expence-continual fluctuation in the troops, ruinous to thei. discipline, and subjecting the public safety fre"The great and radical vice, says the Federalist, quently to the perilous crisis of a disbanded army. in the construction of the existing confederation, Hence, also, those oppressive expedients for raising is in the principle of legislation for state governments, men, which were upon several occasions practised, in their corporate or collective capacities, and as con- and which nothing but the enthusiasm of liberty tradistinguished from the individuals of whom they would have induced the people to endure." consist. Though this principle does not run through "A circumstance, which crowns the defects a all the powers delegated to the union; yet it per- the confederation, remains yet to be mentioned. vades and governs those on which the efficacy of The want of a judiciary power-Laws are a dead the rest depends. There is an essential difference letter, without courts to expound and define their between a mere non-compliance and a direct and ac- true meaning and operation. The treaties of the tive resistance. If the interposition of the state United States, to have any force at all, must be legislature be necessary to give effect to a measure considered as part of the law of the land. Their of the union, they have only not to act, or to act eva- true import, as far as respects individuals, must, sively, and the measure is defeated. This neglect like all other laws be ascertained by judicial de of duty may be disguised under affected but un- terminations-To produce uniformity in these desubstantial provisions, so as not to appear, and, of terminations, they ought to be submitted in the course, not to excite any alarm in the people for last resort, to one supreme tribunal― And this trithe safety of the constitution. The state leaders bunal ought to be instituted under the same authomay even make a merit of their surreptitious inva-rity, which forms the treaties themselves. These sions of it, on the ground of some temporary con- ingredients, are both indispensable." venience, exemption or advantage."

"The result of these observations to an intelli"The next most palpable defect of the existing gent mind must be clearly this, that if it be posconfederation, is the total want of a sanction to its sible at any rate to construct a federal government laws. The United States, as now composed, have capable of regulating the common concerns, and no power to exact obedience, or to punish disobe preserving the general tranquility, it must be dience to their resolutions, either by pecuniary founded, as to the objects committed to its care, mulcts, by a suspension or divestiture of privileges, upon the reverse of the principles contended for by or by any other constitutional means. There is no the opponents of the proposed constitution. It express delegation of authority to them to use force must carry its agency to the persons of the citi against delinquent members. The want of such a zens. It must stand in need of no intermediate right involves, no doubt, a striking absurdity. The legislations; but must itself be empowered to em. United States afford the extraordinary spectacle of ploy the arm of the ordinary magistrate to execute a government destitute, even of the shadow, of con- its own resolutions The majesty of the national austitutional power to enforce the execution of its therity must be manifested through the medium of the own laws." courts of justice. The government of the union, like "The principle of regulating the contributions of that of each state, must be able to address itself im-` the states to the common treasury, by quotas, is mediately to the hopes and fears of individuals; and to another fundamental error in the confederation. Its attract to its support, those pussions, which have the repugnancy to an adequate supply of the nationa! | strongest influence upon the human heart. It must, in cxigencies has already been pointed out, and has short, possess all the means, and have a right to resufficiently appeared from the trial which has been sort to all the methods, of executing the powers with made of it. I speak of it now solely with a view which it is intrusted, that are possessed and exercis to equality among the states. Those who have beened by the governments of the particular stutes,” accustomed to contemplate the circumstances, From the first moment the American people which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained."

took up arms against the despotic encroachments upon their rights by the British king, there was but one common opinion among them as to the importance, utility and necessity of union. The war "In addition to the defects of the existing fede of the revolution not only suggested a union to the ral system, before enumerated, the want of a power states, its nature and exigencies actually effected to regulate commerce, is, by all parties, allowed to be a complete one, in fact, long before its principles of the number. It is indeed evident, on tire most were reduced to certainty by a solemn compact.superficial view, that there is no object, either as The nature and extent of the powers, which were it respects the interests of trade or finance, that thus tacitly, and from necessity vested in congress, more strongly demands a federal superintendance." have been several times elaborately discussed be"The power of raising armies, by the most obvi-fore judges, who had been themselves active and ous construction of the articles of the confederation, distinguished agents in the establishment of Ameriis merely a power of making requisitions upon the can liberty; and it has been uniformly held, that states for quotas of men. This practice, in the course the powers of congress antecedent to the articles of the late war, was found replete with obstructions of confederation, which was sent to the states for to a vigorous, and to an economical system of defence. ratification on the 17th November, 1777, and finally It gave birth to a competition between the states, acceded to by Maryland on the 1st of March, 1781, which created a kind of auction for men. In order must necessarily be supposed to have been co-extenfurnish the quotas required of them they outbid/ sive with the great objects which America then ha

in view, and that the articles of confederation must (state courts still refused obedience. The national be considered as the specification, affirmation or court threatened them, and laid an account of confirmation of those pre-existing powers-2. Dall. their refractory conduct before congress. Congress 160-3. Dall. 54. adopted some spirited resolutions and concluded by That the government of the union should have inviting the states to a conference on the subject of exclusively the powers of peace and war, the regu-the contumacious conduct of their courts. The lation of all foreign relations and common concerns, states supported their tribunals and totally disre and also the power to repel and to punish offences garded the resolutions of congress, which containand crimes against the nation was agreed on alled a course of reasoning so cojeat and conclusive," hands; but whether those powers should be exer- and also their invitation to a conference. Thus cised by a government acting as a confederation the laws and powers of the union, for the want of upon state governments, or as a consolidated govern a judiciary of its oron, by which it could act imment acting upon individuals, was a question which mediately upon the individual, was entirely pros the rivalship, or the just jealousies, of the states trated; and, actually, in these cases, remained in would not, until some time after the revolution, that degraded situation until it was uplifted and allow to be as fully understood as it really merited. executed by the just and superior energy of the Experience of the evils, that have been just enu-judicial establishment of the present constitution. merated, has, however, determined in favor of the Penhallow vrs. Doane. 3 Dali, 54. The case of thr Jatter, and the result has been the adoption of the shop Active, or Olmstea cose.

present constitution. I shall now close these ob- The prosecution, conviction, and. fine imposed servations upon this important question with exhi-on captain Elijah Boardman for causing drums to biting some few instances, which as incontestibly be beat through the public streets of the city of prove the necessity of a completely organized nation Hartford in Connecticut while on the recruiting al judiciary, contemplated by the present con-service in time of war, in the summer of 1814, 11 stitution, invested with powers co-extensive with Niles' W, R. 299, 8 Niles W. R. 45, and the the jurisdiction of the general government, as that of any other provision of that instrument by which the government of the union is enabled to act as an independent consolidated sovereignty,

opinions of the judges of Massachusetts justifying the ridiculous, perverse, and pernicious conduct of governor Strong respecting the militia of that state, Brack. L. M. 390. 7 Niles W. R. 148-8 Nies' . R 204, shews how little reliance ought to be placed on the agency of state officers for the execution of the laws of the union in seasons of great emergency; and how dangerous it is, in any case to return to the policy of the old articles of confederation, either of a legislative, a judicial, or an executive nature. But it is not merely in the selection of the state, or the influence it may have over its officers, which in such cases, wilt produce the neglect of the interests, or the disobedience of the calls of the union-The state itself may, and in some cases, has interposed its authority and forbidden even a willing officer frorg undertaking the task of executing the laws of the general government.

By the first section of the ninth article of confederation, which has been considered as a mere affirmance of the pre existing, tacitly conceded powers of congress, it is provided, that the U States, in congress assembled, shall have the sole and exclusive right and power, of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finalIy appeals in all cases of captures; provided that no member of congress shall be appointed a judge of the said courts." By this article, it will be check the national government in its deterrainaDuring the late war, Massachusetts, in order to seen, that congress were invested with the power tion to retaliate the threatened barbarities of the to establish but one kind of tribunals, and those enemy, for the victories over whom, the pious courts of appeals merely. They had the right to legislature of that state declared it unbecoming a lay down rules of judicature for the government of moral and religious people to rejoice, "authorized all tribunals, those of the states as well as their and required the keepers of the gaols of that state own, in all cases of prizes, or as it is expressed, "of to discharge all prisoners of war committed under establishing rules for deciding in all cases what cap the authority of the United States,"-5. Niles' W. tures on land or water shall be legal," &c. But all R. 381-6. Niles W. R. 4. the judicial powers of congress and the nation were to be executed through the medium, instrumentality, and agency of tribunals established by, and responsible only to the several states.

Truxton of the Constellation frigate, sent to Dr. And some time in the spring of 1799, captain J. K. Read, one of the aldermen of the borough of Norfolk in Virginia, a man, whom he said acCongress recommended, and the states did or knowledged himself one of the mutineers on board ganize such tribunals, as recommended, for the the Hermione, a British frigate; the man was com trial of all cases of admiralty and maritime juris-mitted to jail, subject to the order of the British diction. But some of the states chose to provide consul, by him taken out, sent to Jamaica, and for the trial of matters of fact by jury in all such there executed. cases. On appeals from courts, so organized, in This subject was communicated to the legisla Rhode Island and in Pennsylvania, the congression- ture of Virginia by Mr. Monroe, now president al court of appeals reversed the judgments of the of the United States, then governor of that state, state courts founded on a verdicts thus disregard on the 1st December 1800 in a message as follows:" ing the legislative provision of those states rela-"Sometime in April last, says he, I was advised by tive to the trial by jury in such cases; and remand- a respectable citizen of Norfolk, that a magistrate ed the cases with orders to proceed to final judg- of that borough had received from the captain of ment and execution as directed. The state courts the Constellation, a frigate of the United States, a refused to obey, so as to become the instrumentsperson said to be one of the mutineers on board of overruling a legislative act of their own states. is Britannic majesty's ship the Hermione; tirat he The court of appeals issued an injunction. The committed the said person to jail, with an order ́.

It was enacted "that any person who shall here. after, of his own free will and accord, or by the persuasion of, or combination with any foreign agent, or any other person, being an alien, or a citi United States, deliver up or surrender, or cause to be delivered up or surrendered, either by his own authority, or under colour of any office whatever, held, or claimed to be held. under the authority of this com monwealth, any citizen of this commonwealth, and entitled to the protection of the lays thereof, during his residence therein, to be transported beyond sea. or elsewhere without the United States, shall on conviction of every such offence, be sentenced to the penitentiary for a term not less than one, nor more than ten years-and by the second section it is enacted, that if the person transported shall be executed, then the person by whom he was deliver ed over shall be deemed a felon and on conviction

*he jailor to surrender him to the British consul, en his application; that he was surrendered ac cordingly to the said consul, who sent him to a British island where he was executed. A conduct so extraordinary as that alleged, could not other-zen of this commonwealth, or of any other of the wise than excite the astonishment of the executive. Every man within the jurisdiction of the state, is, under certain excepuons, amenable to its laws and entitled to its protection if he comnits an offence against the sovereignty, or other rights of the United States, he is amenable to their government and laws for the infraction. But the act which was denounced did not appear to proceed from, or be sanctioned by the authority of that government. To designate a man within the jurisdiction of a state as one not entitled to its protection, or that of the United States, to divest him of such protection, and surrender him to a foreign power, to be sent abroad, tried, condemned and executed, by the sentence of a foreign wibunal, are important acts of suffer death. sovereignty, in which the character and agency of the This great question as to the right of Congress chief public functionaries should be seen, and for which to invest state officers with a portion of the judi they are highly responsible. But nothing of that kind cial power of the union was once agitated in Conappeared in the present instance, No respectful,gress; and, as it would seem, rather waved than though strict anal sis, by the competent authority, decided in any way-what was then said upon the of the respective claims to jurisdiction between subject may be found in the National Intelligencer the state and the United States, with respect to the from the 5th to the 19th January 1801. fugitive who sought an asylum here; no circum. As to the necessity of scattering over the vast spect examination of treaties between the United territory of the United States "many thousands of States and a foreign power, which ought to pre-justices of the peace, coroners, constables," &c. cede an act 'derogating in some respects from the I will make a few remarks before I close-I deem national sovereignty, were heard of The magis-it the constitutional right and duty of Congress to trate who acted was not even an officer of the federal increase the number of judicial and executive offigovernment, but of this state, in which light, he was cers so as to make the judiciary of the United in a peculiar degree responsible to its authority. The States, in all respects, co-extensive with its juact was strictly that of the magistrate himself. As, risdiction-And, thus to complete the organizahowever, this communication compromitted the tion of the national judiciary, I deem it essentially character of a consul of a foreign power, and an necessary, as the cheapest, safest, and surest officer of the United States, as well as that of a means of preventing those angry and ruinous colmagistrate of this commonwealth, the executive lisions between the governments of the union and was careful to observe in the part it took, the ut- the states, which will inevitably increase in nummost deference to the rights of those who were to ber and frequency with the increase and conden be affected by it." National Intelligencer 15 Dec. sation of the population of the nation-The neces1800-and 9th Jan. 1801. sity for the great multiplicity of justices of peace This case, it will be recollected, is strongly ana- in the states, is evidently occasioned by the numlogous, though not altogether similar to that of ber and variety of petty municipal regulations, Jonathan Robbins, about which so much was said which they are required, daily and even hourly, to both in and out of Congress. It is not, however, execute; but the jurisdiction of the United States adduced to revive the recollection of the princi- is neither so various nor multifarious; it is confined ples discussed in Robbins' case; but to bring into chiefly to foreign affairs. It would, therefore, be view that very particular in which they chiefly dif- sufficient, that such inferior judicial officers should fer. Robbins was delivered over by an order of be placed most convenient to where such cases one of the Judges of the United States; in this were most likely to arise. No state would perhaps case the man was delivered over by a magistrate require a greater number of judicial officers in of a state. In the one case "the character and proportion to its population than Maryland. Let agency of the chief public functionaries of the us then suppose two United States justices stanation were seen, and for which they are highly tioned in Baltimore, and one in each of the other responsible. But nothing of that kind appeared in counties of the state, except that in which the disthe present instance." And from the expressions trict judge resided, in all but nineteen-More of the Governor, that, "the magistrate who acted would not, I am sure, in the opinion of any one, be was not even an officer of the federal government, but necessary. As to the expence; the justices of Maof this state, in which light, he was in a peculiar de-ryland receive neither fee nor salary in criminal gree responsible to its authority. The act was strict-cases, and but small fees in civil matters. I do ly that of the magistrate himself;”—it is very strong-not see why respectable citizens might not be found ly intimated as his opinion, that the judicial offi-willing to act as justices of the union upon the er of the state had no authority to expound or to same terms. The utility, or rather indispensable execute the laws of the United States in any case civil or criminal. But whatever might have been his opinion, there can be no doubt about that of the Legislature of Virginia upon this point; for, in Consequence of this communication, on the 21st of January 1801, they passed the following law for bidding their magistrates from exercising a similar authority in future.

necessity for magistrates, invested with jurisdiction both civil and criminal in small matters which arise within the Forts and other places, where the authority of the United States is exclusive, is obvi ous and altogether unanswerable; for if there are such things as political axioms, the propriety of the judicial power of a government being co-exten. sive with its legislative, may be ranked among the