pressly or tacitly, the legislatures held of course, and exercised the power of making additions and alterations.

As the different States were settled at very different periods, and the adoption for each State was the laws of England as they stood at the moment of the adoption by the State, it is evident that the system as adopted in 1607 by Virginia, was one thing, as by Pennsylvania was another thing, as by Georgia, in 1759, was still a different one. And when to this is added the very diversified modifications of the adoptive code, produced by the subsequent laws passed by the legislatures of the different States, the system of common law in force in any one State on the 24th of September, 1789, when Congress assumed the jurisdiction given them by the Constitution, was very different from the systems in force at the same moment in the several other States: that in all of these the common law was in force by virtue of the adoption of the State, express or tacit, and that it was not in force in Connecticut, because they had never adopted it.

Having settled, by way of preliminary, to what extent, and by what authority, the common law of England is the law of each of the States, we will proceed to consider how far, and by what authority, it is the law of the United States as a national govern

ment.

By the Constitution, the General Government has jurisdiction in all cases arising under the Constitution, under the (constitutional) laws of the United States, and under treaties; in all cases, too, of ambassadors, of admiralty jurisdiction, where the United States is a party, between a State or its citizens, or another State or its citizens, or a foreign State or its citizens.

The General Government, then, had a right to take under their cognizance all these cases, and no others. This might have been done by Congress, by passing a complete code, assuming the whole field of their jurisdiction, and applying uniformly to every State, without any respect to the laws of that State. But, like the State legislatures, who had been placed before in a similar situation, they felt that it was a work of too much time and difficulty to be undertaken. Observing, therefore, that (except cases of piracy and murder on the high seas) all the cases within

their jurisdiction must arise in some of the States, they declared by the act Sept. 24, 1789, c. 20, § 34, "That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply."

Here, then, Congress adopt for each State the laws of that State; and among the laws so adopted were portions of the common law, greater or less in different States, and in force, not by any innate authority of its own, but by the adoption or enacting of it by the State authority.

Now what was the opinion to which this was opposed? Several judges of the General Government declared that "the common law of England is the unwritten law of the United States in their national and federal capacity." A State judge, in a printed work, lays it down as "certainly wrong to say that the judiciary power of the nation can exercise no authority but what depends for its principle on acts of the national legislature." And then quoting the preamble to the Constitution of the United States, which says that its object is "to insure domestic tranquillity, promote the general welfare," &c., he adds, that "what is here expressed is the common law of the whole country," and that "whatever is in opposition to it, whether treason, insurrection, sedition, murder, riot, assaults, batteries, thefts or robberies, may be punished as crimes, independent of any act of Congress." And opinions equivalent to this were declared by one party on the floor of Congress. This is the doctrine which the republicans declared heretical. They deny that Congress can pass any law not authorized by the Constitution, and that the judges can act on any law not authorized by Congress, or by the Constitution in very direct terms.

If the true doctrine then be, that certain portions of the common and statute law of England be in force in the different States by virtue of the adoption of that State, and in the federal courts of the same State by virtue of the adoption by Congress of the laws of that State within its limits, then whenever a case

is presented to a federal court, they are to ask themselves the following questions:

1. Is this case within any of the definitions of jurisdiction. given by the Constitution to the General Government? If it be decided that it is, then

2. Has Congress by any positive statute assumed cognizance of this case as permitted them by the Constitution? To determine this question, the judge must first look into the statutes of Congress generally; if he finds it not there, he must look into the laws of the State, as well as that portion of the English code which the State may have adopted, as the acts passed specially by the legislature. If the case be actually found provided for in these laws, another question still remains, viz.:

3. Is the law of the State applicable to the analogous case of the General Government? for it may happen that a law of the State, adapted perfectly to its own organization and local circumstances, may not tally with the different organization or circumstances of the federal government. If the difference be such as to defeat the application, it must be considered as a case unprovided for by Congress, and not cognizable in their courts. Just so parts of the common or statute law of England are found by the State judges inapplicable to their State from a difference of circumstance. These differences of circumstance will be shaded off from nothing to direct inconsistence, and it will be only by many decisions on a great variety of cases that the line will at length be drawn.

Let us apply these questions to Hardin's case, which is simply this: Congress, by an express statute, 1802, c. 13, § 6, have made the murder of an Indian within the territory of the United States punishable by death. A murder is committed on an Indian in that territory. The murderers fly to Kentucky. They are demanded by the Governor of Indiana of the Governor of Kentucky; under whose authority our officer attempting to take them, they are protected by Hardin and others in arms.

1. Is this case within the jurisdiction of Congress? Answer. Congress having a right "to make all rules and regulations respecting the territory of the United States," have declared this to

be a case of murder. As they can "make all laws necessary and proper for carrying their powers into execution," they can make the protecting a murderer criminal in any part of the United States.

2. Has Congress assumed cognizance of the offence of Hardin? We must first examine whether the act of Congress, 1790, c. 9, 22, takes in this offence. Then whether the laws of Kentucky, common, statute, or State law, as adopted by Congress, comprehend this offence.

3. Whether any difference of organization or other circumstance renders the law of Kentucky inapplicable to this offence, can be decided by those only who are particularly acquainted with that law.

XLVI.

Plan for Elementary Schools.

POPLAR FOREST, Sept 9th, 1817.

DEAR SIR, I promised you that I would put into the form of a bill my plan of establishing the Elementary Schools, without taking a cent from the Literary fund. I have had leisure at this place, to do this, and now send you the result. If twelve or fifteen hundred schools are to be placed under one general administration, an attention so divided will amount to a dereliction of them to themselves. It is surely better, then, to place each school at once under the care of those most interested in its conduct. In this way the Literary fund is left untouched to complete at once the whole system of education, by establishing a college in every district of about eighty miles square, for the second grade of education, to wit: languages, ancient and modern, and for the third grade a single University, in which the sciences shall be taught in their highest degree.

I should apologize, perhaps, for the style of this bill. I dislike the verbose and intricate style of the English statutes, and in our revised code I endeavored to restore it to the simple one of the

ancient statutes, in such original bills as I drew in that work. I suppose the reformation has not been acceptable, as it has been little followed. You, however, can easily correct this bill to the taste of my brother lawyers, by making every other word a "said" or "aforesaid," and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means; and that, too, not so plainly but that we may conscientiously divide one half on each side. Mend it, therefore, in form and substance to the orthodox taste, and make it what it should be; or, if you think it radically wrong, try something else, and let us make a beginning in some way. No matter how wrong, experience will amend it as we go along, and make it effectual in the end.

I shall see you of course at our stated visitation, and hope all the gentlemen will consider Monticello as the rendezvous of the preceding day or evening.

I salute you with friendship and respect.

An Act for establishing Elementary Schools.

1. Be it enacted by the General Assembly of Virginia, that at the first session of the Superior Court in every county within this commonwealth, next ensuing the passage of this act, the judge thereof shall appoint three discreet and well-informed persons, residents of the county, and not being ministers of the gospel of any denomination, to serve as visitors of the Elementary Schools in the said county; of which appointment the sheriff shall, within fifteen days thereafter deliver a certificate, under the hand of the clerk of the said court, to each of the persons so appointed.

*

2. The said visitors shall meet at the court-house of

§ 1. Ministers of the Gospel are excluded to avoid jealousy from the other sects, were the public education committed to the ministers of a particular one; and with more reason than in the case of their exclusion from the legislative and executive functions.