or to exercise them in certain cases.

These precautions were necessary and proper; they were cases of too much importance to be left solely to construction.

There are other cases in which the implication arises from the very nature and end of government. It is the duty of every government to seek the welfare of the nation. Every duty on government implies the right and the power of fulfilling it. This duty, although it is no where expressly declared in the constitution of the United States, is clearly pre-supposed. In the grant of power to lay and collect taxes, the purposes for which they are to be laid and collected, is declared to be "to pay the debts, and to provide for the common defence and general welfare of the United States." I do not suggest that the expression in this clause, of the purpose for which the power of taxation is granted, is an imposition of the duty or the grant of a substantive power to fulfil it, but that it pre-supposes that duty and that power as necessarily and unavoidably implied from the nature and end of the government. Such were evidently the views of those who framed the constitution, and they therefore provided congress with the means of accomplishing the purpose. Hence is derived the right and power of congress to make those internal improvements which tend to promote the general welfare; such as the clearing of harbors; the erection of break-waters for the protection of shipping; the building of light-houses; the removing of obstruc tions in navigable rivers; and the making of roads and canals for the promotion of internal intercourse. From the same source of construction, the duty to promote the general welfare, we would derive the right of congress to promote domestic manufactures by means of discriminating duties, which may enable the domestic manufacturer to maintain in the market a competition with the foreign manufacturer of the same article. This is different from the case of internal improvements mentioned above. In that case, the money raised by taxes is appropriated to the purpose; but in this, the end is sought to be attained by the manner in which the tax→→→ generally duties of imposts--is assessed. The mode and manner, is, in general, a question of policy and expedience, which, unless in cases of positive restriction, is left to the

discretion of the legislature, and does not involve the question of constitutionality.

There are, in my view, some other things necessary to render this power of making internal improvements, and encouraging manufactures fully constitutional, or perhaps I may rather say, to justify its exercise.-First, that the benefit to accrue should not be merely local, but general. Secondly, that it should be of sufficient magnitude in a national point of view to justify the expense. And thirdly, that it shall have a relation to, or be capable of being brought to aid some of the general powers expressly granted in the constitution. The two first requisites are of necessity, submitted to the discretion of congress; the last, that it shall have a relation to, or be capable of being brought to aid some of the general powers, I consider as of a more positive nature. Let us then try the cases of internal improvements and manufactures above mentioned, by this standard. They have all a more or less intimate relation to the war power and the consequent power and duty committed to congress, of protecting the country against invasion and suppressing insurrections. Secure and commodious harbors, and even light-houses are absolutely necessary for the safety of the navy, and to provide for protection and defence of the coasts. Navigable rivers, roads, and canals, in proportion to their goodness, extent, and direction, will serve greatly to expedite the march of troops, and the transport of the munitions of war, and all that is necessary for the support of armies. The encouragement given to domestic manufactures may serve to secure a supply of arms, of clothing, and all the materials of war. They have also a near relation to the power vested in congress, of regulating commerce with other nations, and among the several states, which includes the power of encouragement and protection, so far as the public interest may require. know that this opinion has been strenuously opposed by men of the first talents; but it has been supported by men of equal talents, and is sustained by the general sense of the community.**

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* See Mr. Madison's letters, No. 3 and 4, in the appendix.

Power is given to congress to punish certain crimes as expressed in the constitution. This has always been construed not to exclude the power of punishing in other cases. It results from the nature of government, and is contained in the clause last recited, giving to congress the power to make all laws necessary and proper for carrying the constitution into effect, that congress have the power to enact penalties in all cases where it may be necessary for carrying their measures into effect, and to make laws for the punishment of all crimes which may impede the measures, obstruct the authority of the government, or injuriously affect it in any and all its departments; but congress have not, unless in places over which they have exclusive jurisdiction, the power to punish crimes because they are injurious to society merely. This belongs to the municipal sovereignty, and is reserved to the several states. For this, among other reasons, it has been always held that the courts of the United States cannot exercise common law jurisdiction in criminal cases. I shall conclude this chapter with some brief observations on the construction arising out of the article by which the judicial power is granted in the constitu tion. That power is appointed to be exercised by one Supreme Court and by such inferior courts as congress may ordain and appoint. The courts of the United States are not common law courts in the sense that they derive their authority from the common law, or look to that law for the extent or limits of their jurisdiction. In order that we may, at once, have a full view of the subject, I will here repeat the passage as it stands in the constitution. "The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to all controversies to which the United States shall be a party; to controversies between two or more states; between a state and the citizens of another state; between the citizens of different states; between citizens of the same state, claiming land under grants of different states; and between a state and the citizens thereof, and foreign states, citizens or subjects. In all cases affecting am

bassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have, original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as congress shall make."

The true construction, and which has always been adopted, is, that the courts of the United States have a limited jurisdiction, and that it cannot be extended to any case not described in the grant, and that, therefore, in every case brought before any of those courts, it must appear on the face of the proceedings, that it comes within the description, or it must be dismissed for want of jurisdiction.

The appellate jurisdiction has by the laws of congress been extended to cases decided in the state courts, and provision made for their removal by writ of error into the Supreme Court of the United States for final decision. The provision is" that a final judgment or decree in the highest court of law or equity in a state, in which a decision in the suit, could be had; where is drawn in question the validity of a treaty, or statute of, or an authority exercised under the United States, and the decision is against the validity; or where is drawn in question the validity of a statute or an authority exercised under any state on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity, or where is drawn in question any clause of the constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption espe cially set up, or claimed by either party under such clause of the constitution, treaty, statute, or commission, may be reversed or affirmed in the Supreme Court by writ of error. But no other error shall be assigned or regarded as ground of reversal in any such case, than such as appears on the face of the record, and immediately respects the before-mentioned ques-> tions of validity or construction of the constitution, treaties, statutes, commissions, or authorities in dispute.

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It has been very warmly contended by some, that this is a violent construction of the constitution, and an unwarrantable

interference with state authority; that the appellate jurisdiction is, on a fair construction of the constitution, confined to decisions in the inferior courts of the union, and is not extended to decisions in the state courts. But when we examine the constitution, we find no mention of the court, but of the case to which the appellate jurisdiction shall extend ; and when we examine the law, we find that all the cases in which a removal is allowed, are cases to which the judicial power is expressly extended by the constitution,-cases arising under the constitution, laws, and treaties of the United States. It is evident, therefore, that congress have adopted the true construction. Let us see what would be the consequence of a different construction. There are, and will be numerous cases brought before the state courts in which a proper decision will depend on a just construction of the constitution and laws of the United States. If in such cases the decisions of those courts were to be final, there could be no hope of a uniformity of construction. The constitution and laws would be one thing in one state, and something very different in another, and perhaps not the same in any two states. There is every reason to believe that the framers of the constitution, aware of these injurious consequences, intended so to express the appellate jurisdiction as to extend it to the state courts, as well as to the inferior courts of the union, so as to secure a uniformity of decisions in matters of such immediate consequence to the government, and to the nation. It will be observed that jurisdiction is, in many cases given to the courts of the United States, not by reason of the origin of the case, but the character of the parties; and that this must bring before those courts many which have not arisen under the constitution, laws, or treaties of the United States, many which have arisen solely under the state laws. This, it might be feared, would have a tendency to disturb the course of decisions as it respects those laws, to obviate which, and to preserve a uniformity in the administrations of justice, it has been the established construction of the power and duty of the judges, that they are holden in all cases coming before them, to decide according to the law of the case, the law under which it arose; and that the rules of law, of property, and of