his case is sound law. But upon the other ground, | tained according to the common law; but, are we hat an action on the case would lie against a justice to regard that exposition as the authoritative docor maliciously issuing a warrant and causing a per- trines of the code of the United States, or the mere son to be arrested and imprisoned, who was in illustrations, brought from a foreign system, which ruth not accused, and so incidentally establishing cast much light upon the principles of our own.~ the principle suggested in the text of Hawkins, the These reflections have suggested the propriety of court of king's bench, in the case of Morgan ors. suspending the investigation of the nature of judiHughes, 2 1. R. 225, say, that this case of Wind-cial power, as a branch of the government, until ham vrs. Clere, cannot be law; that if it were, it we have bestowed some consideration upon the would confound all legal principles, which have question, how far the common law of England is to governed cases of this kind; and that it did not ap- be regarded as authority in the United States. pear ever to have been acted under. This section Whether the common law of England is the of Hawkins in which it is so very cautiously and common law of the United States as such, has been d.dently advanced as a principle, that perhaps so fully discussed by those, who have undertaken the justice in granting a warrant proceeds rather to consider and answer the assertion, that "the comministerially than judicially, is, then, a conjecture of mon law of this country remains the same, as it was bethe author's utterly without foundation. fore the revolution." And it has been so clearly and But, admitting, that the discretionary exercise of conclusively shewn, that the common law of Engi authority with which a judge or justice is invested, land in mass cannot be considered as the common law for the purpose of determining on the sufficiency or of the general government, that it is deemed wholly insufficiency of the evidence and grounds for issu- unnecessary to re-examine the subject in that point ing a warrant to apprehend a person, who may be of view. 1 Tuck. Blec. app. note E-4 Niles' W. R. accused of the perpetration of an offence, be a ju- 109—The United States vrs Fluker & Morgan, in dicial act according to the principles of the com-the National Intelligencer of 20th February 1812— mon law; yet, it is said, that however near such an 7 Cranch 32-1 Gallison 488-1 Wheaton. act may in its nature resemble judicial authority, But, on the other hand, are we, therefore, comit cannot be considered as an emanation, or a por-pelled to admit, that the United States can have tion, however small, or of the nature of that judi- no common law of their own? Must all the law of cial power, which forms one great branch of go the United States as such, flow from the positive vernment. And, that the federal constitution, by legeslative provisions and adoptions of Congress? the phrase in the third article, "The judicial power Is there no medium between the adoption of the of the United States," means "to speak of trial, English common law in mass, and the rejection of judgment; emphatically of the administration of every thing but the acts of Congress? And if there justice, and not the little functions, and functiona-be a medium, where, or how shall the line be ries, which are merely incipient and ancillary to drawn? It has been repeatedly said, that the conthis great essential power, which are inseparably stitution of the United States contains many words incident to it, and can with no propriety be called and phrases, which can only be explained, or unimplied power." Is the judicial power of the common law, and of the constitution the same thing, or different in their natures; and if they differ, then, in what respect-and how far does the discrepance extend? But, if the common law of England be the common law of the United States, as has been contended by some, then there is an end at once of this question; because, as has been shewn, the nature and principles of judicial power are laid down by that law, with great precision and accuracy as to all cases, and as to this, of a magistrate's warrant, fully and unequivocally.

derstood by having recourse to the common law of England; and that, to obtain a correct and clear idea of its meaning, it is proper to refer to the books of the common law-But, when we have so ascertained its meaning, it would seem to be the opinion of some, that we must there stop short, and wholly reject every portion of that law, which was found so necessary to the true exposition of the instrument itself; while others contend, that those words and phrases of the constitution, prove the existence of the common law, and that it is appealed to for the construction and interpretation of its powers; and, therefore, that the common law must have been thus incidentally adopted-1 Gal lison 488.

To ascertain what is the true meaning of the constitution, the English authorities are sometimes as freely resorted to, and as confidently relied on, as if the question were to be decided in West- But, we are not informed to what extent it is minster Hall. It is proper, however, to listen to thus indirectly adopted; and, indeed, from the instruction from whatever quarter it may be offer- manner in which this incidental adoption is spoken ed, and it is commendable to borrow light and in of, it would seem to be intended, that, in all cases formation, wherever it can be had. But, is the where the laws of the United States were deficient, common law of England in force in the United recourse might be had to the English system, to States as such? has it been adopted by the consti- supply such deficiency; which would, in effect, tution altogether, or in part? and if so, how much? amount to the same thing as a declaration, that the or, are we permitted to look into the common law common law in general should be in force in the of England as we look into the Institutes of Justi- United States in all cases; except where it was nian for instruction merely; but not to read it as manifestly incompatible with the constitution or the authoritative voice of the law of this land?- was abrogated by acts of Congress. But to prove These are questions of the greatest moment; they the existence of a code of laws, or that it is recogat one time shook the union; and there are none, nized by the constitution, or appealed to for the which every intelligent friend of his country would explanation of some of its phrases, does not prove more sincerely wish to hear of being correctly set-the total adoption, or the introduction of any entire tled. The utility of a perspicuous understanding part of such code of foreign law; nor does it furupon this subject is manifested continually and in nish any criterion whereby to regulate the adopa great variety of ways. In the discussion of the tion of such of those positive institutions and customs, question now under consideration, conceiving it to not specifically alluded to, which might be thought be necessary to ascertain the nature of judicial pow-necessary for the preservation of the governmenter, its principles have been explored and ascer- as for instance, it is said, that the common law in

stitution of primogeniture in the succession to es

Reason and experience unite in teaching the tates is adverse to the nature of our government, species of law to every nation. The rule of pr yet there is nothing in the existence of the common ceeding is defined by the solution of new cases law's being constitutionally recognized, or appealed the principles of which being recorded and repor to for elucidation, that would, in itself, direct the ed, for the scrutiny of further experience, at rejection of the doctrine of primogeniture, and thus gradually formed into useful guides for future the adoption of the special custom of gavalkind in conduct in judicial affairs. It is thus, slowly and surely, and rationally, that this portion of the code its stead. When we speak of the common law, it is univer of every nation is formed. The great body of the sally understood, that a portion of the legal code of Roman law was formed chiefly in this way. England is alluded to and designated; because, no as the civil and canon laws have their canons, depart of the laws of any other nation is distinguished crees and decretal determinations extant in wri But if we attend to the ting; so those laws of England, not comprised by that particular name. description, which the english lawyers give of their under acts of parliment, are to be found in records, common law, it will appear to be of two kinds, in reports of judicial decisions, and in tractates of In both codes the errors or the and that the code of every civilized nation contains learned men.

And

a similar portion of law. The common or unwrit-vices of the Prætor or the Judge expired with his ten law of England is formed, it is said, in part of office, and such maxims alone as had been approvcustoms and immemorial usages; as who shall suced by reason and practice were copied by those ceed as heir to the ancestor, what is the ceremony who succeeded-Hales Hist. Com. L. 23. Gibbon's D. requisite for passing a freehold, what estate and and F. ch. 44. For the law would be a strange how much the wife shall have for her dower, trial science indeed if it were decided upon precedents by jury, the full age of persons, and many other only. Precedents serve to illustrate principles, such matters, which are considered as the express and to give them a fixed certainty. But the law, and positive usages or common law of the land. which is exclusive of statutes and positive insti This part of the common law is local, and peculiar tutions, depends upon principles; and these princiin its nature to England. Every nation, however, ples run through all the cases according as the has its peculiar usages; and, therefore, in that sense particular circumstances of each have been found The people of the to fall within the one or other of them-Corp. 39. a common law of its own. States of United America brought with them, or 3 T. R. 63. 2 Ld. Raym. 957. The Institutes of adopted the greater part of those positive english Justinian and the Code Napoleon, stampt with thecustoms and usages. And there are many instan name and authority of powerful Emperors, like ces of one nation's introducing or borrowing from the commentaries of Blackstone, which have no alanother this species of common law. It would be lowance but that of common opinion, are little difficult, however, to prove or comprehend how more than a methodised and condensed digest of the whole, or any, entire branch of this kind of en those scattered usages and judicial decisions, the glish common law had been simply transferred into principles of which are drawn from the great foun the United States by the federal constitution. tains of natural reason and natural law. In this sense and according to those notions then, But several portions of this species of the common law, or the customs and usages of England have the United States have a common law-not that of been specifically referred to, and rendered necessa-England, or of Rome, or of France, but the comry to the understanding and efficacy of our constimon law of the United States-and the common law tution; and, consequently, so far, and to that ex. of this republic consists of all those usages of England, or the legal principles of other codes spe. tent those portions are adopted, but no farther.

The other kind of common law is formed of cifically refered to, and which are necessary to exthose principles, which flow as inevitable conse-pound and give effect and operation to the constiquences from some customary, statutory, or con- tution itself; together with that body of natural stitutional provision; or those principles suggested reason and natural law, necessary to the political, by circumstances, and the nature and reason of and municipal welfare of the society, and which the thing itself. This sort of law, although it are not controlled or altered by the positive proforms a part of what is called the common law of visions of the statutory and fundamental laws of England, yet is not peculiar to that code. Its the federal government. The United States exhibits the extraordinary rules and precepts are the same in all civilized nations. It is formed, not, according to the pecu spectacle of an entirely new and original frame of liar doctrines of the common law, but from the government, having been called into existence by dictates of sound sense and justice, common to ci- the unbiased will, and voluntary impulse of a free vilized man. It is natural law and natural reason and independent people. It is universally allowed applied by the courts of justice to the purposes of as a general rule, that when any portion of a na the society to which they belong. And it appears tion segregates itself from the mother country, by every book of reports of decisions of West-and settles in an uninhabited region, it carries with minster Hall, that the English courts are contin- it all the laws by which it was previously governed. ually adopting this natural law, and applying it to 1 Tuck. Blac. 108. Because, since society must the various novel cases, that are produced by the have some rules and principles of justice, by which changes in the state of society, and the fluctua- to regulate the concerns of its members, and their tions of human affairs. A cursory comparative intercourse with each other, those in existence at survey of the codes of different nations would fur- the time cannot be presumed to be abrogated by nish a multitude of instances of this catholic or the mere act of separation, but must be continued universal species of law. It is according to the in force, so far as circumstances will allow, and principles of this species of law, that the rules until abolished by positive enactments; and, for which govern in cases of bailment and common these reasons, as it would seem, it has been held, carriers, are found to be nearly the same in the that even a moving and unsettled portion of socie code of ancient Rome, Greece, and Judea, of En-ty, such as an army, must, in the absence of other gland, continental Europe, Hindostan and China-municipal law, be governed by that of the country from which it emanated-10 East. 288. Jones on Bailment, and Jeremy's Law of Carriers..

With regard to the United States, however, the tain evdidence of the contract from the defendant facts and the circumstances are exactly the reverse; himself, or there should be any thing peculiar in its instead of a segregation of one portion of society nature, which the rigid forms of the common law from another, there has been an aggregation of cannot reach, he may apply to a court of equity for many distinct societies into a larger one; and in-relief. But whatever may be the judicial forms he stead of enquiring what laws have been discon- may use, or of the forum to which he may apply tinued or abolished by the separation it must be as for relief, the nature of his case and the principles certained what laws have been directly or indirect of justice by which it should be governed remain ly adopted or are necessary and common to the the same. The principles of law and justice appliunion. The case is entirely novel; it is altogether cable to a case have, at all times and in all nations, unique; it has no precedent nor parallel. Hence been held to be essentially distinct from, and whol the difficulty of ascertaining, what may be truly ly unaffected by the forms of judicial proceeding. considered as embraced by the code of such an by which those principles of justice may be carri aggregation, the code of each component society ed into effect-and in the wide extent of the comof which, is known to be, in many respects, essen-mercial connexions and operations of modern times, tially different from every other of the confedera- it is by no means uncommon to observe the princition. In this new and extraordinary case, there ples of commercial law recognized to be precisely seems to be no other mode of solving the difficul- the same, by various nations, yet operating and ty, but by having recourse, in the first place, to enforced by the greatest variety and diversity of the language of the compact of union, thence to judicial forms and proceedings. ascertain, whether any and what are those posi- These clauses and phrases of the constitution,-tive rules and institutions, that have been adopted; then, not only enumerate the kind of objects, subjects and in the next place to deduce those principles of and controversies, to which the jurisdiction of the law, common to all civilized society, that is of na- union shall extend, but their peculiar expressions tural reason and natural law, which are necessary also designate the forms and manner in which that and essential and which may be considered as com-jurisdiction shall be exercised, by the rules of the mon to the union at the time of its formation. common law, in equity, or according to the forms On entering upon the examination of the various and practice of cases of admiralty and maritime provisions of the constitution for the purpose of jurisdiction. When the constitution gives jurisdicascertaining what has been adopted from foreign tion of a controversy and speaks of that jurisdiction eodes, it will be perceived that the most important being exercised, as "in a suit at common law," the as well as the most controverted are those rela- inference is inevitable; it is essentially necessary to a tive to the judicial department of the government. fair understanding of the constitution, its operation The constitution provides for the establishment of and efficacy, that such jurisdiction should be excrcourts of justice; it specifies the objects, the subjects, cised in that way and no other-and, consequentand the controversies of which they shall have juris- ly, all the forms and modes of proceeding of that diction; and it speaks in distinct terms of three common law, so spoken of, as descriptive of the modes in which those courts may exercise their ju. exercise of judicial functions, must by the clearest dicial functions over the cases so placed under their implication be held to be adopted, so far as it is jurisdiction. It is declared, “that the judicial power necessary to administer justice in the cases in of the United States shall be vested in one su- which such jurisdiction is given. The implied preme court, and in such inferior courts as the con-adoption of the common law, in this way and to gress may, from time to time, ordain and establish." this extent, is as strong as if the constitution had If the constitution had said nothing more than this, directly declared, that the courts should in such cases concerning the judicial power of the J. States, it is exercise their jurisdiction according to the course of the clear that the manner of organizing such courts, common law and none other. the appointment of the judges, the tenure by which The same may be said of cases of equity, and of they should hold their offices, the objects and ex-admiralty and maritime jurisdiction. And the mantent of their jurisdiction, as well as the manner and ner in which the constitution speaks of these three form in which their judicial powers should be exer- modes of proceedings in contrast, and in describing cised, must be prescribed and declared by statu. the judicial power of the United States, strength tory provisions, before such tribunals could act in ens and confirms the argument in favor of the imany way whatever. But the constitution has pro- plied adoption of so much of each of those three vided for the appointment of the judges, the te-modes of proceedings as is necessary to give effect to nure by which they shall hold their offices, and in the judicial authority of the government. And the enumerating and describing the objects, subjects uniform interpretation of these phrases of the conand controversies to which the judicial power shall stitution has been, that they were intended to refer extend, it adds these expressions, descriptive of the manner in which such judicial power shall be exer cised, all cases of law and equity," and "all cases of admiralty and maritime jurisdiction"—and in the seventh amendment declares, that "in suits at copimon It is a rule of the english common law relative to law, where the value in controversy shall exceed the interpretation of statutes, that if a statute make twenty dollars, the right of trial by jury shall be use of a word the meaning of which is well known preserved; and no fact tried by jury shall be other- at the common law, the word shall be understood in wise re-examined in any court of the United States, the same sense it was understood at the common than according to the rules of the common law." law. The sound sense of this rule is so obvious,

to, and recognize three distinct and known forms of judicial proceedling, as well as to describe and illustrate the nature and extent of the judicial power of the United States.

It is manifest, that these phrases of the constitu- that its principle has been repeatedly urged and tion are used for the purpose of designating the admitted as a rule of construction applicable, as form and manner in which judicial functions may well to our constitution, as to all other instruments. be exercised, which are totally different from the Hence, it seems to be generally agreed, that when principles of law applicable to the case itself-a the constitution uses words known only to a parti. seaman may sue for his wages at common law, or cular code of laws, such words should carry with in the admiralty court; and if he should wish to ob- them the same sense, force, and operation, as far as

circumstances will allow, that they have according | forms and principles, in all cases whatever, owing

to the state of our society and the positive provisions to the code of laws to which they are peculiar. The third section of the third artical of the consti of our constitutions-as in the case of a writ of tution declares, that "the trial of all crimes, except right; in which case, when the mise was joined upon in cases of impeachment, shall be by jury;" the 5th the mere right, such issue could only be tried, acamendment provides, that "no person shall be held cording to the course of the common law, by the to answer for a capital, or otherwise infamous crimes, grand assize, which must consist of four knights of unless on a presentment or indictment of a grand the county, in which the controversy was to be trijury; the sixth amendment provides, that "in all ed, girt with swords, and twelve other jurors, in all criminal prosecutions, the accused shall enjoy the sixteen jurors or recognitors-3. Wils. 420, 541. right to a speedy and public trial, by an impartial jury But as there were very few or no titled personages of the state and district wherein the crime shall in any of the colonies before the revolution, the Eng have been committed;" and the seventh amendment lish common law, in this respect could not be execuprovides, that "in suits at common law, where theted; and therefore, it is believed, never was introvalue in controversy shall exceed twenty dollars, duced into any of them-Killy's report, 74. Such a form of trial is now, however, clearly incompatible the right of trial by jury shall be preserved "

institutions of the common law, they cannot be allowed any farther than they may be necessary to give effect and operation to those parts of the constitution, in which they are spoken of and referred to, or than may be perfectly compatible with the whole of our civil and political system.

This form of trial by jury, here spoken of, prevails with that provision of the constitution which dein every state in the union; all of them have adopted clares, that "no title of nobility shall be granted by it from the English common law; and in all, with the United States." The ninth section of the first article of the constithe exception of some few unimportant statutory modifications, it is altogether regulated by the rules (tution provides, that "the privilege of the writ of of that law. It follows, therefore that it must be habeas corpus shall not be suspended, unless, when, the trial by jury according to the course of the in cases of rebellion or invasion, the public safety English common law, which is spoken of in these may require it." Here is another instance of one clauses of the constitution-and this form of trial of those technical phrases of the English system, being thus specifically adopted, it must be used in which has been frequently adduced to prove the the administration of justice in all the cases desig-adoption of the common law. By that law all the nated and consequently, after a court was com- judges of the superior courts, recognized as the pletely organized pursuant to the provisions of the main judicial branches of the government, might in constitution, the first enquiry naturally would be, court, or in vacation, grant such writ of habeas corsupposing congress to have made no provision upon pus as is here alluded to-3. Bac. Abr. 438, note.— the subject, how it should proceed to grant this There could, therefore, be no difficulty in adopting form of trial by an impartial jury, which it is de- a form of writ suited to the purpose; in giving the clared the party shall enjoy and which shall be pre power to issue and use it to that analogous class of judicial officers, who are specifically made a branch served in all case? The first step would be to cause the jury to be of our government by the constitution; and in applyconvened in the most proper manner, and by an offi-ing to such process all those rational principles of cer who was altogether impartial. By the common the common law, which experience has shewn to be law, the jury must come from the neighborhood necessary to its utility and efficacy. But with rewhere the offence was perpetrated, or the litigated gard to the writ of habeas corpus, the trial by jury, matter arose, and be selected and summoned by and all other cases of the introduction of the positive the sheriff, as the chief ministerial officer of the court which sheriff, by the common law, was elected by the people of the county within which the fact intended to be tried was alledged to have happened. But the U. States as such, have no counties; and the marshall, who is the chief ministerial officer of their But, the constitution contains words and phras courts, is appointed by the president. The jury, therefore, as is expressly provided by the constitu- es, which, must, evidently, be expounded by a tion in criminal prosecutions, must come from the much more comprehensive view of law, than that state or district wherein the crime shall have been of the mere municipal code of any nation whatThose provisions relative to cases of admicommitted, and in all other cases from the body of ever. the district placed within the jurisdiction of the ralty and maritime jurisdiction, cannot be limited court: and be selected and summoned by the mar exclusively to the adoption of the english princi shal-2. Dall. 341, 345, 382. By the common law ples on that subject; because, cases of admiralty the jury, in order to be impartial, must be selected and maratime jurisdiction are every where governand summoned by the coroner, in case the sheriffed by the law of nations; the constitution, therefore, was interested; or by an Elisor in case they should as to such matters, must be construed to extend to, both of them be legally disqualified-as the consti- and embrace those principles of national law incitution specifically requires an impartial jury, the dent to the subjects spoken of-And by the ninth court must, therefore, follow the common law, and section of the first article it is declared, that "no appoint an Elisor where its regular ministerial off title of nobility shall be granted by the United cer is presumed to be under too strong a bias to be States." The phrase, title of nobility, is as well intrusted to make a selection of an impartial jury known to the common law, as that of Habeas Cor---and the court must also adopt all the doctrine of pus, trial by jury, or any other such expression; of challenges, which is founded in the very reason but, to limit its meaning to that species of nobility and nature of the institution itself, 4. Dall. 414, recognized by the English system alone, would be as well as all the other regulations relative to the completely to evade, and entirely to prostrate its rights and duties of juries and the nature of ver-genuine spirit-The manifest scope and object of this clause, when taken in connexion with the But this form of jury trial, although so often and whole, is to prohibit titles and their incidents of all distinctly spoken of, as necessary to be adopted for the better administration of justice, yet it cannot be introduced exactly according to the common law

dicts.

descriptions as established in any age or nation whatever. It must, then, be presumed, that by such passages of the constitution as these, all

No. 25 OF VOL. XII.]

BALTIMORE, SATURDAY, AUGUST 16, 1817.

[WHOLE NO. 311.

Hac olim meminisse juvabit.—VIRGIL.

PRINTED AND PUBLISHED BY H. NILES, AT THE HEAD OF CHEAPMDE, AT $5 PER ANNUM.

those legal principles, rules and regulations, from, to any other nation. Tire breach of a law should whatever source they may be derived, are intro-be punished in some way; the positive provisions of duced, which are necessary to the complete effect the constitution require, that the trial and convic. and operation of such clauses when taken with tion should be by jury according to the course of reference to the subject matter spoken of and in the common law; and they probibit the imposition connexion with our circumstances and political in- of excessive fines, or the infliction of cruel and stitutions. unusual punishments. From the nature of things and according to the spirit of the constitution, therefore, and not because the English common law so directs, the punishment, where none other is prescribed, can only be by fine and imprisonmentAnd as to the other case, it is a universal rule, that where a thing is forfeited, and no individual owner of the forfeiture is pointed out, it must belong to the state-And this rule is not the more or less the law of the United States because it is a rule of the English common law; but it is the law of the union, because it is the unequivocal dictate of sound sense.

By the eighth section of the first article it is provided, that "the congress shall have power to exercise exclusive legislation over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." And by the third sec. tion of the fourth article "the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States." When such places, as are here spoken of, are ceded to the United States, it would seem, that they carry with If the various provisions of our limited constituthem under the jurisdiction of their new sovereign, tion be thus carefully examined and persued, it will upon the general principles which govern in such be found to have thus,from various sources and in difcases, all those municipal laws, which were in ferent ways, provided a code of laws fully commenforce at the time of such cession within such pla-surate to all its legitimate ends and objects. ces. This was held to be the case in the territory, Having by this investigation shewn, that the man. now forming the states of Tennessee, Ohio, and Inner and form in which the judicial power of the U. diana, and the territory on the Mississippi; and I States is to be exercised, in criminal cases, must presume would be held to be the case also, in Fort be according to the course of the common law, it McHenry, Springfield and other arsenals or pla- follows as an inevitable consequence that a judicial ces within which the United States have obtained act, in the sense of the constitution in such cases, must by cession the right to exclusive legislation-And, be substantially and essentially the same as a juconsequently, that the mode of transferring estates, dicial act in the sense of the common law; and, therethe right of inheritance, and succession to estates fore, that the granting of a warrant to arrest a felon is real and personal, and the like, would be govern- a judicial act within the meaning of the constitution. ed by those laws in force, at that place and at the But lest any doubt should still be entertained, time, when the cession was made; so far as such whether this species of preparatory judicial act was municipal regulations can be adopted, and until intended to be embraced under the general expres. they are altered by congress. But, the want of sion, "the judicial power of the United States," it will Justices of the peace and some other offices and offi be proper to consider, what was the subject matter cers in such places will render it impossible to ex spoken of and what was understood to be the execute some of the municipal laws of the state in act boundaries of judicial power, considered as a any way, and perhaps, therefore, they cannot for constituent branch of government, by those respecthat reason, be considered as adopted: such as the table political and legal writers, with whom, and authenticating or recording of deeds for the trans- those legal controversies with which the framers of fer of property or the bringing of suits by warrant our constitution were most conversant. for the recovery of small debis, &c.

The broad distinction between judicial and miAs to those principles of law, founded on natural nisterial or executive power, in the administration reason or deduced from positive institutions, and of justice, has been well understood and clearly the circumstances and nature of things, they are so recognized in the codes of all civilized nations; the obvious in themselves that one or two examples will distinct natures of the duties of the Prator and the be sufficient to illustrate their nature and applica- Lictor, of ancient Rome, were as different and as tion. When a statute proibits a thing without im-well understood as those of a Judge and a Sheriff at posing any penalty, the mjured party may have his this day. Judicial and ministerial or executive action, or the violator of such law may be prosecuted powers and duties have been variously united in and punished by fine and imprisonment-6. Bac. the same officer, but never confounded with each Abr. 392. And where an act is prohibited under a other. The great utility of separating them altopenalty, but nothing is said about the disposition of gether, however, and placing them in different such penalty, when recovered, like all forfeitures or hands, as a division of power requisite for the proproperty which has no designated owner, it shall be tection of civil and political liberty, is an improvepaid into the treasury and belong to the statement in political science of modern date; one which Stra. 828. These are principles of common reason, never has been carried into complete operation in as well as of English common law, growing out of any country, but this of the United States. Mon. the positive provisions of the statute law, taken in tesquieu fancied he saw such a division of power connection with the circumstances, and the mature distinctly traced in the English constitution; adoptof government. They are, therefore, as entirely ap-ed it as a political axiom, explained its value, and plicable to the United States as to Great Britian or gave it currency among civilized nations: This

VOL. XII.