vania still remain citizens of the commonwealth, as well as of the United States; and it is of as much importance to them to be relieved from unlawful imprisonment, under colour of authority derived from the United States, as from any other imprisonment. When the present federal constitution was adopted, the people were not easy until they had obtained an amendment, declaring that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, were reserved to the states respectively, or to the people. A writ of habeas corpus must, therefore, be issued, in all cases, where the right to issue it has not been given up to the United States. That this right has not been given up, was my opinion, delivered in the case of Olmstead, where I assigned reasons which I shall not now repeat. But that is not all. It is a principle, well established, that even in cases, where congress might assume an exclusive jurisdiction, the authority of the states remains, until such a jurisdiction is assumed. There are many instances, in which the powers of the United States are suffered to lie dormant; such as the power of establishing uniform laws on the subject of bankruptcies; and, while the power remains dormant, the several states regulate the subject. In subjects also within the jurisdiction of congress, when they do legislate, the authority of the states is taken away, only so far as the law of the United States declares. This is exemplified in the act establishing the judicial courts of the United States, where it will be found, that, in some instances, the courts of the United States are vested with an exclusive jurisdiction; but in many more they have jurisdiction concurrent with the courts of the several states.-And, although it is true, that, by the terms of the act, the courts of the United States have only a concurrent jurisdiction, yet, I apprehend the construction would be the same, if the express terms had been omitted. By the 14th section of the same act, power is given to the judges of the United States to grant writs of habeas corpus, for the "purpose "of an enquiry into the cause of commitment; provided that "they shall, in no case, extend to prisoners in gaol, unless "where they are in custody, under, or by colour, of the autho"rity of the United States, or committed for trial, before some court of the same, or are necessary to be brought into court to "testify." Now, if it had been intended to exclude the state

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judges, this is the place in which we might expect to find evidence of such intention: for, the subject was full in the mind of the legislature, as appears by the care with which they restrained their own judges, from interfering with commitments, not under the authority of the United States.

The judicial power of the United States extends to all cases in law or equity, arising under the constitution, the laws of the United States, and the treaties made under their authority.Supposing that congress had the right to assume an exclusive jurisdiction, in all cases founded immediately on these subjects, the exercise of it would be intolerably grievous, without a great increase of courts and judges: and, even then, it would often, happen, that the state courts would have to decide on the constitution, laws, and treaties of the United States, on questions arising, collaterally, in causes within their jurisdiction.-Still the authority of the United States may be preserved, by retaining, as they have retained, an appeal to their own courts. But it seems to be the general opinion, that from a decision on a habeas corpus, no appeal or writ of error lies; and, thus, points of vital importance to the United States, may be determined by state judges, without an opportunity of revision. This may certainly be a very serious evil, but it does not appear to be without remedy. For, although by the general principles of law, an appeal or writ of error might not lie; yet the subject being within the power of congress, they may regulate it as they please. As to an attempt to take away from the state courts altogether the right of issuing a writ of habeas corpus, in any case where a man pretends to justify an imprisonment under the authority of the United States; whenever the subject shal! be brought before congress, it will be found to be attended with very great, if not insuperable difficulties.

I have said thus much on the point of jurisdiction (although I consider it as having been long settled and acted upon by the supreme court of this state) because some persons of high standing in other states, for whose opinions I entertain the most sincere respect, have expressed doubts on the subject. It is a matter deserving the greatest consideration, in which the people of the different states are deeply interested. The inconvenience of clashing opinions between federal and state judges, may sometimes be felt; but when I consider the situation of a Penn

sylvanian, imprisoned unlawfully, by colour of a pretended authority from the United States, on the banks of the Ohio, or the shore of Lake Erie, with only one federal judge to whom he can apply, and that judge in the city of Philadelphia, I feel as little inclination as I have right, to surrender the authority of the commonwealth.

But there is another objection to this habeas corpus, applicable equally to the judges of the states, and of the United States: it is, that Mr. Lockington is in the situation of a prisoner of war. If he be so, he is not entitled to a privilege, which never could have been intended for persons of that description. A prisoner of war is subject to the laws of war; he is brought among us by force; and his interests were never, in any man. ner, blended with those of the people of this country. He has no municipal rights to expect from us. We gave him no invitation, and promised him no protection. His object was to injure us; and we bring him hither solely for safe keeping. Far different is the case of a great body of people, who, although now placed in the situation of enemies, by events over which they had no control, yet, in their hearts, may bear no enmity to the United States: nay, who may even prefer this country to their native soil. Many of them came among us, with a view of sharing our fortunes. Our laws held out invitations; they were suffered to acquire property, personal and real; we permitted them to swear, that they intended to renounce their native sovereign, and become fellow citizens with us. Many, it is true, came merely on business, without such intent, and may be really inimical. But even they had that implied promise, which civilized nations have long been supposed to make, that, in case of sudden war, there should permission to depart in a reasonable time, without injury to person, or property. I am far from denying, however, that the condition of these people is to be decided, not by a reference to the usual courtesy of nations, but by our own laws. Congress had the power of legislating on the subject: they have exercised that power; and their acts are paramount to all foreign customs. It is these acts which we are now to consider, and it will be found, that they are such as the most civilized nation need not blush to avow. They preserve a sacred regard for treaties; and, in cases where no treaty exists, they vest the president of the United States with full powers, to be No. XVII.

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exercised" according to the dictates of humanity, and national "hospitality:" not forgetting, however, a due regard to the public safety. It has lately been decided, by the supreme court of New York, in the case of Clark vs. Money (10 Johns. 59.) that British aliens residing in the United States, so far from being considered as prisoners of war, may sue, and be sued, as in time of peace.

The act respecting alien enemies, was passed on the 6th of July, one thousand seven hundred and ninety-eight. In considering it, I shall not pursue the wide range, which was taken in the argument of this case. In fixing its true construction, it is of no importance, under what administration it was enacted; by whom it was brought forward; or by whom advocated, or opposed, on its passage. It is the law of the land; and, being so, it becomes the duty of every individual to obey, and of every court to enforce obedience.

It begins by enacting, that when war is declared, or invasion by a foreign nation is perpetrated, attempted, or threatened, and the president of the United States shall have made public proclamation of the event, "all natives, citizens, denizens, or "subjects, of the hostile nation, or government, being males of "the age of fourteen years and upwards, who shall be within "the United States, and not actually naturalized, shall be liable "to be apprehended, restrained, secured, and removed, as alien "enemies." Here is a broad proposition, standing as a foundation, for summary proceedings, against persons who are declared to be in the situation of alien enemies. I do not consider, as has been contended by Mr. Lockington's counsel, that the apprehending, restraining and securing, here mentioned, are to be intended solely for the purpose of removal out of the United States. It is a provision for the public safety; which may require, that the alien should not be removed, but kept in the country under proper restraints; and the nature and degree of these restraints, in cases where there has been no misbehaviour, may depend, in some measure, on the treatment which the hostile government gives to citizens of the United States, who may chance to be within its power. The act then proceeds to declare that "the president of the United States shall be authorised, in "any event as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of

"the United States, towards the aliens, who shall become liable "as aforesaid; the manner and degree of the restraint, to which "they shall be subject; and in what cases and upon what secu"rity, their residence shall be permitted; and to provide for "the removal of those, who, not being permitted to reside "within the United States, shall refuse, or neglect, to depart "therefrom; and to establish any other regulations, which shall "be found necessary in the premises, and for the public safety." Then follows a proviso, for securing the observance of treaties, which is not material in this case; because, at the time of the declaration of war, there was no treaty, regulating the subject, in existence, between the United States and Great Britain.

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In the second section of the act it is enacted:

"That after any proclamation shall be made as aforesaid, it "shall be the duty of the several courts of the United States, "and of each state, having criminal jurisdiction, and of the seve"ral judges and justices of the courts of the United States, and they shall be, and are hereby respectively, authorised, upon แ complaint, against any alien enemy, or alien enemies, as afore"said, who shall be resident and at large within such jurisdic"tion or district, to the danger of the public peace or safety, "and contrary to the tenor or intent of such proclamation, or "other regulations which the president of the United States "shall and may establish in the premises, to cause such alien "or aliens to be duly apprehended and convened before such "court, judge or justice; and after a full examination and hear"ing on such complaint, and sufficient cause therefor appearing, "shall and may order such alien or aliens, to be removed out "of the territory of the United States, or to give sureties of "their good behaviour, or to be otherwise restrained, conform"ably to the proclamation or regulations which shall and may

be established as aforesaid, and may imprison, or otherwise "secure such alien or aliens, until the order which shall and may "be made, as aforesaid, shall be performed."

It cannot be doubted, but that the provision in the first section, considered without reference to the second, authorises the president to establish a regulation, that all alien enemies of a certain description, shall retire immediately to a place to be appointed by the marshal; and that, in case of non-compliance, the marshal shall remove them. But the second section, naving