Debates in the Several State Conventions/Volume 4/Judiciary
Judiciary.
House of Reprksentatives, January 10, 1825.
Mr. WEBSTER. In defining the power of Congress, the Constitution says, it shall extend to the defining and punishing of piracies and felonies upon the high seas, and offences against the law of nations. Whether the Constitution uses the term "high seas" in its strictly technical sense, or in a sense more enlarged, is not material. The Constitution throughout, in distributing legislative power, has reference to its judicial exercise, and so, in distributing judicial power, has respect to the legislature. Congress may provide by law for the punishment, but it cannot punish. Now, it says that the judicial power shall extend to all cases of maritime jurisdiction; and it has lately been argued that, as soon as a judicial system is organized, it had maritime jurisdiction at once, by the Constitution, without any law to that effect; but I do not agree to this doctrine, and I am very sure that such has not been the practice of our government, from its origin, in 1789, till now.
The Constitution defines what shall be the objects of judicial power, and it establishes only a Supreme Court; but in the subordinate courts, the jurisdiction they shall exercise must be defined by Congress: the defining of it is essential to the creation of those courts. The judicial power is indeed granted by the Constitution; but it is not, and cannot be, exercised till Congress establishes the courts by which it is to be so exercised. And I hold there is still a residuum of judicial power, which has been granted by the Constitution, and is not yet exercised, viz., for the punishment of crimes committed within the admiralty jurisdiction of the United States' courts, and yet not without the jurisdiction of the particular states. So the Constitution says that the federal courts shall have jurisdiction of all civil cases between citizens of different states; and yet the law restricts this jurisdiction in many respects—as to the amount sued for, &c. There is a mass of power intrusted to Congress; but Congress has not granted it all to specific courts, and therefore the courts do not exercise it. The Constitution gives to Congress legislative power in all cases of admiralty jurisdiction, from whence has occurred one of the most extraordinary of all circumstances—that causes of revenue have become cases of admiralty jurisdiction. * * *
Many things are directed to be punished, in the act of 1800, on the high seas, which are neither piracies nor felonies, although the Constitution, speaking of the judicial power, restricts it to piracies and felonies, which would infer that the Constitution was then held to grant larger power by the other clause.