himself has been altogether without fault. At the very first session after he came into the Senate, the knowledge of the perpetual drain that the Cumberland road was destined to prove upon the public treasury unless some means were taken to prevent it, and a sincere desire to go, at all times, as far as he could consistently with the Constitution, to aid in the improvement, and promote the prosperity, of the western country, had induced him, without full examination, to vote for a provision authorizing the collection of toll on this road. The affair of the Cumberland road, in respect to its reference to the constitutional powers of this government, is a matter entirely sui generis. It was authorized during the administration of Mr. Jefferson, and grew out of the disposition of the territory of the United States through which it passed. He has never heard an explanation of the subject (although it has been a matter of constant reference) that has been satisfactory to his mind. All that he can say is, that, if the question were again presented to him, he would vote against it, and that his regret for having done otherwise would be greater, had not Mr. Monroe—much to his credit—put his veto upon the bill, and were it not the only vote, in the course of a seven years' service, which the most fastidious critic can torture into an inconsistency with the principles which Mr. Van Buren professed to maintain, and in the justice of which he is every day more and more confirmed.
Judiciary.
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
