president or congress have not the right to judge of the exigency of an insurrection or invasion.

Domestic violence is distinguishable from an insurrection to resist a law of the United States. It may be in opposition to a law of the state; or it may be a great riot without a specific object, but bidding fair to terminate in a dissolution of the government. With great propriety, it is left in this case to the legislature, or executive of the state in their absence, to say whether such an exigence exists, as calls for the arm of the union. But if the violence has for its object, a resistance to a law of the union, how shall the state officially know, that resistance is made. It must be communicated through the medium of the general government, to whose authority it is made; and does not this involve in it, necessarily, the judging of the exigency? can the state be supposed to have a negative upon this judging, and to say, your law is not resisted; you have raised a groundless clamour against these insurgents, and they may go without day. This is the law phraseology, when a complaint is dismissed; and the defendants discharged from appearance.

But who is to determine the exigency when a republican form of government is about to be put down in a particular state? It cannot be the legislature, or the executive, even if there had been the strongest exclusion as to this. For it must be a case where a republican legislature and executive had been overthrown, and the one or the few had usurped the government, that such an exigency could exist; and it would be an inconsistency to suppose that these would make an application for the arm of the union to suppress themselves.

It is in the case of domestic violence where the United States are not supposed to know of the outrage, or of the necessity of the interposition of the general government, that the application must be made, by the legislature, or the executive, of the particular state. The necessity of interposition must be judged of by the particular state; the

Dignus vindice nodus.

But in the case of invasion;" who is invaded? Say state No. 1. who is to give notice of this to state No. 21

Must it not come through the medium of the general government to No. 2 and to all the states? Does it not then follow that the general government, so far as respects No. 2. and all the rest, is to determine, whether or not, the exigency exists of No. 1 being invaded?

But admit the United States who are to guarantee, and protect, &c. have a right; and must of necessity, determine, in the first instance, whether an exigency exists; yet a particular state has a negative upon that determination, and may say, it does not exist. If so, the outer wheel is then stopt by the cog-wheel, and the machine can no longer work. It is assuming false premises, therefore, in the Massachusetts' justices to say, that the power is not delegated to congress, or to the president to determine when the laws of the union are resisted, insurrection on foot, or invasion made.

But who shall command the militia, in case of their being called forth? The president, or his lieutenant, doubtless. In this capacity Hamilton acted under Washington, in repressing the insurrection in the western parts of Pennsylvania, in the year 1794. I do not know that he acted under a commission eo nomine, but de facto, I saw him in the exercise of that command. General Lee was the ostensible lieutenant.

But may not the president appoint as his deputy; or, suffer to act, the officer who commands the regular force on foot at the same time? But can the officers of the regular force on foot, from him down, be substituted in the command of the militia for their officers? No: there is no necessity for it; nor, can it lawfully be done.

But who is to take the command when a regular force is on foot, and militia embodied at the same time; and the president is not present, nor has he any deputy, or lieutenant to command for him? I do not take that to be a case likely to happen, and I shall not enter into an examination of it. My mind has been chiefly intent upon the other questions.

But supposing the exigency of an invasion to exist, according to the determination of the congress and president. and the militia are cailed forth to repel invasion; or to pretect against it; (for both these terms are used in the consti

tution, article 1, the term "repelling invasion," is used. Article 4. "Protecting against invasion, is used.) Can the militia be ordered beyond the boundary of the United States? That will depend upon the question, if common sense and natural reason is to determine it, which of the two means will be the most effectual in repelling an invasion, or protecting against it; the stopping at the limits, or carrying our arms into the country of the enemy. Nations usually adopt this last mode, because it saves their own country from ravage, and it is more effectual to chace a fox or a wolf to his den, even though it is beyond a boundary, than to wait for a renewal of the depredations which they may have committed.

But

Here take notice, that I have heard it observed, upon close reasoning, that the word but, frequently occurs. I answer, that the course of reasoning, on any subject, is syllogistic; and, if it is worth any thing, cannot but in the nature of it, contain a syllogism; and though there is no major or minor formally stated, yet all course of reasoning on a moral subject, must partake of the nature of a demonstration in mathematics; and postulate, and axiom must be assumed; look at Euclid, and you will see a but at every new step that he takes in building up his structure. In Aristotle the same; first principles are assumed, and what is deduced from these, forces your acknowledgment, as you proceed, until the conclusion is wound up. I was proceeding then to say, But,

-Must not an enemy have invaded, before you can be justified in passing a boundary? To put the case in the strongest possible manner, let it be, that not a single trespass has been yet committed in any quarter of the territory. For if hostilities have been committed on any one quarter, it is a trespass upon the whole. I say, let it be, that, no act of hostility; no trespass, has been committed, by land, or by water; in that case, can it be allowable, under the constitution, to carry the militia beyond the boundary, even though it may appear, and actually be, the most effectual way to protect against invasion? In strictness of terms, it may, perhaps, he said not to come under the head of repelling an

invasion; but, certainly it may come under the head of protecting against it. The practice, which constitutes the law of nations will illustrate this. When an enemy is about to make war, or invade, when, or where is it hesitated, to anticipate hostilities, and to invade? Among pugilists, the first blow is said to be half the battle. It is by boarding first, that we save ourselves from capture, to use a nautical allusion, and defend the ship, when oftentimes by no other means could it be defended. The Romans passed over into Africa, to defend Italy, and to save Rome.

NOTES ON

BLACKSTONE'S COMMENTARIES, &c.

SECOND SERIES.

"The customs of London are confirmed by an act of Parliament." I Bl. Com. 75.

THE general law of England, has nothing in it, of the nature of our attachment law, consisting of acts of assembly, and the adjudications of our courts. And in regard of practice, varies essentially from that under the custom of London. I refer the student to a treatise, by Thomas Seargeant, on the attachment law of our state, as an elementary tract, which would do credit to any lawyer, more especially to one so young in the profession, and in years. It is invaluable to the practising lawyer in our state; and, I should think, must be to those of other states who have attachment laws, as I presume all have. I will take the liberty of extracting from this publication, the preface to his work, as giving some view of the object of this very elegant and classical performance.

"The principles of the law relative to foreign attachment are important in Pennsylvania, not only from its frequent recurrence in practice, but from the circumstance of its being an ex parte proceeding, and therefore requiring to be conducted with regularity and precision. As it is also a proceeding against absent debtors, it is peculiarly interesting to the inhabitants of other states, who are frequently parties concerned. A means, therefore, of procuring information on this subject, although a branch of the local law of the state, seems calculated to be generally useful.

"Under these circumstances, a collection of the laws relative to foreign attachment appeared to be desirable. As our original