have become so under the restrictions of the constitution of the state, or of the United States. What was the object of those restrictions? It could not have been to protect the citizen from his own acts, for it would then have operated as a restraint upon his rights. It must have been against the acts of others. But to constitute particular tribunals for the adjustment of controversies among them, to submit themselves to the exercise of summary remedies, or to temporary privation of rights of the deepest interest, are among the common incidents of life. Such are submissions to arbitration; such are stipulation bonds, forthcoming bonds, and contracts of service. And it was with a view to the voluntary acquiescence of the individual, nay, the solicited submission to the law of the contract, that this remedy was given. By making the note negotiable at the Bank of Columbia the debtor chose his own jurisdiction; in consideration of the credit given him, he voluntarily relinquished his claims to the ordinary administration of justice, and placed himself only in the situation of an hypothecator of goods, with power to sell on default, or a stipulator in the admiralty, whose voluntary submission to the jurisdiction of that court subjects him to personal coërcion. It is true, cases may be supposed in which the policy of a country may set bounds to the relinquishment of private rights. And this court would ponder long before it would sustain this action, if we could be persuaded that the act in question produced a total prostration of the trial by jury, or even involved the defendant in circumstances which rendered that right unavailing for his protection. But a power is reserved to the judges, to make such rules and orders "as that justice may be done;" and as the possession of judicial power imposes an obligation to exercise it, we flatter ourselves, that, in practice, the evils so eloquently dilated on by the counsel do not exist. And if the defendant does not avail himself of the right given him, of having an issue made up, and the trial by jury, which is tendered to him by the act, it is presumable that he cannot dispute the justice of the claim. That this view of the subject is giving full effect to the seventh amend

ment of the constitution is not only deducible from the general intent, but from the express wording, of the article referred to. Had the terms been, that "the trial by jury shall be preserved," it might have been contended that they were imperative, and could not be dispensed with. But the words are, that "the right of the trial by jury shall be preserved," which places it on the foot of a lex pro se introducta, and the benefit of it may, therefore, be relinquished. As to the words from Magna Charta, incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice. With this explanation, there is nothing left to this individual to complain of. What he has lost he has voluntarily relinquished, and the trial by jury is open to him, either to arrest the progress of the law in the first instance, or to obtain redress for oppression, if the power of the bank has been abused. The same answer is equally applicable to the argument founded on the third article of the Maryland constitution.

In giving this opinion we attach no importance to the idea of this being a chartered right in the bank. It is the remedy, and not the right; and, as such, we have no doubt of its being subject to the will of congress. The forms of administering justice, and the duties and powers of courts as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will, and the power over them is unalienable, so as to bind subsequent legislatures. This subject came under consideration in the case of Young v. The Bank of Alexandria, (4 Cranch's Reports, 384,) and it was so decided.

The next question is, whether the courts of this district are empowered to carry into effect the summary remedy given to the bank in this case?

The law requires the application for process to be made to the clerk of the general court, or of the county court for the

county in which the delinquent resides, and obliges such clerk to issue the execution, returnable to the court to which such clerk is attached. Unless, therefore, the clerk of this district is vested with the same power, and the courts with jurisdiction over the case, the bank would not have the means of resorting to this remedy.

The third section of the act of February, 1801, does not vest in the courts that power. It only clothes the courts and judges of this district with the jurisdiction and powers of the circuit courts and judges of the United States. But we are of opinion that this defect is supplied by the fifth section of the same act, taken in connexion with the fifth section of the act of March 3d, 1801. By the former section the courts of the district are vested generally with jurisdiction of all causes in law and equity; and by the latter the clerks of the circuit court are required to perform all the services then performed by the clerks of the counties of the state of Maryland. Among those services is that of instituting a judicial proceeding in favor of this bank, and the return of that process is required to be to the court with which such clerk is connected. That court has jurisdiction of all cases in law arising in this district, and thus the suit is instituted by the proper officer, by writ returnable to a court having a jurisdiction communicated by terms which admit of no exception.

Upon the whole, we are of opinion that the law is constitutional, and the jurisdiction vested in the courts of the district; and, therefore, that the judgment must be reversed, and the cause remanded for further proceedings.

4 Wh. 246.

HOUSTON v. MOORE.

FEBRUARY TERM, 1820.

[5 Wheaton's Reports, 1-76.]

CONGRESS, under the authority over the militia given it by the constitution, passed certain laws fining delinquents, and providing that they should be tried by a court martial. Pennsylvania also passed laws providing for the trial of delinquents by a state court martial. Houston, when the militia of Pennsylvania was called out by the president, did not go; he was then tried under the state law and fined; when this fine was collected he sued the marshal, on the ground that the state laws clashed with those of congress, and were, therefore, unconstitutional. The judge of the state court where the suit was brought decided against Houston, however; which decision was confirmed by the supreme court of Pennsylvania, from which a writ of error was taken to the supreme court of the United States.

In the following opinions the laws in question are sufficiently rehearsed to make the points intelligible. The opinion of the court was delivered by Judge Washington as follows:

THERE is but one question in this cause, and it is, whether the act of the legislature of Pennsylvania, under the authority of which the plaintiff in error was tried, and sentenced to pay a fine, is repugnant to the constitution of the United States, or not?

But before this question can be clearly understood it will be necessary to inquire, 1. What are the powers granted to the general government, by the constitution of the United States, over the militia? and, 2. To what extent have they been assumed and exercised?

1. The constitution declares that congress shall have power to provide for calling forth the militia in three specified cases:

for organizing, arming, and disciplining them; and for governing such part of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. It is further provided, that the president of the United States shall be commander of the militia, when called into the actual service of the United States.

2. After the constitution went into operation, congress proceeded by many successive acts to exercise these powers, and to provide for all the cases contemplated by the constitution.

The act of the 2d of May, 1792, which is reenacted almost verbatim by that of the 28th of February, 1795, authorizes the president of the United States, in case of invasion, or of imminent danger of it, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the states most convenient to the scene of action as he may judge necessary, and to issue his orders for that purpose to such officer of the militia as he shall think proper. It prescribes the amount of pay and allowances of the militia so called forth and employed in the service of the United States, and subjects them to the rules and articles of war applicable to the regular troops. It then proceeds to prescribe the punishment to be inflicted upon delinquents, and the tribunal which is to try them, by declaring that every officer or private, who should fail to obey the orders of the president, in any of the cases before recited, should be liable to pay a certain fine, to be determined and adjudged by a court martial, and to be imprisoned, by a like sentence, on failure of payment. The courts martial for the trial of militia are to be composed of militia officers only, and the fines to be certified by the presiding officer of the court to the marshal of the district, and to be levied by him, and, also, to the supervisor, to whom the fines are to be paid over.

The act of the 18th of April. 1814, provides that courts

36