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Du Ponceau: Jurisdiction, Constitution -- now online

One of the most influential early legal treatises of the United States was
_A Dissertation on the Nature and Extent of the Jurisdiction of the Courts
of the United States_, by Peter Stephen Du Ponceau, delivered at the Law
Academy of Philadelphia in 1824, where he served as Provost. This treatise
is now online at http://www.constitution.org/cmt/psdp/juris.htm , although
it is still being formatted.

We have also put online his _A Brief View of the Constitution of the United
States_, written in 1831 to serve as an introduction to the subject for
students and foreigners, at http://www.constitution.org/cmt/psdp/consti.htm .

Although Du Ponceau was in the camp of John Marshall on constitutional
interpretation, and thus differed from the more restrictive doctrine of the
Jeffersonians such as Madison, he nevertheless presents us with a highly
restrictive position of the limits on the jurisdiction of U.S. courts, far
more restrictive than the jurisdictions such courts assert today, without
constitutional amendments to authorize such expansion.

Du Ponceau shows that there are only three kinds of jurisdiction under the
U.S. Constitution: territorial (in locum), personal (in personam), and
subject (in subjectam materiam). He systematically examines each kind and
shows which of each may be exercised by each kind of court in various cases,
citing several recent cases to show how such jurisdictions were understood,
and misunderstood.

He also shows how the Constitution is incompatible with common law crimes,
that is, those based on precedent and not on statute, although he misses the
argument that common law criminal verdicts are actually ex post facto laws,
because they are not realized as law until after the crime has been
committed and the accused convicted. That would make them unconstitutional
for the state courts as well as for the courts of the United States.

These short treatises provide some useful insights into original
understanding of the Constitution, and how far we've departed from
compliance with original understanding, largely by a slow creep of
jurisdictional boundaries beyond the limits the Founders intended.

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