OF THE RULES OF DECISION.
THE rules and principles
by which the judicial power is to be administered, form the next subject
of consideration, and here we have, in the Constitution, the benefit of a
text which in some respects is explicit, and in all others, supplies a
foundation on which it is apprehended we may securely rest.
The laws of the United States and treaties made under their authority,
form the explicit principle of the judiciary power, and in respect to
their high obligation no question can arise: but another part of the same
sentence leads us into a wider field of inquiry.
The Constitution itself is the supreme law of the land, and all
cases arising under it are declared to be within the judicial power.
To every part of this well-digested work we are bound to give an efficient
construction. No words are there used in vain: as a literary composition,
the union of precision with brevity constitutes one of its chief ornaments
and recommendations. When we find a distinction between cases arising under
the Constitution and under laws and treaties, we are not at
liberty to suppose that the former description was introduced without a
definite meaning. The other designations are not more plain than this. We
understand what is meant by cases arising under laws and under treaties,
but something more is evidently meant. We may recollect that in another
article of the Constitution, laws made in pursuance thereof, and treaties
made under the authority of the United States, are declared to be the
supreme law of the land. The subordination of all legislative acts to the
Constitution is thereby provided for, and it is inconsistent with the
whole frame of its composition to consider any part of it as an useless
repetition of words. We are therefore bound to say, that cases may arise
under the Constitution which do not arise under the laws, and if this
point is conceded or established, we are next to inquire what are those
Of a civil nature nothing can properly be said to arise under
the Constitution, except contracts to which the United States are parties.
Jurisdiction is given to them over controversies in which states and
individuals of certain descriptions are concerned, but those cases would
exist although the Constitution did not exist. The courts of the United
States are, in these respects, merely the organs of justice, and by the
first act of congress relative to the judicial establishment 1
it is expressly declared that the laws of the several states, except where
the Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of decision in
trials at common law, in courts of the United States, in cases
where they apply.
The term, laws of the several states embracing as well their common as
their statute laws, there is no difficulty on this subject. It is
admitted, that every state in the Union has its peculiar system and rules
of decision in cases for which no positive statutes are provided, and of
these general rules the United States have the benefit in all cases of
contract which may occasion suits on their behalf, either in their own
courts or in those of the several states. To their own courts a similar
power could not be given by congress unless warranted by the Constitution,
but if the Constitution does warrant it, congress may give it. No one has
doubted that although no express adoption of this general principle is
apparent, it is necessarily contained in the Constitution, in relation to
all civil matters.
Contracts obligatory on the party, though merely implied by reason of
principles not found in the text of any statute, but originating in
universal law, may as well be made by the United States acting through the
agency of their executive officers, as by private individuals. No one has
doubted that they may be enforced. But it cannot be supposed that in such
cases the United States would be obliged to have recourse to the state
courts to obtain redress.
In respect to foreigners and citizens of different states, it would be
illusory and disgraceful, to hold up to their view a jurisdiction
destitute of the necessary means of expounding and deciding their
controversies, and therefore inferior in its efficacy to those state
tribunals from whose supposed partialities or imperfections, it tendered
We cannot therefore otherwise understand the constitutional extension of
jurisdiction in the cases described, than as a declaration that whatever
relief would be afforded by other judicial tribunals in similar cases,
shall be afforded by the courts of the United States, or a strange anomaly
would be presented. We may consider it as an inherent and a vital
principle in the judicial system, that in all civil cases those rules of
decision founded on reason and justice which form the basis of general
law, are within the reach and compose parts of the power of our tribunals.
And it is apprehended that although the legislature on the creation of
inferior tribunals unquestionably possesses the right to distribute the
judicial authority among them, it cannot control the constitutional
qualities appertaining to such portions of the judicial power as it may
vest in any one of those tribunals. Thus it may create a court for the
trial of suits to which an alien is a party, or it may wholly omit to
institute any such court. By such omission, what may be termed the
national promise to provide impartial tribunals, would in this respect
remain unexecuted, but whenever it was intended to be redeemed by the
erection of a court, the national promise would only be fulfilled by the
tribunal being possessed of all the powers necessary to render it
The act of September 24th, 1789, essentially depends for its validity on
the Constitution. Unless the legislature is authorized by the Constitution
to declare that the laws of the several states shall be the rules of
decision; it is certain that a declaration to that effect would be vain.
But the subject may be further pursued.
Legislative expositions of the Constitution, although not binding, are
entitled to the greatest respect — and when such laws apply
immediately to the action of the judicial power, and are fully
adopted and uniformly acted upon by the latter, a joint sanction is thus
conferred on the construction thereby given to the Constitution. Now the
memorable language of this act is, that in trials at common law,
the laws of the several states shall govern the courts of the United
States. But whence do we derive the first position? By what authority do
the courts of the United States try causes at common law? Unless the
Constitution confers this power they do not possess it — nor does
congress profess to give it to them, but considers it as already given.
The law serves only to modify it, and render it more convenient and
In another respect, the view here taken, appears to receive some support
both from the silence of the act, and from judicial practice.
We find a distinction taken between common law and equity, not only in
the section before mentioned, but in that which describes the jurisdiction
of the circuit court. "The circuit courts shall have original
cognizance concurrent with the courts of the several states, of all suits
of a civil nature at common law or in equity, when the United
States are plaintiffs or petitioned or an alien is a party, or the suit is
between a citizen of the state where the suit is brought and a citizen of
another state." In other parts of the same act the distinction is
between law, without the prefix "common," and equity.
The provision in regard to the laws of the several states is therefore not
in words extended to suits in equity. And the course pursued has been to
make use of those forms and modes of proceeding adopted in that country
from which "we derive our knowledge of the "principles of common
law and equity." It is observed that in some states no court of
chancery exists, and courts of law recognise and enforce in suits at law,
all the equitable claims and fights which a court of equity would
recognise and enforce; in others such relief is denied, and equitable
claims and rights are considered as mere nullifies at law. A construction
that would adopt the state practice in all its extent would extinguish in
some states the exercise of equitable jurisdiction altogether.
Where, for want of a court of equity, rights of an equitable character
are enforced in a state court of law, the United States courts will afford
relief in the same manner. 3
But although the forms of proceeding are regulated in this manner under
an act of congress, 4 the
principles of decision are in nowise modified or regulated by congress.
They are therefore to be drawn directly from the Constitution, and the
construction given by the supreme court in this respect must be received
as decisive, that the word equity there introduced means equity as
understood in England, and not as it is expounded and practised on in
different states. Yet, perhaps in every state having courts of equity,
there are variations and peculiarities in the system. Equity is not to be
viewed as a pure system of ethics, formed only on the moral sense. Every
lawyer knows that it is now a definite science, as closely bound by
precedents as the law itself, and its local character would seem to
require as much regard from the courts of the United States as the common
law of a particular state. It does not appear that this point has yet been
We have therefore before us, in all cases at law, a rule so convenient
and appropriate, that it would probably have been adopted by the courts,
if no act of congress had been passed on the subject, and which would be
so justly applicable to cases in equity, that we may consider it likely to
be adopted, whenever the necessity shall arise, and in each respect, and
however the latter may be settled, we find that in civil cases the
judicial power is not confined to positive statutes.
We now proceed to the application of the same principles to of a
criminal nature. 5 In a matter so
important, and on which there has been such a variety of opinions, it
seems incumbent distinctly to state the process of reasoning, by which a
conclusion apparently differing from that which has influenced so many
wise and virtuous members of our community has been attained.
The four following propositions form the basis of this conclusion.
- On the formation of society, prior to positive laws, certain rules
of moral action necessarily arise, the foundation of which is the
observance of justice among the members of the society.
- On the formation of the Constitution of the United States, such
rules arose without being expressed: the breach of them constitutes
offences against the United States.
- If no judiciary power had been introduced into the Constitution of
the United States, the state courts could have punished those breaches.
- The creation of such judiciary power was intended to confer
jurisdiction over such and other offences, not to negative or destroy
1. It was intended by Divine Providence that men should live in a state
of society. Reason and reflection were given to him to be used and
improved. Social affections were created, as natural impulses to promote
their use and improvement, by leading and keeping mankind together. When
societies commence, certain rules of action are necessary. Men are not
equally honest and virtuous; without some restraint, injustice and
violence would soon throw the association, however small, into disorder
and confusion. Hence arises at once a law of tacit convention, founded on
a few plain principles. It requires no positive law to have it understood,
that one shall not, without cause, deprive another of his property, or do
injury to his person. When the period arrives for the formation of
positive laws, which is after the formation of the original compact, the
legislature is employed, not in the discovery that these acts are
unlawful, but in the application Of punishments to prevent them. In every
code we find a distinction between things mala in se, things in
themselves unlawful; and mala prohibita, things which become
unlawful from being prohibited by the legislature. But circumstances may
delay the formation or the action of a legislative body, or its provisions
may be inadequate to the redress of experienced or expected evils. In this
interval can no rights to property be acquired or preserved — can no
binding contracts be made — are theft, robbery, murder, no crimes?
Opinions so monstrous can be entertained by none. On the contrary, the
human heart, the universal sense and practice of mankind, the internal
consciousness of the Divine will, all concur in pointing out the rules and
obligations by which we are bound.
Emphatically termed the law of nature, it is implanted in us by nature
itself; it is felt, not learned; it is never misunderstood, and though not
always observed, never is forgotten. Cicero in his Treatise de Legibus,
remarks that law, (and he explains that he speaks of general, not positive
law,) is the perfection of reason, seated in nature, commanding what is
right, and prohibiting what is wrong. Its beginning is to be traced to
times before any law was written, or any express form of government
This proposition is indeed too plain to be contradicted; and we
therefore pass on to the second, which may require a closer examination.
2. We have seen that the Constitution of the United States was the work
of the people. It was the formation of a new and peculiar association,
having for its objects the attainment or security of many important
political rights, which could not otherwise be fully attained or secured;
but not embracing in its sphere of action all the political rights to
which its members were individually entitled. So far as related to those
other rights, the people were satisfied with other associations, in each
of which the law of nature, under the usual appellation of the common law,
prevailed. So far as related to the new rights and duties, springing from
the new political association, the same tacit compact which is
acknowledged to exist in all society, necessarily accompanied this.
Nothing short of express negation could exclude it. Every member of
society has a direct interest in the prevention or punishment of every act
contrary to the well being of that society. Before the Constitution was
adopted, every act of such a tendency, having relation to the state
association, was punishable by the common law of such state, but when it
was adopted, certain actions, whether considered in reference to persons,
to particular places, or to the subject itself, were either expressly or
by implication withdrawn from the immediate cognizance of the states. The
people of the United States did not, however, mean that if those actions
amounted to offences they should go unpunished. The right of prosecution
and of punishment was not meant to be surrendered. In this instance, the
converge of the well known proposition, that whatever is not delegated to
the United States is reserved to the people, is the true construction. The
people possessed at the moment the full right to the punishment of
offences against the law of nature, though they might not be the subject
of positive law. They did not surrender this right by adopting the
Constitution. An offence against them in a state capacity, became in
certain cases an offence against them in relation to the United States. In
fact, there is no offence against the United States which is not an
offence against the people of the United States. They did not, perhaps we
may even say, that without being in some degree guilty of political
suicide, they could not cede or relinquish the right to punish such acts.
If they had so done, the system itself would soon dissolve. They gave no
power to congress to pass any penal laws whatever, except on this basis.
Every act, declaring a crime and imposing a penalty, rests upon it. It
follows that this source of the power of congress must be admitted. It may
be attenuated by positive law, but it never can be exhausted, unless we
can suppose that positive laws may meet and provide for all the
incalculable varieties of human depravity. But in no country has this been
In the very terms made use of in the Constitution, it is manifest that a
new and distinct class of duties were to arise which would tend to produce
a new and distinct. class of offences. The words are, as we have already
seen — that the judicial power. shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States and
treaties. No jurisdiction over crimes is given, except as they are
included in the antecedent words, cases in law; but it is declared that
they shall be tried only by jury. We have thus three divisions of judicial
I. Cases including crimes arising under the Constitution.
II. Cases including crimes arising under acts of congress.
III. Those arising under treaties.
There may then be crimes arising under the Constitution, on which no act
of congress has been passed; but if such an act has been passed, as in all
countries positive laws control the, common law, the act is punishable
under such positive law.
If only the infraction of treaties and acts of congress had been
considered as criminal acts, there would have been a manifest impropriety
in the introduction of those words "arising under the
Constitution." But they were certainly used with. the intention
that they should have the same effect in criminal as in civil cases. The
construction we venture to affix, appears to us to render the whole system
harmonious, efficient, and complete.
3. Our next position is, that if the Constitution of the United States
had been wholly unfurnished with a judicial power, offences of this
description could be punished through the medium of the state courts.
In the year 1779, one Cornelius Sweers, a deputy commissary of the
United States, was indicted in a court of oyer and terminer then held by
the judges of the Supreme Court of Pennsylvania, for forging and altering
two receipts given to him by persons of whom he had purchased, goods for
the use of the United States. The indictment, in compliance with judicial
forms, was laid to be against the peace and dignity of the commonwealth of
Pennsylvania, with intent to defraud the United States. McKean, C. J.
after hearing the arguments of counsel, supported the indictment.
6 It is a memorable instance of the
power of the common law to accommodate itself to the attainment of
substantial justice. Even the articles of confederation did not then
exist, but the court recognised the United States as a corporation. It was
an offence against the United States, in which the state of Pennsylvania
had no other interest than as one of thirteen states. But the prosecution
was technically supported as an offence against the state of Pennsylvania.
Another important consideration arises from this case. There existed at
that time no act of assembly in Pennsylvania which rendered such an action
a crime. By the English common law it was not forgery. The court must have
proceeded therefore on higher ground. The principles laid down in our
second position support their judgment. The soundness of this decision, as
well as, that in the case of De Long Champs, 7
has never been questioned. We may therefore safely infer, that the state
judicatures would, if it were necessary, afford an easy and a certain
remedy in all cases of a criminal nature, arising tinder the Constitution
of the United States.
4. It only remains to inquire, whether the addition of a judiciary
system to the Constitution of the United States diminishes the power of
punishing offences arising under it. It is well understood that the
motives for annexing a judiciary power were to give force and energy to
the government. It was apprehended that less interest in the concerns of
the Union, and less uniformity of decision might be found in the state
courts; and it was thought expedient that a suitable number of tribunals
under the authority of the United States should be dispersed through the
country, subject to the revision of superior courts, and finally centering
in a common head, the Supreme Court. To these tribunals was imparted the
power which the state courts would, it is presumed, have otherwise
continued to exercise, of expounding and enforcing whatever was properly
cognizable as an offence against the United States. But it cannot be
conceived, that a system intended to strengthen and invigorate the
government of the Union, can impair and enfeeble it. It cannot be
supposed, that the effect of providing weapons for its defence, is to
strip it of its armour. Neither can it be supposed that it was intended to
establish a system so incongruous as to confine the United States courts
to the trial of offences against positive law, and to rely upon the state
courts for relief against acts of another description injurious to the
United States; nor yet that the United States, having so strong an
interest in being protected against such acts, meant to relinquish and
abandon the remedies against them altogether.
In addition to these general grounds, we ought not to omit the peculiar
jurisdiction given by the Constitution over districts ceded by states for
certain purposes, and also over the territories acquired from the states
or from foreign powers. A construction which implies that in such
places any offence not expressly prohibited by an act of congress may
be committed with impunity, cannot be a sound one.
Let us also consider persons of a certain description. The
Constitution, as we have already seen, gives to the courts of the United
States jurisdiction in all cases affecting consuls. Congress, in creating
the interior courts, assigned to them an exclusive jurisdiction in
criminal cases over consuls. In 1816, a foreign consul was charged with
the commission of an atrocious crime within the state of Pennsylvania, for
which an indictment was found against him. He denied the jurisdiction of
the state court, and was discharged. He still goes untried, labouring
under an unmerited imputation if innocent, and if guilty, unpunished,
which, if the doctrine here opposed is correct, is an unavoidable
Still, however, although these positions may be considered as sound,
some serious objections remain for discussion.
1. In the inquiry, whether the courts of the United States possess
jurisdiction of a criminal nature in any case not provided for by an act
of congress, it has always been supposed that the common law of England
was alone to be considered. Chase, J. says, "If the United States can
for a moment be supposed to have a common law, it must, I presume, be that
of England." 8
Thus the attention has been confined to a part only of the general
question; and if it is understood by courts, that they are only to decide
whether the common law of England is in such cases to be the sole rule of
decision, it is easy to account for some of the opinions that have been
given. Both Chase, J. and Johnson, J. justly observe, that the common law
of England has been gradually varied in the different states, and that
there exists no uniform rule by which the United States could be governed
in respect to it. The latter, with great truth and effect remarks, that if
the power implied on the formation of any political body, to preserve its
own existence and promote the end and object of its own creation, is
applicable to the peculiar character of our Constitution, (which he
declines to examine,) it is a principle by no means peculiar to the common
law [of England.] "It is coeval probably with the first formation of
a limited government, belongs to a system of universal law, and may as
well support the assumption of many other powers, as those peculiarly
acknowledged by the common law of England." 9
We may account for most of the opposition in various parts of the Union
from the question having been misunderstood. That the common law of
England was kept in view, to a certain extent by the framers of the
Constitution, even in criminal cases, and as such adopted by the people,
cannot be doubted. The instances are numerous. Impeachment, treason,
felony, breach of the peace, habeas corpus, the trial by jury, and many
other phrases and appellations, derived from the common law of England,
appear both in the original text and the amendments. But this, as justly
observed by a learned jurist, 10
was not intended as a source of jurisdiction, but as a rule or mean for
its exercise. In this sense alone we are to accept those technical terms,
and by no means as evidence that if any common law was intended by the
Constitution to be adopted as a rule of action, it was the common law of
2. It is plausibly urged, that a system of law which defines crime,
without appropriating punishment, possesses no efficacy and does not merit
adoption, and it is inquired in what manner are offences against the law
of nature to be punished.
The question is not without its intrinsic difficulty, and an answer
cannot be attempted without some diffidence, but it is hoped that the
following view will be satisfactory.
1. We may lay it down as an axiom, that in every system of law, whether
express or implied, crime is held to be liable to punishment of some sort.
The mere sense of guilt, however unhappy it may render the offender,
yields no compensation, and affords to security to society.
2. Punishment ought always to bear a just relation to the nature and
degree of the offence. Positive law is sometimes arbitrary and
unreasonably severe; but the united sense of the community, some of whom
may commit, and all of whom may suffer from the commission of crimes, is
generally apposite and reasonable. If there is any deviation from the
strict measure of punishment, it is generally on the side of humanity.
3. Recurring, as far as we have materials, to the history of ancient law
in Europe, for we cannot take Asia or Africa as our guides, we find that
although the injured individual, or his nearest friends, were sometimes
held to be entitled to take redress into their own hands, and pursue the
offender by their own power; a practice so dangerous was gradually
overruled, and punishment, rendered the act of the whole, afforded through
the medium of the whole, satisfaction proportioned to the offence.
4. In remote times, and in most countries, this satisfaction consisted
in he forfeiture of something of value; we have to this affect the
authority of Homer, Iliad, b. 9, v. 743. The price of blood
discharged, the murderer lives." Of Tacitus, in respect to
the ancient Germans, "Luitur etiam homicidium certo armentorum ac
pecorum numero," &c. homicide is also punished by the
forfeiture of a certain number of cattle or sheep; and he adds, that those
convicted of other crimes were fined in proportion, a part of which was
paid to the prince, and part to him who was wronged, or to his relations.
Imprisonment was added either to coerce payment, or as a further
There was a time, says Beccaria, when all punishments were
pecuniary. 12 Lord Kaimes
lays down the same position, and it is a settled principle in the ancient
law of England, that where an offence has been committed to which no
specific punishment is affixed by statute, it is punishable by fine and
imprisonments. 13 Here then we have
materials which laborious inquiry would probably increase, for
ascertaining the nature of those punishments that by common consent
preceded positive law. Their mildness ought not to lead us to reject them.
It would be a sorry argument to say, that because a severe punishment
cannot be inflicted, the offender shall not be punished at all. Judge
Story truly remarks, 14 that it is
a settled principle, that when an offence exists to which no
specific punishment is affixed by statute, it is punishable by fine and
imprisonment, but when he adds, that if treason had been left without
punishment by an act of Congress, the punishment by fine and imprisonment
must have attached to it; we must recollect that the power to declare the
punishment being expressly given to congress, it seems to be taken out of
the general principle that would otherwise be applicable.
On the whole, we arrive at the conclusion, that crimes committed against
society have been at all times the subject of punishment of some sort;
that independent of positive law, the forfeiture of property, or personal
liberty, has been the general, though not perhaps the universal character
of punishment; for a difference of manners will always have a strong
influence on the extent of punishment, as the people are mild and
peaceable or rugged and ferocious; and that the tribunals of justice in
every case within their jurisdiction, are thus provided with a guide,
which if found inadequate to the safety of society, may at any time be
rendered more effectual by the legislative power.
It has been said, that to give it effect, the common law ought to have
been expressly enacted as part of the Constitution. But how could this
have been done? Should it have been described as the common law of
England? It was not contemplated. The common law of any particular state
in the Union? This would have been equally inadmissible. It could have
been introduced in no other than some phrases as the following:
"The law of nature, or the just and rational obligations of men in
a state of political society, shall be the rule or decision in all cases
not otherwise provided for." And surely it would have been deemed a
most unnecessary declaration. It has been well observed that the attempt
to enumerate the powers necessary and proper to call the general power
into effect, would have involved a complete digest of laws on every
subject to which the Constitution relates — accommodated not only to
the existing state of things, but to all possible changes; for in every
new application of a general power, the particular powers, which are the
means of attaining the object, must often necessarily vary, although the
object remains the same. 15
In delivering the opinion of the Supreme Court in the United States
v. Hudson and Goodwin, Judge Johnson observes, that it "is not
necessary to inquire whether the general government possesses the power of
conferring on its courts a jurisdiction, in cases similar to the present,
it is enough that such jurisdiction has not been conferred by any
legislative act, if it does not result to these courts as a consequence of
their creation." With great deference to an authority so respectable,
it is submitted that if the preceding observations are correct, that
jurisdiction has been expressly given by the act of September 24, 1789,
which although repealed by the act of February 13, 1801, was revived by
the act of March 8, 1802, and is now in full force. By this act the
circuit courts are expressly invested with the cognizance, (the exclusive
cognizance says the law,) of all crimes and offences cognizable under
the authority of the United States, except where the laws of the
United States shall otherwise direct. If the offences of which we have
been speaking, arise under the Constitution, they must be
cognizable under the authority of the United States, and are thus rendered
cognizable in the circuit courts.
The same learned judge in a subsequent case, when he also delivered the
opinion of the Supreme Court, most correctly drew from the Constitution
itself, certain principles necessary to support the asserted jurisdiction
of a legislative body to punish contempts against itself, which he justly
observes involves the interest of the people.
"The interests and dignity of those who created the public
functionaries, require the exertion of the powers indispensable to the
attainment of the ends of their creations." 16
The question before the court was only on the jurisdiction of the house.
The precise nature of the offence committed, did not appear on the face of
the pleadings. It was observed by him, "that we are not to decide
that this jurisdiction does not exist, because it is not expressly given.
It is true, that such a power, if it exists, must be derived from
implication, and the genius and spirit of our institutions are hostile to
the exercise of implied powers. Had the faculties of man been competent to
the framing of a system in which nothing would have been left to
implication, the effort would undoubtedly have been made. But in the whole
of our admirable Constitution, there is not a grant of powers, which does
not draw after it others not expressed, but vital to their exercise, not
substantive and independent, but auxiliary and subordinate."
Now we may be permitted to remark, that the jurisdiction thus raised and
supported by necessary implication, could in this case, have operated only
on those acts, which, by an implication equally necessary, were to be
considered as offences. No act of congress has declared what shall
constitute those offences. They must therefore essentially be, what are
termed contempts, or breaches of privilege at common law. It was competent
for the Supreme Court, (was it not incumbent on them?) to notice that the
non-existence of any legislative provisions on the subject, rendered it
impossible to justify an imprisonment by virtue of the speaker's warrant
for a non-existing offence. But the observation is, that "the power
to institute a prosecution must be dependent on the power to punish. If
the house of representatives possessed no power to punish for contempt,
the initiatory process issued in the operation of that authority, must
have been illegal; there was a want of jurisdiction to justify it."
And the omission to take this ground, seems to support the argument
excluding the necessity of a statutory provision.
On the same ground we may advert to the exercise of the power of
impeachment. In neither of the cases already mentioned, were the acts
charged on the parties accused, statutory offences. Yet the doctrine
opposed in this work would render the power of impeachment a nullity, in
all cases except the two expressly mentioned in the Constitution, treason
and bribery; until congress pass laws, declaring what shall constitute the
other "high crimes and misdemeanors."
And thus the question seems to be at rest in the contemplation of both
these courts, for such they must be termed, when acting in those
capacities, and both of them are courts from whose decision there is no
1. Act of September 24, 1789.
2. 3 Wheaton, 222. Hobson v.
Campbell. 4 Wheaton, 414. United States v. Howland.
3. 3 Wheaton, ubi supra, and
3 Dallas, 425. Sims's lessee v. Irvine.
4. May 8, 1792. The language of the
act is general. It speaks of the principles, rules, and usages "which
belong to courts of equity as contra-distinguished from courts of common
5. It does not appear that this
interesting question, though often discussed, has yet been definitively
settled by the supreme court of the United States. It was first raised in
the case of the United States v. Warrell, 2 Dall. 297, when Judge
Peters dissented from Judge Chase. The clear and manly, though brief
exposition of the opinion of the former, merits great attention. In the
following year, 1799, in the case of the United States v. Williams,
Chief Justice Ellsworth held that the common law of this country remained
the same as it was before the revolution. Other decisions, not reported,
are believed to have taken place. In the United States v. McGill
Judge Washington is represented to have said, that he had often so decided
it, 4 Dall. 429. The case of the United States v. Hudson and Goodwin,
came into the supreme court in 1812, it was not argued. In 1816 another
case was brought up. The judge of the circuit court for the district of
Massachusetts, maintaining a common law jurisdiction in opposition to the
district judge, the case of the United States v. Coolidge, was
removed according to the provisions of the judiciary bill into the supreme
court. Unfortunately the attorney-general again declined the argument.
Three of the seven judges observed that they did not consider the question
as settled, but the court declared that although they would have been
willing to bear the question discussed in solemn argument, yet, under the
circumstances, they would not review their former decision or draw it into
doubt. See 1 Wheaton, 415, and for the original case, 1 Gallison, 488. Two
cases, earlier than any of these, United States v. Ravara, in
1792, and United States v. Henfield, in 1793, are passed over,
because the question was not distinctly raised in either. And for the same
reason no reliance is placed on the United States v. Pickering, on
an impeachment before the senate in 1804, all the charges in which were
purely at common law.
6. 1 Dallas, 41.
7. The case of De Long Champs
in 1783, though not equally strong, was of the same nature. This was after
the articles of confederation in which the intercourse with foreign powers
was exclusively reserved to the United States. The defendant had assaulted
the secretary of the legation from France. The indictment here was
remarkable. It described the person assaulted as secretary of the legation
of France — consul general to the United States, and consul to the
State of Pennsylvania, and it concluded — "In violation of the
law of nations, against the peace, and dignity of the United States, and
of the commonwealth of Pennsylvania." It was learnedly argued; but
the court without difficulty decided that they had jurisdiction, and that
it was punishable as an offence against the law of nations. — 1
Dallas, 111. Some parts of the opinion of Chief Justice Kent in Lynch's
case, 11 Johnson, 549, coincide with these remarks.
8. 2 Dallas, 384.
9. 7 Cranch, 32. United States v.
Hudson. As this case was not argued by counsel, it does not distinctly
appear why it was deemed by the court to depend on the common law of
England, and why it should not have been taken up on the general principle
alluded to by Judge Johnson. This spontaneous assumption of the ground of
decision in the court below, confines the judgment of the supreme court to
the question on the common law of England.
In the United States v. Burr, Chief Justice
Marshall also refers to that "generally recognized and long
established law, which forms the substratum of the laws of every state."
(See Robertson's Report of the Trial of Aaron Burr.)
The Chief Justice of Pennsylvania, in a case in 5
Binney, 558, truly observes, that "every nation has its common law."
And are not the United States a nation?
10. Mr. Duponceau in his late work on
the jurisdiction of the courts of the United States.
11. See the elegant elucidation of
this subject by Lord Kaimes in his historical law tracts.
12. C. 17, § 46.
13. See also Grotius, b. 1, c. 2.
Puff. b. viii. c. 3, § II to the same effect.
14. United States v. Coolidge,
1 Gallison, 488.
15. Federalist, No. 44.
16. 6 Wheaton, 204. Anderson v.
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