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LECTURE XVI.

OF THE JURISDICTION OF THE FEDERAL COURTS, IN RE

SPECT TO THE COMMON LAW, AND IN RESPECT TO PAR-
TIES.

Courts have

Common law jurisdic

minal cases.

(1.) It has been a subject of much discussion, whether the courts of the United States have a common law jurisdiction, and, if any, to what extent.

In the case of the United States v. Worrall, in the Cir- The U. S. cuit Court at Philadelphia, the defendant was indicted and no convicted of an attempt to bribe the commissioner of the timin.com revenue ; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the constitution, or the acts of Congress made in pursuance of it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever Congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the Circuit Courts, which have exclusive cognizance of all crimes and offences cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself, in the case of a judge, an officer of the customs, or an officer of the excise; but, in the case of the commissioner of the revenue, the act of Congress did not create or declare the

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offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the constitution or laws of the United States, and cognizable under their authority? A case arising under a law, must mean, a case depending on the exposition of a law, in respect to something which the law prohibits or enjoins; and if it were sufficient, in order to vest a jurisdiction to try a crime, or sustain an action, that a federal officer was concerned and affected by the act, a source of jurisdiction would be opened which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offence at common law, the constitution of the United States contains no reference to a common law authority. Every power in the constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though Congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognised either by the legislative or constitutional code of the Union.

In answer to this view of the subject, it was observed, that the offence was within the terms of the constitution, for it arose under a law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the Union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and, upon principles of analogy, the offence of the person who tempted it must be equally cognizable in those courts. The prosecution against Henfield, for serving on board a French privateer against the Dutch, was the exercise of a common law power, applied to an offence against the law of nations, and a breach of a treaty, which provided no specific penalty for such a case.

The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common

law could not be sustained in the Circuit Court. It was admitted that Congress were authorized to define and punish the crime of bribery; but as the act charged as an offence in the indictment, had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common law jurisdiction in criminal cases, and Congress have not provided by law for the offence contained in the indictment, and until they defined the offence, and prescribed the punishment, he thought the court had not jurisdiction of it.

The district judge was of a different opinion, and he held, that the United States were constitutionally possessed of a common law power to punish misdemeanors, and the power might have been exercised by Congress in the form of a law, or it might be enforced in a course of judicial proceeding. The offence in question was one against the wellbeing of the United States, and from its very nature cognizable under their authority.

This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.

In the case of The United States v. Burr, which arose in the Circuit Court in Virginia in 1807, the chief justice of the United States declared," that the laws of the several states could not be regarded as rules of decision in trials for offences against the United States, because no man could be condemned or prosecuted in the federal courts on a state law. The expression, trials at common law, used in the 34th section of the judiciary act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the constitution or laws of the United States, and cognizable under their authority? A case arising under a law, must mean, a case depending on the exposition of a law, in respect to something which the law prohibits or enjoins ; and if it were sufficient, in order to vest a jurisdiction to try a crime, or sustain an action, that a federal officer was concerned and affected by the act, a source of jurisdiction would be opened which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offence at common law, the constitution of the United States contains no reference to a common law authority. Every power in the constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though Congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognised either by the legislative or constitutional code of the Union.

a Opinion delivered September 3d, 1807, and reported by Mr. Ritchie,

In answer to this view of the subject, it was observed, that the offence was within the terms of the constitution, for it arose under a law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the Union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and, upon principles of analogy, the offence of the person who tempted it must be equally cognizable in those courts. The prosecution against Henfield, for serving on board a French privateer against the Dutch, was the exercise of a common law power, applied to an offence against the law of nations, and a breach of a treaty, which provided no specific penalty for such a case.

The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common

law could not be sustained in the Circuit Court. It was admitted that Congress were authorized to define and punish the crime of bribery ; but as the act charged as an offence in the indictment, had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common law jurisdiction in criminal cases, and Congress have not provided by law for the offence contained in the indictment, and until they defined the offence, and prescribed the punishment, he thought the court had not jurisdiction of it.

The district judge was of a different opinion, and he held, that the United States were constitutionally possessed of a common law power to punish misdemeanors, and the power might have been exercised by Congress in the form of a law, or it might be enforced in a course of judicial proceeding. The offence in question was one against the wellbeing of the United States, and from its very nature cognizable under their authority.

This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.

In the case of The United States v. Burr, which arose in the Circuit Court in Virginia in 1807, the chief justice of the United States declared, that the laws of the several states could not be regarded as rules of decision in trials for offences against the United States, because no man could be condemned or prosecuted in the federal courts on a state law. The expression, trials at common law, used in the 34th section of the judiciary act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before

a Opinion delivered September 3d, 1807, and reported by Mr. Riichie,

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