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the court sitting as a court of equity and admiralty. He admitted, however, that when the judiciary act, sec. 14. authorized the courts to issue writs not specially provided for by statute, but which were agreeable to the principles and usages of lau, it referred to that generally recognised and long established law, which formed the substratum of the laws of every state.

The case of The United States v. Hudson & Goodwin,' brought this great question in our national jurisprudence for the first time before the Supreme Court of the United States. The question there was, whether the Circuit Court of the United States had a common law jurisdiction in cases of libel. The defendants had been indicted in the Circuit Court in Connecticut, for a libel on the President of the United States, and the court was divided on the point of jurisdiction. A majority of the Supreme Court decided, that the Circuit Courts could not exercise a common law jurisdiction in criminal cases." Of all the courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediately from the constitution. All other courts created by the general government possessed no jurisdiction but what was given them by the power that created them, and could be vested with none but what the power ceded to the general government would authorize them to confer ; and the jurisdiction claimed in that case had not been conferred by any legislative act. When a court is created, and its operations confined to certain specific objects, it could not assume a more extended jurisdiction. Certain implied powers must necessarily result to the courts of justice from the nature of their institution, but jurisdiction of crimes against the state was not one of them.

a 7 Cranch, 32.

b In the states of Ohio and Louisiana, it is understood to be held, that there is no common law indictable offence, and that every indictable offence must be grounded upon some statute.

To fine for contempt, to imprison for contumacy, to enforce the observance of orders, are powers necessary to the exercise of all other powers, and incident to the courts, without the authority of a statute. But to exercise criminal jurisdiction in common law cases, was not within their implied powers, and it was necessary for Congress to make the act a crime, to affix a punishment to it, and to declare the court which should have jurisdiction.

The general question was afterwards brought into renewed discussion, in the Circuit Court of the United States for Massachusetts, in the case of The United States v. Coolidge. Notwithstanding the decision in the case of The United States v. Hudson & Goodwin, the court in Massachusetts thought the question, in consequence of its vast inportance, entitled to be reviewed and again discussed, especially as the case in the Supreme Court had been decided without argument, and by a majority only of the court. In this case, the defendant was indicted for an offence committed on the high seas, in forcibly rescuing a prize, which had been captured by an American cruiser. The simple question was, whether the Circuit Court had jurisdiction to punish offences against the United States, which had not been previously defined, and a specific punishment affixed by statute. The judge who presided in that court did not think it necessary to consider the broad question, whether the United States, as a sovereign power, had entirely adopted the common law. He admitted that the courts of the United States were courts of limited jurisdiction, and could not exercise any authorities not confided to them by the constitution and laws made in pursuance of it. But be insisted that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that if this distinction was kept in sight, it would dissipate the whole difficulty and obscurity of the subject. law;

ai Gallison, 488.

It was not to be doubted that the constitution and laws of the United States were made in reference to the existence of the common law, whatever doubts might be entertained as to the question, whether the common law of England, in its broadest sense, including equity and admiralty as well as legal doctrines, was the common law of the United States. In many cases, the language of the constitution and laws would be inexplicable, without reference to the common

and the existence of the common law is not only supposed by the constitution, but it is appealed to for the construction and interpretation of its powers.

It was competent for Congress to confide to the Circuit Courts jurisdiction of all offences against the United States, and they have given to it exclusive cognizance of most crimes and offences cognizable under the authority of the United States. The words of the 11th section of the judiciary act of 1789 were, that the circuit courts should have “exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct.” This means all crimes and offences to which, by the constitution of the United States, the judicial power extends, and the jurisdiction could not be given in more broad and comprehensive terms. To ascertain what are crimes and offences against the United States, recourse must be had to the principles of the common law, taken in connexion with the constitution. Thus, Congress had provided for the punishment of murder, manslaughter, and perjury, under certain circumstances, but had not defined those crimes. The explanation of them must be sought in, and

a Judge Wilson, in his charge to a grand jury in the Circuit Court of the United States, in Virginia, in 1791, observed, that we must recur to the common law for the definition and description of many crimes against the United States. See Wilson's Works, vol. 3. 371-377.

exclusively governed by, the common law; and upon any other supposition, the judicial power of the United States would be left in its exercise to arbitrary discretion. In a great variety of cases, arising under the laws of the United States, the will of the legislature cannot be executed, unless by the adoption of the common law. The interpretation and exercise of the vested jurisdiction of the courts of the United States, as, for instance, in suits in equity and in causes of admiralty and maritime jurisdiction, and in very many other cases, must, in the absence of positive law, be governed exclusively by the common law.

There are many crimes and offences, such as offences against the sovereignty, the public rights, the public justice, the public peace, and the public police of the United States, which are cognizable under its authority; and in the exercise of the jurisdiction of the United States over them, the principles of the common law must be applied, in the absence of statute regulations. Treason, conspiracies to commit treason, embezzlement of public records, bribery, resistance to judicial process, riots, and misdemeanors on the high seas, frauds and obstructions of the public laws of trade, and robbery and embezzlement of the mail of the United States, are offences at common law, and when directed against the United States, they are offences against the United States, and, being offences, the Circuit Courts have cognizance of them, and can try and punish them upon the principles of the common law. The punishment must be fine and imprisonment, for it is a settled principle, that where an offence exists, to which no specific punishment is affixed by statute, fine and imprisonment is the punishment. The common law is then to be referred to, not only as the rule of decision in criminal trials in the courts of the United States, but in the judgment or punishment; and by common law he meant the word in its largest sense, as including the whole system of English jurisprudence. VOL. I.

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It was accordingly concluded, that the Circuit Courts had cognizance of all offences against the United States, and what those offences were, depended upon the common law applied to the powers confided to the United States; and that the Circuit Courts, having such cognizance, might punish by fine and imprisonment, where no punishment was specially provided by statute. The admiralty was a court of extensive criminal, as well as civil jurisdiction ; and offences of admiralty jurisdiction were exclusively cognizable by the United States, and were offences against the United States, and punishable by fine and imprisonment, when no other punishment was specially prescribed.

This case was brought up to the Supreme Court, but it was not argued. A difference of opinion still existed among the members of the court, and, under the circumstances, the court merely said, that they did not choose to review their former decision in the case of The United States v. Hudson & Goodwin, or draw it in doubt. The decision was for the defendant, and, consequently, against the claim to any common law jurisdiction in criminal cases.

These jarring opinions and decisions of the federal courts, have not settled the general question as to the application and influence of the common law, upon clear and definite principles; and it may still be considered, in civil cases, as open for further consideration. The case of Hudson & Goodwin decided that the United States courts had no jurisdiction given them by the constitution or by statute, over libels; and the case of Worrall decided that they had no jurisdiction in the case of an attempt to bribe a commissioner of the revenue. If that were so, the common law certainly could not give them any. The cases were therefore very correctly decided upon the principle assumed by the court.

But the subsequent case of Coolidge did not fall within that principle, because the offence there charged

a 1 Wheaton, 415.

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