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. Ritchie.

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

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

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 law, 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 he 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.

a 1 Gallison, 488.