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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 law; 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.

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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.

was clearly a case of admiralty jurisdiction, and the courts of the United States would seem to have had general and exclusive jurisdiction over the case. Mr. Du Ponceau, in his "Dissertation on the nature and extent of the jurisdiction of the courts of the United States," has ably examined the subject, and shed strong light on this intricate and perplexed branch of the national jurisprudence. He pursues the distinction originally taken in the Circuit Court in Massachusetts, and maintains, that we have not, under our federal government, any common law, considered as a source of jurisdiction; while, on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction, conferred by the constitution and laws of the Union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the constitution and law of the United States. But when the general jurisdiction and authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may, and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction."

The principle assumed by the courts in the cases of Worrall and of Hudson & Goodwin, is considered to be a safe and sound principle. The mere circumstance that the party injured by the offence under prosecution, was an officer of the government of the United States, does not give jurisdiction; for neither the constitution, nor the judicial acts founded upon it, gave the federal courts a general jurisdiction in criminal cases, affecting the officers of government, as they have in cases affecting public ministers and consuls.

Because an officer was appointed under the con

a Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. Dig. 2. 1, 2.

stitution, that would not of itself render all cases in which they were concerned, or might be affected, cases arising under the constitution and laws, and cognizable by the judiciary. Such a wide construction would be transferring legislative power to the judiciary, and vest it with almost unlimited jurisdiction; for where is the act that might not, in some distant manner, be connected with the constitution or laws of the United States? It rests alone in the discretion of congress, to throw over the persons and character of the officers of the government, acting in their official stations, a higher protection than that afforded by the laws of the states; and when laws are made for that purpose, the federal courts will be charged with the duty of executing them.

This appears to be sound doctrine, and to be deduced from the cases which have been mentioned. There is much weight undoubtedly due to the argument of the Circuit Court in Massachusetts; and an attempt to bribe an officer of the government, or to libel an officer of the government, in relation to his official acts, would seem to be an offence against that government. They tend directly to weaken or pervert the administration of it; and if it once be admitted that such acts amount to an offence against the United States, they must of course be cognizable under its authority, and belong to the jurisdiction of the Circuit Courts. The great difficulty and the danger is, in leaving it to the courts to say what is an offence against the United States, when the law has not specifically defined it. The safer course undoubtedly is, to confine the jurisdiction in criminal cases to statute offences duly defined, and to cases within the express jurisdiction given by the constitution. The admiralty jurisdiction of the federal courts is derived expressly from the constitution, and criminal cases belonging to that jurisdiction by the common law, and by the law of nations, might well have been supposed to be cognizable in the admiralty courts, without any statute authority. If the common law be a rule of decision in the exercise of the

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