Federal law in the early national period was limited by both the U.S. Constitution and the perceptions of what politicians in the founding era thought should be federal law. At the time of the ratification of the Constitution, most Americans understood that the Constitution created a government of limited powers. Anti-Federalists feared the powers were not limited enough, while Federalists argued the government was properly limited. Shortly after the new government went into effect, James Madison proposed a series of constitutional amendments that became the Bill of Rights. These amendments further limited the power of the national government. Thus, in the early national period most congressional legislation was limited to the business of running the government. Rarely did Congress pass legislation that would today be seen as of a social nature. No one at the time envisioned an activist federal government that could regulate vast aspects of American life. Economic policy was mostly limited to tariffs and expenditures, although some economic matters, such as protective tariffs, internal improvements, and the Bank of the United States, went beyond the simple business of government.
the business of government
With the Constitution ratified, the new government needed laws under which to operate. Most of the laws passed by Congress from 1789 until 1800 were about the business of government.
The first law Congress passed regulated "the time and manner of administering certain oaths." If the national government was to have officers and officials, they had to be properly sworn into their office. Three of the next four acts Congress passed involved collecting duties on imported goods and other forms of revenue collection. The government could not be run without money—and at last, for the first time since the Revolution began, the national government had the power to tax. Congress then set about creating a government, passing laws to establish the State Department, the War Department, the Treasury Department, and the courts. All together, during its first session in 1789, Congress passed twenty-five laws. All were housekeeping measures, tax laws, or acts to create government institutions. The most creative was the Judiciary Act of 1789, which set up an elaborate court system. The least innovative was the law that reenacted the Northwest Ordinance of 1787, making it applicable under the new Constitution and the new government.
Statutes passed in 1790 were similarly mundane, but also vital to the new nation. Congress passed a law to take the national census, "create a uniform rule of naturalization," establish a patent office, institute copyright regulation, regulate the army, and buy land to establish a fort at West Point. That year Congress also passed various laws to pay salaries of government officials. In addition, it adopted a rudimentary criminal code for those few areas where Congress could punish crimes. Most criminal law remained with the states at this time, but piracy, other crimes on the high seas, treason, counterfeiting, and forgery, as well as more mundane crimes committed on federal land, could be punished by the national government.
In 1791 Congress, at the request of the Washington administration, passed legislation to charter the first Bank of the United States. Representative James Madison believed the law was unconstitutional because Congress did not have authority, under the enumerated powers listed in Article I, section 8 of the Constitution, to charter a bank or any other company. A majority of Congress, however, accepted the rationale, set out by Secretary of the Treasury Alexander Hamilton, that Congress had implied powers to pass laws under the necessary and proper clause of Article I, section 8. This was the first important statute that did not deal with the mechanics and business of government, foreign policy, or trade. It represented an activist and creative use of the law by the federal government. It was also the most controversial act passed by the early Congress. Also controversial were laws to fund the debt and pay off all remaining state debts from the Revolution. In 1793 Congress passed a law to regulate fugitives from justice" and "fugitives from labour." Although not controversial at the time, the second part of this law, dealing with fugitive slaves, would ultimately become quite controversial. More controversial would be the Alien and Sedition Acts, passed in 1798, which attempted to suppress criticism of President John Adams. While clearly unconstitutional by modern standards, their unconstitutionality was less clear at the time. Politically, however, the Sedition Act was a mistake. When it expired in 1801, no one suggested renewing it.
Throughout the first decade under the Constitution, Congress was generally circumspect and cautious in its legislation. Most of the controversial legislation, such as the bill to create the Bank of the United States, was initiated by the executive branch. Federal law thus developed in response to political initiatives by the president.
federal common law
Beyond statutory law, however, was the question of common law. The United States had inherited its legal structures from Britain. While the Constitution limited the kinds of laws Congress could pass, it did not say anything about common law. Did the United States inherit the common law of England? If so, then federal law would include a huge body of private and public law that was not codified. Most of the state constitutions of this period declared that English common law, as it existed on 4 July 1776, was part of their law, except as modified by the state constitutions and statutes. The U.S. Constitution did not have such a provision. Did that mean that English common law was not part of federal law? There was no clear answer to this question at the founding.
Some Federalists, including Chief Justice Oliver Ellsworth and Associate Justices Bushrod Washington, James Iredell, and James Wilson, believed that English common law was part of federal law. In the 1790s there were a number of federal prosecutions under common law. These included the prosecution of Gideon Henfield in 1793 for helping a French ship to capture a British vessel on the high seas, a prosecution of a diplomat from Genoa for extortion, a prosecution for an attempt to bribe a public official, prosecutions for counterfeiting currency issued by the Bank of the United States, and charges of sedition against publishers who criticized the U.S. government. Congress had not passed any statutes criminalizing these acts when they were committed, and thus the U.S. government brought these prosecutions under common law.
Jeffersonians opposed the idea of a common law of crimes. They believed that the Constitution did not merely limit the power to Congress to legislate, but also limited the power of the federal government to those laws that Congress could, and did, pass. As St. George Tucker noted in his American edition of Blackstone's Commentaries (5 vols., 1803), if the common law applied to the federal government, then the power of the national government would be "unlimited."
Despite this position, when Jefferson became president he had a new appreciation for using the common law as a political and legal tool. In 1798 Congress had passed the Sedition Act, which eliminated the need for common law prosecutions for the crime of criticizing the government. The law had been very unpopular, as the Adams administration used it to persecute the president's critics, who were Jefferson's supporters. The law expired by its own terms on 3 March 1801, the day before the new president took office. Shortly after his inauguration Jefferson pardoned all those convicted under the law, and Congress ultimately passed a law to remit their fines. Jefferson, however, soon discovered that he too did not like criticism. In 1806 the U.S. attorney in Connecticut instituted a common law sedition prosecution against various critics of the president, including two editors of the Connecticut Courant. The cases were delayed for a variety of reasons and did not reach the Supreme Court for six years. In United States v. Hudson and Goodwin (1812), the Court ruled that there was no federal common law and that all criminal prosecutions by the national government had to be under an existing statute.
The charter for the first Bank of the United States expired in 1811, and neither Congress nor the executive branch had any interest in extending it. James Madison had opposed the bank in Congress in 1791, and as president he had no interest in continuing it. But the War of 1812 (1812–1815) changed Madison's mind, because during that conflict the government lacked a sound financial institution to help pay for it. In 1816 Congress, at Madison's urging, passed legislation to charter the Second Bank of the United States. Congress also passed a law, known as the Bonus Bill, to use excess federal revenues, including money that the United States received from profits of the Bank of the United States, to build roads and canals and to support other internal improvements. Madison vetoed this bill in 1817 on the grounds that it violated the Constitution. He urged that Congress propose a constitutional amendment allowing it to pass laws to fund internal improvements that were not directly related to lighthouses, post roads, and military fortifications.
Congress regulated foreign trade with tariffs and embargoes, but these had a direct effect only on coastal towns and shippers. An act of 1801 banned the African slave trade as of 1 January 1808, and laws of 1818 and 1819 further enforced the ban. This was both an economic act and a rare example of social legislation. So too was the Missouri Compromise (1820), which banned slavery in the territories north and west of the new slave state of Missouri. But social legislation was rare. Most legislation dealt with more mundane aspects of the government or the economy. In 1828 Congress passed a new tariff, which was soon called the Tariff of Abominations because it greatly increased import duties. This, along with the bank charters, was the most conspicuous example of federal activism in the early national period. The tariff led to the nullification crisis a few years later and was ultimately replaced with a less extreme tariff.
For most Americans in the early national period, the federal government was a distant entity and federal law had little impact on their lives. It was possible to spend an entire lifetime never encountering any federal official except the local postmaster. Federal law regulated some aspects of trade and commerce. Ship captains obtained coasting licenses, cleared ports, and entered them under the watchful eyes of federal customs officials, and they depended on federally funded lighthouses and other coastal installations and landmarks when they traveled. Merchants paid tariffs on imported goods and passed those costs on to consumers. Western settlers depended on federal law to organize the territories, create the first rudimentary governments, and supervise the sale of federal land. Indeed, it was possible that western settlers would go years without encountering any representative of the federal government except the federal land agent. These settlers also expected the army to protect them from Indians, the British, and the Spanish. But these settlers rarely had to think much about the content of the laws that created the army, established forts, or paid the salaries of Indian agents. Rather, they were the beneficiaries of laws appropriating money to create and pay the army, but the settlers were not usually directly involved in the implementation of these laws. Even in wartime, as during the War of 1812, most soldiers served in their state militias, not the national army. War veterans and their widows depended on federal laws to fund their pensions, and special acts to grant pensions where records were uncertain or missing can be seen as one of the few forms of social legislation of the period. Federal law was so unimportant to the lives of most Americans that even residents of federal jurisdictions might be only marginally governed by federal law. The governments of the federal territories adopted laws from the existing states to regulate their young societies. The federal territories were not governed, on a day-today basis, by federal law. Similarly, the District of Columbia, created by Congress as the national capital, was not directly governed by acts of Congress. For the most part, Washington, D.C., merely adopted the laws of Maryland and Virginia.
A majority of Americans of the time probably agreed that it was best to leave most law making to local governments, which reflected the goals, desires, fears, prejudices, and even hatreds of themselves and their neighbors. A generation later a civil war and three constitutional amendments began to change the nature of federal law.
See alsoAlien and Sedition Acts; Bank of the United States; Constitutional Law; Fugitive Slave Law of 1793; Judiciary Act of 1789; Missouri Compromise; Patents and Copyrights; Slavery: Slave Trade, African; Tariff Politics .
Crosskey, William W. Politics and the Constitution in the History of the United States. 3 vols. Chicago: University of Chicago Press, 1953–1980.