Federal Common Law of Crimes

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One of the leading Jeffersonian jurists, st. george tucker, noted with alarm that Chief Justice oliver ellsworth and Justice bushrod washington had laid down the general rule that the common law was the unwritten law of the United States government. The question whether the Constitution adopted the common law, Tucker wrote,

is of very great importance, not only as it regards the limits of the jurisdiction of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited: so also, must be the jurisdiction, and authority of the other branches of the federal government [Tucker, Blackstone's Commentaries, 1803, I, 380].

Tucker's answer to the question was that the judicial power of the united states under Article III was limited to the subjects of congressional legislative power and that common law did not give jurisdiction in any case where jurisdiction was not expressly given by the Constitution. Tucker's view eventually prevailed, but it was probably not the view of the Constitution's Framers.

Article III extends the judicial power of the United States to all cases in law and equity arising under the Constitution, treaties, and "Laws of the United States." The latter phrase could include common law crimes. At the constitutional convention of 1787, the Committee of Detail reported a draft declaring that the Supreme Court's jurisdiction extended to "all Cases arising under the Laws passed by the Legislature of the United States." The Convention without dissenting vote adopted a motion striking out the words "passed by the Legislature." That deletion suggests that "the Laws of the United States" comprehended the common law of crimes, as well as other nonstatutory law.

The legislative history of the judiciary act of 1789 suggests a similar conclusion. A draft of that statute relating to the jurisdiction of both the federal district and federal circuit courts (sections nine and eleven as enacted) gave these courts "cognizance of all crimes and offenses that shall be cognizable under the authority of the United States and defined by the laws of the same." The italicized phrase, deleted from the act's final text, might have restricted criminal jurisdiction to statutory crimes. Whether a federal court was to apply a federal common law of crimes or apply the common law of the state in which a crime was committed is not clear.

What is clear is that the first generation of federal judges assumed jurisdiction in cases of nonstatutory crimes. Justice james wilson, an influential Framer of the Constitution, at his state's ratifying convention had endorsed federal prosecutions at common law for criminal libels against the United States. In 1793 he instructed a federal grand jury on the virtues of the common law, which included, he said, the law of nations. The grand jury indicted Gideon Henfield for breaching American neutrality by assisting a French privateer in the capture of a British ship; the indictment referred to "violation of the laws of nations, against the laws and constitution of the United States and against the peace and dignity of the United States." alexander hamilton prepared the indictment, which Attorney General edmund randolph (another Framer) helped prosecute. Justice Wilson, joined by Justice james iredell and Judge richard peters, constituted the federal circuit court that tried Henfield's nonstatutory offense. Henfield, having been at sea when President george washington proclaimed American neutrality, pleaded ignorance. Secretary of State thomas jefferson, who had urged Henfield's prosecution and endorsed Wilson's opinion as to the indictability of the offense, explained that the jury acquitted because the crime was not knowingly committed. john marshall, in his Life of Washington, described the prosecution as having been based on an offense "indictable at common law, for disturbing the peace of the United States."

Subsequent common law prosecutions were not so fuzzy. In 1793 a federal grand jury indicted Joseph Ravara, a consul from Genoa, for attempting to extort money from a British diplomat. Justice Wilson, joined by Peters, ruled that the circuit court had jurisdiction, although Congress had passed no law against extortion. Justice Iredell argued that the defendant's diplomatic status brought him within the exclusive original jurisdiction of the Supreme Court. Ravara was tried in 1794 by a circuit court consisting of Jay and Peters, who instructed the jury that the offense was indictable at common law, part of the law of the land. The jury convicted. In 1795 a federal court in New York, at the instigation of Attorney General Randolph, indicted Greenleaf, the editor of the New-York Journal, for criminal libel, a common law crime. The case was dropped, but in 1797 the editor was again indicted for the same crime and convicted by a court presided over by Chief Justice Oliver Ellsworth, an influential Framer and chief author of the Judiciary Act of 1789. In Massachusetts in 1797 Ellsworth ruled that the federal circuit court possessed jurisdiction over crimes against the common law, which the laws of the United States included, and therefore might try persons indicted for counterfeiting notes of the Bank of the United States (not then a statutory offense).

In the same year a federal grand jury followed Justice Iredell's charge and indicted a congressman, Samuel J. Cabell, for the common law crime of seditious libel, but the prosecution was aborted for political reasons. In 1798, before Congress passed the Sedition Act, prosecutions for seditious libel were begun against Benjamin Bache, who soon died, and John Burke, who fled the country before Justice william paterson could try him. In 1799 Ellsworth and Iredell, in separate cases, told federal grand juries that the federal courts had common law jurisdiction over seditious libel and, in Ellsworth's words, over "acts manifestly subversive of the national government." He added that an indictable offense need be defined only by common law, not statute.

The sole dissenting voice in this line of decision was that of Justice samuel chase in Worrall's Case (1798), where the common law indictment was for attempted bribery of a federal official. Judge Peters disagreed with Chase's argument that no federal common law of crimes existed, and the jury convicted. Chase, however, changed his opinion in United States v. Sylvester (1799), when he presided over a common law prosecution for counterfeiting. Thus, Chief Justices Jay and Ellsworth and Justices Wilson, Paterson, Iredell, and Chase endorsed federal court jurisdiction over common law crimes. The Jeffersonians, by then, vehemently opposed such views, arguing that only the state courts could try common law crimes. When Jefferson was President, however, Judge Pierpont Edwards, whom he had appointed to the federal district court in Connecticut, sought and received common law indictments against several persons for seditious libel against the President and the government. Jefferson knew of the common law prosecutions by the federal court and did not criticize them or take any actions to halt them, until he learned that one of the defendants could prove the truth of his accusation that the President had once engaged in a sexual indiscretion. The prosecutions were dropped except for those against Hudson and Goodwin, editors of Hartford's Connecticut Courant, who challenged the jurisdiction of the federal court.

By this time the administration had a stake in a ruling against federal jurisdiction over common law crimes. After much government stalling until a majority of Jeffersonian appointees controlled the Supreme Court, united states v. hudson and goodwin was finally decided in 1812. Without hearing oral arguments and against all the precedents, a bare majority of the Court, in a brief opinion by Justice william johnson, ruled that the question whether the federal courts "can exercise a common law jurisdiction in criminal cases" has been "settled in public opinion," which opposed such jurisdiction. Moreover, the Constitution had not expressly delegated to the federal courts authority over common law crimes. "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offense."

Justice joseph story, who had not made known his dissent at the time, did so in a circuit opinion in 1813 and forced a reconsideration of the rule of Hudson and Goodwin. In United States v. Coolidge (1816), decided without argument, Johnson, noting that the Court was still divided (Marshall and Washington probably supported Story), refused to review the 1812 decision in the absence of "solemn argument." Thus the great question was resolved without reasoned consideration, to the enormous detriment of the power of the United States courts to define criminal acts.

Although "judge-made" or nonstatutory federal crimes disappeared after the Coolidge decision, federal courts continued to exercise common law powers to enforce law and order within their own precincts (see contempt power) and continued to employ a variety of common law techniques, forms, and writs in the enforcement of congressionally defined crimes. The federal rules of criminal procedure reflect that fact, as does Marshall v. United States (1959). By its "supervisory powers" over lower federal courts and, through them, over federal law enforcement officers, the Supreme Court can still be said, loosely, to exercise an interstitial common law authority with respect to federal crimes.

Leonard W. Levy


Crosskey, William W. 1953 Politics and the Constitution in the History of the United States, 2 vols. Chaps. 20–24. Chicago: University of Chicago Press.

Goebel, Julius, Jr. 1971 Antecedents and Beginnings to 1801. Volume 1 of Freund, Paul, ed., The Oliver Wendell Holmes Devise History of the Supreme Court. New York: Macmillan.

Presser, Stephen B. 1978 "A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence." Northwestern Law Review 73:26–111.

Tucker, St. George 1803 Blackstone's Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, 5 vols. Philadelphia: Young & Small.

Warren, Charles 1923 "New Light on the History of the Federal Judiciary Act of 1789." Harvard Law Review 37:49–132.

Wharton, Francis, ed. 1849 (1970) State Trials of the United States During the Administrations of Washington and Adams. New York: Burt Franklin.

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Federal Common Law of Crimes