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Article 3, Section 2, Clause 1

Document 84

William Rawle, A View of the Constitution of the United States 253--73 1829 (2d ed.)

The rules and principles by which the judicial power is to be administered, form the next subject of consideration, and here we have, in the Constitution, the benefit of a text which in some respects is explicit, and in all others, supplies a foundation on which it is apprehended we may securely rest.

The laws of the United States and treaties made under their authority, form the explicit principle of the judiciary power, and in respect to their high obligation no question can arise: but another part of the same sentence leads us into a wider field of inquiry.

The Constitution itself is the supreme law of the land, and all cases arising under it are declared to be within the judicial power. To every part of this well-digested work we are bound to give an efficient construction. No words are there used in vain: as a literary composition, the union of precision with brevity constitutes one of its chief ornaments and recommendations. When we find a distinction between cases arising under the Constitution and under laws and treaties, we are not at liberty to suppose that the former description was introduced without a definite meaning. The other designations are not more plain than this. We understand what is meant by cases arising under laws and under treaties, but something more is evidently meant. We may recollect that in another article of the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land. The subordination of all legislative acts to the Constitution is thereby provided for, and it is inconsistent with the whole frame of its composition to consider any part of it as an useless repetition of words. We are therefore bound to say, that cases may arise under the Constitution which do not arise under the laws, and if this point is conceded or established, we are next to inquire what are those cases.

Of a civil nature nothing can properly be said to arise under the Constitution, except contracts to which the United States are parties. Jurisdiction is given to them over controversies in which states and individuals of certain descriptions are concerned, but those cases would exist although the Constitution did not exist. The courts of the United States are, in these respects, merely the organs of justice, and by the first act of congress relative to the judicial establishment it is expressly declared that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in courts of the United States, in cases where they apply.

The term, laws of the several states embracing as well their common as their statute laws, there is no difficulty on this subject. It is admitted, that every state in the Union has its peculiar system and rules of decision in cases for which no positive statutes are provided, and of these general rules the United States have the benefit in all cases of contract which may occasion suits on their behalf, either in their own courts or in those of the several states. To their own courts a similar power could not be given by congress unless warranted by the Constitution, but if the Constitution does warrant it, congress may give it. No one has doubted that although no express adoption of this general principle is apparent, it is necessarily contained in the Constitution, in relation to all civil matters.

Contracts obligatory on the party, though merely implied by reason of principles not found in the text of any statute, but originating in universal law, may as well be made by the United States acting through the agency of their executive officers, as by private individuals. No one has doubted that they may be enforced. But it cannot be supposed that in such cases the United States would be obliged to have recourse to the state courts to obtain redress.

In respect to foreigners and citizens of different states, it would be illusory and disgraceful, to hold up to their view a jurisdiction destitute of the necessary means of expounding and deciding their controversies, and therefore inferior in its efficacy to those state tribunals from whose supposed partialities or imperfections, it tendered an asylum.

We cannot therefore otherwise understand the constitutional extension of jurisdiction in the cases described, than as a declaration that whatever relief would be afforded by other judicial tribunals in similar cases, shall be afforded by the courts of the United States, or a strange anomaly would be presented. We may consider it as an inherent and a vital principle in the judicial system, that in all civil cases those rules of decision founded on reason and justice which form the basis of general law, are within the reach and compose parts of the power of our tribunals. And it is apprehended that although the legislature on the creation of inferior tribunals unquestionably possesses the right to distribute the judicial authority among them, it cannot control the constitutional qualities appertaining to such portions of the judicial power as it may vest in any one of those tribunals. Thus it may create a court for the trial of suits to which an alien is a party, or it may wholly omit to institute any such court. By such omission, what may be termed the national promise to provide impartial tribunals, would in this respect remain unexecuted, but whenever it was intended to be redeemed by the erection of a court, the national promise would only be fulfilled by the tribunal being possessed of all the powers necessary to render it efficient.

The act of September 24th, 1789, essentially depends for its validity on the Constitution. Unless the legislature is authorized by the Constitution to declare that the laws of the several states shall be the rules of decision; it is certain that a declaration to that effect would be vain. But the subject may be further pursued.

Legislative expositions of the Constitution, although not binding, are entitled to the greatest respect--and when such laws apply immediately to the action of the judicial power, and are fully adopted and uniformly acted upon by the latter, a joint sanction is thus conferred on the construction thereby given to the Constitution. Now the memorable language of this act is, that in trials at common law, the laws of the several states shall govern the courts of the United States. But whence do we derive the first position? by what authority do the courts of the United States try causes at common law? Unless the Constitution confers this power they do not possess it--nor does congress profess to give it to them, but considers it as already given. The law serves only to modify it, and render it more convenient and practicable.

In another respect, the view here taken, appears to receive some support both from the silence of the act, and from judicial practice.

We find a distinction taken between common law and equity, not only in the section before mentioned, but in that which describes the jurisdiction of the circuit court. "The circuit courts shall have original cognizance concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, when the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state." In other parts of the same act the distinction is between law, without the prefix "common," and equity. The provision in regard to the laws of the several states is therefore not in words extended to suits in equity. And the course pursued has been to make use of those forms and modes of proceeding adopted in that country from which "we derive our knowledge of the principles of common law and equity." It is observed that in some states no court of chancery exists, and courts of law recognise and enforce in suits at law, all the equitable claims and rights which a court of equity would recognise and enforce; in others such relief is denied, and equitable claims and rights are considered as mere nullities at law. A construction that would adopt the state practice in all its extent would extinguish in some states the exercise of equitable jurisdiction altogether.

Where, for want of a court of equity, rights of an equitable character are enforced in a state court of law, the United States courts will afford relief in the same manner.

But although the forms of proceeding are regulated in this manner under an act of congress, the principles of decision are in nowise modified or regulated by congress. They are therefore to be drawn directly from the Constitution, and the construction given by the supreme court in this respect must be received as decisive, that the word equity there introduced means equity as understood in England, and not as it is expounded and practised on in different states. Yet, perhaps in every state having courts of equity, there are variations and peculiarities in the system. Equity is not to be viewed as a pure system of ethics, formed only on the moral sense. Every lawyer knows that it is now a definite science, as closely bound by precedents as the law itself, and its local character would seem to require as much regard from the courts of the United States as the common law of a particular state. It does not appear that this point has yet been directly decided.

We have therefore before us, in all cases at law, a rule so convenient and appropriate, that it would probably have been adopted by the courts, if no act of congress had been passed on the subject, and which would be so justly applicable to cases in equity, that we may consider it likely to be adopted, whenever the necessity shall arise, and in each respect, and however the latter may be settled, we find that in civil cases the judicial power is not confined to positive statutes.

We now proceed to the application of the same principles to cases of a criminal nature. In a matter so important, and on which there has been such a variety of opinions, it seems incumbent distinctly to state the process of reasoning, by which a conclusion apparently differing from that which has influenced so many wise and virtuous members of our community has been attained.

The four following propositions form the basis of this conclusion.

1. On the formation of society, prior to positive laws, certain rules of moral action necessarily arise, the foundation of which is the observance of justice among the members of the society.

2. On the formation of the Constitution of the United States, such rules arose without being expressed: the breach of them constitutes offences against the United States.

3. If no judiciary power had been introduced into the Constitution of the United States, the state courts could have punished those breaches.

4. The creation of such judiciary power was intended to confer jurisdiction over such and other offences, not to negative or destroy it.

1. It was intended by Divine Providence that man should live in a state of society. Reason and reflection were given to him to be used and improved. Social affections were created, as natural impulses to promote their use and improvement, by leading and keeping mankind together. When societies commence, certain rules of action are necessary. Men are not equally honest and virtuous; without some restraint, injustice and violence would soon throw the association, however small, into disorder and confusion. Hence arises at once a law of tacit convention, founded on a few plain principles. It requires no positive law to have it understood, that one shall not, without cause, deprive another of his property, or do injury to his person. When the period arrives for the formation of positive laws, which is after the formation of the original compact, the legislature is employed, not in the discovery that these acts are unlawful, but in the application of punishments to prevent them. In every code we find a distinction between things mala in se, things in themselves unlawful; and mala prohibita, things which become unlawful from being prohibited by the legislature. But circumstances may delay the formation or the action of a legislative body, or its provisions may be inadequate to the redress of experienced or expected evils. In this interval can no rights to property be acquired or preserved--can no binding contracts be made--are theft, robbery, murder, no crimes? Opinions so monstrous can be entertained by none. On the contrary, the human heart, the universal sense and practice of mankind, the internal consciousness of the Divine will, all concur in pointing out the rules and obligations by which we are bound.

Emphatically termed the law of nature, it is implanted in us by nature itself; it is felt, not learned; it is never misunderstood, and though not always observed, never is forgotten. Cicero in his Treatise de Legibus, remarks that law, (and he explains that he speaks of general, not positive law,) is the perfection of reason, seated in nature, commanding what is right, and prohibiting what is wrong. Its beginning is to be traced to times before any law was written, or any express form of government adopted.

This proposition is indeed too plain to be contradicted; and we therefore pass on to the second, which may require a closer examination.

2. We have seen that the Constitution of the United States was the work of the people. It was the formation of a new and peculiar association, having for its objects the attainment or security of many important political rights, which could not otherwise be fully attained or secured; but not embracing in its sphere of action all the political rights to which its members were individually entitled. So far as related to those other rights, the people were satisfied with other associations, in each of which the law of nature, under the usual appellation of the common law, prevailed. So far as related to the new rights and duties, springing from the new political association, the same tacit compact which is acknowledged to exist in all society, necessarily accompanied this. Nothing short of express negation could exclude it. Every member of society has a direct interest in the prevention or punishment of every act contrary to the well being of that society. Before the Constitution was adopted, every act of such a tendency, having relation to the state association, was punishable by the common law of such state, but when it was adopted, certain actions, whether considered in reference to persons, to particular places, or to the subject itself, were either expressly or by implication withdrawn from the immediate cognizance of the states. The people of the United States did not, however, mean that if those actions amounted to offences they should go unpunished. The right of prosecution and of punishment was not meant to be surrendered. In this instance, the converse of the well known proposition, that whatever is not delegated to the United States is reserved to the people, is the true construction. The people possessed at the moment the full right to the punishment of offences against the law of nature, though they might not be the subject of positive law. They did not surrender this right by adopting the Constitution. An offence against them in a state capacity, became in certain cases an offence against them in relation to the United States. In fact, there is no offence against the United States which is not an offence against the people of the United States. They did not, perhaps we may even say, that without being in some degree guilty of political suicide, they could not cede or relinquish the right to punish such acts. If they had so done, the system itself would soon dissolve. They gave no power to congress to pass any penal laws whatever, except on this basis. Every act declaring a crime and imposing a penalty, rests upon it. It follows that this source of the power of congress must be admitted. It may be attenuated by positive law, but it never can be exhausted, unless we can suppose that positive laws may meet and provide for all the incalculable varieties of human depravity. But in no country has this been found practicable.

In the very terms made use of in the Constitution, it is manifest that a new and distinct class of duties were to arise, which would tend to produce a new and distinct class of offences. The words are, as we have already seen--that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties. No jurisdiction over crimes is given, except as they are included in the antecedent words, cases in law; but it is declared that they shall be tried only by jury. We have thus three divisions of judicial subjects.

I. Cases including crimes arising under the Constitution.

II. Cases including crimes arising under acts of congress.

III. Those arising under treaties.

There may then be crimes arising under the Constitution, on which no act of congress has been passed; but if such an act has been passed, as in all countries positive laws control the common law, the act is punishable under such positive law.

If only the infraction of treaties and acts of congress had been considered as criminal acts, there would have been a manifest impropriety in the introduction of those words "arising under the Constitution." But they were certainly used with the intention that they should have the same effect in criminal as in civil cases. The construction we venture to affix, appears to us to render the whole system harmonious, efficient, and complete.

3. Our next position is, that if the Constitution of the United States had been wholly unfurnished with a judicial power, offences of this description could be punished through the medium of the state courts.

In the year 1779, one Cornelius Sweers, a deputy commissary of the United States, was indicted in a court of oyer and terminer then held by the judges of the Supreme Court of Pennsylvania, for forging and altering two receipts given to him by persons of whom he had purchased goods for the use of the United States. The indictment, in compliance with judicial forms, was laid to be against the peace and dignity of the commonwealth of Pennsylvania, with intent to defraud the United States. M'Kean, C. J. after hearing the arguments of counsel, supported the indictment. It is a memorable instance of the power of the common law to accommodate itself to the attainment of substantial justice. Even the articles of confederation did not then exist, but the court recognised the United States as a corporation. It was an offence against the United States, in which the state of Pennsylvania had no other interest than as one of thirteen states. But the prosecution was technically supported as an offence against the state of Pennsylvania. Another important consideration arises from this case. There existed at that time no act of assembly in Pennsylvania which rendered such an action a crime. By the English common law it was not forgery. The court must have proceeded therefore on higher ground. The principles laid down in our second position support their judgment. The soundness of this decision, as well as that in the case of De Long Champs, has never been questioned. We may therefore safely infer, that the state judicatures would, if it were necessary, afford an easy and a certain remedy in all cases of a criminal nature, arising under the Constitution of the United States.

4. It only remains to inquire, whether the addition of a judiciary system to the Constitution of the United States diminishes the power of punishing offences arising under it. It is well understood that the motives for annexing a judiciary power were to give force and energy to the government. It was apprehended that less interest in the concerns of the Union, and less uniformity of decision might be found in the state courts; and it was thought expedient that a suitable number of tribunals under the authority of the United States should be dispersed through the country, subject to the revision of superior courts, and finally centering in a common head, the Supreme Court. To these tribunals was imparted the power which the state courts would, it is presumed, have otherwise continued to exercise, of expounding and enforcing whatever was properly cognizable as an offence against the United States. But it cannot be conceived, that a system intended to strengthen and invigorate the government of the Union, can impair and enfeeble it. It cannot be supposed, that the effect of providing weapons for its defence, is to strip it of its armour. Neither can it be supposed that it was intended to establish a system so incongruous as to confine the United States courts to the trial of offences against positive law, and to rely upon the state courts for relief against acts of another description injurious to the United States; nor yet that the United States, having so strong an interest in being protected against such acts, meant to relinquish and abandon the remedies against them altogether.

In addition to these general grounds, we ought not to omit the peculiar jurisdiction given by the Constitution over districts ceded by states for certain purposes, and also over the territories acquired from the states or from foreign powers. A construction which implies that in such places any offence not expressly prohibited by an act of congress may be committed with impunity, cannot be a sound one.

Let us also consider persons of a certain description. The Constitution, as we have already seen, gives to the courts of the United States jurisdiction in all cases affecting consuls. Congress, in creating the inferior courts, assigned to them an exclusive jurisdiction in criminal cases over consuls. In 1816, a foreign consul was charged with the commission of an atrocious crime within the state of Pennsylvania, for which an indictment was found against him. He denied the jurisdiction of the state court, and was discharged. He still goes untried, labouring under an unmerited imputation if innocent, and if guilty, unpunished, which, if the doctrine here opposed is correct, is an unavoidable consequence.

Still, however, although these positions may be considered as sound, some serious objections remain for discussion.

1. In the inquiry, whether the courts of the United States possess jurisdiction of a criminal nature in any case not provided for by an act of congress, it has always been supposed that the common law of England was alone to be considered. Chase, J. says, "If the United States can for a moment be supposed to have a common law, it must, I presume, be that of England."

Thus the attention has been confined to a part only of the general question; and if it is understood by courts, that they are only to decide whether the common law of England is in such cases to be the sole rule of decision, it is easy to account for some of the opinions that have been given. Both Chase, J. and Johnson, J. justly observe, that the common law of England has been gradually varied in the different states, and that there exists no uniform rule by which the United States could be governed in respect to it. The latter, with great truth and effect remarks, that if the power implied on the formation of any political body, to preserve its own existence and promote the end and object of its own creation, is applicable to the peculiar character of our Constitution, (which he declines to examine,) it is a principle by no means peculiar to the common law [of England.] "It is coeval probably with the first formation of a limited government, belongs to a system of universal law, and may as well support the assumption of many other powers, as those peculiarly acknowledged by the common law of England."

We may account for most of the opposition in various parts of the Union from the question having been misunderstood. That the common law of England was kept in view, to a certain extent by the framers of the Constitution, even in criminal cases, and as such adopted by the people, cannot be doubted. The instances are numerous. Impeachment, treason, felony, breach of the peace, habeas corpus, the trial by jury, and many other phrases and appellations, derived from the common law of England, appear both in the original text and the amendments. But this, as justly observed by a learned jurist, was not intended as a source of jurisdiction, but as a rule or mean for its exercise. In this sense alone we are to accept those technical terms, and by no means as evidence that if any common law was intended by the Constitution to be adopted as a rule of action, it was the common law of England.

2. It is plausibly urged, that a system of law which defines crime, without appropriating punishment, possesses no efficacy and does not merit adoption, and it is inquired in what manner are offences against the law of nature to be punished.

The question is not without its intrinsic difficulty, and an answer cannot be attempted without some diffidence, but it is hoped that the following view will be satisfactory.

1. We may lay it down as an axiom, that in every system of law, whether express or implied, crime is held to be liable to punishment of some sort.

The mere sense of guilt, however unhappy it may render the offender, yields no compensation, and affords no security to society.

2. Punishment ought always to bear a just relation to the nature and degree of the offence. Positive law is sometimes arbitrary and unreasonably severe; but the united sense of the community, some of whom may commit, and all of whom may suffer from the commission of crimes, is generally apposite and reasonable. If there is any deviation from the strict measure of punishment, it is generally on the side of humanity.

3. Recurring, as far as we have materials, to the history of ancient law in Europe, for we cannot take Asia or Africa as our guides, we find that although the injured individual, or his nearest friends, were sometimes held to be entitled to take redress into their own hands, and pursue the offender by their own power; a practice so dangerous was gradually overruled, and punishment, rendered the act of the whole, afforded through the medium of the whole, satisfaction proportioned to the offence.

4. In remote times, and in most countries, this satisfaction consisted in the forfeiture of something of value; we have to this effect the authority of Homer, Iliad, b. 9, v. 743. "The price of blood discharged, the murderer lives." Of Tacitus, in respect to the ancient Germans, "Luitur etiam homicidium certo armentorum ac pecorum numero," &c. homicide is also punished by the forfeiture of a certain number of cattle or sheep; and he adds, that those convicted of other crimes were fined in proportion, a part of which was paid to the prince, and part to him who was wronged, or to his relations. Imprisonment was added either to coerce payment, or as a further punishment.

There was a time, says Beccaria, when all punishments were pecuniary. Lord Kaimes lays down the same position, and it is a settled principle in the ancient law of England, that where an offence has been committed to which no specific punishment is affixed by statute, it is punishable by fine and imprisonment. Here then we have materials which laborious inquiry would probably increase, for ascertaining the nature of those punishments that by common consent preceded positive law. Their mildness ought not to lead us to reject them. It would be a sorry argument to say, that because a severe punishment cannot be inflicted, the offender shall not be punished at all. Judge Story truly remarks, that it is a settled principle, that when an offence exists to which no specific punishment is affixed by statute, it is punishable by fine and imprisonment, but when he adds, that if treason had been left without punishment by an act of congress, the punishment by fine and imprisonment must have attached to it; we must recollect that the power to declare the punishment being expressly given to congress, it seems to be taken out of the general principle that would otherwise be applicable.

On the whole, we arrive at the conclusion, that crimes committed against society have been at all times the subject of punishment of some sort; that independent of positive law, the forfeiture of property, or personal liberty, has been the general, though not perhaps the universal character of punishment; for a difference of manners will always have a strong influence on the extent of punishment, as the people are mild and peaceable, or rugged and ferocious; and that the tribunals of justice in every case within their jurisdiction, are thus provided with a guide, which if found inadequate to the safety of society, may at any time be rendered more effectual by the legislative power.

It has been said, that to give it effect, the common law ought to have been expressly enacted as part of the Constitution. But how could this have been done? Should it have been described as the common law of England? It was not contemplated. The common law of any particular state in the Union? This would have been equally inadmissible. It could have been introduced in no other than some phrases as the following:

"The law of nature, or the just and rational obligations of men in a state of political society, shall be the rule of decision in all cases not otherwise provided for." And surely it would have been deemed a most unnecessary declaration. It has been well observed that the attempt to enumerate the powers necessary and proper to call the general power into effect, would have involved a complete digest of laws on every subject to which the Constitution relates--accommodated not only to the existing state of things, but to all possible changes; for in every new application of a general power, the particular powers, which are the means of attaining the object, must often necessarily vary, although the object remains the same.

In delivering the opinion of the Supreme Court in the United States v. Hudson and Goodwin, Judge Johnson observes, that it "is not necessary to inquire whether the general government possesses the power of conferring on its courts a jurisdiction, in cases similar to the present, it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to these courts as a consequence of their creation." With great deference to an authority so respectable, it is submitted that if the preceding observations are correct, that jurisdiction has been expressly given by the act of September 24, 1789, which although repealed by the act of February 13, 1801, was revived by the act of March 8, 1802, and is now in full force. By this act the circuit courts are expressly invested with the cognizance, (the exclusive cognizance says the law,) of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States shall otherwise direct. If the offences of which we have been speaking, arise under the Constitution, they must be cognizable under the authority of the United States, and are thus rendered cognizable in the circuit courts.

The same learned judge in a subsequent case, when he also delivered the opinion of the Supreme Court, most correctly drew from the Constitution itself, certain principles necessary to support the asserted jurisdiction of a legislative body to punish contempts against itself, which he justly observes involves the interest of the people.

"The interests and dignity of those who created the public functionaries, require the exertion of the powers indispensable to the attainment of the ends of their creation."

The question before the court was only on the jurisdiction of the house. The precise nature of the offence committed, did not appear on the face of the pleadings. It was observed by him, "that we are not to decide that this jurisdiction does not exist, because it is not expressly given. It is true, that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system in which nothing would have been left to implication, the effort would undoubtedly have been made. But in the whole of our admirable Constitution, there is not a grant of powers, which does not draw after it others not expressed, but vital to their exercise, not substantive and independent, but auxiliary and subordinate."

Now we may be permitted to remark, that the jurisdiction thus raised and supported by necessary implication, could in this case, have operated only on those acts, which, by an implication equally necessary, were to be considered as offences. No act of congress has declared what shall constitute those offences. They must therefore essentially be, what are termed contempts, or breaches of privilege at common law. It was competent for the Supreme Court, (was it not incumbent on them?) to notice that the nonexistence of any legislative provisions on the subject, rendered it impossible to justify an imprisonment by virtue of the speaker's warrant for a non-existing offence. But the observation is, that "the power to institute a prosecution must be dependent on the power to punish. If the house of representatives possessed no power to punish for contempt, the initiatory process issued in the operation of that authority, must have been illegal; there was a want of jurisdiction to justify it." And the omission to take this ground, seems to support the argument excluding the necessity of a statutory provision.

On the same ground we may advert to the exercise of the power of impeachment. In neither of the cases already mentioned, were the acts charged on the parties accused, statutory offences. Yet the doctrine opposed in this work would render the power of impeachment a nullity, in all cases except the two expressly mentioned in the Constitution, treason and bribery; until congress pass laws, declaring what shall constitute the other "high crimes and misdemeanors."

And thus the question seems to be at rest in the contemplation of both these courts, for such they must be termed, when acting in those capacities, and both of them are courts from whose decision there is no appeal.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 84
The University of Chicago Press

Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.

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