Article 3, Section 2, Clause 1

[Volume 4, Page 277]

Document 48

St. George Tucker, Blackstone's Commentaries 1:App. 151--53, 378--79, 412--13, 416--17, 418--26, 428--33; 5:App. 3--10


And here it ought to be remembered that no case of municipal law can arise under the constitution of the United States, except such as are expressly comprehended in that instrument. For the municipal law of one state or nation has no force or obligation in any other nation; and when several states, or nations unite themselves together by a federal compact, each retains its own municipal laws, without admitting or adopting those of any other member of the union, unless there be an article expressly to that effect. The municipal laws of the several American states differ essentially from each other; and as neither is entitled to a preference over the other, on the score of intrinsic superiority, or obligation; and as there is no article in the compact which bestows any such preference upon any, it follows, that the municipal laws of no one state can be resorted to as a general rule for the rest. And as the states, and their respective legislatures are absolutely independent of each other, so neither can any common rule be extracted from their several municipal codes. For, although concurrent laws, or rules may perhaps be met with in their codes, yet it is in the power of their legislatures, respectively to destroy that concurrence at any time, by enacting an entire new law on the subject; so that it may happen that that which is a concurrent law in all the states to-day may cease to be law in one, or more of them tomorrow. Consequently neither the particular municipal law of any one, or more, of the states, nor the concurrent municipal laws of the whole of them, can be considered as the common rule, or measure of justice in the courts of the federal republic; neither hath the federal government any power to establish such a common rule, generally; no such power being granted by the constitution. And the principle is certainly much stronger, that neither the common nor statute law of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption: which, not being permited by the original compact, by which the government is created, any attempt to introduce it, in that or any other mode, would be a manifest breach of the terms of that compact.

Another light in which this subject may be viewed is this. Since each state in becoming a member of a federal republic retains an uncontrolled jurisdiction over all cases of municipal law, every grant of jurisdiction to the confederacy, in any such case, is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be construed strictly, upon the grounds already mentioned. Now, the cases falling under the head of municipal law, to which the authority of the federal government extends, are few, definite, and enumerated, and are all carved out of the sovereign authority, and former exclusive, and uncontrollable jurisdiction of the states respectively: they ought therefore to receive the strictest construction. Otherwise the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.

If it be asked, what would be the consequence in case the federal government should exercise powers not warranted by the constitution, the answer seems to be, that where the act of usurpation may immediately affect an individual, the remedy is to be sought by recourse to that judiciary, to which the cognizance of the case properly belongs. Where it may affect a state, the state legislature, whose rights will be invaded by every such act, will be ready to mark the innovation and sound the alarm to the people: and thereby either effect a change in the federal representation, or procure in the mode prescribed by the constitution, further "declaratory and restrictive clauses", by way of amendment thereto. An instance of which may be cited in the conduct of the Massachusetts legislature: who, as soon as that state was sued in the federal court, by an individual, immediately proposed, and procured an amendment to the constitution, declaring that the judicial power of the United States shall not be construed to extend to any suit brought by an individual against a state.

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Having accompanied the commentator, to the fountain head, from whence he deduces the common law of England, it becomes us to trace its progress to our own shores. This, as it respects the commonwealth of Virginia, considered as an independant state, unconnected with any other, [Volume 4, Page 278] might have been regarded as an unnecessary trouble at this day; the convention, by which the constitution of the commonwealth was established, having expressly declared, "That the common law of England, and all statutes, or acts of parliament made in aid of the common law, prior to the fourth year, of James the first, which are of a general nature not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth." Ordinances of Convention May, 1776, c. 5. Chancellor's Revisal, p. 37.

But some late incidents having given rise to an opinion, that the common law of England, is not only the law of the American States, respectively, according to the mode in which they may, severally have adopted it, but that it is likewise the law of the federal government, a much wider field for investigation is thereby opened; of the importance of which, the general assembly of Virginia, at their session in the winter of 1799, have thus expressed their sentiments, in behalf of themselves, and their constituents.

"It is distressing to reflect, that it ever should have been made a question, whether the constitution of the United States on the whole face, of which, is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; a law that would sap the foundation of the constitution, as a system of limited, and specified powers."

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4. How far that portion of the common law and statutes of England, which has been retained by the several states, respectively, has been engrafted upon, or made a part of the constitution of the United States.

It will be remembered, that the object of the several states in the adoption of that instrument, was not the establishment of a general consolidated government, which should swallow up the state sovereignties, and annihilate their several jurisdictions, and powers, as states; but a federal government, with powers limited to certain determinate objects; viz. their intercourse and concerns with foreign nations; and with each other, as separate and independent states; and, as members of the same confederacy: leaving the administration of their internal, and domestic concerns, to the absolute and uncontrolable jurisdiction of the states, respectively; except in one or two particular instances, specified, and enumerated in the constitution. And because this principle was supposed not to have been expressed with sufficient precision, and certainty, an amendatory article was proposed, adopted, and ratified; whereby it is expressly declared, that, "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This article is, indeed, nothing more than an express recognition of the law of nations; for Vattel informs us, "that several sovereign, and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements." And with respect to the construction and interpretation of that article, the great Bacon gives us the following rule: "As exception strengthens the force of a law in cases not excepted; so enumeration weakens it, in cases not enumerated." Now, the powers prohibited by the constitution to the states, respectively, are all exceptions to powers, which they before enjoyed; the powers granted to congress, are all enumerations of new powers thereby created: the prohibition on the states, operating, therefore, as an exception, strengthens their claim to all powers not excepted: on the other hand, the grant of powers to the federal government operating only by way of enumeration, weakens it's claim in all cases not enumerated.

These things being premised, I shall take a short survey of the constitution of the United States, with a view to discover, whether that instrument contains any grant of general jurisdiction in common law cases, to the federal government; or prohibits the states from the exercise of such general jurisdiction: except only, in some few cases, particularly enumerated. For without such grant the federal government cannot exercise such a jurisdiction; and without such prohibition, the states, respectively, cannot be abridged of it.

1. The powers delegated to congress, are not all legislative: Many of them have been usually supposed to belong to the executive department; such are,

The power of declaring war; granting letters of marque and reprisal; raising and supporting armies, and navies; and borrowing money; none of which contain, or can be presumed to imply, any grant of general jurisdiction in common law cases. The legislative powers of congress, are also determinate, and enumerated.

. . . . .

15. That congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other vested by the constitution in the government of the United States, or in any department or officer thereof.

This clause, I apprehend, cannot be construed to enlarge any power before specifically granted; nor to grant any new power, not before specifically enumerated; or granted in some other part of the constitution. On the contrary it seems calculated to restrain the federal government from the exercise of any power, not necessarily an appendage to, and consequence of some power particularly enumerated. Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation. The people are not only not bound by them, but the several departments and officers of the governments, both federal, and state, are bound by oath to oppose them; for, being bound by oath to support the constitution, they must violate that oath, whenever they give their sanction, by obedience, [Volume 4, Page 279] or otherwise, to any unconstitutional act of any department of the government.

If the reader can discover in any of the powers before enumerated, that which contains a grant of general jurisdiction in common law cases to the federal government, our enquiry is at an end. And he will render an incomparable act of service to his country, by laying his finger upon that clause, and pointing it out to his fellow-citizens, that they may no longer puzzle themselves, or their agents, about a question of such importance. . . . But, if he can not do this, and is not yet convinced that no such grant is contained in the constitution, I must request him patiently to attend me, whilst we hunt for it in some other part of that instrument.

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3. In that article, which relates to the constitution and powers of the judiciary department. It is therein declared,

That the judicial power shall extend to all cases in law and equity, arising under the constitution; the laws of the United States; and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty; to controversies to which the United States shall be a party; to controversies between two, or more states; between citizens of different states; between citizens of the same state, claiming lands under grants from different states; and between a state and foreign states.

Such is the power of the judiciary department, as now limited by the thirteenth article of the amendments to the constitution of the United States. I shall endeavour to analize the whole.

1. The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution, can only be such as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. Cases arising under the laws of the United States. But as contra-distinguished from that clause, it comprehends some cases afterwards enumerated, e. g. Controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the U. States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, if a citizen of one state should be denied the privileges of a citizen in another; so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man; so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fall within the meaning of this clause. So also, if a state should, without consent of congress, lay any duty upon goods imported, the question as to the validity of such an act, if disputed, would come within the meaning of this clause, and not of any other. . . . In all these cases equitable circumstances may arise, the cognizance of which, as well as such as were strictly legal, would belong to the federal judiciary, in virtue of this clause.

2. The judicial power of the United States extends to all cases arising under the laws of the United States; . . . now as the subjects upon which congress have the power to legislate, are all specially enumerated, so the judicial authority, under this clause, is limited to the same subjects as congress have power to legislate upon. Thus congress being authorised to pass uniform laws of naturalization, the question whether a person is an alien, or not, falls under this head, provided the party were an alien born. So, also, if a person be accused of counterfeiting the public securities of the United States, this question would be cognizable in the federal courts, under this clause; but if he were accused of any other forgery: of this offence the state courts, and not the federal courts, possess jurisdiction.

3. The power of the federal judiciary extends to cases arising under treaties; as well those already made, as to such as might be made after the adoption of the constitution. . . . Of the former kind were the questions concerning the validity of payments made into the state treasuries by British debtors, during the war; of the latter sort, may be such questions as may hereafter arise under the treaty of 1794, enabling British subjects, though aliens, to hold and inherit lands, within the U. States. . . . In neither of the preceding clauses can we find any thing like a grant of general jurisdiction in common law cases.

4. To all cases affecting ambassadors, other public ministers, and consuls; these cases, although provided for in some countries by statute, where that is not the case, belong to the law of nations, and not to the common law.

5. To all cases of admiralty and maritime jurisdiction; these were never held to be within the jurisdiction of the common law.

6. To controversies to which the United States shall be a party. The word cases used in the preceding clauses of this article comprehends, generally, I apprehend all cases, whether civil or criminal, which are capable of falling under these heads, respectively, instances of which it might be unnecessary here to repeat: I shall however add to what I have before said, that it comprehends such criminal cases as may arise within the precincts of the seat of government, not exceeding ten miles square; or within the precincts of forts, dockyards, magazines, and arsenals, purchased with the consent of the state in which they may be; and finally, treason against the U. States; piracies and felonies committed upon the high seas; and offences against the law of nations; and against the revenue laws of the U.S.

The word controversies, as here used, must be understood merely as relating to such as are of a civil nature. It is probably unknown in any other sense, as I do not recollect ever to have heard the expression, criminal controversy. As here applied, it seems particularly appropriated to such disputes as might arise between the U. States, and any one or more states, respecting territorial, or fiscal, matters. . . . Or between the U. States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the ensuing clauses, where it evidently refers to disputes of a civil nature only, such [Volume 4, Page 280] for example, as may arise between two or more states; or between citizens of different states; or between a state, and the citizens of another state; none of which can possibly be supposed to relate to such as are of a criminal nature, unless we could suppose it was meant to deprive the states of the power of punishing murder or theft, if committed by a foreigner, or the citizen of another state.

7. The judicial power extends likewise to controversies between two or more states; and between a state, and foreign states. These must be proceeded in, and determined according to the law of nations, and not according to the common law.

8. To controversies between citizens of different states; and between citizens of any state and the subjects or citizens of foreign states. . . . In these cases, the municipal law of the place where the cause of controversy arises, whether that be one of the United States, or Great Britain, France, Spain, Holland, Hamburg, or any other country; or the general law of merchants; or, the general law of nations according to the nature and circumstances of the case, must be the rule of decision, in whatever court the suit may be brought. Thus if a bond be given in Philadelphia, the rate of interest must be settled according to the laws of Pennsylvania. If a bill of exchange be drawn in Virginia, the rate of damages must be settled by the law of that state. If in England, Hamburg, or Cadiz, the custom of merchants in those places, respectively, must govern. If a ransom bill be drawn at sea, the law of nations in that case must be consulted. If the controversy relate to lands, the law of the state where the lands lie must be referred to; unless the lands be claimed under grants from different states; in which case the territorial rights of each state must be inquired into. The same must be done, in the last case which remains to be noticed; viz:

9. Controversies between citizens of the same state claiming lands under grants of different states. None of the cases enumerated in this, and the preceding paragraph can be construed to give general jurisdiction in cases at common law, or such as ordinarily arise between citizens of the same state; under which description, civil suits, in general, (with the exception of the case here supposed) are comprehended; or such as may arise between a state, and its own citizens, or subjects; under which head crimes and misdemeanors are comprehended. This being the only enumerated case, in which the federal courts can take cognizance of any civil controversy between citizens of the same state, it cannot extend to such common law cases, as may arise between them; all such cases being reserved to the jurisdiction of the states, respectively. And on the other hand, as it does not extend to any case that may arise between a state and its own citizens or subjects; nor to any case between a state, and foreign citizens or subjects, or the citizens of any other state. . . so every such case, whether civil or criminal, and whether it arise under the law of nations, the common law, or law of the state, belongs exclusively, to the jurisdiction of the states, respectively. And this, as well from the reason of the thing, as from the express declarations contained in the twelfth and thirteenth articles of the amendments to the constitution.

Having thus minutely examined all the enumerated powers, which are vested in the federal government, or any of its departments, and not finding any grant of general jurisdiction in cases at common law, we are warranted, under the twelfth article of amendments, in concluding, that no such jurisdiction has been granted; and consequently, that it remains with the states, respectively, in all cases not enumerated; so far, as their several constitutions and legislative acts, may admit the authority and obligation of the common law, or statutes of England, in each state, respectively.

But it has, I believe, been said, that if this general jurisdiction in common law cases has not been granted to the federal government in express terms, yet it is given by implication. This admits of several answers:

1. The twelfth article of the amendments was proposed, adopted and ratified, for the express purpose of rebutting, this doctrine of grant by implication: since it expressly declares, that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. And this I hold to be a full answer to the conceit. . . . But,

2dly. If this were not the case, it would be absurdity in the extreme, to suppose a grant, by implication, of general power to the federal government to revive, and enforce such parts of the common law, or statutes of England, as the states by their respective constitutions had severally condemned in express terms; and rejected, repealed, and annulled as dangerous, absurd, or incompatible with that system of government which they had, respectively, established.

3dly. This is probably the first instance in which it has been supposed that sovereign and independent states can be abridged of their rights, as sovereign states, by implication, only. . . . For, no free nation can be bound by any law but it's own will; and where that will is manifested by any written document, as a convention, league, treaty, compact, or agreement, the nation is bound, only according as that will is expressed in the instrument by which it binds itself. And as every nation is bound to preserve itself, or, in other words, it's independence; so no interpretation whereby it's destruction, or that of the state, which is the same thing, may be hazarded, can be admitted in any case where it has not, in the most express terms, given it's consent to such an interpretation. Now if this construction were once established, that the federal government possesses general jurisdiction over all cases at common law, what else could be the consequence, but, at one stroke, to annihilate the states altogether; and to repeal and annul their several constitutions, bills of rights, legislative codes, and political institutions in all cases whatsoever. For, what room, or occasion, could there be for a constitution, if the common law of England, be paramount thereto; or for a state legislature, if their acts are not laws, but mere nullities; or for courts, if their decisions, founded upon the constitutions and laws of the states, are for that reason null and void?

4thly. If it were admitted, that the federal government, by implication, possesses general jurisdiction over all cases at common law; this construction could not be carried into practice, without annihilating the states, and repealing, and annulling, their several constitutions, bills of rights, [Volume 4, Page 281] and legislative codes: as a few instances will demonstrate.

The constitution of Virginia declares, and the constitutions of the other states agree therewith, that the legislative, executive, and judiciary departments shall be separate and distinct: the common law unites all three in one and the same person.

The constitution of Maryland declares there shall be no forfeiture of any part of the estate of any person for any crime, except murder, or treason against the state; the laws of Virginia have abolished forfeitures in all cases: The doctrine of forfeiture, in case of conviction, or attainder for any crime, is one of the pillars of criminal jurisprudence, by the common law.

The constitution of Pennsylvania declares, that the penal laws as theretofore used in that state, shall be reformed, and punishment made less sanguinary, and more proportionate to crimes. If the common law be revived, this article is a mere nullity. South-Carolina has an article in it's constitution to the same effect.

The same constitution declares, that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of the government. It is contended by some persons in power, that the common law does not permit this freedom to any person.

The constitution of Georgia declares, that no grand-jury shall consist of fewer than eighteen persons; the common law deems sixteen a sufficient number.

The same constitution will not allow of a special verdict in any case: The practice of the common law courts in England for five hundred years past, has been to the contrary.

The constitution of North Carolina, declares, that every foreigner who comes to settle in that state, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate; and after one year's residence shall be deemed a free citizen. The constitution of Pennsylvania, has an article to the same effect. . . . The foreigner is not naturalized immediately upon taking the oath of allegiance; he continues an alien for a year; and if he departs before its expiration, remains an alien: yet he may acquire, hold, and transfer lands: by the common law, an alien can not hold lands.

The constitution of Georgia, prohibits entails; and declares that the real estate of a person dying intestate shall be divided equally among his children: that the widow shall have a child's part, or her dower, at her option. And if there be no children the estate shall be divided among the next of kin. The common law admits of entails; and absolutely rejects the other provisions of this article.

The constitutions and laws of all the states of the union, (except Massachusetts, where there have been judicial decisions to the contrary), admit slavery. The common [law], as understood for many centuries past in England, absolutely rejects slavery. . . . Should a question arise upon that subject in Maryland, Virginia, North Carolina, South Carolina or Georgia, it might be of serious consequence, if the common law were pronounced to be paramount to the laws of the states.

Lastly, The constitutions and laws of all the states, in which the common law and statutes of England have been expressly adopted, in a certain degree, declare that those laws are not to be construed so as to impair any of the rights and privileges contained in their respective constitutions and laws; and further subject them to be repealed, altered, or annulled, by acts of their respective legislatures: the construction contended for, would render the common law paramount to those constitutional declarations, and to all legislative acts.

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5th. But to return to our subject; there are certain passages in the constitution, and the amendments thereto, not yet noticed, which perhaps may be relied on to establish this doctrine of a grant of general jurisdiction to the federal courts or government, in cases at common law, by implication: These are,

1. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

2. The trial of all crimes, except in cases of impeachment, shall be by jury.

3. In suits at common law, the right of trial by jury, shall, (in general) be preserved: and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

In all these passages, we may be told, the common law is evidently referred to as the law of the land. This is not the case; it is referred to as a known law: and might in strictness have been referred to as the law of the several states, so far as their constitutions and legislative codes, respectively, have admitted or adopted it. Will any man who knows any thing of the laws of England, affirm, that the civil, or Roman imperial law, is the general law of the land in England, because many of it's maxims, and it's course of proceedings, are generally admitted and established in the high court of chancery, which is the highest court of civil jurisdiction, except the parliament, in the kingdom? Or that the canon, or Roman ecclesiastical law, is the general law of the land, because marriages are solemnized according to it's rites; or because simony, which is an ecclesiastical offence, is also made an offence by statute?

But it will be asked, what is meant by suits at common law, the cognizance of which, from this article, appears to belong to the federal courts. The answer is easy; in many of the states, the courts are distinguished by the epithets of common law courts, and courts of equity. In the former, the rules and mode of proceeding in the English courts of common law jurisdiction, have under different modifications been adopted; the latter pursue the course of the civil law. Suits cognizable in these courts, respectively, are consequently denominated, suits at common law, and suits in equity, comprehending under these terms all civil suits, except such as are of a maritime nature. . . . The trial by jury being the usual mode of trial in all the states, except in the courts of equity, it was thought expedient to preserve the same mode of trial in the federal courts, as in the state courts. The article gives not a new jurisdiction, not before expressly granted, in the third article [Volume 4, Page 282] of the constitution; it merely prescribes a mode of trial.

We may fairly infer from all that has been said that the common law of England stands precisely upon the same footing in the federal government, and courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England: That is to say, it's maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature, the cognizance whereof is by the constitution vested in the federal courts; it may govern and direct the course of proceeding, in such cases, but cannot give jurisdiction in any case, where jurisdiction is not expressly given by the constitution. The same may be said of the civil law; the rules of proceeding in which, whenever the written law is silent, are to be observed in cases of equity, and of admiralty, and maritime jurisdiction. In short, as the matters cognizable in the federal courts, belong, (as we have before shown, in reviewing the powers of the judiciary department) partly to the law of nations, partly to the common law of England; partly to the civil law; partly to the maritime law, comprehending the laws of Oleron and Rhodes; and partly to the general law and custom of merchants; and partly to the municipal laws of any foreign nation, or of any state in the union, where the cause of action may happen to arise, or where the suit may be instituted; so, the law of nations, the common law of England, the civil law, the law maritime, the law merchant, or the lex loci, or law of the foreign nation, or state, in which the cause of aciton may arise, or shall be decided, must in their turn be resorted to as the rule of decision, according to the nature and circumstances of each case, respectively. So that each of these laws may be regarded, so far as they apply to such cases, respectively, as the law of the land. But to infer from hence, that the common law of England is the general law of the United States, is to the full as absurd as to suppose that the laws of Russia, or Germany, are the general law of the land, because in a controversy respecting a contract made in either of those empires, it might be necessary to refer to the laws of either of them, to decide the question between the litigant parties. Nor can I find any more reason for admitting the penal code of England to be in force in the United States, (except so far as the states, respectively may have adopted it, within their several jurisdictions) than for admitting that of the Roman empire, or of Russia, Spain, or any other nation, whatever.

One or two instances, in addition to those already mentioned, may set this matter in a clearer light. If a suit be brought in a federal court upon a bond executed in England, the bond must be actually sealed, because the common law of England requires that every bond, deed, or covenant, should be executed in that manner; and if it be not, it is not a bond, but merely a simple contract; but if the bond be executed in Virginia, where a scroll by way of seal, is by law declared to be as effectual as if the instrument were actually sealed, there the law of the state shall prevail, and turn that contract into a specialty, by which the lands of the obligor may be bound, which in England would only bind his goods and chattles, after his decease. So if a bill of exchange be drawn in Virginia, an action of debt may be maintained thereupon, in that state; but if it be drawn in any other state, or country, the action I apprehend, must be brought, even in that state upon the custom of merchants. Thus, the lex loci may operate not only so as to determine the nature of the contract, but of the remedy. And with respect to the mode of proceeding, in order to a remedy, wherever the constitution and laws of the United States are silent, there, I apprehend, the law of the state, where the suit is brought, ought to be observed as a guide: thus if a suit be brought upon a bond the plaintiff may demand bail, in Virginia, as of course, and an endorsement to that effect will be sufficient to compel the sheriff, who executes the writ, to take bail at his peril. But in England, the plaintiff in that case, must make an affidavit of the sum actually due upon the bond, otherwise the sheriff is not obliged to take bail. So in the same case, if the sheriff neglects to take bail where he ought to do it, the plaintiff may proceed, in Virginia, against the defendant and sheriff, at the same time, and shall have judgment for his debt against both at once, unless special bail be put in; whereas in England, he must bring a special action on the case, against the sheriff, for neglect of his duty, instead of having the remedy which the laws of Virginia furnish him with. So also, if a bond be executed in London, and a suit be brought thereupon, in the state of Virginia, the defendant cannot plead non est factum, as is the usual course of pleading in England, unless he verifies his plea by affidavit; without which it cannot be received; and the same course of proceeding, I apprehend, is to be observed in the federal, as in the state courts.

From the whole of the preceding examination, we may deduce the following conclusions:

First . . . . That the common law of England, and every statute of that kingdom, made for the security of the life, liberty, or property of the subject, before the settlement of the British colonies, respectively, so far as the same were applicable to the nature of their situation and circumstances, respectively, were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein, until repealed, altered, or amended by the legislative authority of the colonies, respectively; or by the constitutional acts of the same, when they became sovereign and independent states.

Secondly . . . . That neither the common law of England, nor the statutes of that kingdom, were, at any period antecedent to the revolution, the general and uniform law of the land in the British colonies, now constituting the United States.

Thirdly . . . . That as the adoption or rejection of the common law and statutes of England, or any part thereof, in one colony, could not have any operation or effect in another colony, possessing a constitutional legislature of it's own; so neither could the adoption or rejection thereof by the constitutional, or legislative act of one sovereign and independent state, have any operation or effect in another sovereign independent state; because every such state hath an exclusive right to be governed by it's own laws only.

Fourthly . . . . Therefore the authority and obligation of the common law and statutes of England, as such in the [Volume 4, Page 283] American states, must depend solely upon the constitutional or legislative authority of each state, respectively; as contained in their several bills of rights, constitutions, and legislative declarations. . . . . which, being different in different states, and wholly independent of each other, cannot establish any uniform law, or rule of obligation in all the states.

Fifthly . . . . That neither the articles of confederation and perpetual union, nor, the present constitution of the United States, ever did, or do, authorize the federal government, or any department thereof, to declare the common law or statutes of England, or of any other nation, to be the law of the land in the United States, generally, as one nation; nor to legislate upon, or exercise jurisdiction in, any case of municipal law, not delegated to the United States by the constitution.

. . . . .

The complicated system of government in the United States, imposes upon us the necessity of a frequent recurrence to fundamental principles, in order to ascertain to what department of it any particular subject appertains. In no respect is this recurrence more necessary, than in the examination of the nature of crimes and misdeameanours; the cognizance of which, by the federal courts, will depend altogether upon the nature and tenor of that instrument, upon which the jusisdiction is founded: in the exposition of which, we have been repeatedly obliged to recur to the nature of the compact, for a due exposition of the text. If for example, the constitution of the United States had been intended for the establishment of a consolidated national government, instead of a federal republic, the same strict interpretation, which is at present necessary, in order to preserve to the states, respectively, whatever rights they had no design to part with, might perhaps, in many instances have been dispensed with.

It has been well observed by one of the judges of the supreme court of the United States, that "in this country every man sustains a twofold political capacity: one in relation to the state, and another in relation to the United States. In relation to the state, he is subject to various municipal regulations, founded upon the state constitution and policy, which do not affect him in his relation to the United States: For the constitution of the union is the source of all the jurisdiction of the national government; so that the departments of that government, can never assume any power, that is not expressly granted by that instrument, nor exercise a power, in any other manner than is there prescribed." This is, indeed, a short, clear, and comprehensive exposition of the principles of a limited government, founded upon compact between sovereign and independent states.

For it cannot, I presume, be denied, or even doubted, that the constitution of the United States, is the instrument by which the federal government was created; its powers defined; their extent limited; the duties of the public functionaries prescribed; and the principles according to which the government is to be administered, delineated;

That the federal government of the United States, is that portion, only, of the sovereign power, which, in the opinion of the people of the several states, could be more advantageously administered in common, than by the states respectively;

That the several states at the time of adopting that constitution, being free, sovereign, and independent states, and possessing all the rights, powers, and jurisdictions, incident to civil government, according to their several constitutions; and having expressly stipulated, that the powers not delegated to the United States by the constitution, nor prohibited by it, to the states, are reserved to the states respectively, or to the people; every power which has been carved out of the sovereignty of the states, respectively, must be construed strictly, wherever it may derogate from any power which they possessed antecedently;

And, on the other hand, that all the powers granted to the federal government, are either expressly enumerated, and positive; or must be both necessary, and proper to the execution of some enumerated power, which is expressly granted.

If these be the genuine principles of the federal constitution, as, I apprehend they are, then it seems impossible to refuse our full assent to the learned judge's observations on the subject. Adopting them therefore as our guide, let us proceed in our enquiry.

A crime or misdemeanour, as defined by judge Blackstone, "is an act committed, or omitted in violation of a PUBLIC LAW, either forbidding, or commanding it:" from whence it follows, that the cognizance and punishment of all crimes and misdemeanours, belongs exclusively to that body politic, or state to which the right to enact such a public law belongs.

The cognizance of all crimes and misdemeanours committed within the body of any state, therefore, belongs exclusively to the jurisdiction of that state; unless it hath by compact or treaty surrendered its jurisdiction in any particular cases to some other power. And in like manner the cognizance of all crimes and misdemeanours committed on the high seas (where all nations have a common jurisdiction) by citizens of the same state against each other; or, by common pirates, or robbers, against the citizens of any state, belongs to that particular state to whose citizens the injury is offered. And consequently the American states respectively, as soon as they became sovereign, and independent states, were entitled to exclusive jurisdiction in the case of all crimes and misdemeanours, whatsoever, committed within the body of such states, respectively, or upon the high seas, in every case where any other state or nation might claim jurisdiction under similar circumstances.

By the articles of confederation concluded between the states some years after; each state, expressly, "retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which was not, by that confederation, expressly delegated to the United States in Congress assembled," The ninth article ceded to congress, the sole and exclusive right of making rules for the government, and regulation of the land and naval forces of the United States; and of appointing courts for the trial of piracies and felonies committed on the high seas: so that the states retained the exclusive cognizance of all civil crimes and misdemeanours, whatsoever, except in the cases therein mentioned. [Volume 4, Page 284] And this exclusive jurisdiction they continued to retain until the adoption of the present constitution.

By the third article of that instrument it is declared, "that the judicial power of the United States, shall extend to all cases arising under the constitution, the laws of the United States, and treaties made, or which shall be made under their authority." The same article defines the offence of treason against the United States, but leaves to Congress the power to declare the punishment, thereof, under certain limitations. Treason against the United States, is, therefore, one of those crimes, to which the jurisdiction of the federal courts extends.

The eighth section of the first article, among other things, declares, that congress shall have power to provide for the punishment of counterfeiting the securities and current coin of the United States; to define and punish piracies, and felonies committed on the high seas, and offences against the law of nations; to exercise exclusive jurisdiction within certain specified limits; and to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.

To apply then, the observations of the learned judge; since neither Congress, nor any other department of the federal government, can ever assume any power that is not expressly granted by the constitution, nor exercise it, in any other manner, than is there prescribed, it appears to be essential that congress should define all offences against the United States, except treason; and prescribe the punishment to be inflicted for that and every other offence against the United States, before the federal courts can proceed to try a criminal or to pronounce sentence upon him in case of conviction.

If this be doubted, let us suppose that any person had committed treason against the United States, before the passage of the act of Congress, declaring the punishment of that offence; could the federal courts, or any other, have proceeded to judgment against him for the same, or, if they could, what judgment could they have pronounced? Let us suppose again that congress having defined the offence of piracy, had omitted to declare the punishment; could the federal courts have supplied this omission by pronouncing such a sentence as they might suppose the crime deserved? Again, let us suppose that congress may have omitted altogether to define or to declare the punishment of any other offence committed upon the high seas; will it be contended that the federal courts could in any such case punish the offender, however atrocious his offence regarded in a moral light may appear? In none of these cases (as I apprehend) could the federal courts proceed to punish the delinquent, although in every one of them, the offence may be clearly acknowledged to arise under the constitution of the United States.

If in cases arising upon the high seas, (in all which the federal courts, under the federal constitution and laws, possess a jurisdiction, altogether exclusive of the state courts) it be necessary that an offence be first defined, and the punishment thereof declared by congress; how much more necessary is it, that offences committed within the body of any state should, in the same manner, be first defined, and the punishment thereof declared by a law of the United States, before the courts of the United States can undertake to inquire into or punish it? For the presumption is, that every offence, committed within the body of any state, is an offence against that state only; and, that the state courts have the sole and exclusive cognizance and punishment thereof, unless it be shewn, that the federal constitution, or some act of congress made in pursuance of it, have altogether divested the state courts of jurisdiction over the subject. For although we may readily admit, that besides the particular case of treason and those which the eighth section of the first article designates, there is a power granted to congress to create and to define and punish offences, whenever it may be necessary and proper to do so, in order to carry into execution, the specific powers granted to the federal government, still it appears indispensably necessary, that congress should first create, (that is, define and declare the punishment of,) every such offence, before it can have existence as such, against the United States.

It has been attempted, however, to supply the silence of the constitution and statutes of the union, by resorting to the common law for the definition and punishment of offences in such cases. To which, the same judge has given the following clear and emphatical answer. "In my opinion, the United States as a federal government have no common law: and consequently, no indictment can be maintained in their courts for offences merely at the common law. If indeed the United States can be supposed for a moment to have a common law, it must, I presume, be that of England; and yet it is impossible to trace, when, or how, the system was adopted, or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers as by the judges and lawyers of England, that they brought hither, as a birth right and inheritence, so much of the common law as was applicable to their local situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts and rejected others. Hence, he who shall travel through the different states will soon discover, that the whole of the common law has been no where introduced; that some states have rejected what others have adopted; and that there is, in short, a great and essential diversity in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one state, is not the common law of another; but the common law of England is the law of each state, so far as each state has adopted it; and the results from that position connected with the judicial act, that the common law will always apply to suits between citizen and citizen."

"But the question recurs, when and how, the courts of the United States acquired a common law jurisdiction in CRIMINAL cases? The United States must possess the law themselves, before they can communicate it to their judicial agents: [Volume 4, Page 285] now the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified, as it exists in some of the states; and, of the various modifications, which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut?"

"Upon the whole," he concludes, "it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government, in other respects also, of a limitted jurisdiction: but judges cannot remedy political imperfections, or, supply any legislative omission."

Unfortunately, perhaps, for the United States, this opinion did not prevail, the court being divided in their judgments. . . . We are, therefore, not only without a precedent: but, what is infinitely more important, a principle, which might have been deemed clear, and well ascertained, is now, in some degree, rendered doubtful. Nevertheless, until a contrary division shall have subverted the apparently solid foundation of that which I have cited, I shall venture to recommend it to the student, as containing the most clear, correct, and convincing, illustration of the principles of the federal constitution.

From what has been said, we may venture to draw the following conclusions.

1. That the cognizance of every crime and misdemeanor, whatsoever, committed within the body of any state, belongs to the courts of that state, in which the offence is committed, exclusively; unless it can be shewn that a power over the subject hath been expressly granted to the United States, by the federal constitution.

2. That the federal courts possess no jurisdiction, whatsoever, over any crime or misdemeanor, which is an offence by the common law, only, and not declared to be such, by the constitution, or some statute of the United States.

3. That although a certain class of offences, may, by the constitution of the United States, be declared to be within the jurisdiction of the federal courts, yet those courts cannot proceed to take cognizance thereof, unless they be first defined, by the constitution; or by statute; nor to punish them, unless the punishment be likewise prescribed by a statute of the United States.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 48
The University of Chicago Press

Tucker, St. George. 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, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

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