That's funny, Red. Even Yale law professor Akhil Amar questions the decision of John Marshall. Andrew S. Gold , Assistant Law professor at De Paul University points out that:
Except it didn't, since the constitution itself granted that power of congress. Marshall was full of shit, and i dare you to show me beyond doubt how there was any contradiction.
As to common law, even Hamilton pointed out that due process, clerly defined as common law by Justice Story would not be a part of the leguislature.
Notice, then the 5th amendment, that no person may be deprived of life, liberty or property but by die process. Common law?
How about commentaries of James Kent? A liting of cases, opiniions, and relations to the common law of England.
The U. S. Supreme Court has no general authority to review on error or appeal the criminal judgments of the circuit courts. Ex parte Yarbrough, 110 U. S. 651. Suits to recover penalties under the revenue laws are of a quasi-criminal nature, though civil actions in form; in them the case must be proved beyond a reasonable doubt, and the defendant cannot be re-
delphia, the defendant was indicted and convicted of an attempt to bribe the commissioner of the revenue; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the Constitution, or the acts of Congress made in pursuance of it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever Congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the circuit courts, which have exclusive cognizance of all crimes and offences cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself, in the case of a judge, an officer of the customs, or an officer of the excise; but in the case of the commissioner of the revenue, {332} the act of Congress did not create or declare the offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the Constitution or laws of the United States, and cognizable under their authority? A case arising under a law must mean a case depending on the exposition of the law, in respect to something which the law prohibits or enjoins; and if it were sufficient, in order to vest a jurisdiction to try a crime or sustain an action, that a federal officer was concerned and
quired to give or produce evidence against himself. Boyd v. United States, 116 U. S. 616; Lees v. United States, 150 U. S. 476; Re Strouse, 1 Sawyer, 605; Stanwood v. Green, 2 Abb. U. S. 184. Allegations of an offence against the United States, which is not so in fact, deprive a U. S. commissioner of jurisdiction to examine the accused, when there are no other facts in the case than those contained in the affidavit upon which he was arrested. Ex parte Perkins, 29 Fed. Rep. 900.
The Federal jurisdiction of crimes is based primarily upon the theory of an offence committed against the United
States and its laws. It does not preclude a concurrent indictment and trial by the State when, as in the case of making and uttering counterfeit money, the same act violates both Federal and State laws. See In re Loney, 134 U. S. 372; People v. Welch, 141 N. Y. 266. A person convicted of crime in a Federal court can be sentenced to imprisonment in a State penitentiary only under the express authority by a statute, and then only for more than one year, and at hard labor. In re Bonner, 151 U. S. 242; In re Mills, 135 U. S. 263; Ex parte Friday, 43 Fed. Rep. 916; United States a. Cobb, id. 570.
affected by the act, a source of jurisdiction would be opened, which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offence at common law, the Constitution of the United States contains no reference to a common-law authority. Every power in the Constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though Congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognized either by the legislative or constitutional code of the Union.
In answer to this view of the subject, it was observed, that the offence was within the terms of the Constitution, for it arose under the law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the Union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and, upon principles of analogy, the offence of the person who attempted it must be equally cognizable in those courts. The prosecution against Henfield, for serving on board a French privateer against the Dutch, was the exercise of a common-law power, applied to an offence against the law of nations, and a breach of a treaty, which provided no specific penalty for such a case.
The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common
{333} law could not be sustained in the Circuit Court. It was admitted, that Congress were authorized to define and punish the crime of bribery; but as the act charged as an offence in the indictment had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common-law jurisdiction in criminal cases, and Congress have not provided by law for the offence contained in the indictment; and until they defined the offence, and prescribed the punishment, he thought the court had not jurisdiction of it.
The district judge was of a different opinion, and he held that the United States were constitutionally possessed of a common-
law power to punish misdemeanors, and the power might have been exercised by Congress in the form of a law, or it might bo enforced in a course of judicial proceeding. The offence in question was one against the well-being of the United States, and from its very nature cognizable under their authority.
This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.
In the case of The United States v. Burr, which arose in the Circuit Court of Virginia, in 1807, the Chief Justice of the United States declared, (a) that the laws of the several states could not be regarded as rules of decision in trials for offences against the United States, because no man could be condemned or prosecuted in the federal courts on a state law. The expression, trials at common law, used in the 34th section of the Judiciary Act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before {334} the court sitting as a court of equity and admiralty. He admitted, however, that when the Judiciary Act, sec. 14, authorized the courts to issue writs not specially provided for by statute, but which were agreeable to the principles and usages of law, it referred to that generally recognized and long-established law, which formed the substratum of the laws of every state.
The case of The United States v. Hudson & Goodwin (a) brought this great question in our national jurisprudence for the first time before the Supreme Court of the United States. The question there was, whether the Circuit Court of the United States had a common-law jurisdiction in cases of libel. The defendants had been indicted in the Circuit Court in Connecticut, for a libel on the President of the United States, and the court was divided on the point of jurisdiction. A majority of the Supreme Court decided, that the circuit courts could not exercise a common-law jurisdiction in criminal cases. (b) Of all
(a) Opinion delivered September 3, 1807, and reported by Mr. Ritchie.
(a) 7 Cranch, 32.
(b) S. P. infra, 361, United States v. Bevans, United States v. Wiltberger, also infra, 362; and United States v. Mackenzie & Gansevoort, District Court, New York, January 11, 1843. In the states of Ohio and Louisiana, it is understood to be held
the courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediately from the Constitution. All other courts created by the general government possessed no jurisdiction but what was given them by the power that created them, and could be vested with none but what the power ceded to the general government would authorize them to confer; and the jurisdiction claimed in that case has not been conferred by any legislative act. When a court is created, and its operations confined to certain specific objects, it could not assume a more extended jurisdiction. Certain implied powers must necessarily result to the courts of justice from the nature of their institution, but jurisdiction of crimes against the state was not one of them. {335} To fine for contempt, to imprison for contumacy, to enforce the observance of orders, are powers necessary to the exercise of all other powers, and incident to the courts, without the authority of a statute. But to exercise criminal jurisdiction in common-law cases was not within their implied powers, and it was necessary for Congress to make the act a crime, to affix a punishment to it, and to declare the court which should have jurisdiction.
The general question was afterwards brought into renewed discussion, in the Circuit Court of the United States for Massachusetts, in the case of The United States v. Coolidge. (a) Notwithstanding the decision in the case of The United States v. Hudson & Goodwin, the court in Massachusetts thought the question, in consequence of its vast importance, entitled to be reviewed and again discussed, especially as the case in the Supreme Court had been decided without argument, and by a majority only of the court. In this case, the defendant was indicted for an offence committed on the high seas, in forcibly rescuing a prize which had been captured by an American cruiser. The simple question was, whether the Circuit Court had jurisdiction to punish offences against the United States, which had not been previously defined, and a specific punishment affixed by statute. The judge who presided in that court did not think it necessary to consider the broad question, whether the United States, as a sovereign power, had
that there is no common-law indictable offence, and that every indictable offence must be grounded upon some statute. (a) 1 Gallison, 488.
entirely adopted the common law. He admitted that the courts of the United States were courts of limited jurisdiction, and could not exercise any authorities not confided to them by the Constitution and laws made in pursuance of it. But he insisted that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that if this distinction was kept in sight, it would dissipate the whole difficulty and obscurity of the subject.
{336} It was not to be doubted that the Constitution and laws of the United States were made in reference to the existence of the common law, whatever doubts might be entertained as to the question, whether the common law of England, in its broadest sense, including equity and admiralty as well as legal doctrines, was the common law of the United States. In many cases, the language of the Constitution and laws would be inexplicable without reference to the common law; and the existence of the common law is not only supposed by the Constitution, but it is appealed to for the construction and interpretation of its powers.
It was competent for Congress to confide to the circuit courts jurisdiction of all offences against the United States; and they have given to it exclusive cognizance of most crimes and offences cognizable under the authority of the United States. The words of the 11th section of the Judiciary Act of 1789 were, that the circuit courts should have "exclusive cognizance of all the crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct." This means all crimes and offences to which, by the Constitution of the United States, the judicial power extends, and the jurisdiction could not be given in more broad and comprehensive terms. To ascertain what are crimes and offences against the United States, recourse must be had to the principles of the common law, taken in connection with the Constitution. (a) Thus, Congress had provided for the punishment of murder, manslaughter, and perjury, under certain
(a) Judge Wilson, in his charge to a grand jury in the Circuit Court of the United States, in Virginia, in 1791, observed, that we must recur to the common law for the definition and description of many crimes against the United States. See Wilson's Works, iii. 371-377.
circumstances, but had not defined those crimes. The explanation of them must be sought in and {337} exclusively governed by the common law; and upon any other supposition, the judicial power of the United States would be left in its exercise to arbitrary discretion. In a great variety of cases, arising under the laws of the United States, the will of the legislature cannot be executed unless by the adoption of the common law. The interpretation and exercise of the vested jurisdiction of the courts of the United States, as, for instance, in suits in equity and in causes of admiralty and maritime jurisdiction, and in very many other cases, must, in the absence of positive law, be governed exclusively by the common law.
There are many crimes and offences, such as offences against the sovereignty, the public rights, the public justice, the public peace, and the public police of the United States, which are cognizable under its authority; and in the exercise of the jurisdiction of the United States over them the principles of the common law must be applied, in the absence of statute regulations. Treason, conspiracies to commit treason, embezzlement of public records, bribery, resistance to judicial process, riots and misdemeanors on the high seas, frauds and obstructions of the public laws of trade, and robbery and embezzlement of the mail of the United States, are offences at common law, and when directed against the United States they are offences against the United States, and, being offences, the circuit courts have cognizance of them, and can try and punish them upon the principles of the common law. The punishment must be fine and imprisonment, for it is a settled principle, that where an offence exists to which no specific punishment is affixed by statute, fine and imprisonment is the punishment. The common law is then to be referred to, not only as the rule of decision in criminal trials in the courts of the United States, but in the judgment or punishment; and by common law he meant the word in its largest sense, as including the whole
system of English jurisprudence.
{338} It was accordingly concluded that the circuit courts had cognizance of all offences against the United States, and what those offences were depended upon the common law applied to the powers confided to the United States, and that the circuit courts, having such cognizance, might punish by fine and imprisonment, where no punishment was specially provided
by statute. The admiralty was a court of extensive criminal, as well as civil, jurisdiction; and offences of admiralty jurisdiction were exclusively cognizable by the United States, and were offences against the United States, and punishable by fine and imprisonment, where no other punishment was specially prescribed.
This case was brought up to the Supreme Court, but it was not argued. A difference of opinion still existed among the members of the court, and, under the circumstances, the court merely said, that they did not choose to review their former decision in the case of The United States v. Hudson & Goodwin, or draw it in doubt. (a) The decision was for the defendant, and, consequently, against the claim to any common-law jurisdiction in criminal cases.1
These jarring opinions and decisions of the federal courts have not settled the general question as to the application and influence of the common law, upon clear and definite principles; and it may still be considered, in civil cases, as open for further consideration. The case of Hudson & Goodwin decided that the United States courts had no jurisdiction given them by the Constitution or by statute, over libels; and the case of Worrall decided that they had no jurisdiction in the case of an attempt to bribe a commissioner of the revenue. If that were so, the common law certainly could not give them any. The cases were therefore very correctly decided upon the principle assumed by the court. But the subsequent case of Coolidge did not fall within that principle, because the offence there charged {339} was clearly a case of admiralty jurisdiction, and the courts of the United States would seem to have had general and exclusive jurisdiction over the case. Mr. Du Ponceau, in his "Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States," has ably examined the subject, and shed strong light on this intricate and perplexed branch of the national jurisprudence. He pursues the distinction origi-
(a) 1 Wheaton, 415; [United States v. Hall, 98 U. S. 343; United States v. Reese, 92 U. S. 214.]
1 United States v. Barney, 5 Blatchf. 294; United States v. Wilson, 3 Blatchf. 535; United States v. Ramsay, Hempst.
481; Pennsylvania v. Wheeling Bridge Co., 13 How. 518.
nally taken in the Circuit Court in Massachusetts, and maintains that we have not, under our federal government, any common law, considered as a source of jurisdiction; while, on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction, conferred by the Constitution and laws of the Union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the Constitution and law of the United States. But when the general jurisdiction and authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction. (a)
The principle assumed by the courts in the cases of Worrall and of Hudson & Goodwin is considered to be a safe and sound principle. The mere circumstance that the party injured by the offence under prosecution was an officer of the government of the United States does not give jurisdiction; for neither the Constitution, nor the judicial acts founded upon it, gave the federal courts a general jurisdiction in criminal cases, affecting the officers of government, as they have in cases affecting public ministers and consuls. Because an officer was appointed under the Constitution, {340} that would not of itself render all cases in which they were concerned, or might be affected, cases arising under the Constitution and laws, and cognizable by the judiciary. Such a wide construction would be transferring legislative power to the judiciary, and invest it with almost unlimited jurisdiction; for where is the act that might not, in some distant manner, be connected with the Constitution or laws of the United States? It rests alone in the discretion of Congress to throw over the persons and character of the officers of the government, acting in their official stations, a higher protection than that afforded by the laws of the states; and when laws are made for that purpose, the federal courts will be charged with the duty of executing them.
This appears to be sound doctrine, and to be deduced from the cases which have been mentioned. There is much weight
(a) Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. Dig. 2. 1. 2.
undoubtedly due to the argument of the Circuit Court of Massachusetts; and an attempt to bribe an officer of the government, or to libel an officer of the government, in relation to his official acts, would seem to be an offence against that government. They tend directly to weaken or pervert the administration of it; and if it once be admitted that such acts amount to an offence against the United States, they must of course be cognizable under its authority, and belong to the jurisdiction of the circuit courts. The great difficulty and the danger is, in leaving it to the courts to say what is an offence against the United States, when the law has not specifically defined it. The safer course undoubtedly is, to confine the jurisdiction in criminal cases to statute offences duly defined, and to cases within the express jurisdiction given by the Constitution. The admiralty jurisdiction of the federal courts is derived expressly from the Constitution; and criminal cases belonging to that jurisdiction by the common law, and by the law of nations, might well have been supposed to be cognizable in the admiralty courts, without any statute authority. If the common law be a rule of decision in the exercise of the {341} lawful jurisdiction of the federal courts, why ought it not to apply to criminal as well as to civil cases, and upon the same principle, when jurisdiction is clearly vested? If Congress should, by law, authorize the district or circuit courts to take cognizance of attempts to bribe an officer of the government in the exercise of his official trust, and should make no further provision, the courts would, of course, in the description, definition, and prosecution of the offence, be bound to follow those general principles and usages which are not repugnant to the Constitution and laws of the United States, and which constitute the common law of the land, and form the basis of all American jurisprudence. Though the judiciary power of the United States cannot take cognizance of offences at common law, unless they have jurisdiction over the person or subject-matter given them by the Constitution or laws made in pursuance of it; yet, when the jurisdiction is once granted, the common law, under the correction of the Constitution and statute law of the United States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise of that jurisdiction, and not specially provided for by statute. Without such a guide, the courts would be left to a dangerous discretion, and
to roam at large in the trackless field of their own imaginations. (a)1
(a) Military and naval crimes and offences, committed while the party is attached to, and under the immediate authority of, the army or navy of the United States, and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States. They are not included in the Judiciary Act of 24th September, 1789. They are cognizable in the military and naval courts-martial instituted under the acts of Congress. The circuit and district courts of the United States have no criminal jurisdiction but what is expressly conferred upon them by statute. United States v. Hudson, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336; Washington, J., in Houston v. Moore, 5 Wheaton, 29; Sergeant's Constitutional Law, 131 (1st ed.); vide supra, 334, and infra, 362, 363, 364. It seemed, however, to be left as an unsettled question, in the case of The United States v. Mackenzie, infra, 363, [note,] whether the military and naval courts of the United States, and the courts of civil jurisdiction, had concurrent powers in questions of the above nature, under the acts of Congress. If they had, an acquittal by a court-martial would be a bar to any criminal proceeding in any other court, for no person is to be put in jeopardy twice for the same offence. The better opinion in that case would also be, that a prosecution, instituted and pending before a naval tribunal, would be a good plea in abatement of any prosecution subsequently instituted in a national civil court of criminal jurisdiction; for it would be unjust, absurd, and impracticable to have a trial for the
1 A plea of autrefois acquit, by a general court-martial, under the act of Congress of March 3, 1863, § 30, is no defence to an indictment for murder under the laws of a state. State v. Rankin, 4 Coldw. (Tenn.) 145. (x)
It seems proper to insert here the famous case as to military commissions. During the rebellion, one Milligan, a citizen of the United States resident in Indiana, who was neither a prisoner of war nor in the military service of the United States, was arrested at his home by order
of General Hovey, brought before a military commission, tried, and sentenced to be hanged. On petition for habeas corpus, the judges of the Circuit Court were divided in opinion, but the Supreme Court held that inasmuch as the court knew judicially that the authority of the United States was unopposed, and its courts were open in Indiana, the military commission had no jurisdiction of the case. As to whether Congress could have given the commission jurisdiction the judges were divided. Ex parte Milligan, 4 Wall. 2.
(x) The sentence of a court martial cannot be reviewed by habeas corpus. Johnson v. Sayre, 158 U. S. 109. The jurisdiction of a court-martial may always be inquired into on habeas corpus, but a writ of prohibition will not lie to correct errors of law within its jurisdiction. Dynes v. Hoover, 20 How. 65; Barrett v. Hopkins, 2 McCrary, 129; Smith v. Whitney, 116 U. S. 167. Nor, if the court-martial has jurisdiction, can its proceedings be collaterally reviewed by habeas
corpus in the civil courts. In re Davison, 22 Blatch. 473; In re McVey, 11 Sawyer, 25; In re White, 17 Fed. Rep. 723; In re Zimmerman, 30 id. 176. Upon the general charge of ''conduct prejudicial to good order and military discipline," and the specified charge of homicide, before a courtmartial, a plea of former acquittal by a civil court is a defence going to the merits and not to the jurisdiction. United States v. Maney, 61 Fed. Rep. 140.
That is the realtion of the constitution to the common law(yes, of England, as claimed by the colonists in the Declaration of Rights, 1774).
Now, back to Red's response on Marbury vs Madison, we see the court's trespn se in [i]ex parte McCardle(1869):
.
That was declared by the same court which had declared that congrress had no power to grant such things as writs of mandamus, which in fact, the cogress had clearly stated in the judiciary act of 1789. There is simply nothng granting to Marshall the power to "treview" an act given by congress when that very a ct is cleatrly given by the constitution itself. You cant find it.
Precedent and stare decisis do not make them common law courts.
See how Red threw that one in? If a federal issue is raised? And who decides the federal issues? Federal courts? I already referred to both Madiosn and Hamilton, who referred to Blackstone, whi ch you tried to throw out behind a barrage of ad hominem. No cigar.
The question is, why not? Because you and the courts say so? because the courts wish to keep us ignorant of the heritage claimed by their forefathers? I' ve resonded to your every post with actual history, cases, and statements. You have shown nothing.
