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1. That it exercises a power not delegated by the Constitution.
Here again, it will be proper to recollect, that the Federal Government being composed of powers' specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the sedition-act could be passed inust be produced by those who assert its constitutionality. In what part of the Constitution, then, is this authority to be found ?
Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one, which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all, who will consider it with coolness and impartiality, and with a reverence for our Constitution, in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the sedition-act, “ that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, makes a part of the law of these states, in their united and national capacity.*
The novelty and, in the judgment of the cornmittee, the extravagance of this pretension, would have consigned it to the silence in which they have passed by other arguments, which an extraordinary zeal for the act has drawn into the discussion : But the auspices under which this innovation presents itself, have constrained the committee to bestow on it an attention, which other considerations might have forbidden.
In executing the task, it may be of use to look back to the colonial state of this country, prior to the Revolution; to trace the effects of the Revolution which converted the colonies into independent states ; to inquire into the import of the articles of confederation, the first instrument by which the union of the states was regularly established ; and finally, to consult the Constitution of 1788, which is the oracle that must decide the important question.
In the state, prior to the Revolution, it is certain that the common law, under different limitations, made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them, or made it their law by adoption; it is equally certain, that it was the separate law of each colony within its respective limits, and was unknown to them, as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature, by which a common will could be expressed in the form of a law; nor any common magistracy, by which such a law could be carried into practice. The will of each colony, alone and separately, had its organs for these purposes.
* The argument that the sedition-act was justified by the common law, and that the common law is part of the law of the Federal Government, is stated at length by Mr. George K. Taylor, in the debate on the resolutions, Ante, p. 133, et seq. Šee, also, 1 Tuck. Bl. Part 1. Appendix, p. 378, n. E.
This stage of our political history furnishes no foothold for the patrons of this new doctrine.
Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union ?
The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an em. pire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the em. pire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent ; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnifi. cation of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect ; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repug. nant to the fundamental principle of the Revolution.
The articles of consederation are the next source of information on this subject.
In the interval between the commencement of the Revolution' and the final ratification of these articles, the nature and extent of the Union was determined by the circumstances of the crisis, rather than by any accurate detineation of the general authority. It will not be alleged, that the
“common law”.could have had any legitimate birth as a law of the United States during that state of things. If it came, as such, into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea, that the parties to it were, with respect to the objects of the common law, to form one community. No such law is named or implied, or alluded to as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation ; whilst, on the other hand, every such inference or pretext is absolutely precluded by Article 2d, which declares, “ that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this con. federation expressly delegated to the United States, in Congress assembled."
Thus far it appears that not a vestige of this extraordinary doctrine can be found in the origin or progress of American institutions. The evidence against it has, on the contrary, grown stronger at every step, till it has amounted to a formal and positive exclusion, by written articles of compact among the parties concerned.
Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States ? This is the final question to be examined. - It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations,
The only part of the Constitution which seeins to have been relied on in this case is the 2d Sect. of Art. III. “ The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority."
It has been asked what cases, distinct from those arising under the laws and treaties of the United States, can arise under the Constitution, other than those arising under the common law; and it is inferred, that the common law is accordingly adopted or recognised by the Constitution.
Never, perhaps, was so broad a construction applied to a text so clearly unsusceptible of it. If any colour for the inference could be found, it must be in the impossibility of finding any other cases in law and equity, within the provision of the Constitution, to satisfy the expression; and rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm, or inadvertence. But, it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases, to which the judicial
authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “ make anything but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution, before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States ; the judicial power being, in several instances, extended beyond the legislative power of the United States,
To this explanation of the text, the following observations may be added :
The expression, " cases in law and equity," is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law.*
The succeeding paragraph of the same section is in harmony with this construction. It is in these words: “In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases (including cases in law and equity arising under the Constitution] the Supreme Court shall have appellate jurisdiction both as to law and fact; with such exceptions, and under such regulations, as Congress shall make.”
This paragraph, by expressly giving an appellate jurisdiction, in cases of law and equity arising under the Constitution, to fact, as well as to law, clearly excludes criminal cases, where the trial by jury is secured ; because the fact, in such cases, is not a subject of appeal. And, although the appeal is liable to such exceptions and regulations as Congress may adopt, yet it is not to be supposed that an exception of all criminal cases could be contemplated; as well because a discretion in Congress to make or omit the exception would be improper, as because
* The phrase "cases in law and equity" undoubtedly means cases in law, and cases in equity, and both were made cognizable by the federal judiciary. Whilst, then, there cannot be criminal cases in equity, as the text observes, there may be criminal cases at law, and so the expression in question would include such cases. The reasoning is not much aided by this observation of the text. It is fortunately strong enough with. out it.
+ If this mode of argument were correct, it would in like manner exclude all cases at law, as well of a civil as a criminal nature, for the seventh amendment to the Constitution secures trial by jury in the former, as it had already been secured in the latter, and further declares, that no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the com. mon law. The general argument to prove that the common law is no part of the law of the Federal Government is irrefutable, but the conclusion is not helped by the inferences attempted to be drawn from the phrase " cases in law and equity."
it would have been unnecessary. The exception could as easily have been made by the Constitution itself
, as referred to the Congress. Once more; the amendment last added to the Constitution, deserves at. tention, as throwing light on this subject. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign power.” As it will not be pretended that any criminal proceeding could take place against a state, the terms law or equity, must be understood as appropriate to civil, in exclusion of criminal cases.
From these considerations, it is evident, that this part of the Constitution, even if it could be applied at all to the purpose for which it has been cited, would not include any cases whatever of a criminal nature ; and consequently, would not anthorize the inference from it, that the judicial authority extends to offences against the common law, as offences arising under the Constitution.
It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the sedition-act, which is an exercise of legislative, and not of judicial power: and it is the judicial power only, of which the extent is defined in this part of the Constitution.
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: “This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the second paragraph of Art. VI. as follows: “ This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the judges of the United States ; the second, as a guide to the judges in the several stateś. Both of them consists of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law, would afford powerful reasons against it.
Is it to be the common law with or without the British statutes ?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws ?
Is it to be the date of the eldest or the youngest of the colonies ?
Is, again, regard to be had to the various changes in the common law made by the local codes of America ?