1. See Palmer, Robert C., ‘Liberties as Constitutional Provisions, 1776-1791’Google Scholar, (forthcoming) [hereinafter: Palmer, ‘Liberties’].

2. U.S. Const. Amend X.

3. U.S. Const. Preface; Madison, James, Journal of the Federal Convention Scott, E.H., ed., (Freeport, 1970) 74, 411, 415Google Scholar.

4. Jensen, Merrill, The Articles of Confederation: An Interpretation of the Social-constitutional History of the American Revolution 1776-1781 (Madison, 1940) 263–70Google Scholar.

5. U.S. Const., Amend. I-X.

6. U.S. Const., Amend. XIII-XV.

7. Palmer, ‘Liberties’, supra note 1.

8. U.S. Const. Art. III.

9. U.S. Const. Art. I, §8.

10. U.S. Const. Art. III.

11. Palmer, ‘Liberties’, supra note 1.

12. Bridwell, Randall and Whitten, Ralph U., The Constitution and the Common Law (Lexington, 1977) 35–51Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1780-1860 (Cambridge, Mass., 1977) 9–11Google Scholar; Presser, Stephen B., ‘A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence’, 73 Northwestern University Law Review 26 (1978Google Scholar); Warren, Charles, ‘New Light on the History of the Federal Judiciary Act of 1789’, 37 Harvard Law Review 49, 73 (1923Google Scholar); Levy, Leonard, Emergence of a Free Press (New York, 1985) 275-79, 298Google Scholar; Levy, Leonard W., ‘On the Origins of the Free Press Clause’, 32 University of California at Los Angeles Law Review 177, 177-79, 208–11 (1984Google Scholar); Stewart Jay, ‘Origins of Federal Common Law: Part One’, 133 University of Pennsylvania Law Review 1111-113 [hereinafter: Jay, ‘Origins of Federal Common Law’]. There can be no dispute that there is, in a very limited sense, a federal common law of crime: traditions of interpretation of constitutional criminal rights. As used here, however, federal common law of crime refers to the existence of an inherent common law authority rather than an express constitutional mandate for either the jurisdictional grant or for the substantive law to be applied in criminal cases. Federal power within the District of Columbia, while it was considered to include common law authority, is distinct from other areas of the federal common law of crime. United States v. Hammond, 26 F. Cas.96 (C.C.D.C. 1801)(No. 15,293); United States v. Lindsay, 26 F. Cas. 971 (C.C.D.C. 1805) (No. 15,602); United States v. Herbert, 26 F. Cas. 284 (C.C.D.C. 1836)(No. 15,354); United States v. Crandell, 25 F. Cas. 684 (C.C.D.C. 1836)(No. 14,885) [seditious libel for distribution and publication of anti-slavery pictures]. See Haskins, George Lee and Johnson, Herbert A., History of the Supreme Court of the United States, Volume II: Foundations of Powers: John Marshall, 1801-15 (New York, 1981) 643–44Google Scholar [hereinafter: Hist. S.C.].

13. The most striking instance is the extension of the interstate commerce power to the conditions of manufacturing. While the appropriate boundaries of commerce are hard to define, ordinary usage would never include everything now regulated as commerce.

14. For a convenient summary, see Schauer, Frederick, ‘An Essay on Constitutional Language’, 29 University of California at Los Angeles Law Review 797 (1982Google Scholar).

15. See Palmer, Robert C., ‘The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank, and the Fourteenth Amendment’, 1984 University of Illinois Law Review 739.Google Scholar

16. See Presser, Stephen B. and Hurley, Becky Bair, ‘Saving God's Republic: the Jurisprudence of Samuel Chase’, 1984 University of Illinois Law Review 771Google Scholar; Jay, , ‘Origins of Federal Common Law’, supra note 12 at 1054-65.Google Scholar

17. See Horwitz, Morton J., Transformation of American Law, supra note 12 at 255-56.Google Scholar

18. See Friedman, Lawrence M., A History of American Law (New York, 1973) 10Google Scholar (‘This book treats American law, then, not as a kingdom unto itself, not as a set of rules and concepts, not as a province of lawyers alone, but as a mirror of society. It takes nothing as historical accident, nothing as autonomous, everything as relative and molded by economy and society. This is the theme of every chapter and verse.’) This extreme view, increasingly characteristic of American legal history, contrasts sharply with English legal history. See Milsom, S.F.C., Historical Foundations of the Common Law (Toronto, 2nd ed., 1981Google Scholar); Palmer, Robert C., ‘The Feudal Framework of English Law’, 79 Michigan Law Review 1130Google Scholar; Palmer, Robert C., The County Courts of Medieval England, 1150-1350, (Princeton, 1982) 174–262Google Scholar.

19. Palmer, Robert C., The Whilton Dispute, 1264-1380: A Social-Legal Study of Dispute Settlement in Medieval England (Princeton, 1984) 3-5, 210–20Google Scholar.

20. See Presser, Stephen B., ‘Tale of Two Judges’, supra note 12Google Scholar; Jay, Stewart, ‘Origins of Federal Common Law’, supra note 12Google Scholar; and Goebel, Julius Jr., History of the Supreme Court of the United States: Volume 1, Antecedents and Beginnings to 1801 (New York, 1971) 625–33Google Scholar [hereinafter: Julius Goebel, Jr., Hist. S.C.].

21. Act of Sept. 24, 1789, ch. 20, 1 United States Statutes at Large 73-93 [hereinafter; Stats].

22. See supra note 12.

23. Leonard Levy, Emergence of a Free Press, supra note 12 at 17-18.

24. U.S. Const. Amend I.

25. Levy, ‘On the Origins of the Free Press Clause’, supra note 12; David Anderson, ‘The Origins of the Press Clause’, 30 University of California at Los Angeles Law Review 455; William T. Mayton, ‘Seditious Libel and the Lost Guarantee of a Freedom of Expression’, 84 Columbia Law Review 91.

26. See text at notes 49-62 infra.

27. See text at notes 62-65 infra.

28. See text at notes 187-93 infra.

29. See text at notes 170-86, 204-215 infra.

30. Act of Sept. 24, 1789, ch. 20, §34; 1 Stats. 73, 93. See text at notes 187-200 infra.

31. See text at note 188 infra.

32. 3 U.S. (3 Dall.) 321 (1796).

33. See text at notes 253-67 infra.

34. United States v. Worrall, 29 F. Cas. 774.

35. See text at notes 317-18 infra.

36. 11 U.S. (7 Cranch) 32 (1812).

37. Act of July 14, 1798, ch. 74, 1 Stats. 596.

38. David Anderson, ‘The Origins of the Press Clause’, supra note 25 at 521-23.

39. Act of Sept. 24, 1789, ch. 20, §§9 & 11, 1 Stats. 73, 76-77, 78-79.

40. Ibid.

41. Charles Warren, ‘New Light’, supra note 12 at 49-51.

42. Ibid, at 73, 77.

43. Ibid, at 51, 73.

44. Ibid, at 73, 77.

45. Randall Bridwell and Ralph Whitten, The Constitution and the Common Law, supra note 12 at 38.

46. Ibid, at 38.

47. See Act of April 15, 1790, ch. 9, 1 Stats. 112-19.

48. Julius Goebel, Jr. Hist. S.C., supra note 20 at 496. Presser points out that the meaning of the word ‘laws’ in §34 of the Judiciary Act included statutory and common law and that the word Maws’ in the limiting clauses in the draft of §9 and §11 could logically carry the same meaning (although it need not), so that the draft bill itself might have carried the implication that there was a federal common law. Stephen B. Presser, ‘Tale of Two Judges’, supra note 12 at note 170. That hypothesis is unlikely, primarily because the limiting clause, referring to defining laws, seems more readily to refer to statutes. As Presser's hypothetical language seems to indicate, there is no reason why the word ‘laws’ would be used consistently in the Judiciary Act.

49. U.S. Const. Art. I, §8, cl. 10.

50. U.S. Const. Art. I, §8, cl. 17.

51. U.S. Const. Art. I, §8, cl. 4.

52. U.S. Const. Art. IV, §3, cl. 2.

53. Congress carefully debated the demands of constitutional language in establishing the executive department as a whole and the Department of Foreign Affairs. 1 Annals 368-83, 455-585. Moreover, proper constitutional construction was debated. Ibid, at 461, 467, 473, 486, 503, 514, 536, 573-74, 829. In the consideration of the Judiciary Act, the role of the state courts in enforcing the Constitution was the occasion for construing the Constitution. Ibid, at 813-18.

54. 1 Annals 102-21, 123-42, 144-70, 173-231, 234-47, 251-65, 271-318, 324-28, 330-66, 409-11, 416, 454-55, 585-91, 608-10, 615-19. (Approximately thirty-three working days.)

55. Ibid, at 368-97, 455-585, 590-608, 611-15, 619, 666-69. (Approximately fifteen working days.)

56. Ibid, at 367-68, 411-24, 450-53, 619-32, 665-66. (Approximately twenty-one working days.)

57. Ibid, at 232-3, 632-37, 643-58, 675-92, 785-86, 899-903. (Approximately twelve working days.)

58. Ibid, at 687-703, 763-66. (Approximately four working days.)

59. Ibid, at 786-92, 835-87, 892, 895-98, 905-12, 920-27. (Approximately ten working days.)

60. Ibid, at 248-51, 424-50, 660-65, 703-63, 766-78. (Approximately eleven working days.) Miscellaneous matters, such as consideration of amendments to several different bills, establishment of procedure, and various minor bills consumed approximately another 28 days.

61. Ibid, at 834. The bill finally became law in the second session of the First Congress. Act of April 30, 1790, ch. 9, 1 Stats. 112-19. In that act, §§25-28 concern matters under the law of nations, but the provisions speak about the law of nations as already subsisting, citing merely various violations against that law. Legislation likewise referred to the law of nations as a guide. Act of Sept. 24, 1789, ch. 20, §13, 1 Stats. at 80 (‘And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors … as a court of law can have or exercise consistently with the law of nations.’) Act of April 30, 1790, ch. 9, §28, 1 Stats, at 118 (‘That if any person shall violate any safe-conduct or passport … or in any other manner infract the law of nations, by offering violence to the person of an ambassador or other public minister ….’) Act. of March 3, 1819, §5, 3 Stats. 513. See also United States v. Howard, 26 F. Cas. 390 (C.C.D. Pa. 1818)(No. 15,404); United States v. Chapels, 25 F. Cas. 399 (C.C.D. Va. 1819)(No. 14,782).

62. A Pennsylvania district attorney in 1806 argued this view, saying: ‘The civil law being considered, therefore, as the law of the admiralty, remains under the general delegation of judicial power to the courts of the United States, unless it is expressly modified by statute’. United States v. McGill, 26 F. Cas. 1088, 1089 (C.C.D. Pa. 1806)(No. 15,676). Justice Washington followed on with a comment that may have wider implications but was properly concerned only with admiralty and offenses committed on the high seas.

The judicial act gives jurisdiction to the circuit court, of ‘all crimes and offences, cognizable under the authority of the United States’ …. There are, undoubtedly, in my opinion, many crimes and offences against the authority of the United States, which have not been specially defined by law; for, I have often decided, that the federal courts have a common law jurisdiction [note: not necessarily a complete jurisdiction] in criminal cases: and in order to ascertain the authority of the United States, independent of acts of congress, against which crimes may be committed, we have been properly referred to the constitutional provision, that ‘the judicial power shall extend to all cases of admiralty and maritime jurisdiction’. But still the question recurs, is this a case of admiralty and maritime jurisdiction, within the meaning of the constitution? The words of the constitution must be taken to refer to the admiralty and maritime jurisdiction of England … but no case, no authority, has been produced to show, that in England such a prosecution would be sustained … as a cause of admiralty and maritime jurisdiciton …. Upon the whole, therefore, I am of opinion that the present is a case omitted in the law, and that the indictment cannot be sustained. It is some relief to my mind, however, that I have no doubt of the power of congress to provide for such a case. It is true, that it would be inconsistent with common law notions to call it murder; but congress, exercising the constitutional power to define felonies on the high seas, may certainly provide, that a mortal stroke on the high seas, wherever the death may happen, shall be adjudged a felony.

Ibid, at 1090. Madison, writing during the ratification process of the Constitution, thought that the definition of piracies ‘might perhaps without inconveniency, be left to the law of nations; though a legislative definition of them, is found in most municipal codes. A definition of felonies on the high seas is evidently requisite.’ The Federalist Papers by Alexander Hamilton. James Madison and John Jay No. 42 (New York, 1982Google Scholar). Madison's mild concern here related to felonies, only one portion of the Article I §8, cl. 10 trilogy of piracies, felonies and offenses against the Law of Nations. See also United States v. The La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822)(No. 15,551). See note 63 infra.

63. See text at notes 28-31 supra. Marshall's opinion was that the definitional power in regard to piracy did not concern the law of nations. He argued that there were two kinds of piracy. Piracy under the law of nations could neither be increased nor diminished by an individual nation. But a nation could by legislative definition establish its own law of piracy. This latter kind of piracy was, in his opinion, the subject of Article I, §8, cl. 10. ‘[T]his clause of the Constitution cannot be considered, as affecting acts which are piracy under the law of nations.’ 10 Annals 607. See also Ibid, at 599. Marshall at this point was convinced of the constitutionality of the sedition laws. He reasoned that ‘cases arising under the Constitution’ must mean cases arising under the ‘common or unwritten law’, which protected all governmental officials from libel. Since the judicial power extended to that subject, he reasoned, Congress had the power to legislate to give effect to that power. John Marshall, Address of the Minority in the Virginia Legislature to the people of that state, containing a vindication of the constitutionality of the Alien and Sedition laws (1799) 12. The inference from a court jurisdiction to a congressional power is of course flawed. He also argued that the presence of the first amendment indicated such a governmental power (Ibid.), that punishing licentious publications was not a restriction of the freedom of the press (Ibid, at 13), and that ‘the will of the majority must prevail, or the republican principle is abandoned, and the nation is destroyed’. Ibid, at 14. His reasoning on piracy is more respectable than his reasoning on the first amendment.

64. After several alterations to federal court jurisdiction, the provision was altered to ‘that the jurisdiction shall extend to all cases arising under the national laws; and to such other questions as may involve the national peace and harmony’. Madison, Journal, supra note 3 at 79. The dichotomy there between cases arising under national laws and cases involving national peace and harmony indicate a non-statutory base for the latter. That provision was then altered, not affecting that dichotomy: ‘Resolved, That the jurisdiction of the National Judiciary shall extend to cases arising under laws passed by the General Legislature; and to such other questions as involve the national peace and harmony.’ Ibid, at 448. The report of the committee of detail, relating to the matters that became Article I, §8, cl. 10, suggested: ‘To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations.’ Ibid, at 454. It is at least interesting that counterfeiting was here included with the law of nations provisions and likewise formed one of the early problems. The final form can be seen evolving later on. Ibid, at 705, 710, 759, 753.

65. For federalism, the most sensitive area was the role that the states would have in enforcing the U.S. Constitution. 1 Annals 215, 797-833. In questions of citizenship, state law was considered decisive. Ibid, at 404-08. Perhaps the most striking example of the sensitivity of the First Congress to the rights of states was the refusal of the Senate to concur in the proposed amendment to restrict states in the areas of religion, speech and press, and trial practice originally proposed by Madison. Ibid, at 435. The Judiciary Act as well as the succeeding provision for regulating the process of the federal courts mandated a certain adherence to state law and practice. Act of Sept. 24, 1789, ch. 20, §§29 & 34, 1 Stats. 73, 88, 92; Act of Sept. 29, 1789, ch. 21, §2, Ibid, at 93-94. See also Charles Warren, ‘New Light’, supra note 6, 53-63; Julius Goebel, Jr., Hist. S.C., supra note 27 at 458, 471, 473. See United States v. Coit, 25 F. Cas. 489 (D.C.D. N. Y. 1812)(No. 14,829) (‘He shewed, not only from the acts of congress particularly applicable to this subject, but from a view of the whole judiciary system of the United States, that it was the intention of congress to conform the proceedings of the United States courts as nearly as possible to those of individual states respectively.’ Ibid, at 490.) For separation of powers, see note 53 supra.

66. 1 Annals, 791, 821. Livermore's primary objection was to the establishment of federal inferior courts with jurisdiction other than admiralty/maritime/law-of-nations matters. There is a certain amount of ambiguity in Livermore's speech that is clarified by Smith's succeeding speech. Ibid, at 798, 800.

67. Ibid, at 799. Smith summarized Congress's position in a similar fashion:

But some gentlemen are of opinion that the district court should be altogether confined to admiralty causes; while others deem it expedient that it should be entrusted with a more enlarged jurisdiction; and should, in addition to admiralty causes, take cognizance of all causes of seizure on land, all breaches of impost laws, of offences committed on the high seas, and causes to which foreigners or citizens of other States are parties. The committee are now to decide between these two opinions.

68. Ibid, at 799-800.

69. Ibid, at 831.

70. The concern about prior congressional definition can be considered either a federalism or a separation of powers problem. Horwitz has noted the lack in the early days of a separation of powers argument against the common law of crimes. He found the federalism argument to be without foundation, citing James Sullivan. Horwitz's paraphrase of Sullivan is worth examining: ‘James Sullivan of Massachusetts understood that the question of common law jurisdiction involved no special constitutional difficulties, for all that it required was that federal common law jurisdiction be limited to those substantive crimes over which Congress had legislative power.’ Sullivan made that statement in 1801. Morton J. Horwitz, Transformation of American Law, supra note 12 at 10. Sullivan's thought, however, was hardly that innocuous. In the same year he wrote that the federal judiciary properly had criminal jurisdiction over anything detrimental to the aims set forth in the Preface of the United States Constitution without any statutory definition. Sullivan, James, The History of Land Titles in Massachusetts (New York, 1972, reprint of 1801 ed.) 344Google Scholar. Regardless of the thrust of Sullivan's thought, that portion of Horwitz's analysis derives from writers in and after the year 1800 and thus not in the decisive first five years of the federal judiciary.

71. Act of Sept. 29, 1789, ch. 21, §2, 1 Stats. 93-94.

72. Act of May 8, 1792, ch. 36, §2, 1 Stats. 276.

73. 1 Annals 1071. The debate at that point concerned whether or not an alien could hold real estate situated in the United States.

74. Ibid.

75. Ibid, at 807.

76. U.S. Const. Art. III, §2, cl. 1. Article III jurisdiction in diversity envisaged the application of state law. Little thought had yet been given to the differences among the common laws of the various states. It is thus wrong to say precisely that Congress mandated that federal courts apply state common law regardless of the inconsistency that would entail. But the accommodations continually made for the states, the legislative history of §34 of the Judiciary Act, and early practice indicate that application of state common law was the closest response to congressional intent possible. Charles Warren, ‘New Light’, supra note 12 at 86-88.

77. U.S. Const. Art. III, §2, cl. 1; text at notes 228-35 infra.

78. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case.

1 Annals 404.

79. ‘If the laws of that State recognised him as [a citizen], the question was determined, because this House could not dispute a fact of that kind.’ Ibid, at 403.

80. See text supra at notes 66-69 supra.

81. Act of Sept. 24, 1789, §34, 1 Stats. 92.

82. Act of Sept. 29, 1789, §2, 1 Stats. 94.

83. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.

Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford, 1765-69) iv. 151Google Scholar.

84. Levy, Leonard, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, Mass., 1960) 247–48Google Scholar.

85. Leonard Levy, Emergence of a Free Press, supra note 12 at 272-76, 281. In his revision, Levy altered his analysis of the Senate's revisions to the extent that he thinks now that the Senate did not want to limit the meaning of freedom of the press to its common law meaning. Ibid, at 262; Leonard Levy, ‘On the Origins of the Free Press Clause’, supra note 6 at 203n. Levy argues nevertheless that the meaning of ‘freedom of the press’ is Blackstonian, and that only the phrase ‘Congress shall make no law’ gives the first amendment a wider meaning. That wider meaning, however, is only a restriction against Congress; the judiciary would be free to operate under the common law of crime to prosecute seditious libellers. Levy, of course, would prefer that the judiciary leave that past behind. See Rabban, David M., ‘The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History,’ 37 Stanford Law Review 795 (1985Google Scholar).

86. David Anderson, ‘The Origins of the Press Clause’, supra note 25. Anderson's thesis leads to the conclusion that the press is by original intent a fourth branch of the governmental structure, such that it can have appendant rights. The validity of his argument depends on an identity of meaning between state and federal provisions for freedom of the press.

87. Mayton, William T., ‘Seditious Libel and the Lost Guarantee of a Freedom of Expression’, 84 Columbia Law Review 91Google Scholar. Mayton's thesis is that the first amendment was superfluous and damaging, since the Treason clause was adequate for the purpose of protecting expression. His argument rests on the dubious proposition that the protection against seditious libel, a misdemeanor, can be derived from the Treason clause, which concerns a felony. Levy has attacked that article, justifiably, but without recognizing the substantial contribution it made. Levy, Leonard, ‘The Legacy Reexamined’, 37 Stanford Law Review 767 (1985Google Scholar).

88. See Palmer, Robert C., ‘Liberties,’ supra note 1Google Scholar.

89. Jensen, Merill, ed., The Documentary History of the Ratification of the Constitution, 14 vol. (Madison, 1978) iii, 287–89Google Scholar. Georgia's cooperation with the federal government did not last much longer than the first session of the First Congress. Ibid, at 285-90.

90. Madison submitted his proposed amendments on 8 June 1789. 1 Annals 431-442. Jackson, firm in his opposition to consuming time in making amendments to an as yet unproved Constitution, immediately opposed them. Ibid, at 442-44.

91. Leonard Levy, Legacy of Suppression, supra note 84; Leonard Levy, Emergence of a Free Press, supra note 12; Leonard Levy, ‘On the Origins of Free Press Clause’, supra note 12; David Anderson, ‘The Origins of the Press Clause’, supra note 25 [despite a passing mention in a footnote, p. 522]; William T. Mayton, ‘Seditious Libel and the Lost Guarantee of a Freedom of Expression’, supra note 25. The lack of discussion is even more perplexing in that the speech is also included in the standard collection of documents relating to the origins of the Bill of Rights. Schwartz, Bernard, The Bill of Rights: A Documentary History, 2 vols. (New York, 1971) ii, 1034–36Google Scholar. Konvitz quoted a large portion of Jackson's speech, stopping before Jackson's reference to the Constitution, but did not analyze it. Konvitz, Milton R., Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly (Westport, 1957) 352Google Scholar. Levy, at least, seems to assume that there is little left in the legislative history, since he relies heavily on the fact that no one in the last twenty-five years has found more than he had. Leonard Levy, ‘On the Origins of the Free Press Clause,’ supra note 12 at 203n. The appropriate place for him to have analyzed Jackson's speech omits the speech entirely. Leonard Levy, Emergence of a Free Press, supra note 12 at 258-60.

92. The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. Has any transaction taken place to make us suppose such an amendment necessary? An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the Constitution provides that a member shall not be questioned in any place for any speech or debate in the House? No, these things are offered to the public view, and held up to the inspection of the world …. Where, then, is the necessity of taking measures to secure what neither is nor can be in danger?

1 Annals 442-43.

The regulation Jackson mentioned as outside congressional power would have been legislative action; congressional enforcement of the speech and debate clause would have been by breach of privilege prosecutions.

93. U.S. Const. Art. I §6, cl. 1. ‘…and for any Speech or Debate in either House, they shall not be questioned in any other Place.’

94. In state constitutions somewhat similar language appears that is compatible with Jackson's construction of U.S. Const. Art I, §6, cl. 1. The Massachusetts Constitution of 1780, Art. 21 provided in its Declaration of Rights that;

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

Swindler, William, ed., Sources and Documents of United States Constitutions, 10 vols. (Dobbs Ferry, 1973-1979) v, 95Google Scholar. The New Hampshire Constitution of 1784, Art. 30 is almost identical to that of Massachusetts, except that it omitted the word ‘accusation’. Ibid, at ix, 347. Vermont, not confederated yet with the other states, adopted the Massachusetts provision verbatim, modifying the language only to accommodate its unicameral legislature. The provision appears in the 1786 Vermont Constitution, ch. 1, Art. 16. Ibid, at ix, 499. The Georgia Constitution of 1789, Art. I, §14 provided somewhat different language: ‘Nor shall any member be liable to answer for anything spoken in debate in either house, in any court or place whatsoever.’ Ibid, at ii, 453. Georgia, it should be remembered, was Jackson's home state. No other state had an independent speech and debate clause; the Pennsylvania provision of 1790 Art. I, §17 (‘questioned in any other place’) was probably borrowed from the federal constitution. It seems at least arguable that inclusion of the word ‘accusation’ and the specification of ‘any other place’ in addition to courts would legitimate breach of privilege prosecutions. In states, the rationale would be clear. The primary liberty was a republican form of government, for which the representatives had to be free to express themselves. That same consideration explains why the provision appeared in declarations of rights, instead of in the structural sections of state constitutions. For a complete discussion of these problems, see Robert C. Palmer, ‘Liberties’, supra note 1.

95. David Anderson, ‘The Origins of the Press Clause’, supra note 25 at 467-75.

96. 1 Annals 917.

97. Ibid.; U.S. Const. Art. I, §6, cl. 1.

98. The House completed work on the Bill of Rights on September 24, two days before the question of the reporting came up. 1 Annals 913-14. The Senate did not complete consideration of the amendments until September 25. Ibid, at 87-88. The amendments were not sent to the states until October 2, 1789. Bernard Schwartz, The Bill of Rights, supra note 91 at ii, 1171.

99. 1 Annals, 918.

100. Ibid, at 919.

101. ‘Congressman Hartley wished a decision on the motion. He contemplated the question as involving in it an attack upon the liberty of the press.’ Ibid.

102. Ibid, at 919-20.

103. Ibid.

104. Ibid, at 920.

105. Ibid, at 1059.

106. Ibid.

107. Ibid, at 1059-61.

108. 1 Annals 1071. For Madison's similar view, see his 1787 letter to George Washington reprinted in Smith, Joseph H., Cases and Materials on the Development of Legal Institutions, (St. Paul, 1965) 520Google Scholar.

109. See text at notes 81-82 supra.

110. Presser, Stephen B., Studies in the History of the United States Courts of the Third Circuit (Washington, 1982) 26–37Google Scholar; ‘A Tale of Two Judges’, supra note 12 at 26-109; Presser, Stephen B. and Zainaldin, Jamil S., eds., Law and American History: Cases and Materials (St. Paul, 1980) 188–207Google Scholar; Presser, Stephen B. and Hurley, Becky Bair, ‘Saving God's Republic: The Jurisprudence of Samuel Chase’, 1984 University of Illinois Law Review 771, 796–97Google Scholar.

111. Morton J. Horwitz, The Transformation of American Law, 1780-1860, supra note 12 at 9-15.

112. Leonard Levy, Legacy of Suppression, supra note 84, 236-41. The origins of Levy's advocacy of this view might be found in Justice Frankfurter's concurring opinion in a case concerning mere advocacy of sedition. Frankfurter explained the first amendment by reference to early state prosecutions for seditious libel and state formulations of the speech and press rights. Dennis v. United States 341 U.S. 494, 519-23 (1950). Justice Brennan in 1957 reiterated the Frankfurter view of the original intent behind the first amendment in the context of an obscenity case. Roth v. United States; Albert v. State of California, 354 U.S. 476, 482-84. Levy received encouragement from Frankfurter in the course of his investigations. Leonard Levy, Legacy of Suppression, supra note 84 at xiii.

113. Leonard Levy, Emergence of a Free Press, supra note 12 at 275n.

114. Stewart Jay, ‘Origins of Federal Common Law’, supra note 12.

115. See text at notes 54-61 supra.

116. Ibid.

117. William T. Mayton, ‘Seditious Libel’, supra note 25 at 117-19. Mayton asserts here that ‘an understanding was reached at the convention and during the ratification process that the national government had no power over speech’. Ibid, at 118. The understanding reached was that the federal government ought to have no power over speech, but that as the Constitution stood it might have. Had everyone been content that the Constitution actually allowed no power over speech or press, the amendment would not have been necessary. Mayton does not treat the Article I, §6, cl. 1 problem. See text at notes 92-93 supra.

118. U.S. Const. Amend. X.

119. Johnston, Henry P., ed., The Correspondence and Public Papers of John Jay 4 vols. (New York, 1971) iii, 387–95Google Scholar.

120. Presser, ‘A Tale of Two Judges’, supra note 12 at 48-51. This analysis is excerpted in Presser and Zainaldin, Law and American History, supra note 110 at 188-91.

121. Henry P. Johnston, Public Papers, supra note 119, at iii, 393. Presser's excerpt in his article omits the first sentence here, which mentions precisely the laws of the United States. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 48. That omission might affect the analysis. Omitting the passage would be reasonable if ‘laws of the United States’ were taken to include statutory and common law. If one takes that phrase to include both statutory law and the Constitution, however, a completely different conclusion results.

122. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 48.

123. Stewart Jay, ‘Origins of Federal Common Law’, supra note 12 at 1040. He has investigated likewise other justices’ charges. Wilson and Iredell included citations to statutes in their charges, although Wilson accepted law of nations powers. Jay, however, presumes that all nonstatutory prosecutions are alike. He does not consider the difference that Article III admiralty powers together with Article I §8, cl. 10 law of nations authority would make.

124. William Blackstone, Commentaries, supra note 83 at 68.

125. Julius Goebel, Jr., Hist. S.C., supra note 20 at 622-23.

126. de Vattel, Emmerich, The Law of Nations, or, Principles of the Law of Nature, applied to the conduct and affairs of Nations and Sovereigns (Philadelphia, 1817Google Scholar). This volume was a translation of Vattel's posthumous 1773 edition. Ibid, at iii.

127. von Pufendorf, Samuel, Of the Law of Nature and Nations (Oxford, 1703Google Scholar). This was an English translation.

128. United States v. Henfield, 11 F. Cas. 1099 (C.C.D. Pa. 1793) (No. 6,360) 1117.

129. Julius Goebel, Jr., Hist. S.C., supra note 20 at 622.

130. See note 62 supra; text at notes 170-93 infra. John Marshall, arguing in Congress in 1800, maintained not only that piracy, as part of the law of nations, was necessarily under the admiralty and maritime jurisdiction of Article III, but also that the federal courts could properly have taken cognizance of such cases absent a statutory mandate. 10 Annals 614. Marshall perceived the law of nations as having something of an independent standing. Ibid, at 607.

131. Henry P. Johnston, Public Papers, supra note 119 at iii, 394.

132. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 49.

133. Henry P. Johnston, Public Papers, supra note 119 at iii, 478-85. A different charge to the same grand jury has survived. 11 F. Cas. 1099, supra note 128 at 1099-105. That charge is prefaced to the Henfield case. Goebel believed that the latter charge was the one actually delivered to the grand jury. Julius Goebel, Jr., Hist. S.C., supra note 20 at 623n. The former charge is here used because the charge as actually delivered reversed the order of consideration, so that Jay, apologizing for the length of his charge, merely mentioned but did not comment on the revenue statutes.

134. Henry P. Johnston, Public Papers, supra note 119 at iii, 479.

135. Ibid, at 479-80.

136. Julius Goebel, Jr., Hist. S.C., supra note 20 at 620-21.

137. 1 Annals 199.

138. Henry P. Johnston, Public Papers, supra note 119 at iii, 394.

139. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 49.

140. Stephen B. Presser and Jamil S. Zainaldin, Law and American History, supra note 110 at 189.

141. Presser goes rather beyond Goebel in evaluating Jay's charge. Goebel merely noted that Jay did not advance any specific argument for law of nations offences. Julius Goebel, Jr., Hist. S.C., supra note 20 at 622-23.

142. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 48n.

143. Ibid, at 49.

144. But see Stewart Jay's examination of the practice of other justices. See text at notes 204-15 infra.

145. The ‘Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States’ provided for collectors, naval officers, and surveyors. Act of July 31, 1789, ch. 5, 1 Stats. 29. An oath was prescribed, with a forfeiture of $200 for ‘failure herein’, the failure being either the failure to take the oath or the failure to perform duties faithfully. Ibid, at §8. The collectors were required to enter into a substantial bond, ranging from $50,000 to $1,000. Any breach of the conditions entailed forfeiture. Ibid. at §28. Criminal conviction may have been proof of breach, but may have entailed no further punishment. The various officers were likewise required to set up openly a table of fees and duties, failure to do which resulted in a forfeiture of $100. Ibid, at §29. A demand for excessive fees or other rewards resulted in a forfeiture of $200, although solely to the use of the party aggrieved. Ibid, at §29. Query if such a failure would result in forfeiture of the bond. Such officers who received a bribe or connived at a false entry forfeited not less than $200 nor more than $2000 for each offence and entailed disablement from office. Ibid, at §35. See also William Blackstone, Commentaries, supra note 83 at iv, 303-07. The ‘Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes’ provided similar penalties, but without an informer provision, for making false registry, taking excessive fees, rendering false descriptions of vessels, or mere neglect of duty. Act of Sept. 1, 1789, ch. 11, §34, 1 Stats. 55, 64-65. The act that established the Treasury Department prohibited treasury officers from self-interested or conflicting obligations, contravention of which was a high misdemeanor punishable by fine, removal from office, and disablement of office, with informers, if any, receiving half the forfeiture. Act of Sept. 2, 1789, ch. 12, §8, 1 Stats. 65, 67.

146. See text at notes 129-30 supra.

147. A constitutional construction that allowed prosecution under the law of nations without a statutory base proves nothing about ordinary common law crimes. The doctrine that dictated that jurisdiction could not be exercised without a statute further defining the crime and the penalty began later. See text at notes 276-80 infra. The result of that later conclusion was the possibility of a grant of jurisdiction that could not be exercised: not necessarily a desirable situation.

148. Henfield, 11 F. Cas. at 1116. Leonard Levy's discussion of Henfield is superficial. Leonard Levy, Emergence of a Free Press, supra note 12 at 276. Stewart Jay's discussion of Henfield is mostly contextual, as if the surrounding politics provided the meaning of the case. Stewart Jay, ‘Origins of the Federal Common Law’, supra note 12 at 1042-53. His discussion adds nothing to Presser's treatment.

149. Julius Goebel, Jr., Hist. S.C., supra note 20, 624-25.

150. Ibid, at 623; Leonard Levy, Emergence of a Free Press, supra note 12 at 276. Leonard Levy's earlier citation of a counterfeiting case rested on a misdated case, the date of which was revised only later by Goebel. Leonard Levy, Legacy of Suppression, supra note 84 at 239-40; text at note 282 infra. Presser, of course, finds a substantial problem with Jay's 1790 charge to the grand jury. See text at notes 119-47 infra.

151. 11 F. Cas. at 1106. The statement is not equivalent to an assertion that the federal government has received the common law.

152. Ibid, at 1107-108. Wilson was unlikely to derive a jurisdiction directly from the common law. In December 1787, at the convention in Pennsylvania to ratify the federal constitution, Wilson got into an argument about federal prosecution of libels, the focal point for jurisdiction in strictly criminal common law areas. The argument there centered on what would happen if Congress made a statute to prosecute libels; Wilson first argued that Congress had no such power. Then, to answer the question directly, he maintained that, ‘even if it had the power to make laws on this subject’, the accused was no worse off than under the state government. Merril Jensen, ed., Documentary History, supra note 89 at ii, 454-55. That argument would be perplexing if they were arguing about a disputed power in Congress to do what everyone thought the federal courts could do anyway. The natural conclusion is that both Wilson and the anti-federalists were here assuming that the courts had no jurisdiction derived strictly from common law, but might receive specific powers from congressional legislation. See David Anderson, ‘Origins of the Press Clause’, supra note 25 at 504; William T. Mayton, ‘Seditious Libel’, supra note 25 at 180n. Leonard Levy, rejecting the analysis of both Anderson and Mayton indicating that Wilson was speaking hypothetically, simply cannot have re-read the whole passage. Levy first says that Wilson assumed the existence of federal court power to prosecute seditious libel, then, in the same paragraph, talks about his assertion of the same proposition. Leonard Levy, Emergence of a Free Press, supra note 25 at 240-41. Wilson's argument neither assumed nor asserted that proposition, except in relation to state governments.

153. Ibid, at 1116.

154. Crosskey, William Winslow, Politics and the Constitution in the History of the United States, 3 vols. (Chicago, 1953) i, 629–30Google Scholar.

155. Report of the Attorney General Read in the House of Representatives Dec. 31, 1790 (1791) 10.

156. Ibid, at 10, 28.

157. Ibid, at 33. William Winslow Crosskey, Politics and the American Constitution, supra note 154 at i, 626-30. Goebel's remarks on Randolph seem rather better than Crosskey's, particularly in reference to the way in which the report was relegated without action by the Congress. Julius Goebel, Jr., Hist. S.C., supra note 20 at 541-42. Congress apparently considered the ambiguity Randolph found a proper and unambiguous omission.

158. Official Opinions of the Attorneys General of the United States, 30 vols. (Washington, 1852-1919) i, 27Google Scholar [hereinafter: Off. Opinions A.G.).

159. Whether Randolph or Rawle had the greater responsibility for the indictments is unclear. There has survived in print a draft indictment written by Randolph with marginal notations apparently by Hamilton. 11 F. Cas. 1115-16n. Nevertheless, the report makes it seem that Rawle carried the argument: ‘Mr. Rawle, district attorney, with whom was Mr. Randolph, attorney general.’ 11 F. Cas. 1116. Rawle's influence appeared also in the application of Pennsylvania law. See text at notes 146-60 infra. The importance of Pennsylvania law might indicate that Rawle had a hand in the indictments also.

160. Julius Goebel, Jr., Hist. S.C., supra note 20 at 625. Goebel mentions that the common law disturbance of the peace of the United States allegation only appeared in the inclusion of the words ‘against the peace and dignity of the United States’ and that those words were treated as mere surplusage. Ibid. The reason for the inclusion of those words, however, is even less indicative than he thought of an idea of a general federal common law. See text at notes 172-73 infra.

161. The law of nations is part of the law of the land. 4 B1. Comm. 66; [Respublica v. De Longchamps] 1 Dall. [1U.S.]111;C.L. 11b. This is an offence against the laws of nations. It is punishable by indictment on information as such. [Respublica v. De Longchamps] 1 Dall. [1 U.S.] 114, &c; 3 Burrows, 1480.

11 F. Cas. at 1117.

162. Ibid. (‘Nor are these only the speculations of the closet. We see them carried into effect in England in affirmation of national common law, i.e. the law of nations.’)

163. Ibid, at 1119. Du Ponceau decades later made some comments on the case. See text at note 196 infra.

164. 11 F. Cas. at 1119.

165. Ibid, at 1118.

166. Ibid, at 1119 (‘On the question under the laws of nations were cited, 6 Hume, Hist. Eng. 433; 1 Hutch. Hist. Mass. Bay, 251; 3 Vatt. LawNat. 15; Bynk[ershoek] 22d, c; Syn. Gal. Rep. 94.’) Du Ponceau later (1810), published a translation of Bynkershoek's Treatise on the Law of War.

167. 11 F. Cas. at 1119. The other arguments recorded related to the presidential proclamation of neutrality and to the proper inferences that could be derived from the construction of treaties, neither of which is relevant to the federal common law of crimes.

168. See text at notes 39-48 supra.

169. 11 F. Cas. 1117.

170. Act of September 24, 1789, §34. A federal judge explicitly adopted this construction of the provision in 1807, the same year in which Marshall ruled to the contrary. Leonard Levy, Emergence of a Free Press, supra note 12 at 345.

171. See note 161 supra.

172. 1 U.S. (1 Dall.) III.

173. See text at notes 155-60 supra.

174. 1 U.S. at 114 (‘It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania’), and 116 (‘The first crime in the indictment is an infraction of the law of nations. This law, in its full extent, is part of law of this state, and is to be collected from the practice of different nations, and the authority of writers.’)

175. William Winslow Crosskey, Politics and the Constitution, supra note 154 at i, 631n. Crosskey worried that in the case of an offence strictly against the United States there would be no applicable state law.

176. In 1799 Randolph explained to Madison what, at that distance, he thought he must have been doing in Henfield.

5. This must have been the idea, if I meant to say that he was triable at common law in the federal court; that the treaties, by stipulating for peace with the U. S., in substance prohibited the citizens of the U.S. from engaging in a war against the nations with whom the treaties subsisted: that treaties being the supreme law, and the judicial act having provided that the laws of the States should be the rule of decision, that they should apply: the laws of Pennsylvania, within whose boundaries the offence was committed, comprehending the common law, would aid the treaty, which had specified no penalty for Henfield's crime, by one of its general principles, namely, that when a statute forbids a thing to be done, without annexing a penalty, the common law makes it indictable and punishable, as a misdemeanor. This, I believe, was the doctrine which I urged at the trial. 6. This opinion does not bring up the common law as the law of the U.S…. common law, as the law of the U.S., would create offences.

Conway, Moncure Daniel, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (New York, 1888) 185Google Scholar.

Crosskey belittled Randolph's recollection and asserted that there was no record of any such argument at the Henfield trial, without bothering to look into the sources cited in the case. William Winslow Crosskey, Politics and the Constitution, supra note 154 at i, 630-31.

177. 11 F. Cas. at 1116.

178. Ibid, at 1118.

179. Ibid, at 1116.

180. Ibid, at 1118.

181. U.S. Const. Amend. I-X.

182. William Swindler, Sources and Documents, supra note 94 at viii, 279.

183. See text at note 178 supra.

184. William Swinder, Sources and Documents, supra note 94 at viii, 293. The use of the words ‘law of the land’ is less significant. The phrase was derived from Magna Carta. Magna Carta (1215), ch. 39 (to become ch. 29 in later revisions); Bernard Schwartz, The Bill of Rights, supra note 91 at i, 12. That provision was the distant antecedent of the fifth amendment provision against the taking of ‘life, liberty, or property, without due process of law’. U.S. Const. Amend. V. The U.S. Constitution, of course, does not use the words ‘law of the land’. But the corresponding provision in the Pennsylvania Constitution of 1790 did. Constitution of Pennsylvania of 1790, Art. IX, §9, William Swinder, Sources and Documents, supra note 94 at 292. It is thus conceivable that the ‘law of the land’ language in Henfield likewise demonstrates use of Pennsylvania law, although the words were common enough in legal parlance to have been drawn from many other sources.

185. De Longchamps, 1 U.S. (1 Dall.) 111 at 113.

186. Dictionary of American Biography, 11 vols. (New York, 1936) x, 329Google Scholar.

187. ‘Sec. 34. And be it further enacted, That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. ‘Act of Sept. 24, 1789, 1 Stats, at 92. Reference to state criminal law would not be unheard of, since the federal courts in the District of Columbia applied the criminal law of the states of Maryland and Virginia, albeit in an unusual jurisdiction. United States v. Heinegan, 26 F. Cas. 253 (C.C.D.C. 1802)(No. 15,340). United States v. Winslow, 28 F. Cas. 737 (C.C.D.C. 1812)(No. 16,741). United States v. Gassaway, 25 F. Cas. 1263 (C.C.D.C. 1844)(No. 15,190).

188. After quoting the Judiciary Act, §34, Marshall went on to describe its effect:

It might certainly be well doubted whether this section, (if it should be construed to extend to all the proceedings in a case where a reference can be made to the state laws for a rule of decision at the trial) can comprehend a case where, at the trial in chief, no such reference can be made. Now in criminal cases the laws of the United States constitute the sole rule of decision; and no man can be condemned or prosecuted in the federal courts on a state law. The laws of the several states therefore cannot be regarded as rules of decision in trials for offences against the United States. It would seem to me too that the technical term, ‘trials at common law’, used in the section, is not correctly applicable to prosecutions for crimes. I have always conceived them to be, in this section, applied to civil suits, as contradistinguished from those which come before the court sitting as a court of equity or admiralty.

Robertson, David, ed., Reports of the Trials of Colonel Aaron Burr In the Circuit Court of the United States, 2 vols., (New York, 1807) ii, 482Google Scholar. Marshall's tentative opinion is not indicative of practice. In 1800, a federal court looked into Pennsylvania law as to summoning congressmen as witnesses in a libel trial. Justice Peters asserted personal knowledge of the Pennsylvania practice, but Justice Chase preferred to follow an independent course. United States v. Cooper, 25 F. Cas. 626 (C.C.D. Pa. 1800)(No. 14,861). In the same year, counsel for the accused expressly cited §34 as authority for using the English practice of jury authority in criminal authority, since Virginia law had adopted English common law; Justice Chase rejected the implications of the argument. United States v. Callender, 25 F. Cas. 239 (C.C.D. Va. 1800)(No. 14,709). In United States v. Moore, the court inquired into Pennsylvania practice in regard to compulsory process for witnesses prior to an indictment, but found that there had been no adjudications on the normal practice. 26 F. Cas. 1208 (C.C.D. Pa. 1801)(No. 15,805). The prosecution in United States v. Smith asserted that state law governed practices relating to tendering expenses with service of a subpoena. 27 F. Cas. 1192 (C.C.D. N.Y. 1806)(No. 16,342). As late as 1818 counsel alleged in United States v. Hare that state law, because of §34, applied to the problems of mail robbers who merely stood mute and refused to plead. The court ruled that if the laws of the United States were insufficient, Maryland law sufficed as the rule of decision. 26 F. Cas. 149, 150-157 (C.C.D. Md. 1818)(No. 15,304). Bridwell and Whitten cited Marshall's determination here as an early decision, and then went on to show how any inclusion of criminal suits at common law for §34 was clearly mistaken. Randall Bridwell and Ralph U. Whitten, The Constitution and the Common Law, supra note 12 at 36-37. Johnson dismissed the relevance of §34 to criminal law by reference to Marshall's opinion and Commonwealth v. Schaffer. George Lee Haskins and Herbert A. Johnson, Hist. S.C., supra note 12 at 634-35. Schaffer was a case in the mayor's court of Philadelphia in which the argument concerning §34 was made but was then rejected by the court. 4 U.S. (4 Dall.) xxvi, xxviii, xxxi, Appendix.

189. See note 176 supra.

190. Du Ponceau, Peter S., A Dissertation on the Nature and Extent of the Courts of the United States (Philadelphia, 1824) 36–37Google Scholar.

191. Act of Sept. 24, 1789, 1 Stats. 92-93.

192. Peter S. Du Ponceau, Dissertation, supra note 190 at 37-38.

193. See text at notes 216-43 infra.

194. Ibid. For other early treatises that cover the cases, see Serjeant, Thomas, Constitutional Law. Being a View of the Practice and Jurisdiction of the Courts of the United States and of Constitutional Points Decided (Philadelphia, 1830) 272–74Google Scholar, and Rawle, William, A View of the Constitution of the United States of America, (New York, 2nd ed., 1970) 258–73Google Scholar.

195. Peter S. Du Ponceau, Dissertation, supra note 190 at xiii, xxviii, 17-20. The argument was not novel. Justice Washington seems to have been employing the same distinction in United States v. McGill, quoted supra note 62.

196. Peter S. Du Ponceau, Dissertation, supra note 190 at 3-4.

197. Ibid.

198. Ibid, at 41-42. See text at note 175 supra.

199. I did not, any more than others, escape the general contagion. It was not until after repeated discussions of these questions in the law academy, that I began to perceive that the words ‘common law jurisdiction’, had no definite meaning, and was led to enter into this investigation of the subject.

Peter S. Du Ponceau, Dissertation, supra note 190 at 6n.

200. See text at notes 253-67 infra.

201. I shall endeavor to prove to you, that it is not true as a general principle, that the judiciary whether in criminal or civil cases, have not jurisdiction of the common law, or cannot take cognisance of common law offences; that, on the contrary, whenever jurisdiction is completely vested in them from either of the sources above mentioned, they have cognisance of the law, whatever it may be, that is necessary to give effect to that jurisdiction, and they are not in all cases to wait until Congress have legislated upon the subject.

Peter S. Du Ponceau, Dissertation, supra note 190 at 32.

Bridwell and Whitten discard the distinction between ‘jurisdiction of and ‘jurisdiction from’ the common law. They note that Story approved of the former, but not the latter. They also note, however, that the distinction is useless.

[f]or the fundamental objection to the exercise of such power is the same in both cases. The objection is that criminal law results peculiarly from an exercise of the sovereign lawmaking authority, which in our system was originally confided to the legislative branch of government.

Randall Bridwell and Ralph Whitten, The Constitution and the Common Law, supra note 12 at 46. Story, of course, was familiar with that conception of criminal law, so their casual rejection of the distinction and of Story's authority can be easily questioned. They note that common law in civil matters derives from community behavior, a factor that makes it distinctly different from criminal law. Ibid. But the law of nations derives, in eighteenth century literature, from the community behavior of nations.

202. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 53-56.

203. See text at notes 128-30 supra.

204. Stewart Jay, ‘Origins of Federal Common Law’, supra note 12 at 1040.

205. Ibid. Stewart Jay cites Iredell's South Carolina charge of 12 May 1794. Stewart Jay, ‘Origins of Federal Common Law’, supra note 12 at 1041. He does not mention the North Carolina charge of 2 June 1794, which seems to coincide closely with the South Carolina charge of the previous month.

206. James Iredell, ‘Charge delivered to the grand jury for the District of North Carolina in the Circuit court of the United States, June 2, 1794’, in Joseph H. Smith, Cases and Materials, supra note 108, 524-26.

207. James Iredell, ‘Charge’, supra note 206.

208. Ibid, at 525.

209. Ibid.

210. Ibid.

211. Ibid, at 526.

212. Ibid.

213. Stewart Jay, ‘Origins of Federal Common Law’, supra note 12 at 1052, n. 243.

214. Ibid.

215. Ibid. See text at notes 282-330 infra.

216. United States v. Ravara, 27 F. Cas. 713 (C.C.D. Pa. 1793)(No. 16,122). Leonard Levy barely mentions Ravara. Leonard Levy, Emergence of a Free Press, supra note 12 at 276.

217. United States v. Ravara, 27 F. Cas. 714 (C.C.D. Pa. 1794)(No. 16,122a). The issue in this preliminary stage had to do with whether the original jurisdiction over consuls (U.S. Const., Art. III, §2, cl. 1) intended an exclusive jurisdiction, such that the grant of ‘exclusive’ jurisdiction to the circuit courts (Judiciary Act, §11) was void. Although the argument properly failed there, the issue as to whether statute could narrow federal court jurisdiction came to be vital. See text at notes 255-61 infra.

218. Ibid, at 715.

219. Ibid.

220. U.S. Const. Art. III, §2, cl. 1.

221. Act of Sept. 24, 1789, 1 Stats. 80-81. Prior to the trial of Ravara and in an unrelated case, William Bradford, Attorney General, gave his opinion based on the constitutional language and on the Judiciary Act that a consul is not a public minister and not entitled to the immunity due public ministers. Off. Opinions of the A. G., supra note 158 at i, 42. The worries here about the place of trial conflicting with original criminal jurisdiction of the Supreme Court is obviated by the decision in Ravara. See note 217 supra.

222. Commonwealth v. Kosloff, 5 Serg. & Rawle 544, 545-46 (Pennsylvania, 1819). Tilghman, C.J. here analyzed Ravara.

223. Ibid, at 545.

224. Ibid.; Vattel, Law of Nations, supra note 126 at 147-49 (Bk. 2, ch. 2, §34).

225. United Stales v. Ravara is badly reported. The defense is represented to have taken the ground that the acts charged were not crimes by the common law or by any positive law of the United States. This was, of course, nonsense because by Section 27 of the Act for the Punishment of certain Crimes, offering personal violence to a public minister was made punishable. It was also argued by defense that a criminal proceeding ought not to be sustained against an individual of defendant's official character.

Julius Goebel, Jr., Hist. S.C., supra note 20 at 627. The citation to Section 27 should be Section 28.

226. Act of April 30, 1790, 1 Stats. 112, 118.

227. See text at notes 220-24 supra.

228. William Blackstone, Commentaries, supra note 83 at iii, 120.

229. Ravara, 11 F. Cas. at 714.

230. 1 U.S. (1 Dall.) 335 (Pennsylvania, 1788). McKean, C.J., set down the general principle for indictments in Pennsylvania as not founded on precedent.

It is true, that on the examination of the cases we have not found the line accurately drawn but, it seems to be agreed, that whatever amounts to a public wrong may be made the subject of an indictment. The poisoning of chickens; cheating with false dice; fraudulently tearing a promissory note, and many other offenses of a similar description, have heretofore been indicted in Pennsylvania.

Ibid, at 338.

231. 1 U.S. (1 Dall.) 41 (Pennsylvania, 1779).

232. Ravara, 11 F. Cas. at 715.

233. Peter S. Du Ponceau, Dissertation, supra note 190 at 35-36. Justice Washington felt that a violation of the Act of April 30, 1790, §28 produced ‘an offence at common law’. United States v. Liddle, 26 F. Cas. 936, 938 (C.C.D. Pa. 1808)(No. 15,598).

234. Vattel, Law of Nations, supra note 126 at 464-66 (Bk. IV, ch.7, §§81-82).

235. See text at note 174 supra.

236. Julius Goebel, Jr., Hist. S.C., supra note 20 at 629 (citing Jenkins, Charles, ed.,) Jefferson's Germantown Letters (Philadelphia, 1906) 126Google Scholar.

237. U.S. Const. Art. III, §2, cl. 1. For the proposition that the word ‘suit’ in the Judiciary Act can refer to both criminal and civil actions, see U.S. v. Mann, 26 F. Cas. 1153 (C.C.D. N.H. 1812)(No. 15,718).

238. Act of September 24, 1789, ch. 20, §11, 1 Stats, at 78-79.

239. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 56-58.

240. U.S. Const., Art. III, §2, cl. 1 (The judicial Power shall extend … to all Cases affecting Ambassadors, other public Ministers and Consuls’).

241. U.S. Const., Art. III, §2, cl. 1; Act of Sept. 24, 1789, ch. 20, §§9, 11,1 Stats. 76-79.

242. The federal government has such authority only in the seat of government and in those areas purchased by the federal government with the consent of the state legislature. U.S. Const., Art. I, §8, cl. 17.

243. Peter S. Du Ponceau, Dissertation, supra note 190 at 34. See also the criticism of Justice Chase for refusing (to use Virginia law in United States v. Callendar). Julius Goebel, Jr., Hist. S.C., supra note 20 at 651.

244. Julius Goebel, Jr., Hist. S.C., supra note 20 at 629. Neither Levy nor Jay analyzes Greenleaf. Leonard Levy, Emergence of a Free Press, supra note 12 at 276; Stewart Jay ‘Origins of Federal Common Law’, supra note 12.

245. Vattel, Law of Nations, supra note 126 at 464-65 (Bk. IV, ch.7, §§81-82).

246. Off. Opinions A.G. supra note 158 at i, 52-53. Goebel's quotation of the opinion is erroneous, but not in a way to affect his analysis. Julius Goebel, Jr., Hist. S.C., supra note 20 at 629.

247. U.S. Const. Art. III, §2, cl. 1.

248. Julius Goebel, Jr., Hist. S.C., supra note 20 at 629.

249. U.S. Const. Amend. I.

250. U.S. Const. Amend. XIV. See Robert C. Palmer, ‘The Parameters of Constitutional Reconstruction’, supra note 15 at 739.

251. Peter S. Du Ponceau, Dissertation, supra note 190 at 33-35.

252. See text at note 236 supra.

253. 3 U.S. (3 Dall.) 321 (1796). The case normally cited for the necessity of statutes to exercise jurisdiction is Turner v. Bank of North America, 4 U.S. (4 Dall.) 8. Turner is a better citation for the proposition, even though the doctrine began with the judicial understanding of Wiscart.

254. Ibid.

255. U.S. Const. Art. III §2, cl. 2.

256. Act of September 24, 1789, §22, 1 Stats. 73 at 84-85.

257. 3 U.S. (3 Dall.) at 327.

258. Idid. at 324:

If causes of equity or admiralty jurisdiction are removed hither, accompanied with a statement of facts, but without the evidence, it is well; and the statement is conclusive as to all the facts, which it contains. This is unanimously the opinion of the court.

If such causes are removed with a statement of the facts, and also with the evidence;—still the statement is conclusive, as to all the facts contained in it. This is the opinion of the court; but not unanimously.

259. Ibid, at 324-27.

260. ‘Even, indeed, if a positive restriction existed by law, it would, in my judgment, be superseded by the superior authority of the constitutional provision.’ Ibid, at 325.

261. Self-executing is, of course, different from controlling. Self-executing means that a provision takes effect without statutory authorization; controlling means that a provision takes effect despite a statutory mandate to the contrary. The belief that there was self-executing jurisdiction or procedure has some support. Elbridge Gerry in the First Congress expounded on federal court jurisdiction.

We are to administer this Constitution, and therefore we are bound to establish these courts, let what will be the consequence. Gentlemen say they are willing to establish Courts of Admiralty; but what is to become of the other cases to which the Continental jurisdiction is extended by the Constitution? When we have established the courts as they propose, have fixed the salaries, and the Supreme Executive has appointed the Judges, they will be independent, and no power can remove them; they will be beyond the reach of the Executive or Legislative powers of this Government; they will be unassailable by the State legislatures; nothing can affect them but the united voice of America, and that only by a change of Government. They will, in this elevated and independent situation, attend to their duty—their honor and every sacred tie oblige them. Will they not attend to the Constitution as well as your laws? The Constitution will undoubtedly be their first rule; and so far as your laws conform to that, they will attend to them, but no further. Would they then be confined by your laws within a less jurisdiction than they were authorized to take by the Constitution? You must admit them to be inferior courts; and the Constitution positively says, that the Judicial powers of the United States shall be so vested. They would then inquire what were the judicial powers of the Union, and undertake the exercise thereof, notwithstanding any Legislative declaration to the contrary; consequently their system would be a nullity, at least, which attempted to restrict the jurisdiction of the inferior courts.

1 Annals 829.

One line of constitutional argument could dictate mandatory judicial review of any statute that allocated federal court jurisdiction as a whole at less than that mandated by the Constitution, such that the court itself would allocate the jurisdictions subject to such subsequent regulations and exceptions of appellate jurisdictions as Congress would make.

262. Paterson later indicated that he had concurred at least in part with Ellsworth. Jennings v. The Brig, Perseverance, 3 U.S. (3 Dall.) 336, 337; Julius Goebel, Jr., Hist. S.C., supra note 20 at 700n. See also text supra 280. Paterson was, at least later, unwilling to abide by a completely common law criminal prosecution, while at the same time agreeing to an inherent authority by the principles of the common law to punish contempts. United States v. Smith, 27 F. Cas. 1192, 1224. Paterson's exception for contempts, however, was followed by Justice Johnson in United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32, 34. The assumption that the federal courts fall heir to the full power to hold common law contempt proceedings is unquestioned. It might well be that the contempt powers of a court in a government of delegated powers ought to be viewed restrictively.

263. Wiscart, 3 U.S. (3 Dall.) at 327-28.

264. It is observed, that a writ of error is a process more limited in its effects than an appeal; but, whatever may be the operation, if an appellate jurisdiction can only be exercised by this court conformably to such regulations as are made by the Congress, and if Congress has prescribed a writ of error, and no other mode, by which it can be exercised, still, I say, we are bound to pursue that mode, and can neither make, nor adopt another. The law may, indeed, be improper and inconvenient; but it is of more importance, for a judicial determination, to ascertain what the law is, than to speculate upon what it ought to be.

Ibid, at 328.

265. Ibid.

266. The question put by Ellsworth was whether an exception or regulation by Congress could swallow the rule in the Constitution; the various possibilities of language demand careful reading.

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 before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

U.S. Const. Art. III, §2, cl. 2.

Federal jurisdiction is usually considered a reserve that Congress can choose to implement if it wants, that is, that the Constitution specifies the limit of judicial power but not the necessary extent. Elbridge Gerry saw the separation of powers problem here. See note 262 supra. And congressional discretion to limit the jurisdiction of the federal courts (a question distinct from distribution of the jurisdiction among different federal courts and regulation of procedures) makes the courts dependent on Congress. No intrinsic reason would demand that the courts not consider the constitutional specification of jurisdiction binding law and an inviolable grant. U.S. Const. Art. VI, §2.

267. See Robert C. Palmer, ‘Parameters of Constitutional Reconstruction’, supra note 15.

268. Off. Opinions A. G., supra note 158 at i, 68.

269. The opinion gives no indication what the rule of decision would be. Determinative of this question would be the way in which Lee read Henfield. If Lee read the case as indicating a federal common law, he would probably not envisage application of state law. That conclusion is possible in early 1797, but not likely.

The constitution gives to Congress, in express words, the power of passing a law for punishing a violation of territorial rights, it being an offence against the law of nations, and of a nature very serious in its consequences. That the peace of mankind may be preserved, it is the interest as well as the duty of every government to punish with becoming severity all the individuals of the State who commit this offence. Congress has passed no act yet upon the subject, and Jones and his associates are only liable to be prosecuted in our courts at common law for the misdemeanor; and if convicted, to be fined and imprisoned. The common law has adopted the Law of Nations in its fullest extent, and made it a part of the law of the land.

Ibid, at 69.

270. Ibid.

271. 1 Off. Opinions A. G. supra note 158 at i, 71.

272. Attorneys General of the United States, 1789-1979, (Washington, 1980) 6Google Scholar.

273. 1 Off. Opinions A. G., supra note 158 at i, 72.

274. ‘The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.’ Pennsylvania Constitution of 1790, Art. IX, §7, William Swinder, Sources and Documents, supra note 94 at viii, 292.

275. See Wharton, Francis, State Trials of the United States (New York, 1849) 322–29Google Scholar for state prosecutions of Cobbett.

276. 1 Off. Opinions A. G., supra note 158 at i, 73.

277. ‘The judicial Power shall extend … to all Cases affecting Ambassadors, other public Ministers and Consuls.’ U.S. Const. Art. III,§2, cl. 1.

278. The Supreme Court … shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice-consul, shall be a party.

Act of Sept. 24, 1789, ch. 20, §13, 1 Stats., at 80-81.

279. 1 Off. Opinions A. G., supra note 158 at i, 73-74. William Bradford, Attorney General, in 1794 rendered a superficially similar opinion concerning a riot in front of the house of a foreign consul. Ibid, at i, 41-43. Bradford handled the difference between ‘affecting’ and the words of the Judiciary Act as a matter of construction, not as a matter of narrowing the constitutional mandate. Bradford found the construction of the Judiciary Act proper because of the further constitutional requirement that crimes be tried in the state where the crime occurred, an improbability if the Supreme Court were to have original jurisdiction in such criminal cases. U.S. Const. Art III, §3, cl. 3. A similar necessity for statutory actions prior to assumption of jurisdiction was evidenced in congressional argument, but denied by Marshall, in 1800. 10 Annals 614.

280. 1 Off. Opinions A. G., supra note 158 at 1, 74. Lee's reference to the decision by four justices confirms that he was referring to Wiscart.

281. See Gerry's comment at note 261 supra. Had Congress followed the option provided in U.S. Const. Art. II § 2, cl. 2 and allowed the Supreme Court to appoint the justices of lower federal courts, that requirement of assuming the complete jurisdiction would seem more compelling.

282. The traditional date for the counterfeiting cases is 1792. United States v. Smith, 27 F. Cas. 1147 (C.C.D. Mass. 1792)(No. 16,323). Goebel found the records for the cases, and the actual date is 1797. Julius Goebel, Jr., Hist. S.C., supra note 20 at 630n.

283. 27 F. Cas. at 1147.

284. Act of April 30, 1790, ch. 9, §14, 1 Stats. 112, 115. The statute covered the counterfeiting of ‘any certificate, indent, or other public security of the United States’. The prosecution's assumption was that a bank note was different from a security; a bank note was certainly different from coin. Had they identified bank notes as securities, the appropriate penalty would have been death. Ibid. The decision to differentiate between the two was thus advantageous to the defendant. For the difference between bank notes and coin, see U.S. v Bowen, 24 F. Cas. (C.C.D.C. 1817)(No. 14,628). Goebel recognized the difference between securities and bank notes. Julius Goebel, Jr., Hist. S.C., supra note 20 at 630. Johnson, however, summarized the statute as providing against counterfeiting ‘federal notes and currency’, certainly an incorrect rendition. George Lee Haskins and Herbert A. Johnson, Hist. S.C., supra note 12 at 635.

285. The Judiciary Act, § 11 could have served as a general delegation of the crime, although without any specification as to punishment.

286. U.S. Const., Art. III, §2, cl. 1. Law of Nations cases fall easily under the admiralty specification of Art. III, §2, cl. 1 or under Law of Nations clause in Art. I, §8. Counterfeiting might seem to fall easily under Art. I, §8, cl. 6, but that clause refers only to counterfeiting securities and coin. Extending that clause to cover bank notes might not work successfully.

287. U.S. Const. Art. III, §2, cl. 1. A similar argument was made in the same year in the Philadelphia Mayor's Court. Commonwealth v. Schaffer, 4 U.S. (4 Dall.) at xxix Appendix.

288. 27 F. Cas. at 1147.

289. See text at notes 187-291 supra.

290. 27 F. Cas. at 1147.

291. William Blackstone, Commentaries, supra note 83 at iv, 158.

292. The First Laws of the Commonwealth of Massachusetts, 190 (Wilmington, 1981Google Scholar).

293. This situation is different from that in Henfield, in which state precedent was used. In Henfield, the state had prosecuted for an offense against Pennsylvania and the United States. In this situation there was no such joint precedent. See text at note 172 supra.

294. The First Laws of the Commonwealth of Massachusetts, supra note 292 at 226.

295. Ibid.

296. See text supra at note 187.

297. U.S. Const., Art. III, §2, cl. 1. The Philadelphia's mayor's court in 1797 recognized the difference between the two styles of reasoning and thus distinguished both Henfield and Ravara. Commonwealth v. Schaffer, 4 U.S. (4 Dall.) at xxxi Appendix.

298. United States v. Worrall, 28 F. Cas. 774, 775-76 (1798).

299. Ibid, at 776.

300. It may be urged, that though the offence is not specified in the constitution, nor defined in any act of congress; yet, that it is an offence at common law; and that the common law is the law of the United States, in cases that arise under their authority. The nature of our federal compact will not, however, tolerate this doctrine. The twelfth article of the amendment stipulates, 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’. In relation to crimes and punishments the objects of the delegated power of the United States are enumerated and fixed …. [T]he very powers that are granted cannot take effect until they are exercised through the medium of a law.

Ibid, at 777.

The reference to the tenth amendment as the twelfth article of the amendments derives from the fact that twelve amendments were submitted to the states, the first two of which were rejected. The tenth amendment was thus the twelfth provision in the list submitted to the states for ratification.

301. Ibid, at 776-77.

302. See note 301 supra.

303. See text at note 170 supra.

304. See text at notes 216-19 supra.

305. 28 F. Cas. at 778.

306. Ibid.

307. Ibid.

308. [T]he offence was strictly within the very terms of the constitution, arising under the laws of the United States. If no such office had been created by the laws of the United States, no attempt to corrupt such an officer could have been made; and it is unreasonable to insist, that merely because a law has not prescribed an express and appropriate punishment for the offence, therefore, the offence, when committed, shall not be punished by the circuit court, upon the principles of common law punishment ….

Ibid, at 778.

District Judge Kane gives a later and different view of the situation.

The jurisdiction of offences which are cognizable at common law resides in the state courts alone, even though the general government may be the party immediately aggrieved by the misdeed complained of. Until the year 1840 the congress of the United States seem to have been, in general, content with the protection, which the laws of the several states gave to the public property within their limits. The integrity of subordinates, who were not themselves entrusted with public money … was guarded of course by the common law and the local statutes, as administered by the state courts.

United States v. Hutchinson, 26 F. Cas. 452, 453 (D.C.E.D. Pa. 1848)(No. 15,432).

309. The true point of view for considering the case, may be ascertained, by an inquiry whether, if Mr. Coxe had accepted the bribe, and betrayed his trust, he would not have been indictable in the courts of the United States? If he would be so indictable, upon the strongest principles of analogy, the offence of the person who tempted him, must be equally the subject of animadversion before the same judicial authority.

28 F. Cas. at 778.

310. Ibid, at 775.

311. CHASE, Circuit Justice. Do you mean, Mr. Attorney, to support this indictment solely at common law? If you do. I have no difficulty upon the subject. The indictment cannot be maintained in this court.

Mr. Rawle, answering in the affirmative, CHASE, Circuit Justice, stopped Mr. Levy, who was about to reply, in support of the motion in arrest of judgment.

Ibid, at 778.

312. Ibid, at 779. ‘[I]n my opinion, the United States, as a federal government, have no common law.’

313. Ibid.

314. 28 F. Cas. at 779.

315. Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary and an inseparable concomitant.

Ibid.

316. Robert C. Palmer, ‘Liberties’, supra note 1.

317. See text at notes 171-87 supra.

318. [H]e who shall travel through the different states, will soon discover, that the whole of the common law of England has been nowhere 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.

Ibid, at 779.

The observation is one which would derive experientially for a federal justice accustomed to riding circuit. The nature of the observation, however, was still somewhat novel. Morton J. Horwitz, Transformation, supra note 12 at 11-14; Nelson, William E., ‘The American Revolution and the Emergence of Modern Doctrines of Federalism and Conflict of Laws’, in Law in Colonial Massachusetts (Boston, 1984) 432, 451–54Google Scholar.

319. 28 F. Cas. at 779. Dallas later carefully followed Chase's argument. 8 Annals 2264-265(1797).

320. U.S. Const. Amend X. The problems concern jurisdictions like that over consuls, who were not public ministers. Exercising that constitutional jurisdiction without aid of the common law, federal or state, required legislation. But Congress had no legislative authority in that sphere. Chase's analysis thus logically implied the congressional exercise of undelegated legislative powers.

321. 28 F. Cas. at 780.

322. Ibid.

323. The traditional explanation is that Chase conferred with his fellow Supreme Court justices and found they agreed with Peters. Chase then changed his mind. Ibid, at 780n.; Stephen B. Presser, ‘Tale of Two Judges’, supra note 12 at 68-69. That explanation, however, does not account for the ‘compromise’ into which the lawyers were unwilling to enter.

324. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 69. Note, however, that Johnson does not assume that Chase's views had altered at all. George Lee Haskins and Herbert A. Johnson, Hist. S.C., supra note 12 at 639.

325. See Levy, Leonard, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York, 1963) xv–xviGoogle Scholar.

326. Ibid.

327. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 69; Leonard Levy, Emergence of a Free Press, supra note 12 at 278.

328. See text at notes 321-23 supra.

329. See text at notes 244-52 supra.

330. Historical opinion would have indicated that Peters's view did prevail. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 68-70; Leonard Levy, Emergence of a Free Press, supra note 12 at 278. In United States v. Williams, Ellsworth did comment that ‘the common law of this country remains the same as it was before the Revolution’. 29 F. Cas. 130 (C.C.D. Conn. 1799)(No. 17,708). Williams, however, was similar to Henfield, except that the accused had officially, but without U.S. consent, become a French citizen prior to engaging in warfare. Williams also raised his expatriation as a defense, so that the use of a common law standard is rather different here from using the common law as a source of jurisdiction. Leonard Levy cites Williams as if it were relevant to seditious libel. Leonard Levy, Emergence of a Free Press, supra note 12 at 277.

331. See text at notes 282-85 supra.

332. 4 U.S. (4 Dall.) 8 (1799). Turner, not Wiscart, is normally cited as the origin of the doctrine. Sheldon v. SIII, 49 U.S. (8 How.) 439, 449 (1850).

333. Turner, 4 U.S. at 11.

334. Controversies ‘between Citizens of different States’ would on its face include controversies between an original party and an endorsee of a different state. U.S. Const. Art. III, §2, cl. 1.

335. Act. of Sept. 24, 1789, ch. 20, §11.

336. 4 U.S. at 10.

337. ‘How far is it meant to carry this argument? Will it be affirmed, that in every case, to which the judicial power of the United States extends, the federal courts may exercise a jurisdiction, without the intervention of the Legislature, to distribute, and regulate, the power?’ 4 U.S. at 10n. The problem Ellsworth raises is real, but so likewise is the problem that Gerry raised. See note 261 supra. It could easily be argued that the independence of the judiciary and its balancing function demanded that all the jurisdiction possible via the Constitution be located in some federal court, and that that principle would supersede the separation of powers concerns. Congress could, of course, then regulate if it was dissatisfied.

338. 4 U.S. at 10n.

339. Ellsworth was one of the principal drafters of the Judiciary Act. Clark Warren, ‘New Light’, supra note 12 at 50. It is completely possible that the original version of §§9 and 11, including the limiting clause ‘and defined by the laws of the same’ was his work, but defeated in passage. As justice he would then be seen as insisting on the prior action of Congress once more. Paterson, however, was also one of the principal drafters. Ibid. He had sided with Wilson in Wiscart, so that one would expect that he was not as deferential to the legislative branch. See text at note 262 supra.

340. Act of July 14, 1798, ch. 74, 1 Stats. 596.

341. George Lee Haskins and Herbert A. Johnson, Hist. S.C., supra note 12 at 638-39.

342. Leonard Levy, Emergence of a Free Press, supra note 12 at 280; Smith, James Morton, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, 1956Google Scholar).

343. ‘Instructions from the General Assembly of Virginia to the Senators from that State in Congress, January 11th, 1800’, reprinted in Peter S. Du Ponceau, Dissertation, supra note 190 at 225-26.

344. Stephen B. Presser, ‘A Tale of Two Judges’, supra note 12 at 97, 104-105.

345. George Lee Haskins and Herbert A. Johnson, Hist. S.C., supra note 12 at 638-41.

346. Leonard Levy, Emergence of a Free Press, supra note 12 at 277.

347. Julius Goebel, Jr., Hist. S.C., supra note 20 at 632-33.

348. Ibid, at 632; Leonard Levy, ‘On the Origins of the Press Clause’, supra note 12 at 205, 217.

349. Ibid, at 634-35. Leonard Levy remains perplexed by the felt need for a statute, thinking the common law would suffice. Leonard Levy, Emergence of a Free Press, supra note 12 at 298.

350. Turner v. Bank of America, 4 U.S. (4 Dall.) at 10n.

351. 10 Annals 614 (1799).

352. A similar situation seems to have arisen under Jefferson: Leonard Levy, Emergence of a Free Press, supra note 12 at 343-46.

353. See text at note 274 supra.

354. Leonard Levy, Emergence of a Free Press, supra note 12 at 304-305.

355. See text at notes 312-20 supra.

356. See text note 62 supra.

357. See text at notes 253-67 supra.

358. 11 U.S. (7 Cranch) 32.

359. Story already was involved between 1812 and 1816 with federal common law. In United States v. Clark he felt bound by but protested the decision in Hudson, ruling that that case precluded a federal common law relative to perjury. 25 F. Cas. 441 (C.C.D. Mass. 1813)(No. 14,804). In United States v. Coolidge he argued from the Judiciary Act §11, as would Charles Warren (‘New Light’, supra note 12 at 73), that Congress had not restricted the courts to specifically defined offences. 25 F. Cas. 619 (C.C.D. Mass. 1813)(No. 14,857). He argued there that admiralty matters presented the strongest case for a federal common law. Ibid, at 620. He was correct at least in that. Story's opinion there was reversed by the Supreme Court without argument although the court was divided; the government declined to argue the case and no counsel appeared for the defendant. 14 U.S. (1 Wheaton) 415, 416. In 1812 Story voiced his opinion (following Tilghman in United States v. Conyngham: 25 F. Cas. 599 (C.C.D. Pa. 1801)(No. 14,850)) concerning §34 in non-criminal matters. United States v. Wonson, 28 F. Cas. 745 (C.C.D. Mass. 1812)(No. 16,750). Story was, even for himself, abnormally prescient in Wonson, since the report has him citing, in 1812, his 1842 decision in Swift v. Tyson (41 U.S. (16 Pet.) 1 (1842)). Ibid, at 749. Modern justices have prudently abstained from this practice. Story reiterated his opinion at length then in United States v. Hoar. 26 F. Cas. 329 (C.C.D. Mass. 1821)(No. 15,373).

360. Coolidge, 25 F. Cas. at 620.

361. See note 359 supra and text at notes 49-61 supra.

362. See note 64 supra.