1. For a convenient overview see Hall, Ford W., ‘The Common Law: An Account of its Reception in the United States’, 4 Vanderbilt Law Review 791–825, (1951Google Scholar); for British statutory law see Brown, Elizabeth Gaspar, British Statutes in American Law 1776-1836 (Ann Arbor, 1964Google Scholar).

2. Art. III, §2. ‘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; …’. I United States Statutes at Large 73 (Sept. 24, 1789). The relevant criminal jurisdiction appears in section 11 of the statute which gave to the circuit courts exclusive cognizance over ‘all crimes and offences cognizable under the authority of the United States’ except as otherwise provided and where jurisdiction was concurrent with the district courts. It is the meaning of the quoted language which came into dispute as well as the language of Article III of the Constitution.

3. Warren, Charles, The Supreme Court in United States History, 3 vols. (Boston, 1924) i, 159n, 433–37Google Scholar; Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics, 1789-1835 (Berkeley and Los Angeles, 1944) 125-28, 306–07Google Scholar; Crosskey, William Winslow, Politics and the Constitution, 3 vols. (Chicago, 1953-1980) ii, 782n.Google Scholar; Goebel, Julius Jr., History of the Supreme Court of the United States, Antecedents and Beginnings (New York and London, 1971) 623–33Google Scholar [hereinafter: Goebel, History]; Haskins, George and Johnson, Herbert A., History of the Supreme Court of the United States, Foundations of Power: John Marshall 1801-15 (New York and London, 1981) 158-59, 354, 633–40Google Scholar; Horwitz, Morton, The Transformation of American Law 1780-1860 (Cambridge, Mass., 1977) 9–12Google Scholar [hereinafter: Horwitz, The Transformation of American Law]; Levy, Leonard, Freedom of Speech and Press in Early American History, Legacy of Suppression (New York, Torchbook, ed., 1963) 233-34, 238–46Google Scholar; Levy, Leonard, Emergence of a Free Press (New York, 1985) 274–79Google Scholar. A detailed discussion of the issues involved is Presser, Stephen B. ‘A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence’, 73 Northwestern Law Review 27-111 at 46–72 (1978Google Scholar) [hereinafter. Presser, ‘Tale of Two Judges’]; also Presser, Stephen B. and Hurley, Becky Bair, ‘Saving God's Republic: The Jurisprudence of Samuel Chase’, 3 University of Illinois Law Review 771-822 at 796–99 (1984)Google Scholar [hereinafter: Presser, ‘Saving God's Republic’].

4. 1 Stat. 112 (April 30, 1970). Space precludes discussion of the procedural aspects of the legislation. See the brief mention in Goebel, History, supra note 3 at 609-11. The passage of the bill may be followed in DePauw, Linda Grant, ed., Documentary History of the First Federal Congress of the United States of America, 3 vols. (Baltimore, 1972-1977) iGoogle Scholar, Senate Legislative Journal, 44, 98, 120, 139, 227, 229-30, 285-87; iii, House Legislative Journal, 178, 180, 181, 207, 210, 359-63 [hereinafter: DePauw, ed., Documentary History of the First Federal Congress]. Debate in the House will be found in Annals of Congress, ii, 1572-74 (April 6-10, 1790) [hereinafter: Annals]. Brief references to the bill are to be found in Maclay, William, Sketches of Debate in the First Senate of the United States in 1789-90-91 (Harris, George W., ed. Harrisburg, 1880) 45, 128-29, 163–65Google Scholar [hereinafter: Maclay, Sketches of Debate in the First Senate].

5. DePauw, ed., Documentary History of the First Federal Congress, supra note 4 at i, 286, note 42. Note that the twelve amendments to the Constitution recommended by the House of Representatives to the states for adoption had not at this time been ratified. The ten later ratified comprising the specific Bill of Rights became part of the Constitution on December 15, 1791. The fifth amendment would provide that only by presentment or indictment by Grand Jury could a person be held to answer for a capital, ‘or otherwise infamous’ crime.

6. An amendment to defeat the latter provision failed to pass. Annals, ii, 1572 (April 6, 1790). See report of debate on this issue in Gazette of the United States (Philadelphia) April 7, 10, and 14, 1790 and more substantially in Thomas Lloyd's notes on the debate. This manuscript is in the files of the Documentary History of the First Federal Congress, Ribbon Copy, Tingling Box 8, Washington, D.C. I am grateful to Charlene Bickford, the editor of these documents for permitting me to use this material and other information about the bill in its passage through the Congress.

7. William Cushing to John Lowell, April 4, 1790. Copy in files of Documentary History of the Supreme Court. I am grateful to Wythe Holt for calling this letter to my attention. The original is in the Free Library of Philadelphia.

8. The collection of charges at the Documentary History of the Supreme Court has been used here through the courtesy of Maeva Marcus, the editor of this project. I have cited to published charges where possible. Other references are to the charges in the files of the Documentary History.

9. April 4, 1790; Johnston, Henry P., ed., The Correspondence and Public Papers of John Jay, 4 vols. (New York, 1890-1893) iii, 393Google Scholar [hereinafter: Johnston, ed., The Correspondence and Papers of Jay]. The first of these charges were delivered prior to the passage of the Crimes Act of 1790. See Goebel, History, supra note 3 at 622. Jay noted that the penal statutes were few and related principally to the revenue.

10. April 12, 1790 at Philadelphia, published Pennsylvania Gazette, April 14, 1790.

11. February 21, 1791 at Philadelphia, May 23, 1791 at Richmond; McCloskey, Robert G., ed., The Works of James Wilson, 2 vols. (Cambridge, Mass., 1967) ii, 803–23Google Scholar.

12. October 12, 1792; McRee, Griffith J., ed., The Life and Correspondence of James Iredell, 2 vols (New York, 1949) ii, 369Google Scholar [hereinafter: McRee, ed. Life and Correspondence of Iredell].

13. Johnston, ed., Correspondence and Papers of Jay, supra note 9 at iii, 478-85; Wharton, Francis, ed., State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849) 59–66Google Scholar [hereinafter: Wharton, State Trials].

14. May 7, 1793, Annapolis, McRee, ed., Life and Correspondence of James Iredell, supra note 12 at ii, 386-94.

15. June 2, 1794, ibid, at ii, 423.

16. April 12, 1796, ibid, at ii, 467-74.

17. May 8, 1797, Annapolis; May 22, 1797, Richmond, ibid, at ii, 505-10. See also 511-13 for Iredell's denial that this charge to the Richmond Grand Jury had resulted in the presentment of Samuel Cabell for writing circular letters in which the Congressman had criticized the Adams administration. No action was taken by the federal district attorney.

18. A copy of this undated charge, or perhaps a draft of a charge, is in the files of the Documentary History of the Supreme Court. The original is in the Paterson Papers at the Rutgers University Library. There is no reference in this document to legislation passed by Congress which indicates that it would have been written prior to July, 1798 when the Sedition Act passed. Other undated charges of Paterson's, obviously later, refer specifically to the Act, justify its passage and uphold its constitutionality. Discussions with Wythe Holt and Stewart Jay about these charges have been particularly helpful.

19. Independent Chronicle (Boston), June 10-13, 1799.

20. U.S. v. Henfield, Wharton, State Trials, supra note 13 at 49; #6360, 11 Fed. Cas. (C.C. District of Pennsylvania, 1793) 1099.

21. U.S. v. Ravara, 2 Dallas 299n; #16, 122 a, 27 Fed. Cas. (C.C. District of Pennsylvania, 1794) 714.

22. U.S. v. Smith, 6 Dane Abr. 718; #16, 323, 27 Fed. Cas. (C.C. District of Massachusetts, 1797) 1147. The date 1792 given in Fed. Cas. is erroneous.

23. U.S. v. Greenleaf, (C.C. District of New York, 1797) an unreported case which appears in a mss. volume of Court minutes for 1797, Harvard Law School. See the discussion of two indictments against Greenleaf in Goebel, History, supra note 3 at 629.

24. U.S. v. Worrall, Wharton, State Trials, supra note 13 at 189; #16, 766, 28 Fed. Cas. (C.C. District of Pennsylvania, 1798) 744.

25. For discussion of the common law prosecutions for seditious libel see Smith, James M., Freedom's Fetters (Ithaca, 1956) 200-02, 204-20, 385–90Google Scholar [hereinafter: Smith, Freedom's Fetters].

26. U.S. v. Isaac Williams, Wharton, State Trials, 652; #17, 1708, 29 Fed. Cas. (C.C. District of Connecticut, 1799) 1330.

27. A proposal made during the debate on the Crimes bill in the Senate making it ‘highly criminal’ to defame a foreign minister had been defeated. Maclay, Sketches of Debate in the First Senate, supra note 4 at 129.

28. Goebel, History, supra note 3 at 627. Threatening personal violence to a public minister was made punishable.

29. 2 Stat. 61 (June 27, 1798).

30. Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, supra note 3 at xvi; Leonard Levy, Emergence of a Free Press, supra note 3 at 278. Presser, ‘Tale of Two Judges’, supra note 3 at 69; Presser, ‘Saving God's Republic’, supra note 3 at 796, 146n. The case is unreported. See Final Record Book, Circuit Court, District of Massachusetts, Federal Records Center, Waltham, Mass.

31. It is entirely possible that Bushrod Washington should be included with this group although no direct evidence has come to light. In 1804 Washington directed an acquittal of a case argued on common law grounds; his language indicates that had the facts of the case been different jurisdiction could have been accepted. U.S. v. Passmore, 4 Dallas 372; #16, 005, 27 Fed. Cas. (C.C. District of Pennsylvania, 1804) 458; Anonymous, 1 Washington C.C. 84; #475, 1 Fed. Cas. (C.C. District of Pennsylvania) 1032. See note 55 infra.

32. I am in agreement with Julius Goebel that considerable uncertainty on the matter prevailed in the early years of the federal courts and that some of the judges do not seem to have made up their minds on the point. Goebel, History, supra note 3 at 622. Kent Newmyer states that there were judges and lawyers of learning and ability on both sides. Newmyer, R. Kent, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, 1985) 102Google Scholar.

33. As did the first Attorneys-General in Edmund Randolph to William Rawle, March 12, 1793, Rawle Papers, III, Historical Society of Pennsylvania; William Bradford to Randolph, July 6, 1795, ‘Opinions of the Attorney General’, No. 123, 33; Charles Lee to Timothy Pickering, January 26, 1797, ‘Opinions of the Attorney General’, 26 Cong., 2 Sess., House Executive Documents, No. 123, 39-40. Notice also the earlier Respublica v. DeLongchamps, 1 Dallas 111 (Oyer and Terminer at Philadelphia, 1784) in which Chief Justice Thomas McKean had held that the law of nations ‘in its full extent’ was part of the municipal law of Pennsylvania. I am indebted to Sandra Van Burkleo for this reference.

34. U.S. v. Worrall, 2 Dallas (U.S.) 384 at 395, 400; The Judiciary Act of 1789, 1 Stat. 73, sec. 11. ‘That the circuit courts … shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides …’.

35. Independent Chronicle (Boston) June 10-13, 1799.

36. In his argument to arrest judgment after the jury convicted Worrall, Alexander James Dallas declared that sec. 11 of the Judiciary Act did not confer jurisdiction on the court because that language referred only to express constitutional provisions or statutes passed by Congress. Worrall's crime, attempting to bribe a federal officer, and the place where the offense took place were not so specified. The nature of the federal government, he argued, was one of limited, enumerated and delegated powers; these powers could not take effect until they were exercised through a statute. William Rawle, the prosecutor, followed a line of argument analogous to that which Judges Ellsworth and Lowell had taken in Smith's Case in Massachusetts on circuit in 1797—that the office of Commissioner of Revenue had been established by act of Congress, and that therefore an attempt to bribe him could be inferred to be an offense ‘arising under a law of the United States’. However, it was when Rawle continued his argument to comment that federal cases could be brought at common law, that Chase cut him off, announced that the indictment could not be maintained and then delivered from the bench a lengthy opinion on the subject. Wharton, State Trials, supra note 13 at 194ff. Presser suggests that the opinion seems to have been written anticipating Rawle's argument. Presser, ‘Tale of Two Judges’, supra note 3 at 61. This is quite plausible. The year before, also in Philadelphia, Dallas, as counsel for a defendant convicted in a Pennsylvania court for forging names of soldiers to powers of attorney in order to receive military land warrants granted by acts of Congress, had stated that because the question of the common law jurisdiction of the federal courts, in criminal cases, had not been decided, it was his duty to bring it before the court. He moved to arrest judgment on the grounds that the offense arose under laws of the United States and was therefore exclusively cognizable in the federal court. The court overruled the motion upholding the jurisdiction of the state court on the ground that section 11 of the Judiciary Act ‘may be reasonably supposed not to have contemplated this case, which by no act of congress is designated as a crime, nor has it any appointed punishment’. Commonwealth v. Schaffer, Mayor's Court of Philadelphia, 4 Dallas Appendix xxvi (April, 1797). Smith's Case was also decided in 1797 in the federal circuit court in Massachusetts. The tempo of political partisanship increased markedly during 1797 and Federalists moved to silence attacks on the government. The first instance of this came when a federal grand jury in Richmond on May 22, 1797 presented as a real evil the circular letters of several members of Congress, particularly those of Samuel J. Cabell, for endeavoring ‘at a time of real public danger to disseminate unfounded calumnies against the happy government of the United States’. Many assumed, although this was denied by jurors and judge, that the presentment was the result of Justice Iredell's charge, referred to at note 17 supra. Republican leaders were aroused by the presentment and under the leadership of Vice-President Jefferson a petition he drafted was presented to the Virginia House of Delegates which adopted a resolution denouncing the presentment. Even though the presentment was not acted on and Cabell was never tried Republicans were alarmed by the episode while many Federalists applauded the action of the Richmond Grand Jury. Cunningham, Noble E. Jr., Circular Letters of Congressmen to Their Constituents 1789-1829, 3 vols. (Chapel Hill, 1978) xxxvi-xxxix, 67–78Google Scholar; Koch, Adrienne and Ammon, Henry, ‘Madison's Defense of Civil Liberties’, William and Mary Quarterly, 3d ser. v (1948) 152–53Google Scholar.

This sequence of episodes may be relevant to consideration of Worrall. Worrall was indicted on April 12, 1798. When he appeared on April 14 Dallas moved for further time to plead and it was granted. Trial and sentencing took place on April 26. Minutes of the United States Circuit Court for the District of Pennsylvania, April term, 1798. Prosecutor William Rawle, Defense counsel Levy and Dallas and Judges Peters and Chase, after the twelve day interval, may all have come with parts prepared in advance. The eagerness of the prosecutor and the judges that the common law issue be settled is clear from their unsuccessful effort to have the case then framed for a definitive ruling from the Supreme Court. Wharton, State Trials, supra note 13 at 198-99. The hot debate on the recently introduced alien bill with that on the sedition bill soon to follow (and the outcome of each unclear) may also have contributed to their desire to have the high court determine the jurisdictional question as speedily as possible.

37. 2 Dallas 384; Wharton, State Trials, supra note 13 at 199.

38. Presser, Two Judges’, supra note 3 at 69. See also ‘Saving God's Republic’, supra note 3 at 798-799. Presser's work gives us the most substantial analysis of Chase's jurisprudence. For a different jurisprudential interpretation of the views of Peters and Chase in this case see Morton Horwitz, The Transformation of American Law, supra note 3 at 11-12.

39. Peters to Timothy Pickering, March 30, 1816, Pickering Papers, 31: 89, Massachusetts Historical Society, Boston. This letter is written shortly after the Supreme Court decision in U.S. v. Coolidge, 1 Wheaton 415 (1816) in which the Court refused to overturn its 1812 opinion in U.S. v. Hudson and Goodwin, 7 Cranch 32 that there was no federal common law of crimes. The language of the report 2 Dallas 384 at 393; ‘The court being divided in opinion, it became a doubt, whether sentence could be pronounced upon the defendant; and a wish was expressed by the judges and the attorney of the district, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the supreme court, upon the important principle of the discussion. But the counsel for the prisoner did not think themselves authorized to enter into a compromise of that nature. The court, after a short consultation, and declaring, that the sentence was mitigated in consideration of the defendant's circumstances, proceeded to adjudge’.

Worrall was sentenced to prison for three months, fined $200 and to be committed until the fine was paid. It is Wharton who adds the speculation about the nature of the ‘short consultation’; there is no evidence for this. I would speculate that it is equally likely that the judges were consulting given counsel's unwillingness to enter into ‘a compromise’, in order to send the case to the Supreme Court. (Imprisonment followed by a petition for habeas corpus to the high court is the best guess of procedure available at that time.) When Peters proposed his ‘just, but Mild’ sentence for the convicted man because ‘any punishment was better than none’ Chase agreed.

40. Presser, ‘Saving God's Republic’, supra note 3 at 796 note 145, quoting Chase's 1804 opinion in Penn's Lessees v. Pennington. See also Chase's charge to grand juries in 1805 and 1806 at note 58 supra.

41. For interesting parallel views expressed by Chase regarding civil litigation see Turner v. Bank of North America, 4 Dallas, 8 (1799). For the continuing disagreement between Chase and Peters over a federal common law of crimes and Chase's refusal to punish absent statute see Peters to Pickering Dec. 8, 1806, Pickering Papers, xxvii, Dec. 5, 1807, xxviii, 99, Massachusetts Historical Society.

42. 1 Stat. 596 (July 14, 1798).

43. Annals, 5 Cong., 2 sess., 2141. July 10, 1798. On the other hand, another leading Federalist, Harrison Gray Otis, insisted that federal judicial power and hence the jurisdiction of federal courts did extend to offenses at common law. Otis argued that within the language of Article III the common law was incorporated in the phrase ‘cases in law and equity arising under the Constitution’ rather than in the phrase ‘laws of the United States’. Ibid, at 2146-147. In Virginia in 1798 John Marshall, a Federalist candidate for the House of Representatives, in a public political statement said that he would have opposed passage of the Act had he been in Congress at the time. To a Freeholder, Sept. 20, 1798 in Johnson, Herbert A. et al. , eds., The Papers of John Marshall, 4 vols. (Chapel Hill, 1970-1984) iii, 505Google Scholar. Marshall thought the Alien and Sedition Laws useless since each state had the authority to punish seditious libel and to regulate the activity of aliens. Ibid, at 496, 499 note 1.

44. For succinct summary see Warren, Charles, The Supreme Court in United States History, 3 vols., (Boston, 1924) i, 158–168Google Scholar.

45. Smith, Freedom's Fetters, supra note 25 at 200-04; Goebel, History, supra note 3 at 632. Benjamin Franklin Bache was arrested on a warrant issued by Peters on June 26. Argument on the validity of the warrant and a federal common law jurisdiction was carried on again before Peters between Rawle, the District Attorney and Moses Levy and Dallas who now, in behalf of Bache, cited Chase's position in Worrall. Peters agreed to bail Bache after sureties were given and set trial for the October term of the circuit court. The Sedition Act became law on July 14 and Bache died of yellow fever in September before being tried. In New York, in July 1798, prior to the passage of the Act, John Daly Burk, editor of the Republican Time Piece was brought before District Judge John Sloss Hobart by the federal attorney, Richard Harison, and charged with seditious libel. Burk was released on bail by Hobart pending his trial, similarly to be held in October, before Supreme Court William Paterson sitting as circuit judge. This case never came to trial either. Smith, Freedom's Fetters, supra note 25 at 211-20.

See above at note 18 for Paterson's notes, perhaps planned to be used in this trial, on the question of federal common law jurisdiction over crimes.

46. Madison's Report on the Virginia Resolutions, December 1799-January, 1800, Hunt, Gaillard, ed. Writings of Madison, 9 vols. (New York, 1900-1910) vi, 371–82Google Scholar. The Senators from that state were instructed by the legislature to oppose the passage of any law founded on or recognizing the principle ‘lately advanced’ that the common law of England was in force under the national government. Madison, James, Letters and Other Writings, 4 vols. (Congress ed., Philadelphia, 1865) iv, 533–539Google Scholar. Not only the doctrine of a federal common law of crimes concerned the Republicans. Fears of the incorporation into federal jurisprudence of the common law in many civil causes were equally great. Jefferson to Pinkney, Oct. 29, 1799, Ford, Paul Leicester, ed. The Writings of Thomas Jefferson, 10 vols. (New York, 1897) vii, 398Google Scholar [hereinafter: Ford, ed., Writings of Jefferson]; to Granger, Aug. 13, 1800, vii, 450; to Randolph, Aug. 18, 1799, 383-84; ‘Anas’, March 5, 11, 12, 19, April 29, 1800, i, 285, 286, 288, 291.

47. Marshall to St. George Tucker, November 27, 1800. Marshall Papers, Ac. 2354, Library of Congress. The Editors of The Papers of John Marshall identify the recipient, unnamed in the original manuscript, as St. George Tucker. I am grateful to Professor Wythe Holt for informing me of this.

48. Turner, Kathryn, ‘Federalist Policy and the Judiciary Act of 1801’, William and Mary Quarterly, 3d ser., xxii (1965) 3–32CrossRefGoogle Scholar. There is no clear evidence to indicate whether or not the specific inclusion of federal question jurisdiction in this legislation was related to the unsettled state of doctrine over a federal common law of crimes.

49. Levi Lincoln to Alexander James Dallas, March 25, 1801, in Jefferson Papers, vol. cxi, Library of Congress; Jefferson to Albert Gallatin, November 12, 1801, in Ford, ed., Writings of Jefferson, supra note 46 at viii, 57n; Jefferson to Duane, May 23, 1801, to R.R. Livingston, May 31, 1801, to Edward Livingston, Nov. 1, 1801, Ibid. 54-56, 55n-57n, 57n-58n. U.S. v. Duane, Circuit Court, Eastern District of Pennsylvania, Criminal Cases (Oct. 1801), Record Group 21, National Archives. The fullest account of the complicated Duane litigation is in Smith, Freedom's Fetters, supra note 25 at 277-306.

50. Haskins, George L. and Johnson, Herbert A., History of the Supreme Court of the United States Part I by Haskins; Part II by Johnson, (New York and London, 1981), 161Google Scholar [hereinafter: Haskins and Johnson, Supreme Court]. Both Haskins and Charles Warren, Supreme Court, i, 195 interpret this episode as the precipitant for Jefferson's policy decision to attack the federal court system. Richard E. Ellis portrays the President as more undecided at this juncture. Ellis, Richard E., The Jeffersonian Crisis: Court and Politics in the Young Republic (New York, 1971) 40–41Google Scholar [hereinafter: Ellis, The Jeffersonian Crisis].

51. Daviess, Joseph H., ‘Sketch of the Political Profiles of Three Presidents’, in A View of the President's Conduct Concerning the Conspiracy of 1806 (Frankfort, Ky., 1807) 59n–60nGoogle Scholar. On this matter see the document by Jefferson discussing the relationship between federal statute and state law, Observations on the Force and Obligation of the Common Law in the United States, on the Occasion of Hardin's Case, in Kentucky Lipscomb, Andrew A. and Bergh, Albert E., eds. The Writings of Thomas Jefferson, 20 vols. (Washington, 1903), xvii, 410–17Google Scholar. Although the document is dated November 11, 1812 in this edition of Jefferson's writings this may be owing to an error in transcription of the original document which has since been lost. Court records make clear that Hardin’ s case (the rescue of one of the murderers by a mob led by Hardin) was in 1802. The episode is discussed in Tachau, Mary K. Bonsteel, Federal Courts in the Early Republic Kentucky 1789-1816 (Princeton, 1978) 128–33Google Scholar. In 1802 Lincoln, replying to an inquiry regarding a riot in which the Spanish Ambassador had been insulted, stated that in such a case the law of nations was part of the municipal law of the state, there being no federal statute recognizing the offense. Levi Lincoln to Secretary of State [Madison], May 12, 1802, ‘Opinions of the Attorney General’, 26 Cong., 2 sess., House Executive Documents No. 123, 68-69. Compare this with U.S. v. Greenleaf (1797) cited above at note 23 in which a conviction was obtained in federal court for a comparable offense. Goebel, History, supra note 3 at 629.

52. The most extensive recent account of the repeal is Ellis, The Jeffersonian Crisis, supra note 50 at 36-52. See also Haskins and Johnson, Supreme Court, supra note 50 at 163-81.

53. Federalists prosecuted included Harry Croswell of The Wasp of Hudson, N.Y. in 1803, Joseph Dennie of the Port Folio of Philadelphia in 1804, William Dickinson of the Lancaster, Pa. Intelligencer and Weekly Advertiser in 1806. See respectively Goebel, Julius, The Law Practice of Alexander Hamilton, 2 vols. (New York, 1964-1969), i, 779 and 775–848Google Scholar for extensive discussion and documents regarding the case from its inception through People v. Croswell, 3 Johnson (N.Y.) 337 (1807); Respublica v. Dennie, 4 Yeates (Pa.) 267 (1805); Aurora (Phila.) May 17, 1806.

54. Jefferson to Thomas McKean, February 19, 1803, Ford, ed., Writings of Jefferson, supra note 46 at viii, 218; Jefferson's article signed ‘Fair Play’ which he sent to Levi Lincoln in June 1803 with a view to publication, ibid., 238; to Abigail Adams, Sept. 11, 1804, ibid. 312n. See Leonard Levy, Emergence of a Free Press, supra note 3 at 307-08. In several states at this time the general question of the common law within the state had become interwoven in local political conflicts. Ellis provides the best discussion. Ellis, Jeffersonian Crisis, supra note 50 at 129-30, 176-80, 189-91, 205-206.

55. The indictment was for perjury under the repealed bankruptcy act of 1800. Washington directed an acquittal on the grounds that the repeal of the law barred criminal proceedings under the former statute. Because the common law definition of perjury did not cover the facts of the case the common law could not, in any event, he said, here serve as the basis for the indictment. U.S. v. Passmore, 4 Dallas 372, #16,005. 27 Fed. Cas. (C.C. District of Pennsylvania, 1804) 458; Anonymous, 1 Washington C.C. 84, #475, 1 Fed. Cas. (C.C. District of Pennsylvania) 1032. These are clearly the same case. The report of Anonymous includes Washington's charge to the jury omitted in the report of U.S. v. Passmore. Dallas in argument cited Ravara, Williams, and Worrall. Counsel for defendant split on the common law issue, Dickerson denying its validity and Rawle admitting it. Following this decision two similar cases were nol pros'd by Dallas. U.S. v. Howland, U.S. v. Litman, C.C. E. Dist. of Pa., Criminal Cases (1804), Record Group 21, National Archives. At the same term, several indictments were returned for assault on the high seas. Details regarding these assaults are not clear from the record. Whether prosecutions of this sort represent instances in which Washington decided that the federal courts had a common law jurisdiction is not possible to say. In 1806 in U.S. v. Magill, 4 Dallas 426 Washington stated, ‘There are, undoubtedly, in my opinion, many crimes and offenses against the authority of the United States, which have not been specifically defined by law; for, I have often decided, that the federal courts have a common law jurisdiction in criminal cases; …’. Washington does not say in which cases he did so and none is known. It is plausible that the lesser offenses committed by seamen may be the answer. Difficulties in determining Washington's views are discussed above at note 31.

56. U.S. v. Richard Johns, 4 Dallas 412, #15,481, 26 Fed. Cas. (C.C. District of Pennsylvania, April, 1806), 616.

57. Richard Peters to Timothy Pickering, Dec. 8, 1806, Pickering Papers, 27:334, Massachusetts Historical Society. Pickering who had been Secretary of State from 1795 to 1800 was at this time one of the Senators from Massachusetts. Identification of the unreported case to which Peters refers must remain uncertain. It should not be confused with U.S. v. Magill, 4 Dallas 426 discussed above, supra note at 55. Peter's letter makes clear that there are two different cases, one in which he sat with Chase and another (Magill) with Washington. Chase and Peters sat together only twice, in the April term 1798 and in the April term 1800. In the latter term (the one in which John Fries was being tried for treason and William Duane indicted under the Sedition Act) the grand jury returned a true bill against William Hampton for assault and battery; the record indicates that Hampton defaulted, forfeited his bond and did not come to trial. Nathaniel Calvert, arraigned on the same charge, disappears from extant records. One of these may be the case to which Peters here refers. Also at this term, three others were indicted for murder and piracy, tried and convicted. A motion made by Dallas to arrest judgment was overruled and they were sentenced to hang. Chase would of course have had no scruples over this punishment since jurisdiction of the offense on the high seas was clear. U.S. v. Burger or Burroughs, U.S. v. Peterson or LaCroix, U.S. v. Baker or Boulanger, Minutes of the United States Circuit Court, District of Pennsylvania, April 14, 15, 16, 21, 23, 24, 1800. The latter case is also referred to in Peters to Pickering, Dec. 5, 1807, Pickering Papers, 28: 99, Massachusetts Historical Society.

58. When discussing the jurisdiction of the federal courts in his instructions to the federal grand jury in 1805 (apparently used in June and October, 1806 as well) Chase stated that by the Judiciary Act of 1789 ‘it is your Duty to enquire of all Breaches of any of the laws of the United States, committed within this District; Or within the jurisdiction of this court by any Statutory provision of which you shall have any knowledge, or shall receive information from witnesses or concerning which this Court shall direct you to make enquiry …’. Instructions to Grand Jury, May 1, 1805, Samuel Chase Papers, Maryland Historical Society, Baltimore (italics in original).

59. U.S. v. James Magill, 4 Dallas 426, #15,676, 26 Fed. Cas. 1088 (C.C. District of Pennsylvania, October, 1806). Both the Constitution and the Judiciary Act of 1789 gave admiralty jurisdiction to the federal courts but did not clarify what substantive law the federal courts were to apply.

60. Peters to Pickering, Dec. 8, 1806, Pickering Papers 27:334-35, Enclosure, 335A, Massachusetts Historical Society. Pickering replied in favor of enumerating the crimes within the jurisdiction of the District Court in order to create uniformity throughout the federal system because of the great diversity in the offences cognizable by the inferior courts of the different states. Pickering to Peters, Dec. 30, 1806, Peters Papers, X, 114, Historical Society of Pennsylvania, Philadelphia.

61. Peters to Pickering, December 5, 1807, Pickering Papers, 28:99, Massachusetts Historical Society.

62. 7 Cranch (U.S.) 32 (1812). See Crosskey, William Winslow, Politics and the Constitution, 3 vols. (Chicago, 1953) ii, 770–82Google Scholar whose account is followed closely by Levy, Leonard, Jefferson and Civil Liberties: The Darker Side (Cambridge, Mass., 1963) 61–67Google Scholar.

63. Connecticut Courant (Hartford), August 27, 1806Google Scholar.

64. The Witness (Litchfield, Conn.), April 30, 1806.

65. Precluded from prosecutions at common law by his earlier instructions from the administration. See page 238, supra. District Attorney Daviess sought an indictment of Burr in November, 1806 under the Neutrality Act of 1794 but the Grand Jury refused to find a true bill and Burr went on from Kentucky to Nashville.

66. John Dawson of Virginia introduced the bill which also provided that when, in the opinion of the judge, any person intended to commit the prohibited offense, sureties for good behavior in an amount determined by the judge could be demanded. Imprisonment was provided in default of sureties. Annals, 9 Cong., 2 sess. 217-218. Pronounced unconstitutional and unprecedented and compared unfavorably with the Sedition Act, opposition from Jefferson's own party denounced punishment on mere suspicion and warned against the extensive powers given to the federal judges who ultimately would give the definition of the offenses specified by the statute. Ibid, at 219, 261-64. The bill died. A few days later (January 23, 1807) Jefferson, having asserted that Burr was the prime mover in a western conspiracy, requested authorization to suspend the writ of habeas corpus. This request was made just as Burr's alleged accomplices Bollman and Swartwout, arrived in Washington. Promptly passed by the Senate, this extraordinary bill was soundly defeated in the House. Unable to control his Congressional majority, the President's effort to prevent the judiciary from deciding whether Bollman and Swartwout were entitled to the writ had failed as well. In February, 1807 they were released by the Supreme Court. Burr meanwhile had been captured and on March 30, 1807 the famous trials began to last until the end of the summer. This then is the larger historical context in which Jefferson first learned about the Connecticut cases. At the time he made no protest about them, nor did he make any effort to halt them. He did not then know that one of the cases (that against Azel Backus) involved allegations against his personal morality in an early affair with the wife of a friend. Crosskey details the Connecticut cases in full. William Winslow Crosskey, Politics and the Constitution, supra note 62 at ii, 770-84.

In the Burr trial there is a colloquy between Luther Martin, Burr's defense counsel, and George Hay, the prosecuting attorney, on the question of federal common law jurisdiction over crimes. Martin, maintaining that no man can be guilty of an offense against the United States merely at common law, cites Chase's opinion in Worrall. He also mentions indictments in Connecticut and says that in a federal court the offense could not be maintained. Hay seems to agree with him. Robertson, David, Reports of the Trials of Colonel Aaron Burr for Treason and for a Misdemeanor in the Circuit Court of the United States, 2 vols. (Philadelphia, 1808), ii, 343Google Scholar. For analysis of Burr's trial see Leonard Levy, Jefferson and Civil Liberties, supra note 62 at 70-92; George Haskins and Herbert A. Johnson, Supreme Court, supra note 3 at 246-291; Abernethy, Thomas P., The Burr Conspiracy (New York, 1954Google Scholar).

67. White, Leonard, The Jeffersonians: A Study in Administrative History, 1801-1829, (New York, 1951), 433-43, 453–60Google Scholar.

68. Caesar A. Rodney to Jefferson, April 22, 1808, Jefferson Papers, vol. 177, Library of Congress.

69. 2 Stat. 451 (December 22, 1807); 2 Stat. 453 (January 9, 1808); 2 Stat. 473 (March 12, 1808); 2 Stat. 499 (April 25, 1808). Forfeiture of ship and cargo was the penalty provided.

70. Justice William Johnson held that the President's instructions to the customs collectors were illegal and void, unwarranted by statute. Gilchrist and others v. The Collector of the Port of Charleston, #5, 420, 10 Fed. Cas. (C.C. District of South Carolina, 1808), 355. Justice Livingston demolished the administration's efforts to enforce the embargo by prosecution of offenders for treason in U.S. v. Hoxie, 26 Fed. Cas. (C.C. District of Vermont, 1808), 379. See the discussion of these and other embargo cases in George Haskins and Herbert A. Johnson, Supreme Court, supra note 3 at 298-08. Further detail will be found in Leonard Levy, Jefferson and Civil Liberties, supra note 62 at 121-41.

71. Jefferson to Gallatin, August 11, 1808, Ford, ed., Writings of Jefferson, supra note 46 at ix, 202.

72. No instructions on the matter from the President or from either the Attorney General or the Secretary of State have been found.

73. The Enquirer (Richmond), November 25, December 2, 1808; Philip Pope to Jefferson, January 5, 1809, Madison Papers, XXXVI, Library of Congress.

74. The Enquirer (Richmond), December 17, December 22, 1808, June 2, 1809; U.S. Circuit Court, Dist. of Virginia, Richmond, Order Book No. 7, December 13, 1808, 206-207, Virginia State Library.

75. U.S. v. Barzillai Hudson and George Goodwin, Records of the Supreme Court, Case Papers, Cases No. 395, National Archives. The certified circuit court record is dated Oct. 12, 1808, but the case was not actually filed before the Court until March 15, 1809. See William Winslow Crosskey, Politics and the Constitution, supra note 62 at ii, 781-82 for his argument that Jefferson deliberately delayed having the case presented to the Supreme Court until after a Jeffersonian majority was on the bench.

76. Annals, 10th Congress, 2 session, 897, 909. Story arrived on Dec. 20, 1808 and presented the resolution on Dec. 26. In March 1809 he left the House and did not seek reelection. We do not know Story's entire mind here but we do know of his support for the Embargo at this juncture even though he later favored its repeal. R. Kent Newmyer, Story, supra note 32 at 58-63 gives an excellent account of Story's relationship to Republican party and policy. It is possible that even at this time Story hoped to have Congress enact legislation which would confer a jurisdiction broad enough to prosecute offenders against national policy. Newmyer speaks of Story's ‘militant nationalism’ as a clue to Story's final disillusion with party government. Story later claimed that he was never forgiven by Jefferson for his support of the repeal of the Embargo. Story, William W., ed., Life and Letters of Joseph Story, 2 vols. (Boston, 1851) i, 187Google Scholar [hereinafter: W.W. Story: Life and Letters].

77. 2 Stat. 506 (January 9, 1809), sec. 12. I read this to mean usage or custom in the various states. Gallatin had complained that every degree of opposition to the laws which fell short of treason was undefined and unprovided for by the laws of the United States. Such offenses went unpunished when state authorities did not intervene. Gallatin to Giles, November 24, 1808, Adams, Henry, ed., The Writings of Albert Gallatin, 3 vols. (Philadelphia, 1879), i, 432, 434Google Scholar.

78. U.S. v. William Smith, U.S. Circuit Court, Dist. of Virginia, Richmond, Order Book No. 7, June 2, 1809, 265. On May 25 the action of debt brought against Smith had by consent of both parties been removed from the district to the circuit court. Order Book No. 7, 235; The Enquirer (Richmond) June 2, 1809.

79. U.S. Circuit Court, Dist. of Va., Richmond, Order Book No. 7, June 2, 1809, 265; The Enquirer (Richmond) June 6, 1809. The next day eleven similar indictments were dismissed. Order Book No. 7, 267-68.

80. In the House of Representatives John Randolph castigated his party for inattention to the Connecticut prosecutions which threatened, he warned, to incorporate the entire system of British penal law within the federal judicial system, free from Constitutional restraints imposed on Congress by the First Amendment. ‘Such is the difference between men in power and men out of power; such is the difference between profession and practice.’ May 25, 1809, Annals, II Cong., 1 sess., 75-79.

81. Leonard Levy, Emergence of a Free Press, supra note 30 at 311-15 for discussion of Hay. For different view of Hay’ s concept of seditious libel, see Walter Berns, ‘ Freedom of the Press and the Alien and Sedition Laws: A Reappraisal’, [1970] The Supreme Court Review, 141.

82. … This Court deem it proper to declare, that it disclaims all jurisdiction not given by the Constitution or by the laws of the United States.

Courts which originate in the Common Law possess a jurisdiction which must be regulated by the Common Law, until some statute shall change their established principles; but Courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. The reasoning from the Bar in relation to it may be answered by the single observation, that for the meaning of the term habeas corpus resort may unquestionably be had to the Common Law; but the power to award the writ by any of the Courts of the United States must be given by written law.

4 Cranch 75 (1807) at 93.

83. Marshall to [Tucker], November 27, 1800, Marshall Papers, Ac. 2354, Library of Congress. George Haskins and Herbert A.Johnson suggest in Supreme Court, supra note 3 at 309, 641 that the Smith decision may be evidence of a change of position on the part of Marshall. Their argument rests on the nature of Marshall's defense of the Sedition Act of 1798 and is not in my judgment entirely persuasive.

84. Pinkney apologized to Madison for spending his time practicing law in Baltimore and subsequently resigned after Congress passed a bill requiring the Attorney General to be permanently in Washington. Pinkney to Madison, December 8, 1811, April 12, 1812, January 25, 1814, all in Madison Papers, series 2, vol. 43, 47, 54, Library of Congress.

85. U.S. v. Hudson and Goodwin, 7 Cranch (U.S.) 32.

86. Johnson in an unreported circuit opinion in 1813 stated that the decision was ‘almost unanimous’, Bushrod Washington being the lone dissenter. [William Johnson], Trial of William Butler for Piracy (1813) 12 [hereinafter: Trial of Butler]. Story, in a circuit opinion also in 1813 stated that the decision was ‘by a majority only’. U.S. v. Coolidge, 1 Gall. 488; #14,857, 25 Fed. Cas. 619 at 621 (C.C. District of Massachusetts, 1813). Relying on Story's comment, William Winslow Crosskey, Politics and the Constitution, supra note 62 at ii, 782, designates the Jeffersonians— Johnson, Livingston, Todd, and Duval—as the majority putting the Chief Justice with Washington and Story in dissent. Leonard Levy, Jefferson and Civil Liberties, supra note 62 at 66, follows this design as does Dunne, Gerald T., Justice Joseph Story and the Rise of the Supreme Court (New York, 1970), 89Google Scholar. McClellan, James, Joseph Story and the American Constitution (Norman, 1971) 171nGoogle Scholar believes Crosskey ‘possibly xscorrect’. To George Haskins and Herbert A. Johnson, Supreme Court, supra note 3 at 645 Marshall's position is ‘not discernible’. R. Kent Newmyer, Story, supra note 32 at 101 puts Marshall with the majority citing his circuit opinion in Livingston v. Jefferson, 1 Brockenbrough 211 (1811). Given Marshall's general position on the basis of Bollman and U.S. v. Smith only awkward straining could have led him to dissent from Johnson's opinion in the Hudson case. I therefore include him with the majority. At the time of the decision itself, however, there is no direct evidence for the views of Marshall, Washington, or Story.

87. Story to William Pinkney, June 26, 1812, enclosed in Pinkney to Madison, July 5, 1812, Madison Papers, series 2, vol. V, Library of Congress. Madison's disinclination to follow such a suggestion is clearly in line with his sentiments of 1799-1800. Kent Newmyer's biography is particularly good on the relationship between the war and Story's role on circuit. R. Kent Newmyer, Story, supra note 32 at 75, 83-92.

88. Story to Nathaniel Williams, October 8, 1812, W. W. Story, Life and Letters, supra note 76 at i, 243.

89. The Trial of John H. Jones, First Lieutenant of the Privateer Schooner Revenge, on a charge of Piracy, including the arguments of the counsel and the charge of Judge Washington. Reported by one of the counsel concerned in the cause (Philadelphia, 1813Google Scholar) [hereinafter: Trial of Jones]; U.S. v. Jones, 3 Wash. C.C. 209, #15,494, 26 Fed. Cas. (C.C. District of Pennsylvania, April, 1813) 655. The latter report gives Washington's charge in full but gives only a brief summary of the argument of counsel.

90. Trial of Butler, supra note 86. Richard Rush's copy of this pamphlet consisting of Justice Johnson's opinion in this otherwise unreported case is in the Treasure Room at the Harvard Law School. The case is not mentioned in Morgan's, Donald biography, Justice William Johnson: The First Dissenter (Columbia, S.C., 154Google Scholar), nor by the biographers of Story or by those of the Supreme Court.

91. 1 Stat. 112 (April 30, 1790). The relevant part of sec. 8 was: ‘that if any person or persons shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence [sic] which if committed within the body of a county, would by the laws of the United States be punishable with death … shall be deemed, taken and adjudged to be a pirate and felon and being thereof convicted, shall suffer death; the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he first may be brought’.

92. Trial of Jones, supra note 89 at 34-35. Ingersoll identified the Hudson case simply as one decided ‘at their (Supreme Court) session before the last, in a case from the district of Connecticut, of which not being reported, I am not apprised of the title’. According to Ingersoll, Jones's case was the first of its kind to be tried in America; for this reason the decision of points of law was particularly important. A brief statement of the other points raised by counsel for the prisoner is set forth in 26 Fed. Cas. 655.

93. Trial of Jones, supra note 89 at 42-43. Rawle stated that by the decision of the Supreme Court in William's case, an unreported case, he understood that the judicial power of the United States recognized no common law in criminal cases. Search of unpublished Supreme Court documents has failed to locate such a case. Perhaps Rawle had in mind U.S. v. Hudson and Goodwin, unreported at the time of his argument; perhaps he confused the name with U.S. v. William Smith tried in the Circuit Court of Virginia before Marshall in 1809, also unreported. His reference could hardly have been to U.S. v. Issac Williams, Wharton, State Trials (C.C. District of Connecticut, 1799), supra note 13 at 652; in that case (involving matters of international law) Ellsworth had enunciated the opposite doctrine on a point of law.

94. Trial of Jones, supra note 89 at 51, 53.

95. ‘I understand the argument to be that as robbery on land is not declared by any act of congress [sic] to be a capital offense; it is not declared by this section to be piracy, if committed on the high seas. This is by no means the correct interpretation of the law. Murder and robbery committed on the high seas are declared to amount to piracy, and also any other offense, which would be punishable with death, had they been committed on land. It is clear that the words “which if committed within a body of a country” relate not to murder or robbery but to the words immediately preceding, “or any other offense”.

All that remains then under this section is to ascertain the meaning of the word robbery, and it is admitted that the common law definition of the term may be resorted to. If a statute of the United States uses a technical term which is known, and its meaning fully ascertained by the common, or civil law from one or the other of which it is obvious borrowed, no doubt can exist that it is necessary to refer to the source from whence it is taken for its precise meaning.’ Ibid, at 57.

96. Ibid, at 63. In his opening statement Dallas mentioned objections of jurors to convicting any persons when the punishment was death. Ibid, at 7. Later Judge Peters referred to this case as ‘one of the most infamous’ in which he ever sat. Peters to Timothy Pickering, March 30, 1816, Pickering Papers, 31:69, Massachusetts Historical Society.

97. Story to Nathaniel Williams, May 27, 1813, Story, , Life and Letters, supra note 76 at i, 244–45Google Scholar.

98. See the preface to the pamphlet which Johnson had published. Trial of Butler includes only the judge's opinion; argument of counsel is not given.

99. Trial of Butler, supra note 86 at 12-13. Johnson quoted from Bollman the section set forth above in note 82.

100. Ibid, at 17.

101. Ibid, at 20-24.

102. Ibid, at 26-27.

103. Ibid, at 30-31.

104. Ibid, at 29.

105. Trial of Butler, supra note 86 at 32-35. To emphasize his point Johnson mentioned a few of the hundreds of offenses known to the British admiralty law, e.g., combinations of ship carpenters to increase their wages, erecting water mills upon navigable streams, casting rubbish into navigable waters, employing foreign bottoms when there were enough domestic ones to be procured. On the question of whether Congress could punish before it defined offenses within the traditional range of the admiralty, Johnson thought that the word ‘define’ in that context meant only a designation which left no doubt of the identity of the crime. In a criminal case no appeal lay from the circuit court to the Supreme Court until 1889.

106. Trial of Butler, supra note 86 at 35. Had it prevailed, the significance of Johnson's interpretation of the admiralty clause of the Constitution to the development of federal admiralty jurisdiction goes without saying. For Johnson's conflicts with Story over the reach of federal jurisdiction in this sphere of American law, see Morgan, Justice William Johnson, 80-83; Gerald T. Dunne, Justice Joseph Story, supra note 86 at 168-70, 239-46, 263-66.

107. ‘… the Government will be completely prostrated unless they give jurisdiction to their courts, and a common law authority to punish crimes against the United States…. What think you of a Government where public crimes on the seas, are, with very few exceptions, left wholly unpunished, and crimes on the land are suffered to remain without the least criminal action?’ Story to Williams, August 3, 1813, Story, W.W., Life and Letters, supra note 76 at i, 246–47Google Scholar.

108. Coolidge and Oliver, claimants in the action, claimed that their ship was on lawful voyage from Cadiz to Boston. Furthermore, they contested, the vessel was within one mile of the lighthouse at the time of capture, not on the high seas and thus not within the jurisdiction of the federal courts. At the hearing before Judge John Davis completely contradictory testimony was given by witnesses regarding the precise place of capture. Davis, in his decree, simply stated that the capture ‘Appears to have been between one and five miles from Boston lighthouse’ and set aside the plea to the jurisdiction. Judging the ‘rescue’ of the brig a forcible rescue from the possession of a lawful cruiser. Davis condemned the ship. See record of the proceedings. The Brig Dispatch, Coolidge and others v. Clark and others, Privateer Castigator, Case Papers, #645, Records of the Supreme Court, National Archives.

109. The episode was a cause celebre locally. See Independent Chronicle, (Boston) August 5, 1813Google Scholar; Columbian Centinel, August 4, August 7, 1813. An account of the episode is also given in the record filed with the Supreme Court. In the docket of the Supreme Court, microfilm copy no. 216, case #645 the action is listed as The Brig Dispatch, Cornelius Coolidge and others v. Stephen G. Clark and others. Privateer Castigator. See also Case Papers, Case #645, Records of the Supreme Court, National Archives. The appeal was dismissed at the February term, 1815. Dispatch v. Castigator (Coolidge v. Clark), Supreme Court Records, Docket, microcopy no. 216. A complaint was also filed in the state court against Clark and the crew of the Castigator on a charge of assault with intent to kill those in the rowboats. New England Palladium, August 3, 6, 10, 1813.

110. U.S. v. Stephen Clark; U.S. v. Cornelius Coolidge and others, C.C. District of Massachusetts, Docket 4 (1812-1821), Fed. Records Center, Waltham, Mass. All defendants entered pleas of not guilty. A copy of the indictment in U.S. v. Coolidge is in the Records of the Supreme Court, Appellate Case Files, Case No. 671, microcopy no. 214.

111. The perjury alleged was at the hearing before the District Judge. Story, rejecting the prosecutor's contention that every proceeding held by the District Judge, in his official capacity, was an act of the District Court, held that the indictment was not supportable within the language of the statute. U.S. v. Stephen G. Clark, 1 Gall. (Massachusetts) 496(1813) (italics added).

112. Records of the Supreme Court, Appellate Case Files, Case no. 671, microcopy 214. No reference to argument of counsel appears in any source; very likely the question before the Court may have been put there by Justice Story himself. December 24, 1813 is the date of the division of the judges in both cases. C.C. Docket 4 (1812-1821). Both were filed at the Supreme Court in February, 1814.

113. Boston Patriot, January 14, May 18, 1814; Massachusetts Spy or Worcester Gazette, January 19, 1814. U.S. v. Bigelow and Jenkins, an unreported case. A copy of the indictment is included in the Supreme Court Records, Case No. 730, Appellate Case Files, microcopy no. 214. Docket Case no. 720, microcopy 216. District Attorney George Blake wrote Attorney General Richard Rush; ‘As the case presents nothing more than the long agitated question of jurisdiction at common law in the courts of the U States (sic), it would be altogether useless for me to make any particular remarks respecting it.’ February 1, 1815, Department of Justice, Record Group 60, Papers of the Attorney-General, Letters Received (Mass.) National Archives.

114. U.S. v. Coolidge et al, 1 Gall. 488; #14,857,25 Fed. Cas. (C.C. Dist. of Mass., October, 1813), 619.

115. R. Kent Newmyer, Story, supra note 32 at 105 provides an admirable succinct analysis of the opinion.

116. In 1824 Peter DuPonceau, commenting on Coolidge stated that ‘whatever else it might be, it was clearly not a case of common law’. Duponceau, Peter S., A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (Philadelphia, 1824) 9–10Google Scholar.

117. Leonard S. Levy, Emergency of a Free Press, supra note 3 at 217-19, 312.

118. Rush to Blake, July 28, 1814, Boston Patriot, August 20, 1814. Rush advised that those suspected of acting against the public interest be arrested with a view to laying the foundation of a charge in which the offender could be bound for good behavior by the court. He also told Blake that any boat without a flag of truce putting off from an enemy ship and heading toward shore could be considered fair game for American land or naval forces in the vicinity. Rush's letter was later printed in Annals, 13 Cong., 3 sess. (1823-26).

119. Story to Richard Rush, August 20, 1814, Rush Papers, Box 7 Princeton University Library. Interesting also are Story's comments at this date regarding civil jurisdiction. ‘Is it credible that the courts of the United States have no general civil jurisdiction in cases arising under the laws of the United States?’ (italics in original).

120. Story to Nathaniel Williams, February 22, 1815, W. W. Story, Life and Letters, supra note 76 at i, 254.

121. Powell, John H., Richard Rush (Philadelphia, 1942), 52, 67Google Scholar. During his long convalescence Rush published anonymously American Jurisprudence, written and published at Washington, being a few reflections suggested on reading ‘Wheaton on Captures’ (Washington, D.C., 1815Google Scholar) [hereinafter: Rush, American Jurisprudence). In his slight reference to the question whether the federal government had a general common law authority over crimes, Rush stated that in his view the substratum of common law in the nation meant the common law as applied to the individual states. He also wrote: ‘Notwithstanding the determination of the Supreme Court (sic) in the case of the United States vs. Hudson and Goodwin, it is still by no means certain that that tribunal would not sustain another and more full argument at this day on the question in its nature so extensive and fundamental as whether or not the federal government draws to itself the common law of England in criminal matters.’ Ibid, at 15-16. Joseph Story was among those in public life to whom Rush sent his pamphlet.

122. Story to Rush, November 29, 1815, in Rush Papers, Princeton University Library. For the provisions of the bill with accompanying commentary, see W. W. Story, Life and Letters, supra note 76 at i, 293-301. Story's proposals also included the grant of original federal question jurisdiction to the circuit courts. The editor states that the bill was written in 1816, ibid, at 293, but internal evidence persuades me that the manuscript printed in Life and Letters should be properly dated 1815 and is the same bill to which Story refers in his letter of November 29 to Rush. The original of the manuscript in the University of Texas Library, so the librarian has informed me, shows the date 1816 as added at a different time, on different paper. In a letter to Rush December 8, 1816, Story refers to the sketch of the judicial bill which he had sent to Rush ‘last winter’. Rush Papers, Box 7, Princeton University Library.

123. Story to Pinkney [or to Rush?] Life and Letters, supra note 76 at i, 297-300. Story said that Marshall and Washington revised his proposals and ‘wholly approved’; Johnson expressed some doubts about sec. 11 on the ground of expediency but raised no objection to the competence of Congress to enact it.

124. 14 U.S. (1 Wheaton) 394 (1816). Among other things, Story insisted in this opinion that by Article III it was constitutionally mandatory upon Congress to establish a system of federal courts and to give them their full jurisdiction to limit of the Constitution.

125. 14 U.S. (1 Wheaton) 415 (1816).

126. Supreme Court Records, Docket, microcopy no. 216; Appellate Case Files, microcopy no. 214.

127. After he learned of the decision in Coolidge Peters wrote in dismay, ‘I cannot carry on the Business of my District (italics in original). It meets me in almost every criminal Case. Unless some legislative authority be given, to define Crimes, or Statutory Descriptions are established, the whole (or nearly) of our criminal Code may be expunged …. We are forbidden to resort to Common Law for Interpretation, & our Jurisdiction of Crimes punishable at Common Law, is excluded. I live in a District of mixed Population, as to Seamen particularly; & am subjected to constant Necessity of taking Cognizance of Crimes, great & Small, without a Guide to direct my Course. I had little Difficulty before the Decision alluded to [Coolidge]; but now my Hands are tied, & my Mind Padlocked …’. Peters to Pickering, March 30, 1816, Pickering Papers, 31:89 Massachusetts Historical Society.

128. Story to Rush, November 18, 1816, Rush Papers, supra note 122.

129. Story to Rush, December 8, 27, 1816, Rush Papers, supra note 122. For discussion of the subject by Peters see Peters to Pickering, April 10, 14, 16, 1816, Pickering Papers, 31:97, 100, 102 Massachusetts Historical Society.

130. In this transcendant view of nationalism, as in new principles for admiralty law, Peters had anticipated Story. On Peters and admiralty, see Presser, ‘Two Judges’, supra note 3 at 35-40.

131. ‘… Whilst the opinion that we had no common law jurisdiction in criminal cases was held by some and denied by others, I thought myself justified in following my own views. But now I am bound by overruling decisions to avoid acting under my own sentiments …’, to Pickering, April 14, 1816, Pickering Papers, 31:100 Massachusetts Historical Society.

132. E.g. U.S. v. Bevans, 3 Wheaton 336 (1818).

133. The phrase is McClellan's, James. Joseph Story and the American Constitution, (Norman, 1971), supra note 86 at 308Google Scholar. See also Newmyer, R. Kent, ‘A Note on the Whig Politics of Justice Joseph Story’, Mississippi Valley Historical Review, XLVIII (1961), 480–91CrossRefGoogle Scholar.

134. Act of March 3, 1825, 18th Congress, 2 Stat. 115. The resurrection of states' rights doctrine and concern over the potential collision between state and federal authorities had of course reached far more substantial proportions by 1825. This helps to explain the limited nature of the second federal crimes act.

135. Glenn, Myra C., Campaigns against Corporal Punishment, Prisoners, Sailors, Women and Children in Antebellum America (Albany, 1984Google Scholar).

136. Davis, David Brion, ‘The Movement to Abolish Capital Punishment in America, 1787-1861’, American Historical Review, LXIII (1957), 23–46CrossRefGoogle Scholar; Rothman, David, The Discovery of the Asylum (Boston, 1971), 59–62Google Scholar; Friedman, Lawrence M., A History of American Law (New York), 248–50Google Scholar.

137. U.S. v. Bevans, 3 Wheaton 336 (1818). Story to Henry Wheaton, April 8, April 10, 1818, Story, Life and Letters, i, 303-05. Story wrote that he would have adhered to his views if the case had been of a different nature.

138. U.S. v. Palmer, 3 Wheaton 610 (1818) at 636-637.

139. Goebel, History, supra note 3 at 622. For contrasting view, see Warren, Charles, ‘New Light on the History of the Federal Judiciary Act of 1789’, 37 Harvard Law Review 49, 73 (1923Google Scholar); Dickinson, Edwin L., ‘The Law of Nations as a Part of the National Law of the United States’, 101 University of Pennsylvania Law Review 26-56, 792–833 at 792-95 (1952)CrossRefGoogle Scholar.

140. See note 51 supra.

141. Edmund Pendleton's article, ‘The Danger Not Over’ printed in the Richmond Examiner in 1801. advocated an amendment to the Constitution which would declare that the Common Law of England, ‘or of any other foreign country’ in criminal cases should not be considered as a law of the United States. Mays, David J., Edmund Pendleton, 2 vols. (Cambridge, 1952), ii, 335Google Scholar.

142. Freyer, Tony, Harmony & Dissonance: The Swift and Erie Cases in American Federalism (New York and London, 1981), 3Google Scholar.

143. Ibid, at 37.

144. Rawle, William, A View of the Constitution of the United States of America (Philadelphia, 1825Google Scholar); Peter Stephen DuPonceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States supra note 116; Sergeant, Thomas, Constitutional Law. Being a collection of points arising upon the Constitution and Jurisprudence of the United States, which have been settled, by judicial decision and practise (Philadelphia, 1822Google Scholar). In 1824 Pendleton's article of 1801, ‘The Danger Not Over’ was reprinted in Virginia as the proposed guide for Andrew Jackson. David J. Mays, Edmund Pendleton, supra note 141 at 334.

145. U.S. v. Reuben Crandall, C.C.D.C. (1836), Fed. Cas. #14,885.

146. Story to Richard Henry Dana, July 9, 1841, to John Berrien, Feb. 8, April 29, July 23, 1842. W.W. Story, Life and Letters, supra note 76 at ii, 372-73, 402-04, 405-06.