1448. COMMON LAW, United States Law and.—
Having settled by way of preliminary,
to what extent, and by what authority,
the common law of England is the law of
each of the States, we will proceed to consider
how far, and by what authority, it is the law
of the United States as a national government.
By the Constitution, the General Government
has jurisdiction in all cases arising
under the Constitution, under the ( constitutional )
laws of the United States, and under
treaties; in all cases, too, of ambassadors, of
admiralty jurisdiction, where the United
States is a party, between a State or its citizens,
or another State or its citizens, or foreign
State or its citizens. The General Government,
then, had a right to take under their
cognizance all these cases, and no others.
This might have been done by Congress, by
passing a complete code, assuming the whole
field of their jurisdiction, and by applying
uniformly to every State, without any respect
to the laws of that State. But, like the State
legislatures, who had been placed before in
a similar situation, they felt that it was a
work of too much time and difficulty to be
undertaken. Observing, therefore, that ( except
cases of piracy and murder on the high
seas) all the cases within the jurisdiction must
arise in some of the States, they declared
by the act of September, 24, 1789. C. 20 §
34, “that the laws of the several States, except
where the Constitution, treaties, or statutes
of the United States shall otherwise 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.”
Here, then, Congress adopted for each State
the laws of that State; and among the laws so
adopted were portions of the common law,
greater or less in different States, and in force,
not by any innate authority of its own, but by
the adoption or enacting of it by the State
authority. Now what was the opinion to
which this was opposed? Several judges of
the General Government declared that “the
common law of England is the unwritten
law of the United States in their national and
federal capacity.” A State judge, in a printed
work, lays it down as “certainly wrong to
say that the judiciary power of the nation can
exercise no authority but what depends for
its principle on acts of the national legislature.
” And then, quoting the preamble to
the Constitution of the United States, which
says that its object is, “to insure domestic
tranquillity, promote the general welfare”
&c., he adds, that “what is here expressed is
the common law of the whole country,” and
that “whatever is in opposition to it, whether
treason, insurrection, sedition, murder, riot,
assaults, batteries, thefts or robberies, may be
punished as crimes, independent of any act of
Congress.” And opinions equivalent to these
were declared by one party on the floor of
Congress. This is the doctrine which the republicans
declared heretical. They deny that
Congress can pass any law not authorized by
the Constitution, and that the judges can act
on any law not authorized by Congress, or by
the Constitution in very direct terms. If the
true doctrine then be, that certain portions
of the common and statute law of England
be in force in the different States by virtue of
the adoption in that State, and in the Federal
courts of the same State by virtue of the adoption
by Congress of the laws of that State
within its limits, then whenever a case is
presented to a Federal court, they are to ask
themselves the following questions: 1. Is this
case within any of the definitions of jurisdiction
given by the Constitution to the General
Government? If it be decided that it is, then,
2. Has Congress by any positive statute assumed
cognizance of this case as permitted
them by the Constitution? To determine this
question, the judge must first look into the
statutes of Congress generally; if he finds it
not there, he must look into the laws of the
State, as well as that portion of the English
code which the State may have adopted, as
the acts passed specially by the legislature.
If the case be actually found provided for
in these laws, another question still remains,
viz.: 3. Is the law of the State applicable to
the analogous case of the General Government?
for it may happen that a law of the
State, adapted perfectly to its own organization
and local circumstances, may not tally
with the different organizations or circumstances
of the Federal government. If the
difference be such as to defeat the application,
it must be considered as a case
unprovided for by Congress, and not cognizable
in their courts. Just so parts
of the common or statute law of England
are found by the State judges inapplicable
to their State from a difference of
circumstances. These differences of circumstances
will be shaded off from nothing to
direct inconsistence, and it will be only by
many decisions on a great variety of cases
that the line will at length be drawn. Let
us apply these questions to Hardin's case,
which is simply this: Congress by an express
statute, 1802, c. 13, § 6, have made the murder
of an Indian within the territory of the
United States, punishable by death. A murder
is committed on an Indian in that territory.
The murderers fly to Kentucky. They
are demanded by the Governor of Indiana of
the Governor of Kentucky; under whose
authority our officer attempting to take them,
they were protected by Hardin and others in
arms. 1. Is this case within the jurisdiction
of Congress?
Answer. Congress having a
right “to make all rules and regulations respecting
the territory of the United States,”
have declared this to be a case of murder. As
they can “make all laws necessary and proper
for carrying their power into execution,”
they can make the protecting a murderer criminal
in any part of the United States. 2. Has
Congress assumed cognizance of the offence
of Hardin? We must first examine whether
the act of Congress, 1799. c. 9, § 22, takes in
this offence. Then whether the laws of Kentucky,
common, statute, or State law, as
adopted by Congress comprehend this offence.
3. Whether any difference of organization or
other circumstance renders the law of Kentucky
inapplicable to this offence, can be decided
by those only who are particularly acquainted
with that law.—
Observations on Hardin's Case. Washington ed. ix, 486.
(Nov. 1812)
