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The Federal Common Law of Crimes

The Marshall Court proceeded more cautiously with the issue of whether there was a federal common law of crimes. The justices refused to embrace this potentially large source of jurisdiction because they doubted the constitutional bases for doing so and, just as important, they recognized that such jurisdiction would potentially thrust the Court into an overtly political role.

During the 1790s the existence of nonstatutory federal crimes, or common law crimes, was hotly debated. The Judiciary Act of 1789 gave the federal circuit courts jurisdiction over "crimes and offenses cognizable under the authority of the United States." 53 The statute did not specify what those crimes were nor did it indicate the extent of federal authority. Congress in 1790 indeed passed the Crimes Act, defining seventeen crimes ranging from obstruction of legal process to treason, and it also provided for certain procedural safeguards, such as guaranteeing the accused a copy of the indictment brought against him or her. The list of violations was remarkably short, an indication either that Congress wanted to leave the major functions of policing to the states or that it expected federal judges to fill in the vacant spaces.

Federalists supported the idea of a common law of crimes; Republicans objected to it. John Randolph of Roanoke, a leading radical, observed that "if the courts below

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can at once saddle us with the common law of England, there is no necessity for prohibiting the abridgement of the freedom of speech or press. We know what the common law of England is--an almost . . . unlimited license to punish." 54 Federalists, on the other hand, thought that the national courts required just such powers, and during the 1790s Federalist judges, with the ironic exception of Justice Samuel Chase, conducted themselves as if they enjoyed such a common law jurisdiction. In 1793, for example, the Federal Circuit Court in Pennsylvania accepted a common law indictment against Gideon Henfield for engaging in acts hostile to the United States by assisting the French in the capture of an English vessel. The jury, however, delivered a verdict of not guilty.

The issue became more clearly drawn in 1797 when Robert Worrall, a businessman, was indicted for having attempted to bribe the U.S. commissioner of the revenue. While Congress had by this time added bribery of federal officers to the Crimes Act of 1790, it did not specifically enumerate among the list of officers the commissioner of the revenue. The English common law, however, made bribery a crime, and the federal prosecutor proceeded against Worrall on that basis. A jury in the Federal Circuit Court of Pennsylvania found Worrall guilty, but his counsel, Alexander J. Dallas, immediately moved to prevent judgment on the basis that the court had no jurisdiction to decide the case. Dallas argued, among other things, that the public expected that all prosecutions in federal courts had to rest on statutes. He also claimed that "the nature of our Federal compact will not . . . tolerate this doctrine." 55 The federal government, by virtue of the Tenth Amendment, which had reserved to the states all powers not given to the federal government, was one of limited, enumerated, and delegated powers. The federal courts, Dallas asserted, could only act on the basis of a specific statute that made bribery of the commissioner of the revenue a crime.



The judges in the Worrall case, Chase and Richard Peters, divided. Chase agreed with the defense counsel; Peters took the side of the government. Chase concluded that the federal government, unlike the states, had not brought the common law from England, because neither the Constitution nor a federal statute had adopted it. Peters, on the other hand, concluded that the provision in the Judiciary Act of 1789 giving federal circuit courts jurisdiction over "all crimes and offences cognizable under the authority of the United States" had done precisely that. The split between the judges offered the possibility of appealing the case to the Supreme Court, but Worrall refused, and he was sentenced to three months' imprisonment and a $200 fine.

The Supreme Court did eventually get the opportunity to decide on the constitutional basis of a federal common law of crimes in United States v. Hudson and Goodwin ( 1812). The case involved an indictment for libel brought against the Connecticut Courant for an article it had published in May 1806 that accused President Jefferson and Congress with conspiring to pay Napoleon Bonaparte $2 million to make possible the acquisition of the Louisiana Purchase. Republicans, on the eve of the War of 1812, were just as susceptible to turning to the federal courts to silence political opponents as the Federalist had been earlier.

The Supreme Court, however, rejected conclusively the idea of a federal common law of crimes. Justice William Johnson, a Jeffersonian appointee, held that it had "long since been settled in public opinion" that there was no federal common law jurisdiction. 56 The decision meant that, in the absence of a legislative act, the federal courts were without power to hear and punish criminal violations. The decision reiter

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ated the will theory of law and reaffirmed the principle that individual liberty required strict control of judicial discretion. It also made clear that the states would retain their extensive police powers unfettered by a competing federal common law jurisdiction over crimes.

 

The Legal System

By 1815 the moderate Jeffersonian Republican point of view about the relationship of law to politics, state to nation, and commerce to agriculture had triumphed. The moderates had found a middle ground in the struggle between Federalists and radical Jeffersonians in implementing the broad principles and institutions crafted by the framers in Philadelphia. The notion that republican government spread over a large geographic area could also tolerate opposition grew more slowly, and both Federalists and Jeffersonian Republicans harbored genuine suspicions about each other's motives. But the moderate triumph carried with it the idea that opposition to government was legitimate and that conflicts over public policy would be settled through legal as well as political processes. The law became an extension of political discourse, a development that the French visitor to the United States, Alexis de Tocqueville, captured in the observation that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." 57

Moderates created from the spare language of national and state constitutions a truly hybrid legal system. That system incorporated both elite and democratic impulses; it was decentralized yet hierarchically ordered. It emphasized the Enlightenment's rationality and American capitalism's quest for stable economic arrangements based on uniform and certain laws. The moderates' legal reforms "democratized business enterprise, . . . for in the years immediately following independence most people generally believed that business enterprise and democracy were incompatible." 58 The judiciary won its independence, but it was to be responsive but not directly accountable to the people. So, too, the new system depended on lawyers and judges-- the trained technicians of the law--rather than on either a formal legislative codification of the common law or informal schemes of conciliation and arbitration among laymen that the radicals touted.

The "new order for the ages" had a decidedly state-centered cast. The moderate resolution of the conflict between law and politics left substantial discretion to local juries, but it also envisioned state appellate courts with great authority to interpret the substantive common law and state legislatures in full possession of their police powers (powers to provide for health, safety, morals, and welfare). The moderate triumph fixed the most critical decisions about the allocation of economic resources and social policy before the Civil War in the states. The federal courts, with their jurisdictional wings clipped, held at best a limited check over the states' authority. The federal Supreme Court had demonstrated the importance of judicial review, but the heyday of federal judicial and legislative authority lay in the future. State judges and legislators orchestrated the creative explosion in the law that came after the Jeffersonian crisis and before the Civil War.

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5
The Active State and the Mixed Economy: 1789-1861

 

Distributive Justice

Americans achieved with independence one of the crucial goals of the Revolution: control over their economic destinies. They exploited their new economic opportunities with a vengeance. In the late eighteenth century, Hector St. John de Crevecouer, in Letters from an American Farmer, reported that the aim of "industrious" farmers was to produce enough goods "to sell" rather than on which to subsist. 1 Americans did not want to get by, they wanted to get ahead. Alexis de Tocqueville in the 1830s observed that the quest for "profit" had become "the characteristic that most distinguished the American people from all others." 2 Seemingly, Adam Smith, the great English economist who wrote Wealth of Nations ( 1776), had prepared the script: the invisible hand of individual material gain would guide the collective economic progress of the new nation.

The profit motive flourished amid the abundant resources of a virgin continent. Small towns and rural life characterized America in the seventy years before the Civil War, but the signs of economic transformation dotted the landscape. Smoke belched from locomotives and steamships, the great technological wonders of the mid-nineteenth century. The personal, informal, and local dealings that typified the colonial economy gave way to an increasingly impersonal national and international commercial market economy based on regional specialization.

Markets are places where sustained patterns of private trading for profit occur. During the antebellum years they expanded dramatically. It was as if someone had pulled the east coast up and tilted it toward the Pacific, spilling people across a continent. One of every two and one-half persons lived west of the Appalachian Mountains when the first shot was fired at Fort Sumter. Existing population centers

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became denser, swelled by immigration and a high birthrate. New York City contained one million inhabitants on the eve of the great conflict and Philadelphia almost as many. The foreign export and domestic markets expanded sharply, providing cotton planters in the slave South, commercial and manufacturing interests in the Northeast, and food producers in the Midwest with great opportunities. By 1850 for the first time in American history, the value of manufactured goods surpassed that of agricultural production.

This transformation of the economy was based on trading among private individuals for profit. Privatization of economic decision making was one of the most important features of the antebellum marketplace. The market was not the creation of law; it was the product of actions taken by merchants, bankers, lenders and borrowers, and farmers and planters. Privatization meant that the distribution of economic rights flowed from agreements reached among private individuals rather than from the command of government, either federal or state. Privatization perfectly fitted republican theory. The history of the British empire had taught Americans that unrestricted governmental power threatened economic liberty. The enhancement of private economic bargaining was a necessary check on governmental authority. "A wise and frugal Government," proclaimed Thomas Jefferson at his first inaugural in 1801, "which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuit of industry and improvement." 3

Economic development harmonized as well with another theme of republican theory, the idea of the public interest. Antebellum Americans did not embrace "a dogmatic laissez-faire faith." 4 This term means to "let alone," and it is usually invoked to describe an open or free-market economic system, like the one envisioned by Smith in Wealth of Nations ( 1776), in which the impersonal forces of supply and demand operate unrestrained by government. The idea of mixed economic activity, however, in which government intervenes in the private marketplace to serve the public good, better captures the law's impact on the antebellum economy than does strict laissez-faire.

Congress and state legislatures enacted statutes either to promote or to regulate the marketplace. In legislative bodies, decisions about economic issues are political matters; indeed the rise in the 1830s of the nation's first mass two-party system, composed of Jacksonian Democrats and Whigs, partly stemmed from contending views about the economy. These political parties emerged as devises that could be used (among other things) to consolidate majorities in state legislatures and Congress capable of shaping public policies to the social interests with which those parties were identified. The notions of deference and social consensus that had dominated the earlier political culture disappeared.

The critical question about law in the antebellum economy (and for that matter in American economic history generally) is not whether lawmakers intervened in the marketplace, because they did. Rather, the issue is one of distributive justice. This concept means the way in which legislative and judicial bodies allocated through law the costs, benefits, and risks of economic growth. Assessing distributive justice is difficult because it occurred within a federal system, across a continent with a moving frontier, and through both legislative and judicial bodies. In this chapter we examine the contributions of positive law--statutes enacted by legislatures--to the antebellum mixed economy; the next chapter will devote attention to the common law--judge- made law--and judicial interpretation of statutes.

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Date: 2015-01-29; view: 1105


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