Understanding the Role of Common Law in the Federal Jurisdiction of the United States, Schemes and Mind Maps of Law

Download Understanding the Role of Common Law in the Federal Jurisdiction of the United States and more Schemes and Mind Maps Law in PDF only on Docsity! University of Pennsylvania Law Review And American Law Register FOUNDED 1852 Published Monthly, November to June, by the University of Pennsylvania Law School, at 34th and Chestnut Streets, Philadelphia, Pa. VOL. 74. DECEMBER, 1925. No. 2. THE COMMON LAW AND OUR FEDERAL JURISPRUDENCE I While the law is classified in different ways, for various purposes, for our present purpose it will be dealt with simply as lex scripta, or statutory law (including, of course, written con- stitutions), and lex non scripta, or common law; and wherever the term "common law" is employed, it will be used in the sense of non-statutory law, as shown by the decisions of courts acting within their general or prescribed legal jurisdiction, as distin- guished from their equitable or other special jurisdictions. To amplify this meaning, a further classification will be adopted, namely, "the spirit of the common law," and "the body of the common law"; we shall also speak of "the common-law system," and of "independent systems of common law." By the "spirit of the common law," when that term is em- ployed, will be meant those fundamental conceptions of right and wrong, of justice and injustice, of proper and improper con- duct, which are so manifest as to be generally accepted and cred- ited-even though not always acted upon, and subject on occa- sion to judicial variations and differehtiations according to the conditions under which they are applied in given cases. Many (Iog) no UNIVERSITY OF PENNSYLVANIA LAW REVIEW of these conceptions involve the customs of the people, and some of them are expressed in ancient and approved maxims. After a custom has been recognized as of controlling force, in the de- cision of a court exercising purely legal jurisdiction, it becomes part of "the body of the common law," to the extent of its judi- cial recognition. According to our view, the "body of the common law," in any territorial jurisdiction, comprises all the decisions of its courts, acting as purely legal tribunals, that apply the general principles and customs of which the spirit of the common law consists. As judicial decisions of the kind just mentioned multiply in number, the later of them following those previously rendered, they, in course of time, come to constitute a legal system; and the rules and principles thus enunciated and acknowledged by common-law courts, as distinguished from equity and other spe- cial tribunals, constitute a "sytem of common law," in the sense in which that term is here employed. Those fixed with the duty of formulating judicial decisions consult the published works of judges and other authoritative writers on legal subjects, and, when making new pronouncements or revising rules previously laid down, they are always influenced by the general policy of sustaining existing law and advancing it, if need be, along established lines; I also, on all occasions, they are largely guided by their innate sense of justice, as well as by what they conceive to be the established customs, moral convic- tions, consensus of opinion, ripened judgment, general under- standing, matured feeling, enlightened thought 2 and, to a cer- tain extent, the general convenience, 3 of the mass of people con- cerned. But, while all these elements and sources of knowledge are constantly taken into account by the judiciary, the fact re- mains that the body of unwritten, or non-statutory, law in any jurisdiction consists of the decisions recorded by its courts; 'HARLAN F. STONE, LAW AND ITS ADMINISTRATION, 32. 'Moschzisker, Stare Decisis in Courts of Last Resort, 37 H.Av. L. REv., 409, 413 (1924). 'Stone, supra, 30, 31a. COMMON LAW AND OUR FEDERAL JURISPRUDENCE 113 raise a question as to the existence, or the possibility of the existence, of a federal common law; so, at the outset, we must understand the sense in which that term may be accurately used. The common law of a particular state is represented, as we have seen, by the body of non-statutory rules announced and administered by its courts when adjudicating points in actions at law, as opposed to equitable and other special proceedings. 7 It includes, therefore, those principles, usages, and rules of action applicable to the government and security of persons--individ- ually and as constituting the social whole-which derive their authority, not from legislative declarations, but solely from the judgments of the courts." Strictly, then, when we speak of the English common law, we mean the body of non-statutory rules announced and administered by the English common-law courts in deciding cases brought before them; and, similarly, the com- mon law of Pennsylvania, or of Massachusetts, is represented by the non-statutory' rules announced and administered, respectively, by the like courts of these states. In a loose and popular sense, however, the phrase "common law," has come to connote, among those living under or inheriting Anglo-Saxon jurisprudence, the common law of England. The State of Pennsylvania, for exam- ple, is frequently called a common-law state, and in popular understanding the appellation implies English common law, but this is an inaccurate conception of the common law of Pennsyl- vania, or of any other state in the Union. In the settlement of America, the colonists brought with them from England, as the natural birthright of British subjects 1838) ; U. S. v. New Bedford Bridge, i Woodb. & M. 4o, Fed. Cas. No. 15,867 (C. C. 1846) ; Bucher v. Cheshire R. R., 125 U. S. 555, 583-4 (1887), per Mil- ler, J.; Baltimore & Ohio R. P_ v. Baugh, 149 U. S. 368, 394-5, dissenting opin- ion of Field, J.; So. Pacific v. Jensen, 244 U. S. 205, 221 (i916), per Holmes, J., dissenting; cf. also Mr. Justice Pitney's remarks in his dissenting opinion at 23o; Swift v. Philadelphia R. R. Co., 64 Fed. 59, 6o-69 (D. C. 1894) ; Snare & Triest Co. v. Friedman, 169 Fed. i, ii (C. C. A. i9og) ; In re Dean, 83 Me. 489, 22 At. 385, 386 (i8go) ; Kennedy v. Delaware Cotton Co., 4 Penn. 477, 58 Atl. 825, 828 (Del. 19o3) ; Gatton v. Chicago, etc., Ry. Co., 95 Iowa 112, 63 N. W. 589 (1895) ; Peoplev. Folsom, 5 Cal. 379 (1855). ' Suits where legal rights were to be ascertained and determined in contra- diction to those in which equitable or other rights and remedies were controlling. Kohl v. U. S., 91 U. S. 367, 376 (1875). 0I Kent 471. 114 UNIVERSITY OF PENNSYLVANIA LAW REVIEW occupying uncivilized territory, all the laws of the mother coun- try applicable to the conditions of life in their new surround- ings,9 and, prior to the Revolution, English decisions were regarded by our courts as practically binding authorities. 10 Upon the outbreak of the Revolution, the assertion of English com- mon-law rights affecting personal liberty and political privileges, furnished a rallying point against Great Britain; and in the manifesto of the American Congress of 1774, it was unani- mously resolved that "the respective Colonists are entitled to the common law of England . . ; that their ancestors were entitled to all the rights, liberties and immunities of free and natural born subjects within the realm of England." " It is clear, then, that principles of the English common law guided and sustained the American Revolution; 12 and each state, which later adopted that system of law, chose as much of it as was suitable to local conditions; so that the spirit of the English common law per- meated all our institutions, and its substance forms the basis of our jurisprudence. In adopting the English common law, the practice of the states varied. Some of them accepted only those English deci- sions made prior to a certain date, while others took bodily so much of the unwritten law of the mother country, "without re- gard to any particular period, as would be applicable" to their ' STORY, COMMENTARIES ON THE CONSTITUTION (5th ed. i89i), I, §1 147- 157; CHITTY ON PREROGATIVEs, ch. 3, P. 29. Jefferson, however, said, "I deride the ordinary doctrine that we brought with us from England the common law rights. This narrow notion was a favorite in the first moment of rallying to our rights against Great Britain. The truth is that we brought with us the rights of men, of expatriated men. On our arrival here, the question would at once arise, by what law will we govern ourselves? The resolution seems to have been by that system with which we are familiar, to be altered by ourselves occasionally and adopted to our new situation." 4 JEFFERSON CORRESPONDENCE 178. But, on other occasions, Jefferson admitted that the state of the English law at the date of our emigration constituted the system adopted here. See JEFFERSON'S WORKS, VI, 65, and VII, 374, where in speaking of the Virginia Commission, of which he was a member, appointed to draft the laws of that State, at the outbreak of the Revolution, he said the English common law was made the basis of the revision. 0 GRAY, THE NATURE AND SOURCES OF LAW (ist ed. i9o9), § 525. 'Journal of Congress, "Declaration of Rights of the Colonies," 1774, pp. 27-31; STORY, CONSTITUTION, supra, I, § 157. "Kent, I, 343. COMMON LAW AND OUR FEDERAL JURISPRUDENCE I 5 conditions and not inconsistent with their own constitutions and that of the United States; but whatever was the original attitude of the various states, none of them can be said to possess, for its common law at the present time, the English common law exclu- sively.13 It so happens in the case of Pennsylvania-as can be said of the other states originally composing the Union, and of most of those subsequently added-that the local common law is predominantly English; but, because English decisions have been frequently disregarded and will probably continue to be disregarded in many instances, owing to their inapplicability to different conditions prevailing in this country, and because ele- ments from other systems have from time to time been included, we cannot say, strictly speaking, that any of the states follow the English common law. On the contrary, each state's common law, since it is a growing and continuing system, represents the non-statutory rules which the courts of that particular jurisdic- tion announce and administer in settling legal disputes between litigants. That the view just voiced is an accurate one, appears when we consider what would have happened in any particular state if the English common law had been either definitely rejected or not expressly adopted. The courts in such a contingency would have been obliged, in deciding cases, to apply some law, and, in the absence of statutory declarations on particular points, would necessarily administer the principles which, in their opinion, would effect a just decision under the circumstances, without regard to the source whence such principles might be obtained. The significant fact is that, through the repetition of this process, the rules founded on these principles would gradually form a body of unwritten law which would be strictly common law. Hence, the failure of a particular jurisdiction to adopt an exist- ing system of common law, does not necessarily result in the lack of a common law of its own. On the contrary, the contin- uous application of independently selected principles, appropriate to conditions as they arise, will inevitably develop a separate and distinct system of common law. "Van Ness v. Pacard, 2 Peters 137, i44 (U. S. 1829). n18 UNIVERSITY OF PENNSYLVANIA LAW REVIEW The federal government, under the Constitution, has a lim- ited criminal jurisdiction; it can punish for those offenses only which are directed against places or persons exclusively within congressional control. The question that immediately arose, when considering this phase of federal jurisprudence, was whether the national courts, within the limits of the crimes and misdemeanors over which Congress could exercise authority, possessed power to indict for offenses which are criminal at Eng- lish common law but have not been declared criminal, nor their punishment prescribed, by federal statutes; and, in connection with this question, it may be interesting to review certain phases of the long and bitter political controversy before mentioned, between the Federalist and the Jeffersonian parties, during which it was frequently maintained by the former that there existed in the United States courts a jurisdiction to punish offenses at common law, and under the law of nations, in the absence of congressional statutes defining such derelictions and penalizing them. The entire subject at present is, of course, one of his- torical rather than practical interest, but its incidents will serve to illustrate the distinction, so far as the federal government is concerned, between the common law as a source of criminal jurisdiction and as a means of its exercise; furthermore, its con- sideration will show how near, at one time, we came to having a common-law jurisdiction in the federal courts, even on the criminal side. Hence its value for present purposes. By the Judiciary Act of 1789, section 9, the federal district courts are given "jurisdiction of all crimes and offenses cogniz- able under the authority of the United States." 17 The propo- nents of a federal common-law jurisdiction contended that this grant of power was general in its nature, and that it enabled federal judges, in the absence of statutes, to punish offenses against the sovereignty, the public rights, justice, police and peace of the United States, which were cognizable under its authority, and to apply the principles of the English common law in defining such offenses. 1i Stat. 78, § ii. COMMON LAW AND OUR FEDERAL JURISPRUDENCE ug The judges who believed that the common law could in this sense be considered a part of our national jurisprudence were certainly patriotic and sincere.' 8 They sought justification for sustaining indictments in the fact that recognition of a common law criminal jurisdiction was indispensable to the suppression of offenses directed against the sovereignty and existence of the United States; and, when we recall that, in the beginning of the government under the Constitution, there were few criminal statutes on the books, the attitude of the federal judiciary is understandable-if not sound, it was at least expedient. The followers of JefferSon, however, regarded this assump- tion of power by the United States judges-most, if not all, of whom belonged to the opposite political party-as a convenient way of punishing men of French sympathies, who represented a disturbing element in those days; and a great fear was aroused that indictments against political foes would be numerous. The enforcement of neutrality first presented the problem in a practical manner. As, prior to 1794, there were no crim- inal statutes concerning breaches of neutrality, the question im- mediately arose whether a person violating treaty provisions, or the law of nations. could be indicted at common law.'0 Chief Justice Jay, in 179 o , had charged a grand jury in Massachusetts that "the objects of your inquiry are all offenses committed against the laws of the United States, and you will recollect that the laws of nations make part of the laws of [our] Nation." 20 A few years later, in 1793, both Chief Justice Jay and Justice James Wilson, the former in a case at Richmond and the latter at Philadelphia, upheld the doctrine that a common-law indict- ment in the federal courts could be sustained, although Jay does not seem to have specifically mentioned that system of law.21 At about the same time another case arose in which the power BERmGE, Lim OF JOHN MARSHAir III, 24. CHAin.Es WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, Vol. I, 112. Independent Chronicle, May 27, I79o; WARREN, mspra, I, 112. CORRESPONDENCE OF JOHN JAY, JOHaNSTON, III, 478-85; BEVEmUGE, supra, III, 24- 120 UNIVERSITY OF PENNSYLVANIA LAW REVIEW to indict for a common-law offense was clearly recognized. 22 Ravara, the Genoese consul, had sent an anonymous and threat- ening letter to the British Minister, and to others, with a view to extorting money from them. It was argued that, inasmuch as the matter charged in the indictment had not been made a criminal offense by any positive law of the United States, there could be no conviction. Chief Justice Jay and Mr. Justice Peters, sitting in the circuit court, held, however, that the indictment would lie at common law. Accordingly, Ravara was tried and convicted but he was later pardoned.23 Not long afterward, one Gideon Henfield, a sailor from Salem, Massachusetts, came to trial for having enlisted on a French privateer which attacked and captured British vessels. He was indicted in the District Court at Philadelphia, his offense presumably being a violation of the Presidential Neutrality Proc- lamation; and, in the absence of legislation concerning this al- leged misdemeanor, the indictment was brought under English common-law rules, 24 the jury being charged that the act of Hen- field was punishable according to the law of nations and treaties of the United States, and that, since the defendant was "a citi- zen of the United States," he "was bound to keep the peace in regard to all nations with whom we were at peace." Intense bit- terness was aroused by this case, and the warning was sounded that, if "the people were prepared to give to an executive proc- lamation the force of a legislative act," individual rights were in peril; but Henfield was acquitted,2 5 and his release seems to have been the occasion for considerable public rejoicing.2 6 The bitterness toward the federal courts engendered by the Henfield Case and other like prosecutions was mild in comparison with that aroused a few years later (1799) by the decision of Chief Justice Ellsworth in the case of Isaac Williams. In order ' U. S. v. Ravara, 2 Dallas, 297, 299 note. (C. C. 1793.) 21 WHARTON, STATE TRIALS, 90-92. 24Ibid, 49-66. 25After the Henfield Case, Congress passed a statute applicable to the offense charged in the Ravara and Henfield cases. BEvr=iDGE, supra, III, 26; WrARTON, STATE TRIALs, 93-101. 'National Gazette, Aug. 17, 1793, quoted in WARmN, supra, I, 114. COMMON LAW AND OUR FEDERAL JURISPRUDENCE 123 main silent, whilst a doctrine has been publicly advanced, novel in its principle, and tremendous in its consequences, that the common law of England is in force under the gov- ernment of the United States; . . . it assumes a range of jurisdiction for the federal courts which defies limitation or definition. In short, it is believed that the advocates of the principle would themselves be lost in an attempt to apply it to the existing institutions of federal and state courts, by separating with precision their judiciary rights, and thus preventing the constant and mischievous interference of rival jurisdictions. . . . Deeply impressed with these opin- ions, the General Assembly of Virginia instructs the sen- ators and requests the representatives from this state in Con- gress to use their best efforts . . . to oppose the passing of any law founded on, or recognizing, the principle lately ad- vanced, 'that the common law of England is in force under the government of the United States.'" 3' The assumption of the existence of a common-law criminal jurisdiction over offenses not recognized in the Constitution or by congressional enactments, vigorously denounced in these let- ters and instruction, was soon to be denied by the federal Su- preme Court itself; but, up to this time, the only action among judges, contrary to the exercise of such a jurisdiction, had been taken in 1798 by Judge Chase, in United States v. Worrall.35 There, the defendant was charged with an attempt to bribe a commissioner of revenue, an offense which, it was admitted, did not come within any act of Congress; the indictment was laid under the common law. The court divided in opinion, Judge Chase expressing the view that the indictment was bad and Judge Peters that it was good; the former said: "It appears to my mind as essential that Congress should define the offense to be tried and apportion the pun- ishment to be inflicted, as that they should erect courts to try the criminal or to pronounce a sentence on conviction. In my opinion, the United States as a federal government have no common law. The United States must possess the common law themselves, before they can communicate it 'Tuc=!i's BLAcKsToNE, Appendix, 438. U2 Dallas 384 (C. C. 1798); WHARTON, supra, 189. 124 UNIVERSITY OF PENNSYLVANIA LAW REVIEW to the judicial agents; now the United States did not bring it with them from England; the Constitution does not create it; and no act of Congress has assumed it." Judge Peters, holding the contrary view, reasoned that: "Whenever a government has been established . . . a power to preserve itself is a necessary and an inseparable concomitant." He further said: "The existence of the federal government would be precarious, it could no longer be called an independent gov- ernment, if, for the punishment of offenses of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the state tribunals or the offenders must escape with absolute impunity"; and he continued: "The power to punish misdemeanors is originally and strictly a common-law power, of which I think the United States are constitutionally possessed; it might have been exercised by Congress in the form of a legislative act, but it may, also, in my opinion, be enforced in a course of judi- cial proceeding." While there was an equal division of opinion among the judges in the case under discussion, it contains the substance of the arguments on each side of the question, and is of value for that reason. In speaking of this case, Mr. Wharton, in his work on "Criminal Law," 86 points out that Judge Chase did not wait "to learn what had been decided by his predecessors, [and] startled both his colleagues and the bar, by announcing that he would entertain no indictment at common law." His prede- cessors, who had consistently held otherwise-Chief Justice Jay, Judge Wilson ancd Judge Iredell-were no longer on the bench, and Chief Justice Ellsworth was abroad. As "there were no reports published then, or for a long time afterwards, of the prior rulings to the contrary, it is not to be wondered," says ' WHARTON, C 1miMNAL LAW (i ith ed. 192), I, 368. COMMON LAW AND OUR FEDERAL JURISPRUDENCE 125 Mr. Wharton, "that judges who came on the bench after Judge Chase supposed that he stated the practice correctly." 3 That the opinion of Judge Chase, while exercising a certain influence on the public generally, was not considered authority by other contemporary judges,38 is evidenced by the fact that Judge Peters, his colleague, entertained further indictments at. common law, one of these being against B. F. Bache, editor of the Aurora, "on a charge of libeling the President in a manner tending to excite sedition and opposition to the law." 39 Judge Peters observed in this case 40 that, "it certainly would be su- perfluous to discuss the question of jurisdiction before him, as his mind was confirmed in the opinion, which he [had previously] delivered in the case of Worrall, by the maturest reflection." Furthermore, Judge Story, writing in 1816, said, "Excepting Judge Chase, every judge that ever sat on the Supreme Court bench from the adoption of the Constitution until 18o4 held the opinion" that the federal courts could exercise a common-law criminal jurisdiction. 41 By 1804, the tide would seem to have slightly turned to Judge Chase's view, for Justice Johnson followed it in that year; but other judges 42 continued to sustain indictments at common law in the absence of statutes, and a few years later, 18o7, "eleven indictments [were] found in the [federal] cir- cuit court of Connecticut against various Federalist lawyers, preachers, and editors, for libellous attacks on President Jef- ferson," 43 all of which were afterward dropped, 44 except "I1bid. 'See Rmvi's CoNSTITUION (2d ed. 1829), 258, note. WAMuM, supra, I, 434. "The Aurora, June 27, 30, 1798. STORY, W. W., LIFE AND LETTEs OF JOSEPH STORY, I, 299. "But in U. S. v. McGill, Judge Washington said that he had often sus- tained such indictments. 4 Dallas 426, 429 (C. C. i8o6). "WAtEN, supra, I, 435. "WARREN, supra, I, 436-7: "The institution of these common law prose- cutions has been the subject of severe attack upon Jefferson on the floor of Congress. John Randolph said . . . they 'appeared scarcely to excite a sen- sation . . . in the men who were most clamorous against the, Sedition Law. Such is the difference between men in power and men out of power; such the difference between profession and practice."' "Jefferson [however], had not known of their existence [and] ordered their dismissal as soon as he learned of them." 128 UNIVERSITY OF PENNSYLVANIA LAW REVIEW One might have wished for a more conclusive ending to a controversy concerning which there had existed in previous years, and still existed at the time of the decision of the Coolidge Case, such strong opinion opposed to the final answer which was given. Story lamented the result and endeavored to obtain con- gressional legislation "to delegate [to the federal courts] author- ity in general terms over crimes" 52 cognizable under the sover- eignty of the United States; and he actually drafted a bill, in i816, to effect this purpose, but it was not enacted. Later, how- ever, in 1825, a Crimes Act, also drafted by Story, was passed, which gave protection against offenses to the sovereignty of the United States. Although it is now settled that there is no general common- law criminal jurisdiction in the federal courts, 53 and that, before any offense is indictable not only must it be declared criminal by statute, but its punishment and the courts which shall have jurisdiction in the premises must be prescribed,54 yet, as late as 1847, there was another attempt to nullify these principles, or at least to pare them down. In the case of United States v. Ram- say,55 the indictment charged that "certain persons to the grand ciple as U. S. v. Hudson and U. S. v. Worrall. The former a libel, and the other an attempt to bribe a commissioner of the revenue; these cases were decided on the ground that the Constitution had given the courts no jurisdic- tion in such cases, whereas the case of Coolidge was one of admiralty over which the courts seem to have an exclusive jurisdiction. Kent, I, 338. See also DUpoNCEAU, JURISDICTION, 12. " STORY, LIFE AND LETTERS, supra, I, 293, 298-300; WARREN, I, 442. ""There is no federal common law. There are no offenses against the United States, save those declared to be such by Congress. The people could counterfeit with impunity were it not for legislation to the contrary. Murder on the navigable waters of the United States might be a pastime were it not for Congressional action." Carpenter, J., in U. S. v. Grossman, I Fed. (2d) 941 (D. C. 1925). U. S. v. Hudson, 7 Cranch 32 (U. S. 1812) ; Pa. v. Wheeling Bridge, 13 Howard 518 (U. S. 1851) ; Ex parte Wells, 18 Howard 307, 318 (U. S. i855) ; Jackson v. Steamboat Magnolia, 2o Howard 296, 305 (U. S. 1857) ; U. S. v. Babcock, 4 McLean 113, Fed. Cas. No. 14,488 (C. C. i85i); Benson v. McMahon, 127 U. S. 457, 466 (887); U. S. v. Eaton, 144 U. S. 677, 687 (i89i) ; Pettibone v. U. S., 148 U. S. I97, 203 (1892) ; Pettit v. Walshe, x94 U. S. 205, 217 (I9O3). Also U. S. v. Barney, 5 Blatch. 294, Fed. Cas. No. 14,524 (C. C. 1869); U. S. v. Lancaster, 2 McLean 43i, Fed. Cas. No. 15,556 (C. C. 1843); U. S. v. Nw Bedford Bridge, I Woodb. & M. 4o, Fed. Cas. No. 15,867 (C. C. 1847); U. S. v. Libby, I Woodb. & M. 221, Fed. Cas. No. 15,597 (C. C. 1847) ; COOLEY, CONSTITUTIONAL LAW (2d ed.), 137. " U. S. v. Ramsay, Hemst. 481, Fed. Cas. No. i6,i15 (C. C. 1856). COMMON LAW AND OUR FEDERAL JURISPRUDENCE 129 jury unknown" wilfully murdered one Butler, an Indian, and that John Ramsay, a white man, was accessory before the fact. The district attorney contended that, inasmuch as an Act of Congress had already declared the crime of murder in such a case to be punisiable with death, though the statute said nothing of accessories, they were necessarily included, since accessories and principals were subject to the same penalty at common law; hence it could not be supposed that Congress meant to exempt the former from punishment, as urged by defendant. The district attorney's argument for thQ punishment of an accessory before the fact, under legislation providing for prin- cipals alone, while apparently based on an elastic interpretation of a criminal statute, was in reality the old doctrine of a com- mon-law criminal jurisdiction in the federal courts. Had the court adopted this view, the early controversy would have been revived; but it did not do so. The indictment was quashed, the court saying that the question was for the legislative depart- ment, and that, since there was no federal common-law criminal jurisdiction, power was given to punish only for "such crimes as Congress expressly or by necessary implication had visited with known and certain penalties." Before concluding this historical survey, it may be interest- ing to call attention to a recent discovery made by Mr. Warren 56 which brings new light to bear on the early controversy concern- ing a common-law criminal jurisdiction. He found in the arch- ives of the United States, not only the first draft of the Judiciary Act of 1789, as it was introduced into the senate, but the original amendments thereto and a copy of the bill as it passed the senate. The beginning of section 9 of the statute, as passed, gives the district courts "cognizance of all crimes and offenses that shall be cognizable under the authority of the United States." In the original draft, the words, "and defined by the laws of the same," were included. From a comparison of the draft of the bill with the statute as finally enacted, it appears that the restrictive clause, "and defined by the laws of the same," was deliberately stricken out by the senate, thus leaving the district court with jurisdiction 'New Light on the History of the Federal Judiciary Act, 37 HARv. L. REv. 49 (1924). 130 UNIVERSITY OF PENNSYLVANIA LAW REVIEW over criminal offenses "cognizable under the authority of the United States," without any limitation. "The only rational meaning," says Mr. Warren, "that can be given to this action, striking out the restrictive words, is that Congress did not intend to limit criminal jurisdiction to [offenses] specifically defined by it"; he adds, "Had the Supreme Court consulted these senate files, it is probable that the decisions in United States v. Hudson, in 1812, and United States v. Coolidge, in 1816, might have been otherwise than they were." 57 But that of course, is a surmise, and it is now established that the federal courts have no general common-law criminal jurisdiction. Perhaps, in the beginning, the eagerness on the part of Story and others to assert such a jurisdiction, would have been lessened had Congress adequately provided by statute for the punishment of offenses against the United States and the law of nations. Certainly, by the time of the Coolidge Case, adequate laws dealing with the offense of trading with the enemy would have helped the situation, although Story's critics, in passing judgment on his later action in civil cases, assume that his love of power made him eager to obtain, for its sake alone, a common- law criminal jurisdiction, and believe he would have been satis- fied with nothing short of this. Conjecture on these matters is of no practical value at the present time, however, and the entire historical controversy, which we have been reviewing, is interesting, principally, first, because, as said before, it shows how close we came, during the early years of our judicial his- tory, to establishing a broad common-law criminal jurisdiction in the federal courts, and, next, because the ultimate decision against such jurisdiction probably did much to foster a belief, which still persists on the part of many persons, that there could be no common law of any sort administered in the federal courts. (To be Continued.*) Robert von Moschzisker. Philadelphia, Pa. "Ibid, 73. * This is the first of a series of three articles which will appear in suc- cessive issues of the UNIVERSITY OF PENNSYLVANIA LAw REVIEW.