A DISSERTATION, &c.

INTRODUCTION.

IN the year 1798, a bill of indictment was preferred and tried in the Circuit Court of the United States, for the Pennsylvania District, against one Worrall, for a fruitless attempt to bribe an officer of the federal government.* The fact being fully proved, a verdict was found against the defendant, when Mr. Dallas, one of his counsel, submitted a motion in arrest of judgment.

In order to understand the grounds on which this motion was made, it ought to be observed that the framers of the Constitution of the United States thought proper to vest in the judiciary, certain specific powers, extending even beyond the authority of the national legislature. They were empow~ ered to decide all controversies "between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state, and between a state or the citizens thereof, and foreign states, citizens or subjects." These are all understood to be matters of merely civil jurisdiction.

B

2 Dall. 384.

Other specific powers were also granted, including cases of a criminal as well as civil nature. Those were to take cognisance of "all cases of admiralty and maritime jurisdiction and all cases affecting ambassadors, other public ministers and consuls." The constitution did not provide in like manner for cases affecting officers of the government of the United States.

In addition to the above branches of jurisdiction thus specifically granted, the judicial power was declared by a general clause to extend to all cases in law and equity, arising under the constitution, the laws of the United States, and treaties made or to be made under their authority."

Mr. Dallas contended that the offence of which the defendant stood, convicted was not cognisable before this tribunal. It was not evidently within any of the specific powers granted to the judiciary of the United States, neither did it come within their general authority. It was not committed in violation of a treaty nor of a law of the United States, since Congress had passed no act applicable to this particular case. Nor could it be said to arise under the constitution; such a construction, if it were admitted, would lead to assumptions of power to which no bounds could be perceived. And were it even so, the common law, by which alone the act was made criminal, was not the law of the United States in their national capacity, and therefore, whatever it might be elsewhere, this offence was not here within the reach of justice.

Mr. Rawle, the attorney for the District in answer to Mr. Dallas's argument, insisted that the Court had a right to take cognisance of this offence, as of a case arising under the laws of the United States, because the officer whom the defendant had endeavoured to corrupt was appointed under an act of Congress, and that the Court being thus possessed of jurisdiction, the common law was to be looked to for the definition of the offence and the infliction of the punishment. In support of this last position, he cited the case of one Henfield, who had been tried in the same court for a violation of the law of nations (a part of the common law,) and of the Genoese Consul Ravara, who had been convicted by the same tribunal of a mere common law offence.

.* This was an indictment for enlisting on board of a French privateer and aiding in the capture of British vessels, in violation of the neutrality and of the treaties of the United States. The defence was, that neither the neutrality nor the treaties had been violated in this particular instance. The defendant was acquitted.

Judge Wilson, who presided at this trial, in his charge to the jury, took the ground of its being also an offence at common law, of which the law of nations was a part, and maintained the doctrine that the common law was to be looked to for the definition and punishment of the offence. This ground had not been adverted to in argument, or at least very slightly. But it would seem that the common law, considered as a municipal system had nothing to do with this case. The law of nations, being the common law of the civilised world, may be said, indeed, to be a part of the law of every civilised nation; but it stands on other and higher grounds than municipal customs, statutes, edicts or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilisation, or involving the country into a war. Every branch of the national administration, each within its district and its particular jurisdiction is bound to administer it. It defines offences and affixes punishments, and acts every where proprio vigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental

Thus, there appears to have been two distinct and independent questions involved in this case; the one whether the federal Courts had cognisance of the particular offence? the other, whether admitting that they had such jurisdiction, the common law could be looked to for the definition and punishment of the crime? The first of these questions, Judge Chase, who presided at this trial, did not think it necessary to consider, but decided in favour of the defendant on the broad ground that there was no common law of the United States. The question, he said, was not about the power, but about the exercise of the power. It was whether the Courts of the United States could punish a man for any act, before it was declared by a law of the United States to be criminal. The common law could not be recurred to for the definition and punishment of the offence. The United States had no common law, though the States had, but the common law of one State was not the common law of another; nor was the common law of England the law of any of the States, except so far as they had adopted and modified it by their statutes and usages, from which had resulted an endless variety which could not

principles. Whether there is or not a national common law in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state. Judge Wilson, therefore, in my opinion, rather weakened than strengthened the ground of the prosecution in placing the law of nations on the same footing with the municipal or local common law, and deriving its authority in a manner exclusively from the latter. It was considering the subject in its narrowest point of view.

On the trial of this cause, 1 was concerned for the defendant.

be reconciled. On this ground therefore (leaving jurisdiction out of the question) he was for arresting the judgment; but the District Judge, Mr. Peters, differing from him in opinion, and the parties not agreeing to carry the case up to the Supreme Court, the judgment was not arrested, and the defendant was fined and imprisoned. Thus ended this celebrated case.

This decision of Judge Chase made a great noise at the time, and left vague but strong impressions, the more so as he was known to be a man of deep learning and considerable strength of mind and more disposed to extend than to limit power. Afterwards, in the year 1807, in the case of the UNITED STATES v. AARON BURR,* which was tried at Richmond in Virginia, Mr. Chief Justice Marshall, who presided at that trial in the federal Circuit Court on an incidental motion, in which this question was made, but which did not necessarily involve it, intimated an opinion that the laws of the several States, (including, of course, their common law) could not in any case be considered as rules of decision in trials for offences against the United States. This, however, he expressed upon the whole in the language of doubt, nor was his decision upon the point before him depending on this question. But the doubts of great men have often more influence than the settled opinions of men of inferior minds, which was the case in the present

Report of Burr's Trial, by David Robertson, 2 vol. 8vo. Richmond, 1808. Vol. 2, p. 481.