common law, it must, I presume, be that of England; and, yet, it is impossible to trace when, or how, the system was adopted, or introduced. With respect to the individual States, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the Judges and lawyers of England, that they brought hither, as a birth-right and inheritance, so much of the common law, as was applicable to their local situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts, and rejected others. Hence, he who shall travel through the different States. will soon discover, that the whole of the common law of England has been no where introduced; that some States have rejected what others have adopted; and that there is, in short, a great and essential diversity in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one State, is not the common law of another; but the common law of England, is the law of each State, so far as each State has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal or State Court.

But the question recurs, when and how have the Courts of the United States acquired a common law jurisdiction, in criminal cases? The United States must possess the common law themselves, before they can communicate it to their 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. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the States; and of the various modifica

tions, which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut?

Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction; but Judges cannot remedy political imperfections, nor supply any legislative 'omission. I will not say whether the offence is at this time cognisable in a State Court; but, certainly, Congress might have provided, by law, for the present case, as they have provided for other cases, of a similar nature: and yet if Congress had ever declared and defined the offence, without prescribing a punishment, I should still have thought it improper to exercise a discretion upon that part of the subject.

PETERS, Justice. Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary, and an inseparable, concomitant. But the existence of the Federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences 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.

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 judicial proceeding. Whenever an offence aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offence against the well being of the United States; from its very nature, it is cognisable under their authority; and consequently, it is within the juris

diction of this Court, by virtue of the 11th section of the judicial act.

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 authorised 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 defendants circumstances, proceeded to adjudge,

That the defendant be imprisoned for three months; that he pay a fine of 200 dollars; and that he stand committed, till this sentence be complied with, and the costs of prosecution paid.

III.

INSTRUCTION

FROM THE GENERAL ASSEMBLY OF VIRGINIA TO THE SENATORS FROM THAT STATE IN CONGRESS, JANUARY 11th, 1800.

(1 Tucker's Blackstone, Appendix, p. 438.)

THE General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain 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 government of the United States. It is not, at this time, proposed to expose at large the monstrous pretensions resulting from the adoption of this principle. It ought never, however, to be forgotten, and can never be too often repeated, that it opens a new tribunal for the trial of crimes never contemplated by the federal compact. It opens a new code of sanguinary criminal law, both obsolete and unknown, and either wholly rejected or essentially modified in almost all its parts by State institutions. It arrests, or supersedes, State jurisdictions, and innovates upon State laws. It subjects the citizens to punishment, according to the judiciary will, when he is left in ignorance of what this law enjoins as a duty, or prohibits as a crime. It assumes a range of jurisdiction for the federal Courts, which defies limitation or definition. In short, it is believed, that the advocates for 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.

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