inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers. VI. OPINION OF MR. JUSTICE STORY IN THE CASE OF THE UNITED STATES v. COOLIDGE, In the Circuit Court of the United States, for the District of Massachusetts, October Term, 1813. (1 Gallison, 488.) Indictment for a Misdemeanor. Whether the Circuit Court of the United States has jurisdiction over common law offences against the United States ? Story, J. The simple question is, whether the Circuit Court of the United States has jurisdiction to punish offences against the United States, which have not been previously defined, and a specific punishment affixed, by some statute of the United States. I do not think it necessary to consider the more broad question, whether the United States, as a sovereign power, have entirely adopted the common law. This might lead to very elaborate inquiries, and the present question may well be decided, without entering upon the discussion. I admit in the most explicit terms, that the Courts of the United States are Courts of limited jurisdiction, and cannot exercise any authorities which are not confided to them by the Constitution and laws made in pursuance thereof. But I do contend, that when once an authority is lawfully given, the nature and extent of that authority, and the mode, in which it shall be exercised, must be regulated by the rules of the common law. In my judgment, the whole difficulty and obscurity of the subject has arisen from losing sight of this distinction. Whether the common law of England, in its broadest sense, including equity and admiralty, as well as legal doctrines, be the common law of the United States or not, it can hardly be doubted, that the Constitution and laws of the United States are predicated upon the existence of the common law. This has not, as I recollect, been denied by any person, who has maturely weighed the subject, and will abundantly appear upon the slightest examination. The Constitution of the United States, for instance, provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." I suppose that no person can doubt, that for the explanation of these terms, and for the mode of conducting trials by jury, recourse must be had to the common law. So the clause, that, "the judicial power shall extend to all cases in law and equity arising under the Constitution," &c. is inexplicable, without reference to the common law; and the extent of this power must be measured by the powers of Courts of law and equity, as exercised and established by that system. Innumerable instances of a like nature may be adduced. I will mention but one more, and that is in the clause providing, that the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. What is the writ of habeas corpus? What is the privilege which it grants? The common law, and that alone, furnishes the true answer. The existence therefore, of the common law is not only supposed by the Constitution, but is appealed to for the construction and interpretation of its powers. There can be no doubt, that Congress may, under the Constitution, confide to the Circuit Court jurisdiction of all offences against the United States. Has it so done? The judicial act of 24th of September, 1789, ch. 20. sect. 11, provides, that the Circuit Court " shall have exclusive cognisance of all crimes and offences cognisable under the authority of the United States, except where that act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offences cognisable therein." No subsequent act has narrowed the jurisdiction; it remains therefore in full operation. The jurisdiction is not, as has sometimes been supposed in argument, over all crimes and offences specially created and defined by statute. It is of all crimes and offences "cognisable under the authority of the United States," that is, of all crimes and offences, to which by the Constitution of the United States, the judicial power extends. The jurisdiction could not, therefore, have been given in more broad and comprehensive terms. The Court then having complete jurisdiction, the next point will be to ascertain, what are crimes and offences against the United States. And here I contend, that recourse must be had to the principles of the common law, taken in connexion with the Constitution, in order to fix the definition, precisely as in other laws of Congress, we resort to the rules of the common law to give them an interpretation. For instance, Congress has provided for the punishment of murder, manslaughter and perjury, under certain circumstances; but it has no where defined these crimes. Yet no doubt is ever entertained on trials, that the explanation of them must be sought in and exclusively governed by the common law; and upon any other supposition, the judicial power of the United States would be left, in its exercise, to the mere arbitrary pleasure of the Judges, to an uncontrollable and undefined discretion. Whatever may be the dread of the common law, I presume, that such a despotic power could hardly be deemed more desirable. The necessity and propriety of this principle will be rendered still more apparent upon a farther consideration. There are a great variety of cases arising under the laws of the United States, and particularly those which regard the judicial power, in which the legislative will cannot be effectuated, unless by the adoption of the common law. Many cases may be governed by the laws of the respective States ; but still whole classes remain, which cannot be thus disposed of. For example, in Massachusetts no Courts of Equity exist, and consequently no recognition of the principles or practices of equity, as contradistinguished from law. How then shall a suit in equity pending in the Circuit Court for that district be managed or decided? There is no law of the United States, which provides for the process, the pleadings, or the principles of adjudication. By what rules then shall the Court proceed? Certainly all reasoning and all practice pronounce, by the rules of equity recognised and enforced in the equity Courts of England. The illustration is yet more decisive, as to causes of admiralty and maritime jurisdiction; for these exclusively belong to the United States, and nothing in the laws or practice of the respective States can regulate the proceedings or the principles of decision. In my judgment, nothing is more clear, than that the interpretation and exercises of the vested jurisdiction of the Courts of the United States must, in the absence of positive law, be governed exclusively by the common law. I would ask then, what are crimes and offences against the United States, under the construction of its limited sovereignty, by the rules of the common law? Without pretending to enumerate them in detail, I will venture to assert generally, that all offences against the sovereignty, the public rights, the public justice, the public peace, the public trade, and the public police or THE UNITED STATES, are crimes and offences against the United States. From the nature of the sovereignty of the United States, which is limited and circumscribed, it is clear that many common law offences, under each of these heads, will still remain |