Common law not established
Mr. Madison makes a conclusive argument against the use of the common law by the courts in regard to our rights in the Report of 1800, which is excerpted here:
In the state prior to the revolution, it is certain that the common law under different limitations, made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them, or made it their law by adoption; it is equally certain that it was the separate law of each colony within its respective limits, and was unknown to them, as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature, by which a common will, could be expressed in the form of a law; nor any common magistracy, by which such a law could be carried into practice. The will of each colony alone and separately, had its organs for these purposes.
This stage of our political history, furnishes no foothold for the patrons of this new doctrine.
Did then, the principle or operation of the great event which made the colonies, independent states, imply or introduce the common law, as a law of the union?
The fundamental principle of the revolution was, that the colonies were co-ordinate members with each other, and with Great-Britain; of an Empire, united by a common Executive Sovereign, but not united by any common Legislative Sovereign. The Legislative power was maintained to be as complete in each American Parliament, as in the British Parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the King for its Executive Magistrate, as it was in Great-Britain, by virtue of a like acknowledgment there. A denial of these principles by Great-Britain, and the assertion of them by America, produced the revolution.
There was a time indeed, when an exception to the Legislative separation of the several component and co-equal parts of the Empire, obtained a degree of acquiescence. The British Parliament was allowed to regulate the trade with foreign nations, and between the different parts of the Empire. This was however mere practice without right, and contrary to the true theory of the constitution. The conveniency of some regulations in both those cases, was apparent; and as there was no Legislature with power over the whole, nor any constitutional pre-eminence among the Legislatures of the several parts; it was natural for the Legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British Parliament, operated in favor of that part of the Empire, which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much enquired into. But no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by G.B. of a power to make laws for the other members of the Empire in all cases whatsoever, ended in the discovery, that she had a right to make laws for them, in no cases whatsoever.
Such being the ground of our revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine on the contrary, is evidently repugnant to the fundamental principle of the revolution.
The articles of confederation, are the next source of information on this subject.
In the interval between the commencement of the revolution, and the final ratification of these articles, the nature and extent of the union was determined by the circumstances of the crisis, rather than by any accurate delineation of the general authority. It will not be alledged that the “common law,” could have had any legitimate birth as a law of the United States, during that state of things. If it came as such, into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable, that can be tortured into a countenance of the idea, that the parties to it were with respect to the objects of the common law, to form one community. No such law is named or implied, or alluded to, as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst on the other hand, every such inference or pretext is absolutely precluded, by article 2d, which declares, “that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
Thus far it appears, that not a vestige of this extraordinary doctrine can be found, in the origin or progress of American institutions. The evidence against it, has, on the contrary, grown stronger at every step; till it has amounted to a formal and positive exclusion, by written articles of compact among the parties concerned.
Is this exclusion revoked, and the common law introduced as a national law, by the present constitution of the United States? This is the final question to be examined.
It is readily admitted, that particular parts of the common law, may have a sanction from the constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted as necessary and proper, for carrying into execution the powers expressly delegated. But the question does not relate to either of these portions of the common law. It relates to the common law, beyond these limitations.
The only part of the constitution which seems to have been relied on in this case, is the 2d sect. of art. III. “The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority.”
It has been asked what cases distinct from those arising under the laws and treaties of the United States, can arise under the constitution, other than those arising under the common law; and it is inferred, that the common law is accordingly adopted or recognized by the constitution.
Never perhaps was so broad a construction applied to a text so clearly unsusceptible of it. If any colour for the inference could be found, it must be in the impossibility of finding any other cases in law and equity, within the provisions of the constitution, to satisfy the expression; and rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm or inadvertence. But it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases, to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make any thing but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States.
To this explanation of the text, the following observations may be added.
The expression, cases in law and equity, is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity, would be a language unknown to the law.
The succeeding paragraph of the same section, is in harmony with this construction. It is in these words—“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases (including cases in law and equity arising under the constitution) the Supreme Court shall have appellate jurisdiction both as to law and fact; with such exceptions, and under such regulations as Congress shall make.”
This paragraph, by expressly giving an appellate jurisdiction, in cases of law and equity arising under the constitution, to fact, as well as to law, clearly excludes criminal cases, where the trial by jury is secured; because the fact, in such cases, is not a subject of appeal. And although the appeal is liable to such exceptions and regulations as Congress may adopt; yet it is not to be supposed that an exception of all criminal cases could be contemplated; as well because a discretion in Congress to make or omit the exception would be improper; as because it would have been unnecessary. The exception could as easily have been made by the constitution itself, as referred to the Congress.
Once more, the amendment last added to the constitution, deserves attention, as throwing light on this subject. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign power.” As it will not be pretended that any criminal proceeding could take place against a state; the terms law or equity, must be understood as appropriate to civil in exclusion of criminal cases.
From these considerations, it is evident, that this part of the constitution, even if it could be applied at all, to the purpose for which it has been cited, would not include any cases whatever of a criminal nature; and consequently, would not authorise the inference from it, that the judicial authority extends to offences against the common law, as offences arising under the constitution.
It is further to be considered, that even if this part of the constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the sedition act; which is an exercise of legislative, and not of judicial power: and it is the judicial power only of which the extent is defined in this part of the constitution.
There are two passages in the constitution, in which a description of the law of the United States, is found—The first is contained in article III. sect. 2, in the words following: “This constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the 2d paragraph of art. VI. as follows: “This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the judges of the United States; the second as a guide to the judges in the several states. Both of them consist of an enumeration, which was evidently meant to be precise and compleat. If the common law had been understood to be a law of the United states, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law, would afford powerful reasons against it.
Is it to be the common law with, or without the British statutes?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together, and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the constitution?
Is regard to be had to future, as well as past changes?
Is the law to be different in every state, as differently modified by its code; or are the modifications of any particular state, to be applied to all?
And on the latter supposition, which among the state codes would form the standard?
Questions of this sort might be multiplied with as much ease, as there would be difficulty in answering them.
The consequences flowing from the proposed construction, furnish other objections equally conclusive; unless the text were peremptory in its meaning, and consistent with other parts of the instrument.
These consequences may be in relation; to the legislative authority of the United States; to the executive authority; to the judicial authority, and to the governments of the several states.
If it be understood that the common law is established by the constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed as may be repugnant thereto, would be nullified, particularly the “sedition act” itself which boasts of being a melioration of the common law; and the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration, by the authority of Congress; it then follows, that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: For to every such object, does some branch or other of the common law extend. The authority of Congress would therefore be no longer under the limitations, marked out in the constitution. They would be authorized to legislate in all cases whatsoever.
In the next place, as the President possesses the executive powers of the constitution, and is to see that the laws be faithfully executed, his authority also must be co-extensive with every branch of the common law. The additions which this would make to his power, though not readily to be estimated, claim the most serious attention.
This is not all; it will merit the most profound consideration, how far an indefinite admission of the common law, with a latitude in construing it, equal to the construction by which it is deduced from the constitution, might draw after it the various prerogatives making part of the unwritten law of England. The English constitution itself is nothing more than a composition of unwritten laws and maxims.
In the third place, whether the common law be admitted as of legal or of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power.
On the supposition of its having a constitutional obligation, this power in the judges would be permanent and irremediable by the legislature. On the other supposition, the power would not expire, until the legislature should have introduced a full system of statutory provisions. Let it be observed too, that besides all the uncertainties above enumerated, and which present an immense field for judicial discretion, it would remain with the same department to decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.
A discretion of this sort, has always been lamented as incongruous and dangerous, even in the colonial and state courts; although so much narrowed by positive provisions in the local codes on all the principal subjects embraced by the common law. Under the United States, where so few laws exist on those subjects, and where so great a lapse of time must happen before the vast chasm could be supplied, it is manifest that the power of the judges over the law would, in fact, erect them into legislators; and that for a long time, it would be impossible for the citizens to conjecture, either what was, or would be law.
In the last place, the consequence of admitting the common law as the law of the United States, on the authority of the individual states, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states; the admission of it would overwhelm the residuary sovereignty of the states, and by one constructive operation new model the whole political fabric of the country.
From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the articles of confederation; of the true meaning of the passage in the existing constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the federal government, and in superceding the authorities of the state governments; the committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate enquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the constitution, on the whole face of which is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the constitution as a system of limited and specified powers. A severer reproach could not in the opinion of the committee be thrown on the constitution, on those who framed, or on those who established it, than such a supposition would throw on them.
The argument then drawn from the common law, on the ground of its being adopted or recognized by the constitution, being inapplicable to the Sedition act, the committee will proceed to examine the other arguments which have been founded on the constitution.
Which is a fact that Mr. Hamilton also proves here:
To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.—Alexander Hamilton, Federalist No 84, Independent Journal, Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788.