One of the leading Jeffersonian jurists, ST. GEORGE TUCKER, noted with alarm that Chief Justice OLIVER ELLSWORTH and Justice BUSHROD WASHINGTON had laid down the general rule that the COMMON LAW was the unwritten law of the United States government. The question whether the Constitution adopted the common law, Tucker wrote,
is of very great importance, not only as it regards the limits of the JURISDICTION of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited: so also, must be the jurisdiction, and authority of the other branches of the federal government [Tucker, Blackstone's Commentaries, 1803, I, 380].
Tucker's answer to the question was that the JUDICIAL POWER OF THE UNITED STATES under Article III was limited to the subjects of congressional legislative power and that common law did not give jurisdiction in any case where jurisdiction was not expressly given by the Constitution. Tucker's view eventually prevailed, but it was probably not the view of the Constitution's Framers.
Article III extends the judicial power of the United States to all cases in law and EQUITY arising under the Constitution, treaties, and "Laws of the United States." The latter phrase could include common law crimes. At the CONSTITUTIONAL CONVENTION OF 1787, the Committee of Detail reported a draft declaring that the Supreme Court's jurisdiction extended to "all Cases arising under the Laws passed by the Legislature of the United States." The Convention without dissenting vote adopted a motion striking out the words "passed by the Legislature." That deletion suggests that "the Laws of the United States" comprehended the common law of crimes, as well as other nonstatutory law.
The legislative history of the JUDICIARY ACT OF 1789 suggests a similar conclusion. A draft of that statute relating to the jurisdiction of both the federal district and federal circuit courts (sections nine and eleven as enacted) gave these courts "cognizance of all crimes and offenses that shall be cognizable under the authority of the United States and defined by the laws of the same." The italicized phrase, deleted from the act's final text, might have restricted criminal jurisdiction to statutory crimes. Whether a federal court was to apply a federal common law of crimes or apply the common law of the state in which a crime was committed is not clear.
What is clear is that the first generation of federal
judges assumed jurisdiction in cases of nonstatutory crimes. Justice JAMES WILSON, an influential Framer of the Constitution, at his state's ratifying convention had endorsed federal...