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Of the Cognizance of Crimes and Misdemeanours - St. George Tucker, View of the Constitution of the United States with Selected Writings 
View of the Constitution of the United States with Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund 1999).
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Of the Cognizance of Crimes and Misdemeanours
In this brief treatise on jurisdiction in a federal system, Tucker draws together the legal applications of some of his major themes: the limitation of the federal government, including its courts, to its specific delegated powers; and the inapplicability of the common law to such a system. This is Appendix A in the fifth volume of Tucker’s Blackstone.
The complicated system of government in the United States, imposes upon us the necessity of a frequent recurrence to fundamental principles, in order to ascertain to what department of it any particular subject appertains. In no respect is this recurrence more necessary, than in the examination of the nature of crimes and misdemeanours; the cognizance of which, by the federal courts, will depend altogether upon the nature and tenor of that instrument, upon which the jurisdiction is founded: in the exposition of which, we have been repeatedly obliged to recur to the nature of the compact, for a due exposition of the text. If for example, the constitution of the United States had been intended for the establishment of a consolidated national government, instead of a federal republic, the same strict interpretation, which is at present necessary, in order to preserve to the states, respectively, whatever rights they had no design to part with, might perhaps, in many instances have been dispensed with.
It has been well observed by one of the judges of the supreme court of the United States, that “in this country every man sustains a twofold political capacity: one in relation to the state, and another in relation to the United States. In relation to the state, he is subject to various municipal regulations, founded upon the state constitution and policy, which do not affect him in his relation to the United States: For the constitution of the union is the source of all the jurisdiction of the national government; so that the departments of that government, can never assume any power, that is not expressly granted by that instrument, nor exercise a power, in any other manner than is there prescribed.”1 This is, indeed, a short, clear, and comprehensive exposition of the principles of a limited government, founded upon compact between sovereign and independent states.
For it cannot, I presume, be denied, or even doubted, that the constitution of the United States, is the instrument by which the federal government was created; its powers defined; their extent limited; the duties of the public functionaries prescribed; and the principles according to which the government is to be administered, delineated;
That the federal government of the United States, is that portion, only, of the sovereign power, which, in the opinion of the people of the several states, could be more advantageously administered in common, than by the states respectively;
That the several states at the time of adopting that constitution, being free, sovereign, and independent states, and possessing all the rights, powers, and jurisdictions, incident to civil government, according to their several constitutions; and having expressly stipulated, that the powers not delegated to the United States by the constitution, nor prohibited by it, to the states, are reserved to the states respectively, or to the people; every power which has been carved out of the sovereignty of the states, respectively, must be construed strictly, wherever it may derogate from any power which they possessed antecedently;
And, on the other hand, that all the powers granted to the federal government, are either expressly enumerated, and positive; or must be both necessary, and proper to the execution of some enumerated power, which is expressly granted.
If these be the genuine principles of the federal constitution, as, I apprehend they are, then it seems impossible to refuse our full assent to the learned judge’s observations on the subject. Adopting them therefore as our guide, let us proceed in our enquiry.
A crime or misdemeanour, as defined by judge Blackstone, “is an act committed, or omitted in violation of a public law, either forbidding, or commanding it”: from whence it follows, that the cognizance and punishment of all crimes and misdemeanours, belongs exclusively to that body politic, or state to which the right to enact such a public law belongs.
The cognizance of all crimes and misdemeanours committed within the body of any state, therefore, belongs exclusively to the jurisdiction of that state; unless it hath by compact or treaty surrendered its jurisdiction in any particular cases to some other power. And in like manner the cognizance of all crimes and misdemeanours committed on the high seas (where all nations have a common jurisdiction) by citizens of the same state against each other; or, by common pirates, or robbers, against the citizens of any state, belongs to that particular state to whose citizens the injury is offered. And consequently the American states respectively, as soon as they became sovereign, and independent states, were entitled to exclusive jurisdiction in the case of all crimes and misdemeanours, whatsoever, committed within the body of such states, respectively, or upon the high seas, in every case where any other state or nation might claim jurisdiction under similar circumstances.
By the articles of confederation concluded between the states some years after; each state, expressly, “retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which was not, by that confederation, expressly delegated to the United States in Congress assembled.” The ninth article ceded to congress, the sole and exclusive right of making rules for the government, and regulation of the land and naval forces of the United States; and of appointing courts for the trial of piracies and felonies committed on the high seas: so that the states retained the exclusive cognizance of all civil crimes and misdemeanours, whatsoever, except in the cases therein mentioned. And this exclusive jurisdiction they continued to retain until the adoption of the present constitution.
By the third article of that instrument it is declared, “that the judicial power of the United States, shall extend to all cases arising under the constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The same article defines the offence of treason against the United States, but leaves to Congress the power to declare the punishment, thereof, under certain limitations. Treason against the United States, is, therefore, one of those crimes, to which the jurisdiction of the federal courts extends.
The eighth section of the first article, among other things, declares, that congress shall have power to provide for the punishment of counterfeiting the securities and current coin of the United States; to define and punish piracies, and felonies committed on the high seas, and offences against the law of nations; to exercise exclusive jurisdiction within certain specified limits; and to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.
To apply then, the observations of the learned judge; since neither Congress, nor any other department of the federal government, can ever assume any power that is not expressly granted by the constitution, nor exercise it, in any other manner, than is there prescribed, it appears to be essential that congress should define all offences against the United States, except treason; and prescribe the punishment to be inflicted for that and every other offence against the United States, before the federal courts can proceed to try a criminal or to pronounce sentence upon him in case of conviction.
If this be doubted, let us suppose that any person had committed treason against the United States, before the passage of the act of Congress, declaring the punishment of that offence; could the federal courts, or any other, have proceeded to judgment against him for the same, or, if they could, what judgment could they have pronounced? Let us suppose again that congress having defined the offence of piracy, had omitted to declare the punishment; could the federal courts have supplied this omission by pronouncing such a sentence as they might suppose the crime deserved? Again, let us suppose that congress may have omitted altogether to define or to declare the punishment of any other offence committed upon the high seas; will it be contended that the federal courts could in any such case punish the offender, however atrocious his offence regarded in a moral light may appear? In none of these cases (as I apprehend) could the federal courts proceed to punish the delinquent, although in every one of them, the offence may be clearly acknowleged to arise under the constitution of the United States.
If in cases arising upon the high seas, (in all which the federal courts, under the federal constitution and laws, possess a jurisdiction, altogether exclusive of the state courts) it be necessary that an offence be first defined, and the punishment thereof declared by congress; how much more necessary is it, that offences committed within the body of any state should, in the same manner, be first defined, and the punishment thereof declared by a law of the United States, before the courts of the United States can undertake to inquire into or punish it? For the presumption is, that every offence, committed within the body of any state, is an offence against that state only; and, that the state courts have the sole and exclusive cognizance and punishment thereof, unless it be shewn, that the federal constitution, or some act of congress made in pursuance of it, have altogether divested the state courts of jurisdiction over the subject. For although we may readily admit, that besides the particular case of treason and those which the eighth section of the first article designates, there is a power granted to congress to create and to define and punish offences, whenever it may be necessary and proper to do so, in order to carry into execution, the specific powers granted to the federal government, still it appears indispensably necessary, that congress should first create, (that is, define and declare the punishment of,) every such offence, before it can have existence as such, against the United States.
It has been attempted, however, to supply the silence of the constitution and statutes of the union, by resorting to the common law for the definition and punishment of offences in such cases. To which, the same judge has given the following clear and emphatical answer. “In my opinion, the United States as a federal government have no common law: and consequently, no indictment can be maintained in their courts for offences merely at the common law. If indeed the United States can be supposed for a moment to have a 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 inheritence, 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 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 the results from that position connected with the judicial act, that the common law will always apply to suits between citizen and citizen.
“But the question recurs, when and how, the courts of the United States acquired a common law jurisdiction incriminalcases? The United States must possess the 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 modifications, which are we to select, the system of Georgia or New-Hampshire, of Pennsylvania or Connecticut?
“Upon the whole,” he concludes, “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 limitted jurisdiction: but judges cannot remedy political imperfections, or, supply any legislative omission.”
Unfortunately, perhaps, for the United States, this opinion did not prevail, the court being divided in their judgments. … We are, therefore, not only without a precedent: but, what is infinitely more important, a principle, which might have been deemed clear, and well ascertained, is now, in some degree, rendered doubtful. Nevertheless, until a contrary division shall have subverted the apparently solid foundation of that which I have cited, I shall venture to recommend it to the student, as containing the most clear, correct, and convincing, illustration of the principles of the federal constitution.
From what has been said, we may venture to draw the following conclusions.
[1.]Editor’s note: Here and later on, Tucker quotes from the decision of Justice Samuel Chase in the case of U.S. vs. Worral.