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The Supra-Constitution, the Courts, and the Federal Common Law of Crimes: Some Comments on Palmer and Preyer

Published online by Cambridge University Press:  28 October 2011

Stephen B. Presser
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Extract

In his excellent piece in this symposium, Robert Palmer essentially makes the argument that the general federal common law of crimes was an illegitimate creation of beleaguered Federalist judges, an arbitrary exercise of a constitutionally impermissible jurisdiction, and a novel usurpation by the courts of the American legislature's prerogatives.

Type
Symposium: Federal Common Law of Crime
Information
Law and History Review , Volume 4 , Issue 2 , Fall 1986 , pp. 325 - 335
Copyright
Copyright © the American Society for Legal History, Inc. 1986

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References

1. Presser, Stephen B., ‘A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence’, 73 Northwestern Law Review 48 (1978)Google Scholar.

2. My treatment here will be very brief, if not fragmentary, but many of the notions here presented will be developed, with full citation, in my forthcoming piece tentatively titled ‘The Dialectic of Federalist Jurisprudence’, a manuscript on file with the Law and History Review.

3. O'Conner, John E., William Paterson: Lawyer and Statesman 1745-1806 (New Brunswick, 1979) 330Google Scholar.

4. Jay, Stuart, ‘Origins of Federal Common Law: Part One’ 133 University of Pennsylvania Law Review 1003, 1084–1085, [1984CrossRefGoogle Scholar]. (Stuart Jay's thorough treatment of the early federal common law advances an interpretation that is similar to that attempted in this comment.) Jay appears to have beaten him into print, but Professor Wythe Holt is also at work with the Paterson manuscripts, and has communicated to me an evaluation of Paterson's attitude toward the common law of crimes similar to that of Jay's.

5. Warren, Charles, The Supreme Court in United States History (Boston, rev. ed., 1926) 433Google Scholar. I have not had a chance to review Cushing's grand jury charges, but no scholar has contested this claim of Warren's, as far as I know.

6. Story, William Wetmore, ed., Life and Letters of Joseph Story (Boston, 1851) 299Google Scholar, quoted in I. C. Warren, supra note 5, at 434n.

7. See, e.g. the excerpts from his admiralty opinions in Presser, Stephen & Zainaldin, Jamil, Law and American History (St. Paul, 1980) 154–60Google Scholar.

8. Ibid, at 157-58n.

9. For a discussion of these views of Wilson's, as manifested in his grand jury charge in the Henfield case, see Jay, supra note 4, at 1054-55.

10. de Vattel, Emmerich, The Law of Nations, or, Principles of the Law of Nature, Applied to the conduct and affairs of Nations and Sovereigns lviii (London, English translation, 1797)Google Scholar.

11. Ibid, at lv.

12. Ibid, at lviii.

13. Ibid, at lviii, II Wolff, Christian, Jus Gentium Methodo Scientifica Pertractatum trans. by Drake, Joseph H. (Oxford, 1764 edition, 1934) 10Google Scholar (referring to Grotius's conception of an internal law of nations).

14. Vattel, The Law of Nations, supra note 10 at 4, 5.

15. Ibid, at 292, 399; II Pufendorf, Samuel, De Jure Naturae et Gentium Libri Octo, trans. by C.H., and Oldfather, W.A. (Oxford, 1688 edition, 1934) 1299Google Scholar.

16. Hobbes, Thomas, ed. The Elements of Law (London, 2nd. ed., Tonnies, ed., 1969) 189–90Google Scholar.

17. Ibid, at 190.

18. Preyer, supra note 6 at 237.

19. On this phenomenon see the splendid Goodwin, A., The Friends of Liberty, The English Democratic Movement in the Age of the French Revolution (Cambridge, 1979Google Scholar).

20. What follows in the next few paragraphs is taken from Stephen Presser, The Dialectic of Federalist Jurisprudence, supra note 2, at 17-45, where full supporting citations can be found.

21. Jay, supra note 4, at 1016, and sources there cited.

22. See, e.g., the famous 1803 charge that led to Chase's impeachment, excerpted in S. Presser & J. Zainaldin, supra note 7, at 235-37.