Sunday, January 24, 2016

Mr. Madison further exposes the fallacy of the establishment on the 'common law'...

   " 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 [Pg. 565] 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 Art. 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 second 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 consists of an enumeration, which was evidently meant to be precise and complete. 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 [Pg. 566] 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 coextensive 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."–James Madison, Madison’s Report On The Virginia Resolutions, House of Delegates, Session 1799-1800. [Elliot’s Debates, Vol. IV, Pg. 564-66]

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