" 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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