III. Robert Smith’s Opinion on the Common Law and Hardin’s Case
[ca. 11 Nov. 1802]
If in a Case of Criminal jurisdiction there be not a Statute of Congress, defining the offence and prescribing the punishment, the prosecution cannot be sustained in any Court of the United States. If the federal judge does not find such an act of Congress, he cannot resort to the common or Statute law of the State. An action, which Congress may constitutionally declare to be an Offence, punishable in the Courts of the United States, is nevertheless not an Offence cognizable in those Courts, unless it has been so declared by Congress. A criminal prosecution cannot be founded but upon a positive Statute of Congress defining the offence and also ascertaining the punishment.
The Constitution does not say that certain acts are offences punishable in a Course of judicial proceeding. It only says that Congress shall have power to define and punish certain Offences. Until then Congress shall conceive it expedient to assume and exercise the power thus delegated to them of defining an Offence and of ascertaining the punishment, the jurisdiction of the federal Courts, with respect to such Offence, is the same as if no such power had been granted to Congress. It is to be considered merely as a power given, but not exercised. It is a special grant of powers entrusted to one department of the government and that department not deeming it necessary to exercise it, it is not to be assumed by another.
The act of Congress of 1789 did not adopt the Criminal Code or any part of the Criminal Code of the several States. It only adopted the rules of practice obtaining in the several States in Trials at Common Law. It was not a substantive grant of jurisdiction to the Courts. It was only an authority given to them to adopt in the trial of causes the rules of decision Obtaining in the respective States as a means of prosecuting to final judgments and Executions the cases submitted by the Statutes of Congress1 to their Cognizance.
The case of Harden & others is not cognizable in any of the Courts of the United States. It is an Offence against the laws of Kentucky and as such cognizable in the Courts of that State. It is true that Congress had the power of defining and punishing this Offence and of giving the Courts of the United States cognizance of it. But not having exercised the power, these Courts cannot assume a jurisdiction over the Offence as a Crime recognised by the federal code. These Observations respecting the Case of Harden and others are made under the impression that the resistance had been to a State Officer. If it had been to an Officer acting under process for a Court or Judge of the United States, the federal Courts can take Cognizance of the case under the Act of Congress of 1790.
These murderers might have been apprehended in Kentucky under process from the federal Judge of Kentucky, and might also have been removed for Trial by the Marshall under a Warrant from such judge to the District wherein the Murder had been committed.
MS (DLC: TJ Papers, 235:42174–6); undated; endorsed by TJ: “Common Law. official opinions.”
1. Preceding five words interlined.