James Madison Papers

Edmund Randolph’s Notes on the Common Law, [ca. September] 1799

Edmund Randolph’s Notes on the Common Law

Editorial Note

Among the materials JM drew on for his Report of 1800 were some notes written by Edmund Randolph for a projected essay on the question of whether there was a federal common law of crimes. Although the editors have found no evidence that JM commented on this paper to anyone, its presence in JM’s papers points to its use by the author of the report.

The idea that the entire body of English common law had been assumed by the federal government at its creation was one that had been used from time to time during the 1790s by justices of the Supreme Court. Its revival during the summer of 1799 by Oliver Ellsworth in a charge to the jury in the Williams case in Hartford, Connecticut, was seen by prominent Republicans as one more instance in a long line of Federalist attempts to subvert the Constitution by consolidating all political power in the federal government. Isaac Williams, a Connecticut-born mariner, had accepted an officer’s commission in the French navy and later had been naturalized as a French citizen. He was indicted in the federal courts for having entered the service of France in contravention of the Jay treaty. Williams’s defense, that he was a citizen of France, was disallowed by Ellsworth, who claimed that under the common-law doctrine of perpetual allegiance, Williams would always remain an American citizen. The logical consequence of the Williams case was that the English common law was as much a part of federal law as were the treaties approved and the statutory codes passed by Congress. Republicans, alarmed at this wholesale borrowing of English law, pointed out that a federal common law would undermine the importance of state courts by giving federal courts jurisdiction over any disputes founded upon the common law. And it would also mean that courts, basing their decisions on the common law, could make unlawful certain acts that had not previously been proscribed by statute law. These two developments would enlarge enormously the scope of federal power, and it was this “complete consolidation” that the Republicans feared (Jefferson to Charles Pinckney, 29 Oct. 1799, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:398).

How JM came into possession of Randolph’s notes is a matter of speculation, since there is no surviving correspondence between JM and Randolph relating to it. Randolph first sent the notes to Thomas Jefferson in a letter of 12 August 1799. After having “carefully perused & considered the notes,” Jefferson replied on 18 August that “of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable.” This, he continued, was a doctrine that must be combated, and he was happy that Randolph had taken up the subject. Among other suggestions, Jefferson tried to nudge Randolph toward a broader view of the problem, especially the need to “portray at full length the consequences of this new doctrine”—that if the common law was the law of the United States, then federal courts would have general jurisdiction over “all cases & persons” (Jefferson to Randolph, 18 Aug. 1799, ibid., 7:383–84, 387).

Jefferson received Randolph’s preliminary examination of the common-law question at the very time he and JM were meditating a reply to the answers made by several states to the Virginia and Kentucky resolutions of 1798. The principles advanced by the resolutions, which had been uniformly attacked by the states that had bothered to respond to them, were, as Jefferson noted, “not to be yielded in silence.” Toward the end of August Jefferson proposed that JM and Wilson Cary Nicholas meet with him at Monticello to plan a course of action that Virginia and Kentucky could jointly pursue. Part of the projected response, Jefferson felt, should be “animadversions on the new pretensions to a common law of the U.S.” Although Nicholas was unable to attend, JM and Jefferson discussed the scope of the response and the topics to be covered. And in this context, it seems almost certain that Jefferson then passed on Randolph’s notes to JM as ammunition for the latter’s consideration—a probability that is reinforced by the fact that JM, much as Jefferson would have wished, later devoted more than half of his lengthy Report of 1800 to a discussion and refutation of the “new doctrine” of a federal common law of crimes (Jefferson to JM, 23 Aug. 1799; Jefferson to Nicholas, 26 Aug. and 5 Sept. 1799, ibid., 7:389, 391).

Randolph, however, never seems to have published his intended essay. In the spring of 1800, after learning that St. George Tucker had completed a treatise on the same subject, Randolph sent the latter his notes, suggesting that Tucker “blend such parts thereof as [he] should please with [his own]” and asking only that the William and Mary law professor suspend publication until JM’s report had been assailed, presumably in Congress itself. “Upon this event,” Randolph argued, “your essay might be made a direct answer to the attack.” JM’s Report of 1800, though, was not attacked in the manner Randolph had anticipated, and Tucker’s pamphlet, Examination of the Question, How Far the Common Law of England Is the Law of the Federal Government of the U.S., was subsequently published in August 1800 (James Rind to Tucker, 24 Apr. 1800, and Edmund Randolph to Tucker, 6 May 1800 [ViW: Tucker-Coleman Papers]).

(Secondary sources used for this note: William Garrott Brown, The Life of Oliver Ellsworth [New York, 1905], pp. 257–62; Goebel, History of the Supreme Court, 1:631; Charles T. Cullen, St. George Tucker and Law in Virginia, 1772–1804 [New York, 1987], p. 155.)

[ca. September 1799]

Notes on the Common law

General Question

Is the common law of England the law of the United States?

Preliminary Inquiry

What was the common law in Virginia at the time of the Revolution, or (which is the same thing) at the declaration of Independence?

Subordinate Quest:s

first. Is the common law the law of the United States from the nature of the federal Constitution?
Second. Is the common law the law of the United States from a special adoption in the federal Constitution?
third Do the legislature of the U S possess an authority to adopt the Criminal part of the common law?
fourth. Can the judiciary of the U S exercise a jurisdiction in any Crimes or misdemesnors described in the common law without a constitutional or special Legislative adoption in pursuance of the Constitution?
fifth To what extent may the common law be received in the Courts of the U. S. in civil transactions?
sixth How far may the common law be received in the Courts of the U. S. as furnishing definitions or rules of construction?

Preliminary Inquiry

Under the Regal Government the common law, where it was applicable in principle to our situation prevail’d here.

It was indeed, claimd under the charter or by adoption, in opposition to the civil law, or any other law, which the mother country might choose to impose.

Under the restriction of principle and situation, and with that of Statutory regulations prior to the 4th. James 1st. it furnishd materials for the Criminal code, and governd civil transactions, and supplied rules of construction and proceeding.

The common law however stood on a ground subordinate to every British Statute prior to that æra (4th. James 1st.) and every Act of the Virginia Assembly containing adversary and irreconcileable matter.

It was repealable at the pleasure of the general Assembly.

It was repealed in innumerable instances.

Thus it was accepted and understood in Virga. when Independence was declared.

It is a matter of unimportant speculation to inquire what woud have been the effect of this declaration upon the common law, if the new Government had not adopted it. These are the reasons—

first.   It cannot be believed that the destruction of an old Government will ever take place without the establishment of a temporary or permanent Government, and without the enaction or adoption of laws suited to the preservation of society and the great objects of intercourse among men.

Second.   This has been done in all the States at the declaration of Independence.

third.   If it were necessary to examine the subject, it woud be affirmd that as laws are emanations from the legislative department of Government; and when once enacted continue in force, because it is presumed to be the legislative will that they shoud so continue untill it is otherwise promulged: it follows that the destruction of that legislative department involves the destruction of those laws. There can be no presumption of a continuing legislative Will when the legislature itself is annihilated.1

The objection arising from the danger of anarchy on the transition from an old to a new Government is answered by this consideration: that the people who dissolve an old Goverment, hold the moral power to dissolve the society itself: and if they choose to go no further than to abolish the old Goverment it is their right.

fourth.   But I repeat that this is an unimportant speculation: because the same convention of Virga. which abrogated British dominion here, adopted the Common law and Statutes in these words (insert the  2 of the act of May 1776).

Thus the Common law stood coeval with Independence and continued until the Constitution of the U: S: with various intermediate changes and repeals but those changes and repeals, combined with others wch. had before taken place: and with the exclusion of the British Statutes subsequent to the 4th. of James 1st. left the common law in Virga. at the time of adopting the federal Constitution, a system essentially different from the common law of England and of the other American States.

1st: Question.

Is the common law the law of the U. S. from the nature of the federal Constitution?

At the time of its adoption each state was in possession of full Sovereignty: in the exercise of which some states, perhaps all, but particularly Virga. had adopted the common law under various modifications.

The adoption of this law came within the power of the Convention, which framed the constitution: and when adopted it gave powers to differ⟨ing⟩ departments of the state Government.3

The federal Constitution was built upon the deprivation of some state powers, and participation of others: but in neither case did the Government of the U. S. acquire any power except what was given or was necessary and proper to carry into execution the powers given.

Inferences of power then from the mere nature of the Government are inadmissable: unless the descriptions of powers in the federal constitution shall be said to have been useless and the checks nugatory: or unless the common law by being the law of Virga., under certain modifications when the Constitution of the U. S. was adopted and containing powers clearly permitted by the state Constitution, conferred those very powers on the federal Goverment from ideal calculations of the nature of that Government.

2d. Question

Is the Common law the law of the U. S. from a special adoption in the federal constitution⟨?⟩

In the judicial section alone is a reference made to common law.

In the principal passage in that section; it is made not for adopting the common law as a system, but to distinguish it from Equity as to the cases which that section embraced: or in other words the allusion is made to comprehend all the legitimate objects of jurisdiction in the federal judiciary whether depending upon the liberality of equity or the strictness of legal reasoning.

Even upon a statute a question of law or equity may arise: A question of law may arise upon a statute which takes up a subject unknown to the common law. Such a question when denominated a question of law, is therefore of a negative nature: that is excludes the interposition of equity, and is very remote from an adoption of the common law.

But the cases of law and equity to which the judicial section refers must arise under the Constitution, the laws of the U S. and in pursuance thereof and treaties under their authority. Hence the first inquiry upon jurisdiction is to be whether a case arises under the one or the other: and if it does, law as contradistinguished from equity or equity as contradistinguished from law, or perhaps both united will apply. But it is absurd to deduce from the application of the common law to certain described cases, a power to multiply the cases themselves.

The appellate power which speaks of law and fact includes in the term law statutory as well as common law. Why, when the Constitution professedly treated of the rules of decision, was not the common law if intended as one enumerated, as such? Why when the Supremacy of the laws of the united States &c was established was not so obvious a system as that of the common law mention’d? Why was the supremacy of those laws asserted in express defiance of the laws of the individual States (if the common law which enters so essentially into the laws of the individual States, be the law of the U. S.) without adjusting, how far the original system of the Common law was to yield to the modifications in the states? Can the Common law if adopted by the constitution of the U: S: be repealed by the individual states? Or if it can may not a seperate State controul the U: S:? If it cannot, we must either have a different species of common law, one for the U: S: the other for the individual states: or the individual States must reject all statutory improvements of the common law, or receive them as gifts from Congress.

3d. Question

Do the Legislature of the united States possess an authority to adopt the criminal part of the common law?

The powers of enacting penalties are either defined in the Constitution or are necessary and proper to carry into execution such as are defined.

The Common law is not adopted by the Constitution, either from its nature or specially.

It is not necessary or proper (merely as being the Common law) to carry into execution any specifyed power.

Congress may indeed in the execution of any of its penal powers borrow provisions from the Common law as it may from British Statutory law, the civil law, or any other foreign laws. But it is one thing to accommodate the regulations of the common law to Crimes or misdemesnors, over which a constitutional jurisdiction is already vested in Congress; and another totally different, to make the commo⟨n⟩ law the parent of a jurisdiction in Congress over crim⟨es⟩ and misdemesnors, in which no constitutional jurisdiction is vested in Congress.

4th. Question

Can the judiciary of the U: S: exercise a jurisdiction in any Crimes or misdemesnors described in the Common law without a constitutional or special legislative adoption in pursuance of the Constitution?

The negative of this question is uncontrovertable: if as asserted in the preceeding points the full system of the Common law be not adopted by the Constitution and Congress cannot resort to it as a source of Criminal power independent of the Constitution.

5th. Question.

To what extent may the common law be recd. in the Courts of the U. S. in civil transactions.

Civil transactions of federal cognizance must occur in some of the states: and will therefore be govern’d by the lex loci. When the ingredients of subjects or person transfer a civil transaction from the State-Courts to the federal Courts the common law, according as it prevails in the state which is the scene of the transaction, is mixd up with it and inseperable from it. But so are the state laws and the one and the other are respected in no other manner, than the laws of Spain woud be in a transaction originating there and tried in the federal Courts.

6th. Question

How far may the Common law be recd. in the Courts of the U. S. as furnishing definitions or rules of Construction or proceeding?

If in the exercise of legislative power upon Constitutional subjects, Congress choose to use terms known to the common law, they may do so. If they do so the Books of common law as being not only books of common sense, but also as familiar to the States are the best vocabulary of definition. Upon similar principles may the common law be used as supplying rules of construction.

As to rules of proceeding Congress in the creation or origination of their own Courts may adopt in civil matters, the common law forms or any others more agreeable to them. They may do the like in criminal cases except where they are specially restraind by the Constitution.

Hence it is conclueded that the common law is not the law of the U. S.: that above all things it cannot supply to the federal Courts a source of Criminal jurisdiction which shall go beyond what the Constitution has definitively given or may be necessary and proper to carry those definitive powers into execution: but as being incorporated with the civil transactions in the States; furnishing definitions or rules of construction or proceeding, it may be recd. in the Courts of the U: S:

Try Mr Ellsworths charge by these principles and ascertain what kind of a common law can upon any supposition be the law of the U S:?

That charge states.

First.  That offences against the united States are chiefly defined in the Statutes: implying that besides those statutes there are other penal laws.

Secondly.  That the offences against the U S: not comprized in the statutes are Acts Contravening the law of nations. Or Acts manifestly Subversive of the National Government or some of its powers specifyed in the Constitution.

Thirdly.  That an offence consists in transgressing the Sovereign Will: whether that Will be express’d or imply’d.

Fourthly.  That it is not necessary to particularize Acts clearly destructive of a Government or its powers because they are readily perceived and ascertaind by known and establish’d rules, the maxims and principles of the Common law of our land which was brought with our Ancesters, with here and there an accommodating exception in nature of local customs: was the law of every part of the union at the formation of the national Compact; and did of course attach upon us, to apply to it for the purpose of exposition or enforcement. That altho the parties might have discontinued the common law they cannot be presumed to have intended it so contrary to usage in similar cases: so pregnant with mischeif and so irreconcileable with frequent references in the Constitution to the common law as a living code and that therefore Grand-Juries are to decide what acts are misdemesnors on the ground of their opposing the existence of the National Government or the efficient exercise of its legitimate powers.

The principle object of the charge is to impress upon the Grand-Jury that there is an unwritten as well as a written law of the U. S: upon which they may ground presentments.

It has been hitherto supposed that there were but two sources of federal penal law: one, the Constitution, as for example, in defending treason: the other, laws, made in pursuance of the Constitution. Now, we have a new source: an unwritten law to be found only in the Records of English decisions and treatises and the occasional practice of our own Country: and not adopted by the Constitution or permitted to be adopted by federal laws; as has been shewn.

The affected similitude between the law of nations and the common law does not justify this introduction of the common law: because the law of nations not only exists as an operative law independent of special adoption, but is specially adopted by the Constitution.

So also the affected similitude between the Acts manifestly subversive of some of the powers specified in the Constitution does not justify this introduction of the common law: because those powers and the supplemental powers to make all necessary and proper laws for carrying into execution the power given by the Constitution, will secure from violation all those powers.

Where is the limit of a power to pass laws Subversive of the national Government? Either in the powers given by the Constitution, or the opinion and discretion of the authorities acting under it. To the former we submit: the latter is inadmissible because a restricted Government has no discretion to arrogate powers in no manner given by the terms of the Constitution.

But why confine the offences to any enumeration in the Common law? Why not range among all penal codes, wherein offences are delineated subversive of Goverment? Perhaps this may ultimately be in reserve. But the only plausible distinction must be on account of the supposed universality of the Common law thro the U: S: It does not exist: the crimes of the common law being various in different States.

Can Congress select crimes out of those adopted from the Common law by the several States? Why not upon equal principles select crimes out of the penal codes of each state?

Try these ideas by recurring to some of the offences at Common law.

All offences are punish’d at common law as being destructive to Government. What is to prevent Congress from legislating on Heresy and Witchcraft, which are offences at Common law?

What; from legislating on impostures in religion, when the reason assignd is not that they infringe on a test law or establishd religion but because they tend to subvert religion or morality which are the foundation of Government?

What; from Legislating on every crime which may affect in their immediate operation the President and higher officers of the U. S.? Such as robbery from them &c.

What from Legislating on the officers prescribed in the following section from 1st. Hawkins p. 60 on the Kings person and Government?4

Look over the Common law Catalogue of Crimes, at least forty in number: and see what an unlimited scope in the use of one of the main engines of Government, penal laws?5

What are Congress to do, if they wish to select from one state code a Common law crime not universally nor even partially admitted in the others? If they proceed then they will employ the common law, independant of its being the uniform law of the several states: if they stop then quoad hoc a single state impedes the powers of the federal Government?

Is the common law as the law of the United States to conform itself to the fluctuations and mutations in the common law of the several States? Or is it to prevail as fix’d at some æra, and at what ærea [sic]?

Because an offence consists in transgressing the Sovereign Will: it does not follow that the federal Government, (whose Sovereignty, ’tho mighty from the magnitude of its power is yet dependent for its powers on the Constitution) can claim a power of enacting penal laws not containd therein.

If the laws of the several states in derogation of the common law be only accommodating exceptions in the nature of local customs (the extent of which remark is not foreseen tho’ it may be apprehended) still those exceptions may be created as often as the states choose. Can Congress enforce the Common law in opposition to those exceptions? If not how can it be the law of the U S? If Congress can enforce it in its original state as at the adoption of the Constitution, notwithstanding the various exceptions of the several states, then the common law of that day becomes perpetual untill Congress shall alter it.

The principle is broad enough to let in the common law as the law of the U: S: in all civil cases. If this be the consequence Congressional power is all but unlimited. For take the subjects criminal or civil comprehended within the common law, as Constitutional subjects of legislation; and connect with them the power to pass all laws necessary and proper to carry them into effect; The most profound mind may be challenged for an example of a defect in legislative power: even in spite of the positive restraints imposed by the Constitution but in language which after this experiment may be explaind away at the will of Congress.

Ms (DLC). In a clerk’s hand, with corrections and emendations in Randolph’s hand. These minor changes have not been noted. Docketed by JM. Dated ca. 1790 in Index to the James Madison Papers. For conjectural date here, see Editorial Note, above.

1In the left margin opposite this paragraph someone, possibly JM or Jefferson, wrote: “Laws acts of the nation thro’ the legislature and may survive it.” For Jefferson’s comment on this paragraph, see Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:384–85.

2Blank space in Ms.

3A marginal note in Edmund Pendleton’s hand opposite this paragraph reads: “I don’t clearly understand this.”

4Randolph referred here to “Of Contempts against the King’s Person or Government,” chapter 23 of William Hawkins, A Treatise of the Pleas of the Crown (2 vols. in 1; 1724; New York, 1972 reprint), 1:60.

5Bound with Randolph’s notes and JM’s Amendments to a Bill for Proportioning Crimes and Punishments, ca. 10 Dec. 1785 (see Supplement, below) are notes in JM’s hand on the punishments for crimes under the common law (DLC). The notes were taken from “Public Wrongs,” the fourth book of William Blackstone’s Commentaries on the Laws of England. The editors conjecture that JM accepted Randolph’s suggestion to examine “the Common law Catalogue of Crimes” when he was preparing his Report of 1800 and, after making the notes printed below, decided not to elaborate on them in that document. He did refer to them in the report, however, when he protested that if the common law should be absorbed by the federal government, “the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States” (see The Report of 1800, 7 Jan. 1800). JM’s notes read:

“1. 1. Petty Treason extends not to Parent or child murdering the other.
2. Trial as in high Treason by 2 witnesses, & otherwise before improvemt. of Treason law in W. 1st.
3. women drawn & burnt.
4. only murder at Comm. Law.
5. has Clergy at C. L. which is taken away by 12. Hen. 7. c. 7.
2. Murder. has clergy at Com. L. taken away by 23. H. 8. c. 1. & 1 Ed. 6. c, 12. No compensation to party
3. Mayhem. punishable antiently by lex talionis—afterwds. by fine & imprisonment
2. cutting ear, slitting nose &. not maihem & only made felony by 5. Hen. 4. 37. H. 8. &.
4. Rape. At Com. L. seems to have been pund. with castration & loss of eyes, at present felony without Clergy by West. 2. c. 34. & 18 Eliz. c. 7.
5. Sodomy. in very antient times of law burnt or buried alive—in times of popery subjected to ecclestl. censures only—at present felony by 25. Hen. 8. c. 6. & deprivd. of Clergy by 5. El. c. 9
6. Manslaughter. felony with Clergy, with burning in hand & forfeitures of goods. No compensation
7. Arson. Death by Saxon laws—bur[n]t in Ed. 1. Clergy denied only by 21. H. 8. c. 1.
8. Burglary. felony with Clergy at C. L. Clergy taken away by 18. Eliz. c. 7.
9. Grand Larceny 1/. Sterlg—death at C. L. after Clergy for 1st. offence
10. Larceny from person with force, debarred of Clergy by 8 Eliz. c. 14.
11. Roby. denied Clergy by 23. H. 8. c. 1
12. Recg. stolen goods only misdemr. at Com. L.
13. Witchcraft &c. punished like Heresy before & after Conquest, with flames, declared by 33. H. 8. c. 8. to be felony without Clergy—also by 1. J. 1. c. 2. not law here.
pretending to those arts punished by 9. Geo. 2. with one years imprisont. & 4 times standing in pillory.
14. N. Clergy allowable by C. L. in all cases except H. Treason & petty larceny &—
Salutary innovations. 1. proportion
2. perspicuity & certainty
3. compensation to injd. party.
Sects. 11

Index Entries