Observations on the force and obligation of the common law in the United States, on the occasion of Hardin’s case, in Kentucky. November 11th, 1812 [i.e. 1802].

The common law of England is that system of law which was established in that country anterior to the Magna Charta, 9 H. 3, before which period no statutes are extant of record. It is used in contradistinction to the term statute law, which comprehends all the laws passed by their Parliament from the Magna Charta down to this day.

The term common law is used also in contradistinction to the chancery, as when we speak of the doctrines or courts of the common law, the doctrines or courts of chancery, and then include the statute law also. In which sense the term is used, must always depend on the subject matter.

On the settlement of the colonies now composing the United States, and the establishment of a legislature in each of them, that legislature, in some cases, finding that the enacting a complete code of laws, which should reach every transaction needing legislative regulation, would be far beyond their time and abilities, adopted, by an express act of their own, the laws of England as they stood at that date, comprehending the common law, statutes to that period, and the chancery law. In other cases, instead of adopting them by an express statute of their own, they considered themselves as having brought with them, and been, even on their passage, under the constant obligation of the laws of the mother country, and on their arrival they continued to practice them without any act of adoption, which practice or usage is evidence that there was an adoption by general consent. In the case of Connecticut, they did not adopt the common law of England at all as their basis, but declared by an act of their own, that the law of God, as it stood revealed in the Old and New Testament, should be the basis of their laws, to be subject to such alterations as they should make. In all the cases where the common law, or laws of England, were adopted either expressly or tacitly, the legislatures held of course, and exercised the power of making additions and alterations.

As the different States were settled at very different periods, and the adoption for each State was the laws of England as they stood at the moment of the adoption by the State, it is evident that the system as adopted in 1607 by Virginia, was one thing, as by Pennsylvania was another thing, as by Georgia, in 1759, was still a different one. And when to this is added the very diversified modifications of the adoptive code, produced by the subsequent laws passed by the legislatures of the different States, the system of common law in force in any one State on the 24th of September, 1789, when Congress assumed the jurisdiction given them by the Constitution, was very different from the systems in force at the same moment in the several other States: that in all of these the common law was in force by virtue of the adoption of the State, express or tacit, and that it was not in force in Connecticut, because they had never adopted it.

Having settled, by way of preliminary, to what extent, and by what authority, the common law of England is the law of each of the States, we will proceed to consider how far, and by what authority, it is the law of the United States as a national government.

By the Constitution, the General Government has jurisdiction in all cases arising under the Constitution, under the (constitutional) laws of the United States, and under treaties; in all cases, too, of ambassadors, of admiralty jurisdiction, where the United States is a party, between a State or its citizens, or another State or its citizens, or a foreign State or its citizens.

The General Government, then, had a right to take under their cognizance all these cases, and no others. This might have been done by Congress, by passing a complete code, assuming the whole field of their jurisdiction, and applying uniformly to every State, without any respect to the laws of that State. But, like the State legislatures, who had been placed before in a similar situation, they felt that it was a work of too much time and difficulty to be undertaken. Observing, therefore, that (except cases of piracy and murder on the high seas) all the cases within their jurisdiction must arise in some of the States, they declared by the act Sept. 24, 1789, c. 20, § 34, “That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”

Here, then, Congress adopt for each State the laws of that State; and among the laws so adopted were portions of the common law, greater or less in different States, and in force, not by any innate authority of its own, but by the adoption or enacting of it by the State authority.

Now what was the opinion to which this was opposed? Several judges of the General Government declared that “the common law of England is the unwritten law of the United States in their national and federal capacity.” A State judge, in a printed work, lays it down as “certainly wrong to say that the judiciary power of the nation can exercise no authority but what depends for its principle on acts of the national legislature.” And then quoting the preamble to the Constitution of the United States, which says that its object is “to insure domestic tranquillity, promote the general welfare,” &c., he adds, that “what is here expressed is the common law of the whole country,” and that “whatever is in opposition to it, whether treason, insurrection, sedition, murder, riot, assults, batteries, thefts or robberies, may be punished as crimes, independent of any act of Congress.” And opinions equivalent to this were declared by one party on the floor of Congress. This is the doctrine which the republicans declared heretical. They deny that Congress can pass any law not authorized by the Constitution, and that the judges can act on any law not authorized by Congress, or by the Constitution in very direct terms.

If the true doctrine then be, that certain portions of the common and statute law of England be in force in the different States by virtue of the adoption of that State, and in the federal courts of the same State by virtue of the adoption by Congress of the laws of that State within its limits, then whenever a case is presented to a federal court, they are to ask themselves the following questions:

1. Is this case within any of the definitions of jurisdiction given by the Constitution to the General Government? If it be decided that it is, then

2. Has Congress by any positive statute assumed cognizance of this case as permitted them by the Constitution? To determine this question, the judge must first look into the statutes of Congress generally; if he finds it not there, he must look into the laws of the State, as well as that portion of the English code which the State may have adopted, as the acts passed specially by the legislature. If the case be actually found provided for in these laws, another question still remains, viz.:

3. Is the law of the State applicable to the analogous case of the General Government? for it may happen that a law of the State, adapted perfectly to its own organization and local circumstances, may not tally with the different organization or circumstances of the federal government. If the difference be such as to defeat the application, it must be considered as a case unprovided for by Congress, and not cognizable in their courts. Just so parts of the common or statute law of England are found by the State judges inapplicable to their State from a difference of circumstance. These differences of circumstance will be shaded off from nothing to direct inconsistence, and it will be only by many decisions on a great variety of cases that the line will at length be drawn.

Let us apply these questions to Hardin’s case, which is simply this: Congress, by an express statute, 1802, c. 13, § 6, have made the murder of an Indian within the territory of the United States punishable by death. A murder is committed on an Indian in that territory. The murderers fly to Kentucky. They are demanded by the Governor of Indiana of the Governor of Kentucky; under whose authority our officer attempting to take them, they are protected by Hardin and others in arms.

1. Is this case within the jurisdiction of Congress? Answer. Congress having a right “to make all rules and regulations respecting the territory of the United States,” have declared this to be a case of murder. As they can “make all laws necessary and proper for carrying their powers into execution,” they can make the protecting a murderer criminal in any part of the United States.

2. Has Congress assumed cognizance of the offence of Hardin? We must first examine whether the act of Congress, 1790, c. 9, § 22, takes in this offence. Then whether the laws of Kentucky, common, statute, or State law, as adopted by Congress, comprehend this offence.

3. Whether any difference of organization or other circumstance renders the law of Kentucky inapplicable to this offence, can be decided by those only who are particularly acquainted with that law.