Opinions on the Common Law: The Case of William Hardin
I. OBSERVATIONS ON THE COMMON LAW AND HARDIN’S CASE, 11 NOV. 1802
II. ALBERT GALLATIN’S OPINION ON THE COMMON LAW AND HARDIN’S CASE, [CA. 11 NOV. 1802]
III. ROBERT SMITH’S OPINION ON THE COMMON LAW AND HARDIN’S CASE, [CA. 11 NOV. 1802]
The case of William Hardin evolved as an adjunct to the ongoing efforts by the Jefferson administration to bring accused Indian murderers John Williams, Martin Williams, and John Crutchelow to justice. Since committing their alleged crime several years earlier in what became the Indiana Territory, the three suspects had taken up residence in Kentucky, where they evaded repeated efforts by federal and state officials to apprehend them. Their success was in large part due to a sympathetic local population in the western states and territories, which was reluctant to submit an Indian killer to justice. John Williams had already escaped from the Knox County, Indiana, jail in May 1802 with the help, Governor William Henry Harrison believed, of local sympathizers. Subsequent efforts by federal and state officers were likewise thwarted by local residents, who tipped off the fugitives before they could be apprehended. The most flagrant episode of local citizens abetting the fugitives took place in Breckinridge County, Kentucky, where John Williams had been taken into custody and held at the county court house. A mob led by William Hardin gathered, overpowered the guards, and allowed Williams to escape (Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky, 1789–1816 [Princeton, 1978], 128–33; Terr. Papers description begins Clarence E. Carter and John Porter Bloom, eds., The Territorial Papers of the United States, Washington, D.C., 1934–75, 28 vols. description ends , 7:37, 55; Harry Innes to Henry Dearborn, 14 Oct. 1802, in DLC: Innes Papers; TJ to Dearborn, 6 Nov. 1802).
News of Hardin’s actions apparently reached Jefferson and his cabinet sometime late in the spring of 1802. On 17 June, Henry Dearborn wrote the U.S. attorney in Kentucky, Joseph Hamilton Daveiss, and forwarded papers detailing the conduct of Hardin and his accomplices. Dearborn also enclosed an opinion by Attorney General Levi Lincoln on the “propriety of commencing a prosecution against Hardin and his associates,” and closed his letter by informing Daveiss that “it is the wish of the President of the U. States that you should take all due measures for bringing said Hardin to justice” (FC in Lb in DNA: RG 75, LSIA). Although Lincoln’s opinion is not extant, it apparently recommended that Daveiss pursue a prosecution of Hardin under the common law. Daveiss, a Federalist, replied by reminding Dearborn of “the public heat” that Republicans had raised when Federalists claimed the existence of a federal common law to justify prosecutions under the Sedition Act. He therefore requested further instructions before proceeding against Hardin, who was scheduled to appear before the November 1802 term of the U.S. district court in Kentucky (Tachau, Federal Courts, 130–132; DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States, 1789–1800, New York, 1985–2007, 8 vols. description ends , 3:321–2). A letter from Daveiss to Dearborn dated 16 Oct. 1802 relating to the case is recorded in War Department registers as having been received 11 Nov., but has not been found (DNA: RG 107, RLRMS).
At the height of the controversy over the Sedition Act during the late 1790s, Jefferson had been an ardent critic of Federalist claims for the existence of a federal common law of crimes. Writing to Edmund Randolph in 1799, Jefferson damned the novel doctrine as an “audacious, barefaced and sweeping pretension to a system of law for the US. without the adoption of their legislature and so infinitely beyond their power to adopt” (Vol. 31:169). As such, Jefferson viewed a common law prosecution against William Hardin with understandable caution, desiring neither to embarrass his attorney general nor leave himself open to accusations of hypocrisy from his political opponents. Jefferson’s observations on the common law and Hardin’s case printed below (Document I) first appeared in H. A. Washington’s 1854 edition of Jefferson’s writings, under the date 11 Nov. 1812. The current Editors have redated it from 1812 to 1802, since Hardin’s case went before the U.S. district court in November of the latter year. It was reprinted by Andrew Lipscomb and Albert Bergh in 1903, but was not included in any other published collection of Jefferson’s writings until this volume. The original manuscript has not been found (HAW description begins Henry A. Washington, ed., The Writings of Thomas Jefferson, New York, 1853–54, 9 vols. description ends , 9:485–9; L & B description begins Andrew A. Lipscomb and Albert E. Bergh, eds., The Writings of Thomas Jefferson, Washington, D.C., 1903–04, 20 vols. description ends , 17:410–17).
In his observations (Document I), Jefferson begins by defining the common law of England and discussing how the system was adopted by the future states during the colonial era. He emphasizes the fact that every colony except Connecticut adopted the system at a different time, so that no two colonies possessed an identical version of the common law. Jefferson presumably made this point to undermine claims of a uniform federal common law. Under the Constitution, Jefferson notes, federal courts only possess cognizance of certain specified cases. Quoting from the Judiciary Act of 1789, he proceeds to explain that, except when provided for in the Constitution, treaties, or federal statutes, federal courts operating in the individual states shall have adopted the laws of that state, including the portions of the common law adopted by the state. Jefferson is careful to make explicit, however, that any common law claims by federal courts are made “not by any innate authority of its own, but by the adoption or enacting of it by the State authority.” Opinions expressed to the contrary by certain federal and state judges remained “heretical” to Jefferson and his fellow Republicans. Any case presented to a federal court must therefore meet the specific criteria set forth carefully by Jefferson if it was to properly claim cognizance of the case.
When applying this standard to Hardin’s case, however, Jefferson appears to equivocate. Citing an 1802 federal statute that made the murder of an Indian within a United States territory a capital offense, Jefferson asserts that the case is within the jurisdiction of Congress. Since Congress possessed power over the territories and could thus make laws necessary to carry their powers into execution, Jefferson holds that Congress could therefore make it a crime to protect such a murderer in any of the states. He appears less certain, however, as to whether the circumstances surrounding Hardin’s actions justify federal cognizance of the case. Rather than committing himself to a definite opinion on the question, Jefferson instead calls for further examination of federal criminal statutes, the common and statute law of Kentucky as adopted by the federal courts, and any additional circumstances that might render state laws inapplicable to Hardin’s offense. Thus, Jefferson lays out specific criteria for determining if the U.S. district court in Kentucky could rightfully claim cognizance, but leaves it for others to decide whether or not the criteria have been met.
The opinions of Albert Gallatin and Robert Smith on the case (Documents II and III) imply that the president circulated his observations among at least two or more of his cabinet secretaries, although opinions by James Madison or Henry Dearborn, if requested by the president, have not been found. Gallatin and Smith’s comments also indicate that Jefferson and his colleagues had only partial information regarding the case, lacking both Lincoln’s opinion and knowledge as to whether Hardin and his confederates attacked a federal or a state officer. Regardless, both Gallatin and Smith adamantly deny any federal cognizance of the case under the common law, with Gallatin taking the opportunity, like Jefferson, to refute Federalist arguments for the existence of a federal common law. The secretaries put forth nearly identical opinions regarding Hardin’s actions. If he attacked a state officer, the case should be tried in the state courts. If the attack was against a federal officer, then Hardin could be tried in federal court under sections 22 or 23 of the 1790 act of Congress for punishing certain crimes against the United States. Jefferson likewise cited the 1790 statute toward the end of his opinion, but doubted whether the law covered the particular characteristics of Hardin’s offense. Neither Gallatin nor Smith held such doubts, with each firmly believing that the federal district court had cognizance of Hardin’s case under the 1790 act (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States . . . 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:112–19).
At the close of his opinion, however, Gallatin offered perhaps the soundest advice on Hardin’s case. “The subject is so complex and delicate,” he observed, “that it seems to me better not to send to Kentucky the opinion which has been prepared nor any other on the subject generally.” Better to let an occasional offender go unpunished, Gallatin suggested, “than to open that new field of jurisdiction to our courts; a field in which they shall be unrestrained by any legislative controul.” This appears to have been the decision Jefferson arrived at as well. When Hardin was brought before the November 1802 term of the U.S. district court in Kentucky, his attorney moved that he be discharged, “the offense presented being only a misdemeanor at common law and not cognizable by this court.” Daveiss, the U.S. attorney, likewise expressed his opinion that the federal court lacked jurisdiction in the case. Presiding judge Harry Innes agreed and Hardin was discharged. Shortly thereafter, Daveiss received a letter from Dearborn instructing the U.S. attorney not to proceed with the indictment (Tachau, Federal Courts, 131–2).