Thomas Jefferson Papers

II. Albert Gallatin’s Opinion on the Common Law and Hardin’s Case [ca. 11 November 1802]

II. Albert Gallatin’s Opinion on the Common Law and Hardin’s Case

[ca. 11 Nov. 1802]

William Hardin rescued or prevented the arrest of certain persons charged with the murder of some Indians.

Either the officer, who arrested or had a writ against the supposed murderers, was an officer of the United States acting under the authority of the United States, or he was an officer of the State of Kentucky acting under the state authority.

If he was an officer of the United States, Hardin’s offence is cognizable under the 22d or 23d section of the Act for the punishment of crimes against the United States; and he may, therefore, be indicted, not at common law, but under the statute.

If the officer was a state officer acting under state authority, it is not perceivable how the rescue or resistance on Hardin’s part can be considered as an offence against the United States, how it could be made punishable as such by any statute, or how it could as such be punishable at common law, supposing even that misdemeanors agt. the U. States not provided against by Statute, can be punished by the mere effect of the common law. But it was most certainly an offence against the State and as such may be punished in the State-courts.

What was the Attorney general’s opinion is not known; only that he considered the offence as indictable, but whether under the Statute of the United States, or at common law as an offence agt. the U. States, or at common law as an offence against the State, does not appear.

But, supposing Hardin’s offence to be an offence or misdemeanor against the United States if the common law of Kentucky shall be considered as the law of the U. States for offences committed in that State, will it follow that the Courts of the United States can punish it although no mention made of it in the statute?

The judiciary power of the U. States extends to certain specific1 cases defined in the Constitution and to all cases arising under the Constitution, laws, or treaties of the U. States.

Hence it has been maintained that no criminal prosecution could be instituted in the courts of the United except in some of the particularly specified cases, or for some offence defined by a statute law of the United States.

The partisans of constructive power have, on the contrary insisted that the federal2 Courts could take congnizance of any offence against the United States, which, if committed against the State, would by the common law in force in such State, be indictable and punishable.

In support of this doctrine they have used two arguments; 1st. that the common law being acknowledged by several parts of the Constitution and by our laws as the law of the3 United States, that description of offence called “offences at common law” were, if committed agt. the U. States, properly punishable by the judiciary as cases arising under the laws of the U. States—

2d. that every offence against the Govt. of the United States, being an offence against a legitimate authority derived from the Constitution was a case arising under the constitution & therefore punishable by the federal judiciary.

In answer to the first position, it has been insisted4 that those parts of the Constitution which imply the existence of the common law, and particularly such of our laws as relate to the subject, do only recognize or adopt that law as a proper rule of decision in all such cases or trials as were within the jurisdiction of the judiciary of the United States, but do not bring within that jurisdiction any new cases,5 by virtue of that recognition—

In answer to the second position, (which was recurred to in last resort) it was only said that the words “cases under the consititution” implied nothing more than Such as depended on a disputed construction of the constitution & were never intended to give a vague undefined extent of jurisdiction.

The question is shortly this

Shall6 the judiciary take cognizance of supposed misdemeanors not defined or embraced by any statute, because they are of the description of offences called “offences at common law?”7 Is it not better that now & then some misdemeanors which Congress has neglected to notice shall remain unpunished, than to open that new field of jurisdiction to our courts; a field in which they shall be unrestrained by any legislative controul.

The subject is so complex and delicate that it seems to me better not to send to Kentucky the opinion which has been prepared nor any other on the subject generally; but, taking the substance of what is contained in the first page of those observations, to write to the Attorney that if the act of rescue or resistance was against the State authority, it is in the State courts that Hardin ought to be indicted—that if the act was against the officers of the United States, he is indictable under the Statute & not at common law.

Respectfully submitted by

A. G.

MS (DLC: TJ Papers, 236:42311–12); undated; endorsed by Gallatin: “Common law. Kentucky case.”

1Word interlined.

2Word interlined.

3Canceled: “land.”

4Interlined in place of “stated.”

5Gallatin first wrote “any cases, which” before altering the phrase to read as above.

6Canceled: “offences which if committed.”

7Closing quotation mark supplied by Editors.

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