United States v. Hudson, 7 Cranch 32
Commentary by Jon Roland
The correct decision in this case is not supported by an adequate opinion,
which does little more than assert what was common opinion, without showing how
it derived logically from the Constitution.
The argument is correct that the general government and its courts cannot
legitimately exercise powers not delegated to them by the Constitution, and
that the jurisdiction for common law crimes was not conferred by a legislative
act, but omits that there was no delegation of power to Congress to confer such
jurisdiction, or to the courts to enforce common law crimes in the absence of
statute, in the way civil common law powers were delegated to them.
Under the U.S. Constitution, there are only three kinds of criminal
jurisdiction: territorial, subject, and personal. The
national Congress has general territorial criminal jurisdiction only
over the territory of federal enclaves created under
Art. I Sec. 8 Cl. 17. At the time of
this case it had subject jurisdiction only over (1) treason (Art. III Sec. 3 Cl. 2), (2) counterfeiting
(Art. I Sec. 8 Cl. 6), (3) piracy and
felonies on the high seas (Art. I Sec. 8
Cl. 10), and (4) offences against the laws of nations (Art. I Sec. 8 Cl. 10). The only subjects
of personal jurisdiction are military personnel and militia personnel
when in actual federal service (Art. I Sec.
8 Cl. 16).
But even within these limits, the jurisdiction is only delegated as powers
to Congress to enact legislation. The only powers delegated to the courts are
to decide civil cases and enforce legislation. Enforcement of criminal common
law is not delegated to the courts.
It might be argued that the criminal common law, like the civil, was
incorporated into the Constitution in its state as of the date of ratification,
if only by implication, but this proposition is inconsistent with the
prohibitions on ex post facto laws, because any common law crime is
essentially ex post facto, simply because it was not enacted prior to
the offence, but only upon sentencing. It does not work to argue that a
sentence in a prior case, establishing a precedent for offenses of that kind,
creates a criminal common law that is not ex post facto. There is always
some difference, between the circumstances of the past and present offense and
sentence, that makes a present case different enough to cast an ex post
facto character to the sentence in the present case.
The opinion is also incorrect concerning the powers of contempt, contumacy,
and order enforcement being implied by the Constitution. They should be, but
the framers neglected to provide for them, and for the sake of consistency,
this is a defect that should be corrected by amendment. It could reasonably be
argued that criminal sanctions for contempt, contumacy, and order enforcement
are implied powers of the above delegated criminal powers in cases involving
such offenses, but there is no logical basis for the imposition of penalties,
even fines, for such violations in civil cases, or, of course, for criminal
penalties based on any of the other noncriminal delegated powers. Civil and
criminal powers are distinct, and the latter cannot be implied by the former,
nor was it considered so by the Framers.
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