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Saturday, February 29, 2020

The Lost Opinion on Federal Criminal Common Law

I have another discovery to announce as part of my Bushrod Washington research. Only specialists will probably enjoy this, but I still think it's a neat find.

One important but less-well-known Marshall Court opinion was United States v. Hudson & Goodwin. In that decision, the Court held that there is no federal criminal common law. Every federal crime must come from an Act of Congress. This was a divisive question in the first two decades of the Republic, with Federalists arguing that there was federal criminal common law and Jeffersonians arguing that the whole concept was unconstitutional. 

Hudson & Goodwin was unusual in that neither Chief Justice Marshall nor his usual allies wrote the opinion. Instead, the decision came from Justice William Johnson, Jefferson's first appointment to the Court. There is every reason to think that some Justices disagreed with Johnson's opinion, but the Court in this era typically gave its unanimous support to the majority's view. Not long after Hudson and Goodwin was decided, Justice Story wrote a circuit opinion arguing that the Supreme Court made a mistake and that Hudson & Goodwin should be reconsidered. There were some noises about doing that until about 1816, but nothing came of that effort.

Justice Washington did not participate in Hudson & Goodwin--he was ill. But in an 1804 circuit case that he handled--United States v. Passmore--the issue of whether federal criminal common law existed was raised. The report in that case is brief and says nothing about his view of that issue, which was decided on other grounds.

In the Pennsylvania Historical Society, I found correspondence between Justice Washington and Richard Peters Jr. Peters (who later became the Supreme Court's reporter) was asked by Washington in the 1820s to assist with the publication of his circuit court opinions. He gave Peters his notes, but then made comments about how the reports should be edited. Here is what he said about Passmore:

Omit the argument to show that the common law supports a rule of decision in criminal cases in the federal courts . . . at that time I hoped that by not abandoning the doctrine, it might again become popular and maintain its just ground. In this I have been disappointed and of course have no wish to disturb the subsequent decision of the Supreme Court [in Hudson and Goodwin].

Two preliminary observations here. First, it's refreshing to see a Supreme Court Justice admit that whether a doctrine is popular plays a role in what a judge should do, though Washington did not concede that his opinion in favor of federal criminal common law was wrong. Second, I suppose the best evidence for something being deemed settled law is to erase one's own contrary prior opinion from history.

Posted by Gerard Magliocca on February 29, 2020 at 10:10 PM | Permalink

Comments

"If it isn't "common law" it certainly blurs the line between what is prohibited by statute and what is prohibited by case law."

Yes. But, I presume the argument that it is more tied to something specific than the common law of seditious libel. Maybe not. Be interested in some comparison there.

Posted by: Joe | Mar 2, 2020 8:28:46 PM

"If it isn't "common law" it certainly blurs the line between what is prohibited by statute and what is prohibited by case law."

Yes. But, I presume the argument that it is more tied to something specific than the common law of seditious libel. Maybe not. Be interested in some comparison there.

Posted by: Joe | Mar 2, 2020 8:28:46 PM

To Douglas's point, there is also the substantial body of judge-made antitrust law - distinguishing rule of reason and per se violations; assessing horizontal versus vertical restraints; etc. etc. - that largely emanates from the single phrase in Section 1 of the Sherman making it a crime to engage in a contracts, combinations, or conspiracies in restraint of trade. If it isn't "common law" it certainly blurs the line between what is prohibited by statute and what is prohibited by case law.

Posted by: Jeff Lipshaw | Mar 2, 2020 12:53:10 PM

Douglas B. Levene, but, there is the:

"Insider Trading Sanctions Act Of 1984"

You can read about, here:

https://www.law.cornell.edu/wex/insider_trading

https://www.investopedia.com/terms/i/insider-trading-sanctions-act-of-1984.asp

Posted by: El roam | Mar 1, 2020 7:12:29 PM

It's difficult to reconcile the principle that there is no federal common criminal law with the whole body of law on insider trading, which is 100% a judge-made body of law. Neither Section 10(b) of the Securities Exchange Act nor Rule 10b-5 say anything at all about insider trading. The judges just made it up.

Posted by: Douglas B. Levene | Mar 1, 2020 6:59:30 PM

Interesting. The book sounds like it should be good.

The opinion notes: "The powers of the general government are made up of concessions from the several states -- whatever is not expressly given to the former, the latter expressly reserve." But, the 10th Amendment does not say "expressly." It says "delegated" and chose not to add "expressly."

And, the opinion at one point recognizes implied powers: "Certain implied powers must necessarily result to our courts of justice from the nature of their institution."


Posted by: Joe | Mar 1, 2020 4:09:07 PM

In light of your find, I think it is interesting that Hudson (1812) says "[t]he powers of the general government are made up of concessions from the several states -- whatever is not EXPRESSLY given to the former, the latter expressly reserve," yet McCulloch v. Maryland (1819) fails to mention Hudson's language even when addressing Marshall's implied power argument ("But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described").

Posted by: T. Samahon | Mar 1, 2020 10:45:40 AM

Reminding me, another astonishing case: Marshal v. Gordon ( Supreme court) dealing with the Congress power ( contempt and punishment) and also dealing with the difference between inherent power, or, power v. means to exercise the power. He who finds interest in it, not to miss it:

https://cdn.loc.gov/service/ll/usrep/usrep243/usrep243521/usrep243521.pdf

Thanks

Posted by: El roam | Mar 1, 2020 6:45:08 AM

Very interesting ruling. But the answer is quite obvious, of course there is no common law in criminal cases ( although may influence the interpretation generally speaking). The court indeed, has distinguished between inherent power, needed for the very functioning, and criminal offense, must be explicitly legislated ( simply due to the legality principle). Here I quote:

" Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt--imprison for contumacy--inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal law cases we are of opinion is not within their implied powers"

One may reach Hudson here:

https://cdn.loc.gov/service/ll/usrep/usrep011/usrep011032/usrep011032.pdf

And Passmore here:

https://cdn.loc.gov/service/ll/llst/029/029.pdf

Thanks

P.S.: Although that case, factually, was bit weird.Libeling against president and government, for, intending to pay certain bribe or alike to Bonaparte for leave to make a treaty with Spain. But, the principle itself(of legality) is fundamental, and deeply rooted as such.

Posted by: El roam | Mar 1, 2020 6:21:20 AM

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