Page:The Supreme Court in United States History vol 1.djvu/185

Rh so sharply divided — neutrality. Federal common law criminal jurisdiction, the right of expatriation, the constitutionality of the Alien and Sedition laws — had been presented in cases arising before the Judges of the Court sitting on Circuit, and on each of these questions the decisions had been invariably adverse to the view held by the Anti-Federalists. The assertion of the jurisdiction of the United States Courts in cases in- volving criminal indictments based on English common law and on international law, in the absence of any Federal i>enal statute, had been especially obnoxious to the Anti-Federalists; and the successive cases had been regarded with growing alarm — principally be- cause such common law indictments had been chiefly employed in convictions of persons accused of pro-French activ'ties.^ In the fall of 1799, the feeling of hostility towards these Fede al decisions had been brought to a head by a ruling made by Chief Justice Ellsworth in the Circuit Court for the District of Con- necticut in the case of Unied States v. Isaac Williams; for, in sustaining an indictment for violation of the neutrality law prohibiting American citizens from ac- cepting commissions to serve a foreign power, he held that an American had no right of expatriation, since imder the English common law no such right existed and the common law was binding upon the United States

V 1 Chief Justices Jay and Ellsworth, and Judges Gushing, Iieddl, Wilson and Washington had all sustained indictments at common law in the United States Courts; and Judge Chase alone had taken the contrary view in April, 1708, in Uniied States v. WonaU, 2 Dallas, 884. See, in general, PoUHes far American Farmers (1807), by William Duane; Aurora, Nov. 7, 1799; Independent Chronicle, Nov. 18, 1799; History qf the American Bar (1911), by Charies Warren; Marshall, m, 8-45. Attorney-General Lincoln in an official opinion. May 12, 1802, said : "I doubt the competency of the Federal Courts, there being no statute recognising the offence", £6th Cong., 2d Sess., House Doc. No. 128, this opinion not being published in the official Ops. Attys.-Oen., I ; see also letter oi Jefferson, Aug. 16, 1793, as to the deduons cl Jay and Wilson, relative to commoii law. Amer. State Papers, For. Rel., I, 107.