Page:The Supreme Court in United States History vol 1.djvu/188

162 out the disastrous effect of the decision upon the position which the United States had taken towards the claim of England of the right to impress naturalized American seamen — a claim founded on this very common law as to expatriation. **What can we hereafter urge/* said the Anti-Federalist newspapers, "when the Chief Justice sanctions with American authority the depredations on American property ?" A charge to the Grand Jury of the Circuit Court in South Carolina delivered by Chief Justice Ellsworth, in this same year, 1799, set forth even more emphatically his views of the extent of the existence of common law jurisdiction. After stating that all offenses defined in the Federal penal statutes, and all not contravening the law of nations, were indictable, he informed the jury that they might also indict for "acts manifestly sub- versive of the National Government, or of some of the powers specified in the Constitution. . . . An offence consists in transgressing the sovereign will, whether that will be expressed, or obviously implied. Conduct, therefore, clearly destructive of a government or its powers, which the people have ordained to exist, must be criminal."' And he pointed out that indictable conduct of this nature need not be specifically defined by statute, but that "by the rules of a known law, matured by the reason of ages and which Americans have ever been tenacious of as a birthright, you will decide what acts are misdemeanours, on the ground of their opposing the existence of the National government or the eflScient exercise of its legitimate powers." * Such a doctrine, authorizing a jury to find as criminal any act which in their opinion was "subversive of the

^ See the charge quoted in full in IndependerU Chfonide, June 13, 1790 ; Farmef^9 Weekln Mmmim, June 17, 1799; Virginia ArguM, Aug. 9» 1799; Ftdand QomUb and Bakimor§ Daily AdpmHt^r, June 6, 1799.