Page:United States Reports, Volume 2.djvu/400

 s T 394 Case: ruled and adjudged in the t7g8. not exprcfsly granted by that inftrument, not exercife a power t;y`,; in any other manner than is there preferibcd. Befides the par- ticular cafes, which the 8:.5feé7i.:n gf the {/I arlirle defignates, there is a power granted to Congrcfs to create, define, and pu- nifh, crimes and otteuees, whenever they fhall deem it neeeflary · and proper by law to do fo, for eflicctuating the ohjccls of the government ; and although bribery is not among the crimes and offences fpecifieally mentioned, it is certainly included in this general provifion. The quefticn, however, does not arife about the power; but about the exercife of the power :—-Whether the Courts of the United Hate: can punifh a man for any act, before it is declared by a law of the United State: to becriminal? Now, it appears to my mind, to be as ef`f`ential, that Congrefs fhould dehne the offences to bc tried, and apportion thc punifh- ments to be inflicted, as that they fhould erect Courts to try the criminal, or to pronounce a fentenee on conviction. It is attempted, however, to fupply the filence of the Confti- tution and Statutes of thc Union, by reforting to the Common law, for a definition and punifhment of the offence which has been committed : But, in my opinion, the United Slater, as a Federal government, have no common law; and, eonfequently, no indictment can be maintained in their Courts, for offences merelyat the common law. If, indeed, the United Slate: can be fnppofcd, for a moment, to have a common law, it mult, I pretiune, bc that of Euglmu! ; and, yet, it is impofiible to trace when, or how, the fyftcm was adopted, or introduced. With refpecl: to the individual States, the difliculty does not occur. VVhen the American colonies were firfl: fettled by our anceftors, it was held, as well by the fettlers, as by the ]udges and law- ycrs of England, that they brought hither, as a birth-right and inheritance, fo much of the common law, as was applicable to their local fitnation, and change of cireumftanccs. But each colony judged for itfelf, what parts of the cotnmon law were applicable to its new condition; and in various modes, by Legiflative acts, by judicial dccifions, or by conftant ufage, adopted fome parts, and rejected others. Hence, he who fhall travel through the different States, will foon difcover, that the whole of the common law of Eng/nm] has been no where in- troduced; that fbme States have rejected what others have adopted; and that there is, in fhorr, a great and efl`ential diver- fity; in the fubjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one State, is not the common law of another; but the common law of Euglzmd, is the law of each State, fo far as each flare has adopted it; and it refults from that polition, con- nected with the judicial act, that the common law will always apply to fuits between citizen and citizen, whether they are in- ltituted iu a Federal, or State, Court. But

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