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this affect the authority of Homer, Iliad, b. 9, v. 743. “The price of blood discharged, the murderer lives.” Of Tacitus, in respect to the ancient Germans, “ Luitur etiam homicidium certo armentorum ac pecorum numero," &c. homicide is also punished by the forfeiture of a certain number of cattle or sheep; and he adds, that those convicted of other crimes were fined in proportion, à part of which was paid to the prince, and part to him who was wronged, or to his relations. Imprisonment was added either to coerce payment, or as a further punishment.

There was a time, says Beccaria, when all punishments were pecuniary. * Lord Kaimes lays down the same position, and it is a settled principle in the ancient law of England, that where an offence has been committed to which no specific punishment is affixed by statute, it is punishable by fine and imprisonment. Here then we have materials which laborious inquiry would probably increase, for ascertaining the nature of those punishments that by common consent preceded positive law. Their mildness ought not to lead us to reject them. It would be a sorry argument to say, that because a severe punishment cannot be inflicted, the offender shall not be punished at all. Judge Story truly remarks, that it is a settled principle, that when an offence exists to which no specific punishment is affixed by statute, it is punishable by fine and imprisonment, but when he adds, that if treason had been left without punishment by an act of congress, the punishment by fine and imprisonment must have attached to it'; we must recollect that the power to declare the punishment being expressly given to congress, it seems to be taken out of the general principle that would otherwise be applicable.

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* C. 17, § 46.
† See also Grotius, b. 1, c. 2. Puff. b. viii. c. 3, § 11. to the same effect.

United States v. Coolidge, 1 Gallison, 488.

On the whole, we arrive at the conclusion, that crimes committed against society have been at all times the subject of punishment of some sort; that independent of positive law, the forseiture of property, or personal liberty, has been the general, though not perhaps the universal character of punishment; for a difference of manners will always have a strong influence on the extent of punishment, as the people are mild and peaceable, or rugged and ferocious; and that the tribunals of justice in every case within their jurisdiction, are thus provided with a guide, which if found inadequate to the safety of society, may at any time be rendered more effectual by the legislative power.

It has been said, that to give it effect, the common law ought to have been expressly enacted as part of the Constitution. But how could this have been done? Should it have been described as the common law of England ? It was not contemplated. The common law of any particular state in the Union ?. Thiş would have been equally inadmissible. It could haye been introduced in no other than some phrases as the following:

“The law of nature, or the just and rational obligations of “men in a state of political society, shall be the rule of decision “in all cases not otherwise provided for.” And surely it would have been deemed a most unnecessary declaration. It has been well observed that the attempt to enumerate the powers necessary and proper to call the general power into effect, would have involved a complete digest of laws on every subject to which the Constitution relates-accommodated not only to the existing state of things, but to all possible changes; for in every new application of a general power, the particular powers, which are the means of attaining the object, must often necessarily vary, although the object remains the same.*

* Federalist, No. 44.

In delivering the opinion of the Supreme Court in the United States v. Hudson and Goodwin, Judge Johnson observes, that it is not necessary to inquire whether the general

government possesses the power of conferring on its courts a jurisdiction, in cases similar to the present, it is enough that “ such jurisdiction has not been conferred by any legislative

act, if it does not result to these courts as a consequence of “ their creation.”. With great deference to an authority so respectable, it is submitted that if the preceding observations are correct, that jurisdiction has been expressly given by the act of September 24, 1789, which although repealed by the act of February 13, 1801, was revived by the act of March 8, 1802, and is now in full force. By this act the circuit courts are expressly invested with the cognizance, (the exclusive cognizance says the law,) of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States shall otherwise direct. If the affences of which we have been speaking, arise under the Constitution, they must be cognizable under the authority of the United States, and are thus rendered cognizable in the circuit courts.

The same learned judge in a subsequent case, when he alsó delivered the opinion of the Supreme Court, most correctly drew from the Constitution itself, certain principles necessary to support the asserted jurisdiction of a legislative body to punish contempts against itself; which he justly observes inyolves the interest of the people.

“The interests and dignity of those who created the public " functionaries, require the exertion of the powers indispensable " to the attainment of the ends of their creation."*

The question before the court was only on the jurisdiction of

6 Wheaton, 204. Anderson v. Dunn.


the house. The precise nature of the offence committed, did not appear on the face of the pleadings. It was observed by him, " that we are not to decide that this jurisdiction does not “ exist, because it is not expressly given. It is true, that such a power,

if it exists, must be derived from implication, and " the genius and spirit of our institutions are hostile to the “ exercise of implied powers. Had the faculties of man been “ competent to the framing of a system in which nothing “ would have been left to implication, the effort would un

doubtedly have been made. But in the whole of our admi“ rable Constitution, there is not a grant of powers, which does. " not draw after it others not expressed, but vital to their " exercise, not substantive and independent, but auxiliary and " subordinate."

Now we may be permitted to remark, that the jurisdiction thus raised and supported by necessary implication, could in this case, have operated only on those acts, which, by an implication equally necessary, were to be considered as offences. No act of congress has declared what shall constitute those offences. They must therefore essentially be, what are termed contempts, or breaches of privilege at common law. It was competent for the Supreme Court, (was it not incumbent on them ?) to notice that the non-existence of any legislative provisions on the subject, rendered it impossible to justify an imprisonment by virtue of the speaker's warrant for a non-existing offence. But the observation is, that “ the power to institute a prosecution must be dependent

on the power to punish. If the house of representatives “ possessed no power to punish for contempt, the initiatory

process issued in the operation of that authority, must “ have been illegal; there was a want of jurisdiction to jus

tify it.” And the omission to take this ground, seems to support the argument excluding the necessity of a statutory provision.

On the same ground we may advert to the exercise of the power of impeachment. In neither of the cases already mentioned, were the acts charged on the parties accused, statutory offences. Yet the doctrine opposed in this work would render the power of impeachment a nullity, in all cases except the two expressly mentioned in the Constitution, treason and bribery ; until congress pass laws, declaring what shall constitute the other high crimes and misdemeanors.”

And thus the question seems to be at rest in the contemplation of both these courts, for such they must be termed, when acting in those capacities, and both of them are courts from whose decision there is no appeal.


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