United States v.

Hudson, 7 Cranch 32 (1812)

Commentary by Jon Roland

The correct decision in this case is not supported by an adequate opinion, which does little
more than assert what was common opinion, without showing how it derived logically from
the Constitution.

The argument is correct that the general government and its courts cannot legitimately
exercise powers not delegated to them by the Constitution, and that the jurisdiction for
common law crimes was not conferred by a legislative act, but omits that there was no
delegation of power to Congress to confer such jurisdiction, or to the courts to enforce
common law crimes in the absence of statute, in the way civil common law powers were
delegated to them.

Under the U.S. Constitution, there are only three kinds of criminal jurisdiction: territorial,
subject, and personal. The national Congress has general territorial criminal jurisdiction
only over the territory of federal enclaves created under Art. I Sec. 8 Cl. 17. At the time of
this case it had subject jurisdiction only over (1) treason (Art. III Sec. 3 Cl. 2), (2)
counterfeiting (Art. I Sec. 8 Cl. 6), (3) piracy and felonies on the high seas (Art. I Sec. 8 Cl.
10), and (4) offences against the laws of nations (Art. I Sec. 8 Cl. 10). The only subjects of
personal jurisdiction are military personnel and militia personnel when in actual federal
service (Art. I Sec. 8 Cl. 16).

But even within these limits, the jurisdiction is only delegated as powers to Congress to
enact legislation. The only powers delegated to the courts are to decide civil cases and
enforce legislation. Enforcement of criminal common law is not delegated to the courts.

It might be argued that the criminal common law, like the civil, was incorporated into the
Constitution in its state as of the date of ratification, if only by implication, but this
proposition is inconsistent with the prohibitions on ex post facto laws, because any
common law crime is essentially ex post facto, simply because it was not enacted prior to
the offence, but only upon sentencing. It does not work to argue that a sentence in a prior
case, establishing a precedent for offenses of that kind, creates a criminal common law that
is not ex post facto. There is always some difference, between the circumstances of the past
and present offense and sentence, that makes a present case different enough to cast an ex
post facto character to the sentence in the present case.

The opinion is also incorrect concerning the powers of contempt, contumacy, and order
enforcement being implied by the Constitution. They should be, but the framers neglected
to provide for them, and for the sake of consistency, this is a defect that should be corrected
by amendment. It could reasonably be argued that criminal sanctions for contempt,
contumacy, and order enforcement are implied powers of the above delegated criminal
powers in cases involving such offenses, but there is no logical basis for the imposition of
penalties, even fines, for such violations in civil cases, or, of course, for criminal penalties
based on any of the other noncriminal delegated powers. Civil and criminal powers are
distinct, and the latter cannot be implied by the former, nor was it considered so by the
Framers.