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 involving criminal indictments based on English common
law and on international law, in the absence of any
Federal penal statute, had been especially obnoxious to
the Anti-Federalists; and the successive cases had
been regarded with growing alarm—principally because such common law indictments had been
chiefly employed in convictions of persons accused of
pro-French activities.[1] 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 Connecticut in the case of United States v. Isaac Williams;
for, in sustaining an indictment for violation of the neutrality law prohibiting American citizens from accepting commissions to serve a foreign power, he held that an American had no right of expatriation, since
under the English common law no such right existed and the common law was binding upon the United States
- ↑ Chief Justices Jay and Ellsworth, and Judges Cushing, Iredell, 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, 1798, in United States v. Worrall, 2 Dallas, 384. See, in general, Politics for American Farmers (1807), by William Duane; Aurora, Nov. 7, 1799; Independent Chronicle, Nov. 18, 1799; History of the American Bar (1911), by Charles Warren; Marshall, III, 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 recognizing the offence", 26th Cong., 2d Sess., House Doc. No. 128, this opinion not being published in the official Ops. Attys.-Gen., I; see also letter of Jefferson, Aug. 16, 1798, as to the decisions of Jay and Wilson, relative to common law. Amer. State Papers, For. Rel., I, 167.
