and Judge Iredell, both of whom sat in the constitutional convention, proclaimed the same doctrine at the trial. The prosecution was instituted by Mr. Edmund Randolph, certainly not of that class which leaned to an enlarged view of the judicial power, and his official opinion as attorney-general was given beforehand, that the offence was one which the Federal courts have power to punish. Mr Jefferson, almost at the same moment, in substance, directed Mr. Morris to explain to the British court, that the acquittal arose, not from want of power to punish, but a doubt in the minds of the jury as to a guilty intent,1 and Chief Justice Marshall, many years afterward, lamented the verdict of the jury, not as the necessary result of a lack of jurisdiction, but as a melancholy exhibition of party zeal. By none of these is there the least intimation of doubt as to the jurisdiction of the court; and when the character of the men themselves is recollected, - the sound and experienced judgment of Chief Justice Jay; the singular sagacity of Mr. Jefferson in every branch of our system, and his peculiar sensitiveness to judicial encroachments; and the excellent capacity and long experience of Judge Iredell, Judge Wilson, and Judge Peters, — it cannot now be said that the jurisdiction was assumed inconsiderately or acquiesced in blindly. It undoubtedly was exercised, because the united opinion of the day required its exercise. It was exercised in conformity with the opinion announced by Washington in his proclamation of neutrality, a paper unanimously adopted by the cabinet as a correct exposition to foreign States of the power of the Federal government, that the Federal government in such cases could, through its courts, punish the offender." 3 In view of the doubt expressed universally in these 1 Wharton, State Trials, 89. 2 Wharton, State Trials, 22. 3 Wharton's Criminal Law (7th ed.), 173. days of supposed centralization of the power of the Federal courts to punish the murderer of a President. of the United States, simply because the crime was committed within the limits of a State, and of the power of the Federal courts to protect the rights of aliens under treaties, simply because they were violated within a State, and of the power to protect the rights. of citizens of other States under the Constitution, the Fourteenth Amendment, and the common law, simply because the violation occurred within a State, and of the power to control violations of common law rights by commercial combinations, simply because some State claims to have clothed the corporation offenders with the shell of legal existence and the acts were done within one or more States, one would but for one thing be justified in disappointment at the theoretic achievements of American jurisprudence. The practice far outruns the theory in the protection of rights of citizens, although it cannot be said to show an appreciation of the true theory of American law so much as a yielding to the logic of admitted fact. In the cases which have come up under the Fourteenth Amendment, the Supreme Court of the United States has built up a body of common criminal law for the protection of the rights of American citizens against encroachments upon their natural rights by the courts of the States. And in the matter of commercial combinations, the straight line limitations of theory have been passed. The common law forbids courts to enforce a combination in restraint of trade but does not make it a misdemeanor. The Sherman Anti-Trust Act did not define restraint of trade but leaves that to the 1 Mogul S. S. Co. v. McGregor, 23 Q. B. D. 1. 1 1 common law; it made a restraint of trade a misdemeanor, and, while a criminal statute,2 gave a remedy under the equitable jurisdiction of United States courts for the protection of a common law right.3 Actions under the act were brought by the State." Brewer, J., said, in In re Debs," in delivering the unanimous opinion of the court: "It is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offence against the laws of the land is necessary to call into exercise the injunctive powers of the Court. There must be some interference, actual or threatened, with property rights of a pecuniary nature, but when such interferences appear, the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by, or are themselves, violations of the criminal law." "Holland takes as the basis of his definition of the criminal law, the functions which the State 'discharges as the guardian of order, preventing and punishing all injuries to itself and all disobedience to the rules laid down for the common good.' In the same way we may take as a basis for a definition of the civil law the function 1 Sir Frederick Pollock, 17 H. L. R. on the Northern Securities Case. 2 The Northern Securities Case, C. C. Langdell, 16 H. L. R. 581; John Larkin Thorndike, Pamphlet, The Decision in the Merger Case, Little, Brown & Co., Boston, 1904; Reviewed by C. C. Langdell, 17 H. L. R. 41. 3 E. Parmalee Prentice, The Origin of the Right to Engage in Interstate Commerce, 17 H. L. R. 20. 4 C. C. Langdell, The Northern Securities Case, Harvard Law Review, Vol. XVI, 581. 5 158 U. S. 564, 593. Holland, Jurisprudence, 7th ed. 322, cf. 3 Bl. Com. 2. which the State discharges in enforcing the right of the individual to security of person, reputation, and property, including therein the right of the State itself in its capacity as a property owner. The foundation of equity jurisdiction to-day is the enforcement of the civil law; but if a court of equity enjoins an act injurious to the community as well as to an individual, its writ will in fact enforce both public and private rights. How far such jurisdiction serves to enforce the criminal law depends upon the nature and importance of the public right involved; and while it may be difficult to draw exact lines, still we can be certain that so far as the court enjoins acts which are breaches of the peace, which violate public decency, which interfere with the operation of the government, or which violate governmental rules for the maintenance of the freedom of trade, its jurisdiction is essentially criminal. For whatever the court's purpose may be, in effect its decrees enforce public rights of the community which overshadow the private rights involved." 1 Whenever a public wrong is committed in the United States the courts both of the States and of the nation may provide a remedy in every case properly brought before them. Failure occurs only because a government of laws must depend upon men for their enforcement." 1 J. W. Mack, The Revival of Criminal Equity, Harvard Law Review, Vol. XVI, 389-403. 2 Under the Monroe doctrine the United States enforces the payment of the debts of our sister American Republics while a theory of law is adhered to that prevents the enforcement of such payment against States of the United States. Yet a State is forced to pay a liquor tax when it engages in the traffic under a dispensary act. South Carolina v. United States, 199 U. S. 449. CHAPTER IX NATIONAL LAW § 181. INTERNATIONAL LAW AS PART OF THE NATIONAL LAW. - A complete and uniform body of common law exists in the United States. The power and the duty to assert the law which shall remedy the conditions pointed out in the foregoing chapters are within the scope of our nation. The nation is sovereign; the power of making treaties is given to it expressly; and the power of binding the people for their own behoof by international law is within its power both inherently and by express provision. International law is already a part of the law of the land. Subjects which may be treated between nations for the benefit of the people should be regulated by the law of the land. That international law is a part of the law of the land admits of no dispute. The principle is firmly established in England and the United States.1 "In arbitrary States this law (the law of nations), wherever it contradicts, or is not provided for by, the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent, by the common law, and is held to be a 1 See, for list of authorities, Syllabus to Snow's Cases on International Law. |