crimes, the constitution & the common law

Paul Finkelman pfink at
Mon Apr 14 19:15:22 PDT 2008

The Supreme Court rejected Story's view in United States v. Hudson and
Goodwin (1812); we are talking about CRIMINAL LAW, not Story's view that
there was a common law for civil actions, which he had support for in
Swift v. Tyson.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

pfink at
>>> Robert Sheridan <rs at> 04/14/08 9:41 PM >>>

On Apr 14, 2008, at 5:21 PM, Paul Finkelman wrote:

> Neither Thomas Jefferson nor John Marshall thoguht there was a federal
> common law of crimes; Story did.
> There were many statutes that created crimes; British law is full of
> statutory crimes as is American law from the passage of the earliest
> 17th century codes.  Many people in the revoutionary era opposed  
> common
> law (especially for crimes) because they common law was "unknowable."

> Since crimnal law has, as far as I know still has some elements of
> common law (at least in some jurisdictions) I suppose the answer to  
> the
> question below is "never."

[Alternatively stated, when did criminal law stop being governed by  
common law and become totally statutory)?]

Erie v. Tomkins (1937) rejected Story's view.  Part of the surprise,  
I've read, was that Story was a constitutional scholar, as well as a  
justice, and might have been presumed to have "known" (at least to the  
extent that Conlaw can be known) which way was up.

Criminal law analysis frequently makes use of common law history,  
meaning common law, to interpret statutes and constitutions.  In the  
relatively recent Crawford v. Washington case, outlawing a  
considerable bit of modern, statutorily allowable hearsay, Justice  
Scalia made good use of Sir Walter Raleigh's case, where the good sea-  
dragon and instrumental figure in the founding of Virginia, who'd  
fallen out of favor with Elizabeth I, was judicially murdered based on  
the rankest hearsay, in the interest of the national good, of course,  
so it was quite all right...



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