[81] For the documents preceding the arrest and prosecution of Henfield, see Wharton: State Trials, footnotes to 49-52.
[82] See Wilson's charge, Wharton: State Trials, 59-66.
[83] See Wharton's summary of Wilson's second charge, ib. footnote to 85.
[84] Ib. 88.
[85] Marshall: Life of George Washington, 2d ed. ii, 273-74. After the Henfield and Ravara cases, Congress passed a law applicable to such offenses. (See Wharton: State Trials, 93-101.)
[86] Wharton: State Trials, 653-54.
[87] This was the British defense for impressment of seamen on American ships. It was one of the chief points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of the many causes of the overthrow of that once great party. (See infra, vol. iv, chap. i, of this work.)
[88] Wharton: State Trials, 654. Upon another indictment for having captured a British ship and crew, Williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (Ib.; see also vol. ii, 495, of this work.)
[89] U.S. vs. Hudson, 7 Cranch, 32-34. "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion.... The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (Justice William Johnson delivering the opinion of the majority of the court, ib.)
Joseph Story was frantic because the National judges could not apply the common law during the War of 1812. (See his passionate letters on the subject, vol. iv, chap. i, of this work; and see his argument for the common law, Story, i, 297-300; see also Peters to Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)