However, that maxim only dates to Bavaria in 1813. In the English legal system inherited by the United States, crimes were for the most part not established by statutes, but by customary common law, in which judges sought to discover and impose natural, unwritten laws against crimes, especially after the local courts conducted by nobles were replaced by a national system of courts with judges appointed by the king. A few "high" crimes, against the state, were established by statute, such as treason, sedition, and libel, but crimes like murder, robbery, fraud, perjury, and assault, continued to be charged on the basis of court precedents.
The problem with using court precedents as the law for criminal charges is that they are always for a different case. The law "found" for the immediate case is thus always in some sense undefined until charged, which is after the offense was committed, and thus is a kind of ex post facto law.
When the Thirteen States declared independence July 4, 1776, and established their own constitutions of government, with the people replacing the Crown as sovereign, they continued the English legacy of common law crimes. However, by adopting the Constitution June 21, 1788, with its prohibitions of ex post facto laws for both Congress and the states, they removed the authority for such a criminal justice system at all levels of government.
It is not clear that the delegates to the Constitutional Convention were aware that in prohibiting ex post facto laws they might also be forbidding criminal common law. In some of their statements and language, they seemed to presume the continuation of it, but during the Constitutional Convention they were focused on other issues, only thought of a few crimes that got written into the Constitution, and just assumed all the rest could be handled by the states. In those days it was assumed that if, for example, a federal official committed bribery he could be prosecuted for that under a state statute in a state court. Criminal prosecutions were rare, and generally done by private persons rather than by public prosecutors. Those would not become prevalent until the late 19th century. It was a different time, when most government was local, and consisted mainly of militia and juries.
This is seen when the first congress made it a capital offense to rob the mails. If the offense was not among the expressly delegated penal powers of Congress, or an implied power of them, then the question arises of whether they understood their own new adopted Constitution, or whether it is a mistake for us to conclude that such penal powers were not implied.
The mistake comes in looking for a single, fixed common meaning and understanding of the words of the Constitution at the time it was framed or ratified. However, it is also a mistake to argue that because there is no evidence of such a fixed common meaning or understanding, we are not bound to it today.
The Founders were engaged in a process of discovery, learning, and discussion. Some of the leading Framers began with meanings they wanted words to express, discovered some words in their legal training and reading, and adopted the words they found, without perhaps always knowing the full meanings the words carried from more than a 1000 years of usage. In adopting those words, they were adopting the legacies of usage of those words, as found in the works of legal scholars they respected. Therefore, they were essentially adopting the applicable work of those scholars as part of the background of meaning, even if many or most of them had not yet learned all of that.
The meanings of words can be reasonably fixed at the time they are issued even if the writers haven't yet fully apprehended those meanings. It is a process of learning. Essentially, it is a somewhat foreign language for the framers and ratifiers as well. We saw that in the way Dickenson, in the Constitutional Convention, sought the meaning in Blackstone of the meaning of ex post facto. They started with a meaning they wanted, but weren't sure until they looked it up that those words carried that meaning. Having made the choice, they were also choosing the legacy of meaning of the terms, much of which they remained to discover.
At the framing only a handful had a fairly firm grip on the meanings. Others in the Convention learned as it proceeded to a conclusion. Then the process of discovery spread to others, who initially lacked consensus, but a consensus emerged, converging on a common understanding by the point of ratification and adoption of the Bill of Rights, which is really part of the ratification, the second phase. Note however that common understanding of the words doesn't mean agreement on which words to adopt, especially on how they expected events to unfold from the words chosen.
As members were elected to Congress, some came in who had not joined in the consensus, or who resisted it. This led to the departures leading to the Alien and Sedition Acts, and the reaction, which brought the Election of 1800, which we can take as a consolidation of the consensus on understanding. So we are looking at a learning and consensus-building process that took about 13 years. It was not just the appearance of a single fixed meaning[/understanding] at one moment in time.
Thomas Jefferson responded to the Alien and Sedition Acts, in the Kentucky Resolutions of 1798:
2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.
Jefferson omitted high crimes and misdemeanors, which include ordinary crimes, applied to federal public officials, military, and militia when in federal service, and are a kind of private law. U.S. Const. Art. II:
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.That clause contains an implied power to criminally prosecute and convict such offenses, as does, in combination with it, the clause in Art. III
Section. 1. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour ...imply the power to criminally prosecute bad behavior of judges, without explicitly stating "Congress shall have power to ...", because jurisdiction is established by assuming a position of public trust with its attendant duties.
The Uniform Code of Military Justice provides a legacy indicating what the Framers meant by "high crimes and misdemeanors". They were offenses peculiar to officials, such as perjury of oath, abuse of authority, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. Offenses by officials also included ordinary crimes, but carried different standards of proof and punishment. They also included offenses against officials by civilians that would interfere in officials performing their duties. The term "high" was used to refer to operations involving officials and their duties.
We inherited a legal system in which all officials, including "civilian" officials, were regarded like military personnel, as they were in feudal times.
However, in United States v. Hudson, 7 Cranch 32 (1812), the Supreme Court held that there was no jurisdiction to try common law crimes in the courts of the United States. In the final paragraph, Justice Johnson states:
Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt — imprison for contumacy — inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.Thus only the common law crime of contumacy survived the decision, which was essentially an interpretation of the Necessary and Proper Clause, not an invocation of the ex post facto prohibitions. It also neglected to mention that since the Constitution vested all lawmaking powers exclusively in Congress (as do state constitutions in their legislatures), judges have no power to make or change law, only to find and apply it.
The issue would come before the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 (2001), in the dissenting opinion of Justice Scalia:
The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process.
... what a court cannot do, consistent with due process, is ... change (to the defendant’s disadvantage) the criminal law governing past acts.However, common law crimes are still prosecuted in some states. This creates a tension in the law that remains to be resolved.
There is also a growing departure from original understanding, that seeks to justify the exercise of criminal powers. For example, we have this from West's Enclopedia of American Law:
The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.This apostasy is based on the misinterpretation that a power is delegated not just to make a certain kind of effort, but to get a desired result, and therefore that any power that gets the desired result is "necessary and proper". If that were correct, the Union government has no limits and there would be no point in having a written Constitution.