§ 155. IT is not proposed, in the present chapter, to examine in what courts the criminal jurisdiction of the individual states is distributed. It is clear that every case not cognizable, either concurrently or exclusively, by the federal courts, must belong to the tribunals of the state within which it occurs; but so various and shifting are the state laws regulating the organization of criminal courts, that their examination would be of little value. It is frequently, however, a matter of great importance to determine whether a given crime is to be considered an offence against the state or the federal government, and, if the latter be the case, in what court it is to be tried. h It will be first considered, therefore, under the present head:

I. Of what offences the federal judiciary has cognizance. II. In what courts offences cognizable by the United States are to be tried.

h For a very clear dissertation on this head, see Duponceau on Jurisdiction of the United States Courts. The subject, so far as concerns the conflict of jurisdictions, is fully discussed in Wharton's Conflict of Laws, chap. xi. "Plausible as is the theory of the exclusive jurisdiction of the courts of the locus deliéti," it is there argued, "it is incompatible, it may be at the outset noticed, with the maintenance even of that territorial supremacy which it professes to protect. An Austrian, if this view be pushed to its logical results, could, by crossing over to Switzerland, forge with impunity Austrian paper, or organize conspiracies against the Austrian crown; and then, when the evil was done, could return securely to his home, protected by the plea that the offence could only be punished in the place of its commission. The boundary lines between the United States and Canada and the United States and Mexico, and those which separate the great European powers, would in this 154

view be barricades behind which subjects could securely organize triumphant crime. Not merely would particular sovereigns find their municipal laws in this way successfully defied, but neighboring nations would be forced to cherish within their borders colonies of desperate criminals whom the sovereign of the locus delicti could not reach, because, after the commission of the crime, they leave his soil, and whom the sovereign of their place of refuge could not touch, because the sovereign of the locus delicti has exclusive jurisdiction. Nor is this all. Offences on board national ships, it is true, might be punished, on the fiction that a ship is part of the territory to which it belongs; but pirates, who own no country, could rove the seas with impunity, and blockade, in secure arrogance, every port in Christendom. In barbarous or semi-barbarous lands, also, in which there is no operative organization for the punishment of crime, if the forum deprehensionis has no jurisdiction, justice must fail."

I. OF WHAT OFFENCES THE FEDERAL JUDICIARY HAS COGNIZANCE.

§ 156. By the Constitution, no criminal jurisdiction is .conferred directly upon any court; and, although it cannot be said to be a settled point that it was not the intention of the framers of the Constitution to vest exclusive jurisdiction in the supreme court in certain specified cases, i yet the weight of authority is, that congress must, in all cases, make an act criminal before the federal courts can take cognizance thereof; and certainly the care that has been taken to vest in congress the power to make all laws which may be necessary for the protection of the federal government, warrants this construction.j

1. What Federal Judicial Powers the Constitution creates. § 157. The powers given to congress under this head, are, § 158. To provide for the punishment of counterfeiting the securities and current coin of the United States. k

§ 159. To define and punish piracies, felonies committed on the high seas, and offences against the law of nations.

§ 160. To make rules for the government of the land and naval forces. m

§ 161. To provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States. n

§ 162. To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States; and to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. p

i Const. U. S. art. 3, § 2; U. S. v. Hudson et. al. 7 Cranch, 32.

j 4 Tucker's Blackstone, App. 10. k Art. 1, § 8, cl. 6.

Ibid. cl. 10.

m Ibid. cl. 14.

n Ibid. cl. 16.

o Art. 1, § 8, cl. 16.

p Ibid. cl. 18. In this section the word necessary has been construed to mean needful, requisite, essential, and conducive to, and gives congress the

2. How far the Federal Courts have a Common Law Power. § 163. It is said in a case which will presently be more fully noticed, and which is assumed, though perhaps erroneously, to have settled the law on this important question, that although it may be that the supreme court possesses jurisdiction derived immediately from the Constitution, of which the legislative power cannot deprive it, all other courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be invested with none but what the power ceded to the general government authorizes congress to confer. Certain implied powers must necessarily result to courts of justice, from the nature of their institution; as to fine for contempt, to imprison for contumacy, and to enforce obedience to order; but jurisdiction of crimes against the state, it was held, is not among these powers. Before an offence can become cognizable by the United States courts, with the exception of the supreme court sitting in banc, the legislative authority of the Union must first recognize it as such, affix a punishment to it, and declare the court that shall have jurisdiction of the offence. q

§ 165. By the "act to establish the judicial courts of the United States," it is declared "that the circuit court shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district court of the crimes and offences cognizable therein." This act confines the jurisdiction of offences against the United States, unless otherwise expressly specified, to the national courts; but, as has been noticed, the inclination of authority is that a statute must ex

choice of the means best calculated to exercise the powers they possess; and under this construction, it has been held that congress have power to inflict punishment in cases not specified by the Constitution, such power being implied as necessary and proper to the sanction of the laws, and the exercise of the delegated powers. M'Cul

loch v. State of Maryland, 4 Wheat. 413; U. S. v. Bevans, 3 Wheat. 336; Martin's lessee v. Hunter, 1 Wheat. 304; Ex parte Bollman, 4 Cranch, 73; U. S. v. Fisher, 2 Cranch, 358, 396.

q U. S. v. Hudson and Goodwin, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 416.

r Act Sept. 24, 1789, § 11.

pressly provide for the case, or the class of cases, under which it falls, or no punishment can be inflicted. 8

§ 166. So far as concerns subordinate courts, it may now be considered the law that the United States has no common law criminal jurisdiction. But it is with great deference submitted, that though there has been a judgment to this effect by the supreme court, yet this judgment was entered in a case not argued, when the court, so far as the report shows, was unadvised of the important though unreported cases where the contrary was held. To show this, a very brief history of the adjudications will suffice.

§ 167. The first case where the question arose was in the trial of Henfield, for illegally enlisting in a French privateer; a case tried in 1793, but for the first time reported in 1850.t In this case Chief Justice Jay, Judge Wilson, and Judge Iredell, of the supreme court, and Judge Peters, of the district court, concurred in holding that all violations of treaties, of the law of nations, and of the common law, so far as federal sovereignty is concerned, are indictable in the federal courts without statute. Almost at the same time before Judge Iredell, Judge Wilson, and Judge Peters, an American citizen was convicted, at common law, for sending a threatening letter to the British Minister.u Then came Isaac Williams's case, where the same law was held by Chief Justice Ellsworth. v

§ 168. Such was the state of the law when Judge Chase, in Worrall's case, w (Chief Justice Jay, Judge Wilson, and Judge Iredell being no longer on the bench, and Chief Justice Ellsworth being abroad,) without waiting to learn what had been decided by his predecessors, startled both his colleague and the bar, by announcing, that he would entertain no indictment at common law. No reports being then, or for a long time afterwards, published, of the prior rulings to the contrary, it is not to be wondered that the judges who came on the bench after Judge Chase supposed that he stated the practice correctly. In this view Judge Washington seems to have held that there could be

s M'Intyre v. Wood, 7 Cranch, 504; U. S. r. Hudson and Goodwin, 7 Cranch, 32. Post, § 182.

t Wharton's State Trials, 49.

u U. S. v. Ravara, Wharton's St. Tr. 91; 2 Dallas, 297.

v Wharton's State Trials, 651.

w 2 Dall. 297; Wharton's St. Tr. 189.

no indictment for perjury at common law in the courts of the United States, 2 and Chief Justice Marshall, y in more than one case, treats the same point as if settled by consent. z But in a case which occurred in the circuit court of Massachusetts, a on an indictment for an offence committed on the high seas, the question arose, directly, whether the circuit court had jurisdiction to punish offences against the United States, which had not been defined, and to which no punishment had been affixed. The judge, admitting that the courts of the United States were of limited jurisdiction, and could exercise no authority not expressly granted to them, contended, that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that, if this distinction was made, it would dissipate the whole difficulty and obscurity of the subject. Congress, he said, might, under the Constitution, confide to the circuit courts jurisdiction of all offences against the United States, and they had conferred on them jurisdiction of almost all; that by the judiciary act the circuit courts have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where that or another statute of the United States otherwise provides; that in order to ascertain what are crimes and offences against the United States, recourse must be had to the common law, taken in connection with the Constitution; and that congress has provided for the punishment of many crimes which it has not defined, an explanation and definition of which can only be found in the common law. The inference, he urged, was plain, that the circuit courts have cognizance of all offences against the United States; that what these offences were, depended upon the common law, applied to the powers confided to the United States; that the circuit courts, having such cognizance, might punish by fine and imprisonment where no punishment was specially provided by statute; that the admiralty was a court of extensive criminal, as well as civil jurisdiction; and that offences of admiralty were exclusively cognizable by the United States, and

x See 1 W. C. C. R. 84; the report of which case appears to be defective in the conclusion of Judge Washington's opinion.

y U. S. v. Burr, 4 Cranch, 500. z U. S. v. Bevans, 3 Wheat. 336; U. S. v. Wiltberger, 5 Wheat. 76. a U. S. v. Coolidge, 1 Gall. 488.