
    Respublica versus Cobret.
    THE Defendant, being charged asa common libeller be-. fore the Chief Justice, was bou; d by recognizance fore the Chief Justice, was bou; d by recognizance to be of good behaviour, &c. and on a fjppofnim, th.-t he had broken the condition, by a continuance'of bis libellous publications, an adlion of debt was inftiiuted upon the-recognizance,. in this court. At the time of his entering his appearance, however, he filed a petition, fetting forth upon oath, that he was an alien, a fubjedt of the King of Great Britain; and praying, that the fuit might be removed for trial into the Circuit Court, upon the terms prefcribed by the I2ch feftion-of the judicial ait. 1 Fol. Swift’s Edit. p. 56. The removal being obje&ed to, a rule to fhew caufe was granted; which was argued by Ingerfoll and Dallas, for the Commonwealth, and by E. Tilgbman, Lewis, Rawley & Harper, (of South-Carolina,) for the Defendant. .
    The argument embraced two pfopofitions:—ift. Whether, in any cafe, a State can'be compelled, by an alien, to profe-cute her rights in the' Circuit Court ? 2d. Whether admitting the general ju'rifdi<Sion of the Circuit Court, a State can be fo compelled, in a cafe like the prefent?
    1. For the ÍJefendant, it was urged, that the prefent cafe came clearly yyithin the conftitutional inveftment of judicial authority hi the Federal Government, being a cafe between a State, and a fubject of a foreign State; Art. 3. f. 2. that the. 51th fe£Hon'of the judicial a<% gives ^he CircuitCourt “original-cognizance, concurrent'with the courts of- the feveral States, of all fuits of' a civil nature at com frían law of in e-qutty, &c. where'an alien is a party;” i Vpl. Swift’s Edit. p. 55. and that whatever doiibt might be raifed, whether this original jurifdidtion embraced the cafe of a Plaintiff State upon-a recognizance; yet, the adt precludes all doubt when, in the nature' of an appellate jurifdidtion, it provides by the 12th fedtir on, for the removal -ofi“ a fuit (not faying as before, a fuit bf a ‘civil nature’) commenced in any State court againft an ¿lien ” The jurifdidtion, thus exprefsiy recognized by the Conftitution and law, is founded on -the policy of affuring to foreigners' an independent and impartial tribunal ;—r*a policy, more entitled to be refpecled, than the mere dignity of the individual States, in the adminiftration of juftice.- But neither ■ the principle^ nor the terms, of the Conftitution will eftetft the prefent.cafe: for, the principle goes no further than to prevent iffuing any compulfory procefs; to render a State amenable at the' fat of individuals; and the terms of the amendment, conforming to the principle, provide only, that“ the judicial pow- “ er of .the United States ih,ali not he conftrued to extend to í¡- a.ny fuit in lav/ or equity, ‘commenced or prófecuted againft one of the United States by'citizens of another State, or by “ citizens, or fuf jecti, of any foreign State.”- 3 ^°l- P‘ I3-I-" Swift’s Edit.. This is not a fuit dgainjl a State,' fo the judicial power of the United States may ftill extend to it;' but being a fuit, in' which a State is a party againft an alien;- the Supreme Court Ha's, conftitutionally, an original-jur.ifdidtion; which, however, does not preclude tbeexercife of juriididfcion, by way of'appeal; ’particularly where the act of the State itfelf, in referring.to Hef own tribunal, leaves’no alternative.-
    II, Nor is there any thing inthé peculiar nature of the pre-fan t fuit, to bar the federal jurifdidHon. It is'an aeftion of debt;—afuit of a civil nature, inftituted by the fame procefs, though in-the name of the Common wealth, as anyother adtian fo recover a debt; and not as a criminal prtífecution for a breach of-the-law, dr recognizance. If inftead ’of applying for a removal, the Defendant had pleaded, the Plaintiff had demurred to the plea, and judgment had been give,-, for -the State, the Defendant would-in this cafo; a's in All .calés óf a tivil'tiature,'-bé entitléd to a writ of error. " To-obviate, indeed,, all'cnvilon the Vtature Of the adtions to be removed, the lath fedtion of the judicial adt rejcdls epithets and qualifications of'every deferí pt ion, uiing' 'limply the term “ a fúit,” ■ which is, what the logicians wpuld denominate, genus general-'jfji^num^ .comprehending every form of adtion.—See-6 Mod.\ Í32.; -7“f. Rep. 357. 2 Bi: C. '341. 2 Dali. Rep. 358. i Dali. ⅛ 393-
    
      I. For the commonwealth, it was anfwered, that if the pra-lent attempt was fuccefsful, it would proftrate the authority , óf the individual States; and render them, whenever a foreigner was an offender, and the offence was bailable, completely dependent upon the federal courts for the admirtiftration of criminal juftice. But recognizances are a part of the proceedings in the exercife of a criminal jurifdidtion; and wherever the principal queftion attaches, it is a rule of law, that every in-tiítónt follows. The cafe never could, indeed, be within the contemplation..of the conftitution, or law, as a fubjedt of federal jurifdidtion. Every government ought to poflefs the means of fe.lf-prefervation; and no court can exift, without the cower of bailing, binding to good behaviour, &c. It is abfurd and nugatory to fay, a State Court may poflefs the power, but that a Federal Court, in the numerous inftances of foreigners, is ne-ceflary to enforce it. Nor is the adverfe dodtrine confined to the cafe of. a recognizance like the prefent; but it equally applies to the cafes of a recognizance for the appearance of a defendant, or witnefs, and for anfwering interrogatories upon a contempt committed. Is it reafonable to fuppofe, that fuch an efFcdi was intended to be produced, by the framers of the Conftitution, or that it could long be tolerated by the people!
    It is contended, the word “ fuit,” is genus generaliffimum, and embraces every fpecies of adtion: but however logical the •phrafe, the inference is certainly politically wrong. The powers of the general government extend no further than pofitive delegation; and, in relation to crimes, they are either fpecifi-ed in the Conftitution, orenadted in laws, made in purfuance of it! The S tate has, likewife, its penal fandtións, more general and indefinite than thofe of the union; every inhabitant owing obedience to-its laws. If an alien, as well as 'if a citizen, commits murder, burglary, arfon, or larceny, in Pennfyl-vania, he is puniihable by indidtment exclufively in the State Courts: And yet an indidtment, or information, is in legal phrafeology, “ a fuit:” 4 Bl.C.i98. a Wood. LeSl. 551. 2 Gem. Dig. 227. As are adtions on penal ftatutes,. whether brought by a common informer, or by the State. If, then, the Word “ fuit” is fo comprehenfive, what is to prevent an alien from transferring an indidtment from the State to the lederal Court ?
    But the truth is, that this is not a fuit of a civil nature; and, therefore, not within the view of the Conftitution, or of the adtdf Congrefs. Speaking of'indidtments and informati-ons, they would be called criminal profecutions: And this fuit though not, ftridtly, a criminal profecution, is a fuit of a.cri-minnl nature. What is its origin? A complaint on oath, that the party menaces the public p;ace.. What is the caufe of action ? A breach'of the conJ-tion, to keep the peace and be of good behaviour. What will be the fail in ifiu;? Whether-the Defendant has kept the ueace, and been of good behaviour, according to the law of Pennfylvania. What mull be the-Plaintiff's proof?- Proof that the Defend .nt has committed an offence. The recognizance is, in fhort', a part of the criminal procefs of the law; it mu;l be fet forth on the record ; and it is the mere inftrument of fubftituting bail, for the imprifonment of the Defendant’s perfon.
    II. But a State cannot be, and never could have been, compelled, by an alien, to profecuteher rights in a Circuit Court. The Conftitútioií contemplates the fubjcits, and the tribunals, for the exercife of the judicial authority of the Union. The-cafes of public minifters and individual States, are veiled, as. matter cf original-ydníálBiioh, in the Supreme Court; and even if the word original .does -not mean excluftve, the courts of the refpe£tiye Slates poflefled at the time of framing the con-ílitution, a concurrent jurifdidllon, by which the provifion may be finished.' The jurifdlition of the State courts has never fince been taken away; but as fh-» Conffitution does not give a concurrent jurifdidtion to the Circuit Coürt, it is, at leaft, incumbent. on the Defendant’s counfel to (hew, by exp refs word-?, that fucha jurifdidtion is given in the a£t of Congrefs.
    . • In diftributing among the Federal .Courts their refpedtive portions of the judicial authority, Congrefs has declared, in the 13th fedtion, “ that the Supreme Court fball have exclúfive ■ “ jurifdiiffion of all controverfies of a civil nature,-where a “State is a part, except between a State and its citizens; “ and except alfo been a State and citizens of other States, or “ aliens, in which latter cafe it (hall have original, but not “ exclujive, jurifdicHon.” When theft exceptions were made, the concurrent jurifdiifion of the State Courts exiffed to fat iffy them; and-the act of Congrefs does not,- in any other fetti-otvname, or defciibe, the .cafe of a State, either upon the ‘principie of an oribi.nal, exclufiye, or appellate, jurifdidtion.
    The principal policy fuirg.ft.ed as to aliens, was, likewife, an-fwereil; for, they might ail have fued in the Supreme Court; and .the cafe of one State againff a citizen of another'State, is; put on tha -fit me footing with the cafe of a State againff an alien. By this fedtion, therefore, the provifion in the conffitution .is effedluateJ; and we muff prefume, that if a State was meant to be. included in any grant of jurifdifiión toan inferior Court, the meaning would be clearly expreíftc^ and not left to doujbtful-implication.
    
      There are, then,' no words, in creating the jurifdidlion; of the Circuit Courtj that exprefsly include a State: and, indeed, it has almoft been conceded, that the cafe is not within ⅛⅜ jith fedlion,' of the judicial a£L It is to be ihewn, how-evei, that if it is not within the nth fedlion, it cannot be embraced by the 12th fedlion. The concurrent jurifdidlion given by the Ilth fedlion to the Circuit Court, refers to the State Courts, and not to the Supreme Court; and the generality of the terms might, upon the oppofite conilruction,be extended to cafes evidently not included in the reafon of the provi lion, or excluded by other parts of the law;—to fuits. below the value of 500 dollars, to fuits for coils, and to fuit.s between aliens. It is infilled, however, tobe enough to give the jurifdidlion, that an alien is a party. But expréjjio unius ejl exclufio alte-rius; and it would violate another rule of law, to embrace the cafe of a fuperior, a Sta,te, by merely naming the cafe of an inferior, a foreign individual. In the Conftitution, and in the 13th fedlion of the judicial adt, the cafes of análieii, and of a citizen of another State, are placed on the.fame footing, be-caufe, it is ¡fiain, that their cafes are within the fame policy: but, if th< adverfe dodtrine is corredt, the principle is abandoned in the nth fedlion ; for, the jurifdidlion will affedl the fuit of a State where an alien is a party, though it will not affedl the fuit of a Stpte', where the citizen of another State is a party. Alien party, means party Plaintiff, as well, as Defendant; and, therefore, if the jurifdidlion is not limitted to private fuits between individuals, what was there, before the amendment of the Cónfti'.utión; to prevent an alien,-from firing a State in the Circuit Court? And yet was inch am attempt ever made, or would ever fuch an attempt have been tolerated ?
    Thefe confiderations, and the dignity o'f tjpe. party, mull evince that the conftitution and law intended to veil in the Supreme Court alone, an original jurifdidlionin the cafe of States, unlefs the States themfelves voluntarily refort toftate tribunals, which are, therefore, left with a concuirent authority. Neither in the conftitution, nor the law, is there an exprefs delegation of a-concurrent authority to the Circuit Courts, For, although it is faid, .that the twelfth fedlion meantto enlarge the jurifdidlion of the Circuit Courts, beyond the boundaries pre-feribed in the eleventh fedlion ; yet the fedlions are in pari ma-teria ; they fpeak of the fame parties ; they refer to the fame value of the matter in controverfy ; and, in Ur or t, the twelfth fedlion only provides a mode of transferring from the jitate Court to the Federal Court, fuch fuits, in which an alien is inade a Defendant, as he could have originally brought there in the character of a Plaintiff: In the chara ¿Ser of a Plaintiff he could never have Cued a State in the Circuit Court; and fuchis the uniform opinion of all who have ever commented on the Conftitution, or expounded the Lav/. 2. Federalifl, 317. 318; 323. 337. 2. Dali. Rep. 436. 299. 402. 415.
    But, furely,-the amendment to the Conftitution rriuft put a/i end to'every difficulty. It ordains that “ the judicial power. “ of the United States ihall not be ctínftrued to extend to any “ fuit in law, or'equity, commenced orprofecuted againft one “ of the United States, by citizens of another State, -or by e£ citizens or fubjeéls of any foreign State.” (3..Rol. 13-r. Swiff s Edit.) The^ language of the amendment, indeed, does not import an alteration of the Conftitution, but an authoritative declaration of its true conftruétion. Then, there aré only two cafes in which a State can be affeéted—ift. Where Are is Plaintiff,—2d. Where íhe is Defendant: the amendment declares, that íhe ihall not be affeéted as a Defendant; and as a Plaintiff ihe can never be affeéted but by her own aét; ftnce, there is no Conftitutional injunétion, that íhe ihall fue in a.Federal Court. The mifchief which was apprehended in allowing States to be fued in the Supreme Court, is not greater than the mifchief in allowing them to be forced to fiie in the Circuit Court: the procefs in both cafes is, alike, compulfory and many interlocutory decifions, as well as-final judgments, might be pronounced, to which a State Plaintiff would be as averfe, as a State Defendant. If íhe does not recover, ihall íhe be condemned in cofts ? If there is a fet-off pleaded., and a verdiéi againft her, can the Defendant maintain a fcire facias, under the Pennfylvania adi of Affembly, which the. aét of Con-grefs recognizes as the rule of decifion ? 1. Fel. 65. (Dali. Edit.) Or if íhe recovers as a Plaintiff, in the Circuit C®urt, can íhe be converted into a Defendant in the Supreme Court,' upon a Writ of Error ? Such is the labyrinth, in which the oppofite doéírine is involved !
   After advifenient;' the unanimous opinion of the Court was delivered by

the Chief Justice,

in the following terms.

M‘Kean, Chief Juf ice. 'I'his aélion is brought on.a recognizance to the commonwealth of Pennfylvania, for the good beaavidur, entered into by_ the Defendant before me. The Defendant has appeared to the aélion, and exhibited his petition to the Court,"praying that the jurifdiftion thereof be tranf-ferred to the Circuit Court of the United States, as he is an si-tien, and a fubjeSl of the King of Great Britain. His right to this claim of jurifdiétion is faid to be grounded on the 12th feelion of the adt of Congrefs, entitled “An aét to eftabliih the Jadjcial Courts of the United States, pafled the 24th of September 1789, in the firft claufe of which fediion it is enabled, that if a fuit be commenced in any State Court ngainft an alien, &c. and the matter in ’.difpute-exceeds the fum or valué of five hundred dollars; exclufive of cofts, on a petition of the Defendant, and a tender of bail to appear in the Circuit Court, &c. it {hull be the duty of the State Court to accept the furety, and proceed no further in the cafe, See.

Previous to the delivery of my opinion in a caufe of fuch importance* as to the confequences of the decifion, I will make a few preliminary obfirvations on the conftitution and laws of the United State.s of Amerita.

. Our fyftem of government feems to me to differ; in form and fpirit, from all other governments, that have heretofore exifted in the world. It is as to fome particulars national; in others federal, and in all the refidue territorial, or in diftridts called States.

The divifions of power between the national* federal, end ftate governments, (all derived from the fame 'fOurce, the authority of the people) muft be’colledfed from the conftitution of the United States. Before it was adopted, the fiveral States had abfolute and unlimited foverefgnty within their refpedtive boundaries; all the povyers, legiilative; executive, and judicial, excepting thofe granted to Congrels under the old conftitution: They now enjoy them all, excepting fuch as are granted to the government of the United States by the prefent inftrument and the adopted amendments, which are for particular’ purpo-fes only. The government of the United States forms a part Of the government of each State; its jurifdidHori extends to the providing for the common defence a’gainft exterior injuries and violence, the regulation of commerce, and other matters fpe-’ daily enumerated in the conftitution’;’ all other powersf remain in the individual ftates, comprehending the inferior and other concerns; theft: combined,"form one complete government. Should there be any defecl: in this form of government, or any collifion occur, it cannot be remedied by the foie adl of the Congrefs, or of a State ; the people muft be reforted to, for enlargement or modification. If a State fhould differ with the United States about the conftrudfion of them, there is no common umpire but the people* who fhould adjuft the affair by malting-amendments in the conftitutional .way, or fuffer from the defedt. Iri fuch a cafe the conftitution of the United States is federal ;-it is a league or treaty made by the individual States, as one party,-and all the States, as another party. When two nations differ about the meaning of auy claufe, fentence, or 'wort! in a treaty, neither has an exclulive ’right to decide it; tney endeavour to adjuft the matter by negotiation, but if it cannot be thus accompliilied, each has a right to retain its own interpretation, until a reference be had to the mediation of other nations,, an a¡ bitation, or the fate of war. There is-no pro-vifion in the c-auftitution, that in fuch a cafe the Judges of the Supreme Court of the United Staiés ihall control and be con-cluí! ve : 'neither can the Congrcfs by a law confer that power. 7 here appears to be a defeft In this matter, it is a cafnsomif-jus, which ought in foms way tobe remedied. Perhaps the Vice-Prelident and Senate of the United States ; or. commiilioners appointed, fay one by each State, would be a mo're proper tribunal than the Supreme Court. Be that as it máy, I rather think the remedy mull: be found in an amendment of the con-ftitudon. ■

I ihall now confider the Cafe before ur. It is an aftion brought in the name of the commonwealth of Perinfyhania> againft an alien,⅛ Britijb fuhjeft. By the exprefs words of the fecond fentcnce of the 2nd feftion of the 3d Article of the con-/tiunion of the United States, in fuch an aftion the Supreme Court ihall have original juriíüiftkm; whereas it-is now prayed by the Defendant, that original jarifdiftion be given to the Circuit Court. From this, itwould reafonably be concluded, that the Congreis, in the 12th feftion of the judicial law, did not contemplate an aftion wherein a State was Plaintiff, though an alien was Defendant, for it is there faid, “that if a fuit be commenced in any State Court againft an alien, &c.” as it does not mention by a State, the prefumption and conftruftion muff be, that it meant by a citizen.' This will appear pretty plain from a perufal of the nth feftion of the,fame aft, where it is .enacted, that the Circuit Courts ihall have original cognizance, concurrent with the Courts of the feveral States, of all fuits of •a civil nature, of a certain value, where the United States are Plaintiffs or Petitioners, or where an alien is a party. This confines the original cognizance of the Circuit Courts, concurrent with the Courts of the feveral States, to civil aftions commenced by the United States, or citizens againft. aliens, or where an alien is. a party, &c. and does not extend to actions brought againft aliens by. a State, for of fuch the Supreme Court had, by the conftitv.ticn, original jurifdiftion. I would further remark, mat the jurifdiftion of the Circuit Con; rs is confined to aftions of a c:vii nature againft .aliens, and does not extend to thofe of a criminal nature; for although the'word ’■fait” i« ufed generally .in the 12th feftion, without expreffng the words Ksf a civil natvrep yet the flighted confideration of wharfollows, manifeftly fhews that no órher fuit was meant; Tor the matter in difpute muff exceed five hundred dolía*skin-Value, fpecial bail muft be given, he. terms applicable to actions of a civil nature only.

Let us now confider, whether this fuitagainft William Cch-iet is of a civil or criminal nature. It is grounded on a recognizance for th,e good behaviour entered into before the Chief Juftice of this State. This recognizance, it muft be conceded, was taken to prevent criminal actions by the- defendant, in violation of the peace,- order, and tranquility of the fociety; it was to prevent crimes,'or public wrongs, and mifJemeanors, •and for no other purpofer It is evidently of a criminal nature, and cannot be fupported, unltfs he fhall be convicted of having committed Jome crime. ' which would incur itsbreachftr.ee its date, and before the da* on which the- piocds iíliied againft him. Befides, a recognizance is a matter of record, it is in the nature of- a judgment ^ and the precefs upon it, whether a feire facias or fummons, .is for the parpóle of carrying i: into execution, and is rather judicial than original', it is no favthér to- be reckoned an original-fuit, than that the Defendant has a right to plead to it: it is founded upon the recognizance, and muft be confidered-as flowing from it, and partaking of its nature;' and when final judgmenr.ihall be given the whole is to be taken as one record. It has been welt obferved 'by the attorney general, that by the laft amendment, or legiflative declaration of the meaning of the Conftitution, refpecting the jurif-djdtion of the courts of the United States over the cau fes of States, it is ftrongly implied, that States .fhall not be drawn a-gaiñft their will direftly or indiredly before them, and that if the prtfi.nt application ihould prevail this would be the cafe. The words of the declaration are: “ The judicial power of the United States fiiall not be conftrued to extend to any fuit in lew or ..quity commenced or profecúted ágainft one of the United States, ny citizens of another State, or by citizens- or fubje&s of any foreign State.” When the judicial law was ■palled, the opinion picvailed that States might be fued, which by this amendment is fettled otherwife.

• The argument'^ inconvenient': is alfo applicable to the con-ftruclion of this feéiion of-the a£t of Congrcft. Can the Lee id ature of the United States be fuppofed to have intended (granting it was within their cor.ftitutional powers) that an alien, pefiding three or four hundred miles fiom where the Circuit^ipourt is held, who has, from his turbulent and infamous coildudt in his neighbourhood, been bound to the good behaviour by a magiftxate-of a fta:e, ihould, after a breach óf hjs recognizance and a profecution for' it commenced, ■ be enabled to remove the psofecuiion before a Court át fuch a distance, and held but twice in a year, to be tried by a juiy^

⅜76 Cases ruled and adjudged in the ,1798. who know neither the perfons, ■ nor characters, of the wit-neftes, and confequently are unqualified to try their credit; and to oblige the profecutnr and wiinefles to incur fuch an expence of tiqie and money, in order to prove that he had committed an aiTaulr, or any other offence that would amount to a yiolatiqn of if-? if fo, fuch a recognizance, though it would operate as a feeurity to the public againft a citizen, would be of little avail againft^n alien. It cannot be conceived, that they intended to put an alien in a more favorable utuation than a citizen in fuch ⅛ cafe, and by difficulties thrown in the way to difeourage and weaken, if not defeat che ufe of, a reftraint, found often to he very falutary in preferving the peace and quiet of the p -ople. Many other inconveniences have been mentioned by the coun-fcl, which I íhálJ not repeat. If, therefore, any other conftruction can be made it ought to prevail. Upon the whole, our opinion is, that where a State has ⅜ controverfy with an alien about a contradi,, or other matter of a civil nature, the Supreme Court .of the United States has original jurifiidtion of it, and the circuit or diftridt courts have nothing to do with' fuch a cafe. The reafon feems to he founded in a refpecl for the dignity, of a State, that the adcion may be brought in the firft inftance before the high.eft tribunal, and alfo that"this tribunal would be moft likely to guard againft die power and influence of aftate over a foreigner, ‘iutthat neither the conftitution nor the conurefs ever contemplated, that any court under the United States ihould take cognizance of any thing favouring of crimina.ty r.g-.injl a State:. That the adlion before the court is of a criminal nature and for the puni&ment of a crime againft the State ; That yielding to the prayer of the petitioner %ould be highly inconvenient in itfelf and injurious in the precedent: And that cognizance of it would not be accepted by the Circuit Court, if fent to them •; for even con-lent cannot confer jurifdidtion. For thefe reafons, and others, omitted for the fake of brevity, I conclude, the prayer of William Cablet cannot be granted. The Petition, n CjtMÍÍRUBO  