
    *The People against John Godfrey.
    The laml on which Fort Niagara is erected, never having- been actually ceded by this state to the United States, it still belongs to this slate ; and its courts have jurisdiction of all crimes or of-fences against the laws of the state, committed within that fort, or its precincts } though it has been garrisoned by the troops of the United Slates, and held by them since its surrender by Great .Britain, pursuant to the treaties oí 1783, and 1794 > for the United Slates acquired no territory within this state, by virtue of those treaties.
    The right of exclusive legislation or jurisdiction, within the limits of any of the states, can be acquired by the United States only by purchase of territory from the states., for the purpose, and in the mode prescribed by the Constitution of the United States.
    
    THE prisoner was convicted, at the last court of Oyer and Terminer, held in the county of Niagara, of the murder of Thomas Branaghan. The record of conviction having been removed to this court, the prisoner was brought up, at the last term, on habeas corpus. Mr. Justice Platt, who presided at the trial, reported, that the murder was committed in the garrison of the United States, at Niagara, and that both the prisoner, and the deceased, were fellow soldiers in the army of the United States, serving in that garrison; and that doubts having been raised as to the jurisdiction of the court, sentence was not pronounced, in order that the prisoner might be brought before this court, for judgment. It appeared that the deceased was, for some military offence, ordered under guard; that the prisoner was corporal of the guard, and while the deceased was under his custody, in a place called the “ black hole,” within the walls of the garrison, the prisoner stabbed him with a bayonet.
    
      Oakley, (Attorney General,) for the plaintiffs.
    It is said, that by the various treaties made between the United States and Great Britain, the land on which the fort and garrison of Niagara are situated, has been vested in the United States. Originally, the fortress of Niagara belonged to France, and passed, by the treaty of Paris, in 1763, to Great Britain. By the declaration of independence, and the subsequent revolution by which it was accomplished, the rights of the British crown to all the territory comprised within the state of New- York became vested in the people of this state, in full sovereignty, as a free and independent state. The constitution of this state recites the declaration of independence, and solemnly recognizes it. The powers and rights of the state emanate from the people alone, in their sovereign capacity, as a free and independent state, not from any treaty made with Great Britain. In the treaty of 1783, Great Britain treated with the United States, as sovereign #and independent. That treaty contains no words of grant, or cession, but merely recognizes the boundaries of this state, as an independent state. The articles of confederation expressly reserve the sovereignty of each state. It was a league between sovereign states. This state, then, had power to establish and hold military posts and fortifications, and the possession of these forts must be in its sovereign capacity. Great Britain held them hostilely, and by force; and when she surrendered the possession of the forts which she held within the boundaries of this state, they became, of course, vested in the state. This court cannot look beyor (Jack the state, for a source of title to any of its lands, (Jackson v. Ingraham, 4 Johns. Rep. 163.)
    Again; by the constitution of the United States, (art. 1. sec. 8.) Congress have power “ 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 government of the United States, and to exercise like authority over all places purchased by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, dock yards, and other needful buildings.” This shows, that the United States can exercise exclusive jurisdiction over such territory only as is acquired by purchase or cession from the several states. And this state, in all the grants or cessions which it has made to the United States, of lands for the use of the United States, has reserved the right of sending its'officers to serve the process of its courts within the lands so granted. The United States possess no power or rights but- such as have been delegated by the several states; and the states retain all the rights and attributes of sovereignty not expressly ceded to the l dated States. “ The power of exclusive legislation,” (which is jurisdiction,) says Chief Justice Marshall, (United States v. Bevans, 3 Wheat. 336. 388.) “ is united with cession of territory, which is to be the free act of the states.”
    The treaties of 1783, and of 1794, contain no words of cession to the United States. It merely stipulates, that Great Britain shall withdraw its troops, &e. There was not, in fact, in 1783, any government of the United. States #capable of receiving a cession of territory, or of garrisoning this fort. If it had been immediately surrendered, it would have been taken possession of by the troops of this state, as an independent state.
    Again ; it will be said, that there is an act of the legislature, fsess. 26. ch. 106. 1 N. ft. L. 197.) authorizing the governor of this state :i to agree with such person or persons as may be authorized by the United States for that purpose, for the sale of such quantity of the lands adjoining Fort Niagara. as shall be necessary for the accommodation of that fort, and to cede the right of the people of this state to the said lands to the United States,” showing an implied admission that this fort then belonged to the United States. The fact, most probably, was not adverted to, at the time, that there never had been any cession of the land on which the fort is erected, to the United States. It is certain, however, that this court cannot presume any such grant. It is true, that Congress have provided for the punishment of crimes committed in places within the exclusive jurisdiction of the United States; but the United States have no exclusive jurisdiction, except what is acquired by grant or cession.
    A doubt may, possibly, be suggested, whether the land on which Fort Niagara stands, is withifi the territory of this state. But it is well known, that the grant of James II. extended to the Pacific Ocean. The disputes between this state, and the states of Massachusetts and Connecticut, involved a discussion on this subject. By the convention between this state and Massachusetts, the jurisdiction was ceded to this state.
    Again; by the act of the legislature of this state, passed the 19th of February, 1780, the delegates of this state to Congress were authorized to fix the limits of the territory of this state, and to cede to the United States all the lands beyond such limits; and the delegates to Congress did, accordingly, by a formal instrument, fix and describe the boundaries of the state, and cede to the united and confederated states, all lands and territories to the northward and westward of those boundaries ; and this state has ever since held and enjoyed its territory according to those limits, and *which include Fort Niagara; there being no where mentioned any exception or reservation, in behalf of the United States, of any forts, &c. (Vide Laws of the U. S. Edition of 1815. Vol. 1. p. 467. 471.)
    
      Cady, for the prisoner.
    This question depends on the true construction of the clause of the constitution of the United States, as to its exclusive legislation. It is not essentia] to this power, there should be a cession of territory by a state to the United States. After the purchase of Louisiana, the United States exercised exclusive jurisdiction over the territory, and over all forts and planes within its limits. When that country or any portion of it is erected into a sovereign and independent state, does the right of jurisdiction exercised by the United States over the forts continue, or must they purchase that right from the new state? It is not necessary that there should be a cession of jurisdiction, at the time of the purchase. Great inconvenience will arise, if the government and courts of the United States have not exclusive jurisdiction over these places. Every soldier in the garrison who commits a petty offence may be arrested by the warrant of a justice of the peace. The true meaning of the constitution is, that the United States cannot erect any fort or building on any part of the territory of a state, without its consent. As soon as the state grants to the United States the right of erecting a military fortress, the United States acquire an exclusive jurisdiction within such fortress, unless there has been some express stipulation to the contrary in the grant.
    Again; has not this state, by its acts, virtually consented to give to the United States jurisdiction over this fort ? Treaties have been made between the United States and the Six Nations of Indians, in 1784, 1789, and 1794, by which the latter cede to the United States, lands lying south of Lake Ontario, and south and east of Niagara river and Lake Erie, including the fort of Niagara. (1 U. S. Laws, 307, 308, 309. 314. Ed, 1815.) Two of these treaties were made subsequent to the adoption of the constitution of the United States.
    
    Again ; Great Britain, afterwards, pursuant to the treaty *of 1794, surrendered the possession of this fort to the gov-eminent of the United, States, who immediately took possession of it, garrisoned it with their own troops, and have so kept possession, until this day; whether rightfully or not, makes no difference, for this state, having uniformly acquiesced in it, must be bound by such acquiescence.
    In the case of the Commonwealth of Massachusetts against Clary, (8 Mass. Rep. 72.) the Supreme Court of that state decided, that the courts of that state had no cognizance of offences committed on lands in the town of Springfield, purchased by the United States from that state, for the purpose of erecting arsenals, &c.
    
      Oakley, (Attorney General,) in reply,
    said, that the case of a cession of territory to the United, States, by a foreign state, since the adoption of the present constitution, was not analogous to the present case. None of the states ever had any right to the territory so ceded. But very serious doubts have been entertained whether the government of the United, States could, under the constitution, acquire new territory, and exercise jurisdiction over it; and though such cessions have been sanctioned by acts of Congress, it is not easy to discover on what constitutional grounds those acts can be supported.
    As to the grants or cessions made by the Indians to the United States, it is a sufficient answer to say, that the Indians have never been recognized as the absolute owners of the soil, or as a source of title to lands in this state. Their right to the use of lands occupied by them has been admitted. But these very Six Nations of Indians had before ceded all their rights to Great Britain; and so, in truth, they had nothing to grant to the United States. There can be no source of title to land acknowledged, but what is derived from the state.
    Again; the relinquishment, by Great Britain, of places occupied by her troops, gave no right to the United States. As well might the United States claim the city of New- York and its environs, which were surrendered pursuant to the treaty of peace, and taken possession of by the army of the United States.
    
    
      Cür. adv. vult.
    
    *The prisoner was again brought before the court, on habeas corpus; and the opinion of the court, on the question of jurisdiction, argued at the last term, was now delivered by the chief justice, as follows :
   Sx'encer, Ch. J.,

(after stating the facts.) The question for the decision of this court is, whether the cognizance of this offence belongs to the courts of the United States, or to those of this state ? It has been very ably argued, and the importance of the question has induced us to postpone a decision of it to the present term.

The jurisdiction of the courts of the United States must be derived under the eighth section of the first article and seventeenth paragraph of the constitution of the United States, which gives to the Congress “ exclusive legislation 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.”

The only evidence of a purchase by the United States, of fort Niagara, from this state, or of a cession of any kind by it to the United States, is contained in the act of the 6th of April, 1803. (1 N. JR. L. 197.) That act authorizes the governor to agree with such person or persons as shall be authorized by the United States for that purpose, for the sale of such quantity of the lands adjoining the fort Niagara, as shall be necessary for the accommodation of that post, and to cede the right of the people of this state to the said lands to the United States.

It does not appear, nor is there the slightest ground to believe, that the powers conferred on the governor, by this act, have ever been executed, or that any cession has ever been made under it, of the fort itself, or of the adjoining lands, to the United States.

It has been argued, that this state, though they have made no cession, have tacitly consented, by a necessary implication from the act of 1803, that the United States should hold the fortress of Niagara, and that in such case, the second paragraph of the third section of the fourth article of the constitution of the United States, would give to the Congress #the like exclusive power of legislation. That section declares, “ that the Congress shall have power to dispose of, and, make all needful rules and regulations respecting the territory or other property belonging to the United States, and that nothing in the constitution shall be so construed as to prejudice any claims of the United States, or any particular state.”

The treaty of peace between the United States and Great Britain, in 1783, has also been brought into view, as containing provisions bearing on the question. That treaty contains a stipulation that his Britannic majesty should withdraw, with all convenient speed, all his garrisons from the United States, and from every post, place and harbor within the same; and the treaty of amity, commerce and navigation, concluded between Great Britain and the United States, in 1794, contains a stipulation, on the part of the former, to withdraw their troops and garrisons, from all posts and places within the boundary lines assigned by the treaty of peace, before the first of June, 1796. Fort Niagara was captured from the French, in 1759, and passed, by viitue of the treaty of peace of 1763, to the crown of Great Britain; and has continued to be held 1)}’ that power, as a fortress, until it was surrendered under the treaty of 1794, since which it has been possessed and garrisoned by the United States, with a short interruption during the late war, to the present period. That fort Niagara is within the acknowledged boundaries and limits of this state is indisputable.

We consider it beyond all doubt, that the United States ac-quinal no territorial rights to any portion of this state, in virtue of the treaties of 1783 and 1794. Neither of those treaties contain any words of grant to the United States, as such ; nor should we have submitted to accept as a grant what had already been acquired by our arms, and established by the solemn declaration of independence. The Congress, under the articles of confederation, were the representatives of the several states ; and, having the power to make war and peace, were a party to the treaty of peace, in behalf of the confederated states, and every stipulation in the treaty enured to the benefit of the states in their sovereign capacities. When, therefore, it was agreed, by the #treaty of peace of 1783, that Great Britain should withdraw, with all convenient speed, its garrisons from the United States, and from every port, place and harbor within the same; that agreement was for the benefit of the several states within whose limits those garrisons were. The section of the articles of confederation removes every doubt upon this subject: it provides, that “ each state should retain its sovereignty, freedom and independence, and every power, jurisdiction, and right, which was not thereby expressly delegated to the United States in Congress assembled and it is not within our knowledge or belief, that the United States have ever claimed, or set up any pretension of property, to any fort within the boundaries of a state, under these treaties.

The occupation of fort Niagara, by the troops of the United States, since its evacuation, in pursuance of the treaty of 1794, cannot be considered either as evidence of a right in the general government to the post itself, nor as an act hostile to the rights of this state. One of the great objects in the formation of a federal government was, that it should provide for the common defence. This post was considered an essential point to be garrisoned by the troops of the United States, as a security to our frontiers ; and this state acquiesced tacitly in the propriety and necessity of the measure; under these circumstances to consider the occupation of the post as, per se, evidence of territorial right, in the United States, or as in hostility to the rights of this state, would be imputing to the federal government a disregard of its obligations and duties, arid a spirit of violence and injustice, highly derogatory to its known justice and providence. Their possession of this post must be regarded, therefore, as a possession for the state, not a§a‘nst ⅛; it was a friendly occupation, not in derogation of our rights; and we regard it as a fundamental principle, that the r^lts °t sovereignty are never to be taken away by implication. In the case of the United States v. Bevans, (3 Whea-ton, 388.) Chief Justice Marshall said, “the power of exclusive legislation under the 8th section of the first article of the constitution, which is jurisdiction, is united with cession of territory, which is to be the free act of the states.” The correctness #of this remark is fully admitted ; and if the United States had the right of exclusive legislation over the fortress of Niagara, they would have also exclusive jurisdiction ; but we are of opinion, that the right of exclusive legislation within the territorial limits of any state, can be acquired by the United States only in the mode pointed out in the constitution, by purchase, by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. The essence of that provision is, that the state shall freely cede the particular place to the United States, for one of the specific arid enumerated objects. This jurisdiction cannot be acquired tortiously, or by disseisin of the state ; much less, can it be acquired by mere occupancy, with the implied or tacit consent of the state, when such occupancy is for the purpose of protection.

The 3d section of the 4th article of the constitution, of the United, States is clearly adapted to the territorial rights of the United States, beyond the limits or boundaries of any of the states, and to their chattel interests, and it therefore drops the expression of exclusive legislation.

To oust this state of its jurisdiction to support and maintain its laws, and to punish crimes, it must be shown that an offence committed within the acknowledged limits of the state, is clearly and exclusively cognizable by the laws and courts of the United States. In the case already cited, Chief Justice Marshall observed, that to bring the offence within the jurisdiction of the courts of the union, it must have been committed out of the jurisdiction of any state; it is not, (he says,) the offence committed, but the place in which it is committed, which must be out of the jurisdiction of the state. It does not, therefore, enter into the consideration of this question, that the prisoner and the deceased were in the service of the United States, when the crime was perpetrated. On the whole, we are perfectly satisfied that the jurisdiction of this state attaches on the crime, and extends to the person of the prisoner, and nothing remains but that judgment be passed upon him according to law.

Sentence of death was, accordingly, pronounced on the prisoner.  