
    
      April Term, 1798.
    Present, Chase and Peters, Justice's.
    
    The United States versus Worrall.
    THE defendant was charged with an attempt to bribe Tench Coxe, the Commissioner of the Revenue ; and the indictment, containing two counts, set forth the case as follows:
    
      “ The Grand Inquest of the United States of America, for the Pennsylvania District, upon their respective oaths and affirmations do present—That whereas on the 13th day of May 1794, it was enacted by the Senate and House of Representatives of the United States of America, in Congress assembled ; “that as soon as the jurisdiction of so much of the headland of Cape. Hatteras in the State, of North Carolina, as the President of the United States shall deem sufficient and most proper for the convenience and accommodation of a light house, shall have been ceded to the United States, it shall be the duty of the Secretary of the Treasury to provide by contract, which shall be approved by the President of the United States, for building a light-house thereon of the first rate: And also, “ that the Secretary of the Treasury be authorized to provide by contract, which shall be approved by the President of the United States, for building on an island in the harbour of Occacock, called Shell Castle, a lighted beacon of a wooden frame, 55 feet high, to be 22 feet at the base, and to be reduced gradually to 12 feet at the top, exclusively of the lantern, which shall be made to contain one large lamp with four wicks, and for furnishing the fame with all necessary supplies. Provided, that no such lighted beacon shall be erected, until a cession of a sufficient quantity of land on the said island shall be made to the United States by the consent of the Legislature of the State of North Carolina :" And whereas the Legislature of the State of North Carolina did, on the 17th day of-July 1794. cede to the United States the jurisdiction of so much of the headland of Cape Hatteras in the same State, as the President of the said United States deemed sufficient and most-proper, for the convenience and accommodation of a light house, and also a sufficient quantity of land for building on the said island, in the harbour of -Occacock, called Shell Castle, a beacon of the kind, descriptions, and dimensions aforesaid: And whereas, afterwards, to wit, on the 28th day of September 1797, at the District aforesaid, Tench Coxe, Efq. (he the said Tench Coxe, then and there being Commissioner of the Revenue, in the department of the Secretary of the Treasury,) then and there, was appointed and instructed by the Secretary of the Treasury, by and with the authority of the President of the said United States, to receive proposals for building, the light house aforesaid, and beacon aforesaid : Robert Worrall, late of the same District, yeoman, being an ill disposed person, and wickedly contriving and contending to bribe and seduce the said Tench Coxe, so being Commissioner of the Revenue, from the performance of the trust and duty so in him reposed, on the said 28th day of September 1797, at the District aforesaid, and within the jurisdiction of this Court, wickedly, advisedly and corruptly, did compose, write, utter, and publish, and cause to be delivered to the said Tench Coxe, a letter, addressed to him the said Tench Coxe, in the words and figures following, that is no say:
    “ Dear Sir,
    “Having had the honor of waiting on you, at different times, on the light-house business, and having delivered a fair, honest estimate, and I will be candid to declare, that with my diligent and industrious attendance,-and sometimes taking an active part in the work, and receiving a reasonable wages for attending the same, I will be bold to say, that when the work is completed in the most masterly manner, the jobb will clear at the finishing, the sum of £1000. Now if your goodness will conider, that the same sett of men that will be wanted for a small part of one jobb will be necessary for the other, and particularly the carpenters, and smith for the iron work, and as they will want a blacksmith’s shop and a fett of tools at Cape Hatteras, the other iron work might be made there, and sent across the found at a small expence, which would make a considerable saying.
    “ I have had this morning a fett of good carpenters, four in number, as ever emigrated from the old country,.as alfo feveral ilone mafons, offering themfelves to go to Carolina-, As I told you about the fmith that I had engaged, he informed me that he had'a fett of good fecond-hand tools offered him that might be purchafed at a- reafonable price—therefore, good fir, as having'always been brought up in á life of induftry, fhould be happy in ferving you. in the executing this job, and always content with á reafonable profit; therefore, every reafonable per-fon would fay that £ 1400. was not unreafonable, in the two jobs. .- If I fhould be; fo happy in your recommendation of this workr I fhould think myfelf very. Ungrateful, if I did not offer you one half of the profits as- above Hated, and would depofit in your hand’ at'receiving the firft payment £'350, and the other £350 at the'lafl payment, when the work is finifhed and com-pleated. I hope you will not think me trogblefome in afking for a line on the bufinefs by your next return and will call for it at the Poll-Office, or in Third Street. In the mean time I fhall fubferibe myfelf to-be, your.obedient and very humble fervt. to command..
    
      Robert WorralL
    
    
      Philadelphia, Sept. 28; 1797,
    No. 26, North Third Street/'
    Which letter was dire£le-d in manner following, that is to fay :
    
      For Fetich Coxe, Efg.
    
    
      At Burlington near Brijldl,
    
      Pennfylvania.
    
    
      "To the.'ev-il example of others in the like cafe offending, and againlt the peace and dignity of the faid United States.
    
    
      “ And the Grand Inquefl afórefaid,upon their refpeótive oaffis and affirmations, do further prefent, that Robert Worrall, late of the fame diftricl, yeoman, being an -ill difpofed perfoñ, on the 28th day of September,, in the year afotefifid, in the diftrhft afórefaid, and within the jurifdidlion of this Court, wickedly, advifedly, and corruptly, did folicit, urge, and endeavour to procure Tench Coxe, 'Efq. he the faid Tench Coxe, then and there being’Commiffioner of the Revenue of the faid United States, and then and there interested and employed in the execution of the duties of the faid office, to receive propofals for, contracting to build a light houfe on Cape Hat terns', and a beacon on Shell Cajlle iffand, to contract with, and give a preference to him the faid Robert Worrall, for the building of the faid light houfe and beacon, and in order to prevail upon him, the faid Tench Coxe, to agree to give him, the faid Robert Worrall, the preference in and the benefit of fuch contradi, he the faid Robert Worrall, then and diere did wickedly, advifedly and corruptly, offer to give the faid Tench Coxe, then and there being Coromiffioner of the Revenue of .the United States, as arorcfaicl, a large firm of money, to wit—the fum of Seven Hundred Pounds, -money of Pennfylvnnia, equal in value to i860 dollars and 67 cents, in contempt of the laws and. confutation of the -faid United States, to the evil example of others in the like cafe offending, and againft the peace and dignity of the faid United States.”
    
    On the evidence, it appeared, that, in confequence of in-, ftrudions from the Secretary of the Trcafury, Mr. Coxe had officially invited propofals, for eredling the Light-Houfe, See. mentioned in the indidlment, .that the defendant prefented pro-pofals ; and, while they were under confideration, he fent the offenfive letter, which was dated at Philadelphia ; but Mr. Coxe having removed his office (in confequence of the Yellow Sever) to Burlington,, in the State of Nevs-Jerfey, received the letter at the latter place, on the 28th of September 1-797,. other dif-patches from the Poft-Office of Brijlol, in Pemfylvania. On the receipt of the letter Mr. Coxe immediately confulted Mr. Ingerfoll (the Attorney General of the State,) communicated'the: circumftance that had occurred to the Prefident, and invited the. defendant to a conference at Burlington. In this conference, the defendant acknowledged .having written and fent the letter ; declared that no one elfe knew its contents, for “ in bufinefa done in his chamber, he did riot let his left hand know, what his right hand did”; and repeated the offer of allowing Mr. Coxe a fliare in the profits of the fc.ontract. He then prefled for an anfwer ; but was ■ referred by -Mr. Coxe to the period, when the public offices ihould be again opened in {Philadelphia. Accordingly, foon after the revival .of bufinefs in' the City, the defendant called at Mr. Coxis office; the vahóle fubjeét was. goné over, -and perfectly recognized; the offer to give the money mentioned in the letter was repeated ; ■ and, in the fuUgft manner, the defendant gave Mr. Coxe to unáerñand, that ho would allow £too, as-a Confideration. for Mr. Coxis procuring: him the contradi. It was not pofitively .ftated, that the letter was produced to the defendant at.this interview'; but he adverted to, and unequivocally confirmed, its, contents*
    
      On theíe fafts, M. Levy', for the defendant, obferved, that it was not fufficient, for the purpofe of conviction, to prove that the defendant .was guilty of an offence; but the offence muft, alfo, appear to be legally .defined, and, it muft have been committed within.the jurifdiftion of the Court, which undertakes to try and punifh it. The 8th article of the amendments to the Federal Conftitution (3 Vol. Swift’s. Edit.p. 456) provides, indeed, exprefsly, that “ in all criminal profecutions, the' ac-cufed ihall' enjoy the right to- a fpeedy and public trial, by an impartial Jury of the. State, or Diftrift, wherein the crime ihall' have been committed, &c.” Now, in the prefent inftance, there is no proof that the criminal letter was written in Penn-fylvania ; and the proof of publication and delivery is at Burlington, in Nety-Jerfey, The firft count of the indiftment, therefore, muft neceifarily fail; arid unlefsjie is convifted upon that, he cannot bp convifted on the fecond count; which is attempted to be fupported, merely by. evidence of recognizing in Philadelphia, -a corrupt offer previouily made in another place, out of the jurifdiftion of the Court.
    The Attorney of the Diftrift (RawleJ replied, that according to the decifion in Dr. Henzey’s cafe (Barr. J the letter being dated_at Philadelphia, is, in itfelf, fufficient proof that it was written there. But the letter was put into the Bri/ldlpoll office by- the defendant; and, confequently, by his aft, done in Pennfylvania, it was caufed to be delivered to Mr. Coxe at Burlington. The-oppofite doftrine, indeed,, would furniih abfolute impunity to every offender of this kind, whofe crime was not commenced and confummated in the fame Diftrift : for, the defendant, it.is faid, cannot be puniihed in Pennfylvania, be-caufe the letter was delivered to Mr. Coxe in New-Jerfeyf and, by a parity of reafoningi he could not be punifhed in New-Jerfey, becaufe it was- neither written, nor delivered by him, within the jurifdiftion of that State. To fhew that the offer of a bribe is indiftable, though the bribe is not accepted, he .referred to 4'Burr. 2494. r Ld. Raym. 1377.
   'By the Court

:—The letter. appears by its date to have been'written in-Pennfylvania; and it is aftually delivered by the defendant at a poll; office in Pennfylvania. Tiie writing and ,the delivery at the Poft-Office (thus putting it in the way to b'e delivered to Mr. Coxe) muft be coiffidered, in effeft, as one aft; and, as far as refpefts the. defendant, it is confummated within the jurifdiftion of the Court. We, therefore, think, that the. firft count in the-indiftment is fufficiently fupported. Bu.t, on the. feconcj cojint, there can be--no poffible doubt, if the teftimony is credited. The defendant, in the city of Philadelphia, unequivocally repeats, -in words,' the corrupt offer, which, he had previouily made to Mr. Coxe in writing.

.Verdift—Guilty on both counts of the Indiftment.

Dallas,

.(who had declined fpeaking on the fails before the

Jury) now moved in arreft of judgment, aftedging that the Circuit Court could not take cognizance of. the crime charged in thé indictment. He pre'miied, that,\independent of the general queftion of jurifdiftion, the inclidlment was exceptionable, in as much as it recited the- a£t of Congrefs, making it the duty of the Secretary of the Treafury to form the contracts contemplated, but did not ftate the authority for devolving that duty on the.Commiffioner of the Revenue ; and, confequently, it .could not be inferred, that the corrupt offer was made to . feduce the Commiffioner, from the faithful execution of an official public tmjl, which was the gift of the profecution. But, he contended, that the force of theobje£lion to the jurifdiction, fuperfeded the ne'ceffity of attending to matters of technical form and pvecifiori, in prefenting the accufation. It will be admitted, that all the judicial authority of the Federal Courts, mull be derived, either from the Conftitution of the United States. Or from the ■' A£ts of Congrefs made in pur-fuance of that Conftitution. It is, therefore, incumbent upon the Profecutor to fhew, that an offer to bribe the Commiffioner of- the Revenue, is a violation pf lome Conftitutional, or Le-giflative, prohibition. The Conftitution contains exprefsprovi-■ftons in certain, cafes, which are defignated by a definition of the crimes ; by a reference to the characters of' the parties offending ; of by the exclufive jurifdiCtion of the place where the offences were perpetrated ⅛ but'thy crime of attempting to bribe, the ■character of a Federal officer, and the place, where the prefent offence-was committed,, do not form any part of the Conftitutional exprefs proviftons, for the exercife of judicial authority in the Courts of the Union. The - judicial, power, however, extends, not only to all'cafes, • in law and equity, arifing under the Conftitutionbut, Hkewife, to all fuch a§ lhall arife under .the laws of the United States, (Art. 3. f 2.) and’besides the authority, fpecially veiled in CongrefsJ- to pafs laws for enumerated purpofes, there is a general authority given “ to make all laws which lhall be neceffary and proper for carrying into execution all the powers veiled by the Conftitution. An the government of the United States,- or in any department- or office thereof.” (Art. i.- SeEi. 8.) Whenever,"then, Con-grefs'think any provifion neceffary to effeCluate the Conftitutio-nal power of the government) they may eftablilh it by law;' and whenever it is fb eftablilhed, a violation of its fanClions will comewithin the jurifdiClion of .this Court, under the 1 ith SeElion of the Judicial A Cl, which declares, that the Circuit Court lhall have exclufive cognizance of all crimes and offence's cognizably under the authority of the United States, &c.” 1. Pol. Swift’s Edit. p. 55. . Thus, Congrefs have provided by law, for the-punifhment of Trcafon, mifprifion of Treafon, Piracy, count-' terfeiting any public Certificate, Healing or falfifying Records,. &e; for the punifhment of various crimes, when committed within the limits of the exclufive jurifdiftion of the United States; and for the punifhment of bribery, itfelf in the cafe of a Judge, an Officer of the Cufloms, or an Officer cf ⅛⅞-Ex-ciie. i. VoL Swift's Edit. p. i.oo. Ibid. p. 236. f 66. Ibid» p- 327.f 47. Butin the cafe of the Commiffioner of the Revenue, the Aft conftituting the office does.npt>create or declare the offence ; 2. Vol. p. i t 26'. it is not recognifed in the. Aft, under- which propofais for building the Light-houfe were invited 5-3. Vól. ' p. .63. and there is no other A.ft that has the-flighteft relation to the fubjefta

CSn the offence, then, be faid to-arife under" the Confiitution, or the laws of the United States ? And, if not, what is there to render it cognizable under the authority of the United States? A cafe arifing under a law, muff mean a cafe depending on the expofition- of a law, in refpeft to fpmething which the law prohibits, or enjoins. There is no charafteriftif. of that kind in the prefent inítánce.- But, it may be fuggefted, that the office being eftabiiihed by a law of the United States^ it is an incident naturally attached to the authority of the United States, to guard the officer againft the approaches, of corruption, in the execution* of his public truft. It is true, -that the perfon who accepts an office may be fuppofed' to enter into-a eompaft. to be anfwer.able to the government,- which he ferves, for any violation -of his duty ; -and, having taken the oath of office, he would unqueftionably be liable, in fuch cafe, to a profecution for perjury in the Federal Courts, But becaufe one man, by his own aft:, renders himfelf amenable to a particular jurifdiftion, fliall another man, who has not incurred a fimilar obligation, be implicated ? If, in other words, it is fufficient to ve'ft a jurifdiftion in this court, that a Federal Officer is con-, cerned ; if it- is a fufficient proof of a cafe arifing- under a law pf the United States to affeft other perfons, that fuel! officer is-bound, by law, to difeharge hi3 duty with fidelity '5—a fource of jurifdiftion is opened, which mud inevitably -overflow and defiroy all the barriers' between the -judicial authorities of the State and the general government. Any thing which can prevent a Federal Officer from the punftual, as well as from an impartial, -performance of. his dirty-; ariaffiauli and battery; or the recovery-of a debt, as well as the offer of a bribe ¿ may ‘fee made a foundation of - the jurifdiftion of this court ;■ and, confidering the conftant. difpofitjon of ’ power to extend the fphere of its' influence, fiftions will be reforted, to, when real cafes ceafe to occur. A mere-fiftiofi, that-the defendant is in> the cuftody of the marihai, has .rendered the jurifdiftion of the Kings Bench univerfal in all perfonal actions. Another fiction, which Rates the Plaintiff'to be a debtor of the Crown, gives cognizance of all kinds ’of perfonal fairs to die Exchequer : And the mere profeffión of an Attorney attaches the privilege of .fuing and being fued in his own Court.’ If, therefore, the difpofition to amplify the jurifdi<Sion of the Circuit •Court exifts, precedents of the means to do fó are not wanting , and it may hereafter be fufficient to fuggeft, that the party is a Federal Officer; in order to enable this Court to try every (peeks of crime, and to fuftain every defeription of aQicn.

But another ground may, perhaps, be taken- to vindicate the prefent claim of jufifdiclion: it may be urged, thftt though the offence is not fpecined in the Conftitution, nor defined in any aQ of Congrefs; yet, that ii: is an offence at common law; and that the common law is the law of the' United Suites, in cafes that arife under their authority. The nature of our Federal compaci, will not, however, tolerate this doQ.rj.ne. The 12th article of the amendment, ftipulates, that the powers not delegated to the United States by the conftitution, nor prohibited by it.-to the States, are referved to the States' refpeQively, or to the People.” In relation to crimes and puniihmen'ts, the objcQs of the delegated power of the United States are enumerated and. fixed. Congrefs may provide for the punifhment of «ounterfeking the fecurities and current coin of the United States.; and may define and punifh piracies and felonies comtaitted on the high feas, and offences againft the law of nations. Art. 1. f. 8. And, fo, likewile Cpngrefs may make all laws which ffiall be neceffary and proper for carrying into execution the power* of the general government. But here is no reference ro a common Jaw authority: Every power is matter of definite and po~ fitive grant; and the very powers that are granted cannot 'taka effect until they are exercifed through the medium of a law. Congrefs had undoubtedly a power to make a law, which fhouM render it criminal to offer a bribe to the Commiiiioner of the Revenue; but not having made the law, the crime is mot recognized by the Federal Code, conftitutional or legiilative ; and, confequently, it is not a fubje.Q on which the Judicial authority of the Union can operate.

The cafes-that have occurred, lince- the eftabliftiment of the Federal Conftitiiti'on, confirm thefe general principles. TI>a indiQment .againft Hetifield, an American 'citizen, for enlifting and lerving on board a French privateer, while {he captured a Dutch merchant íhip, &c.. exprefsly .charged the defendant with a violation of the treaties exifting between the United States and che United, Netherlands, Great Britain, &c. which is a matter cognizable under the Federal authqrity by the very words of the Conftitution. The jurifdiQion in the indiQment againft Ravaf-a, was fuftained by reafon of the Defendant’s official character as Conful. And in a recent profecution by the State- of Pennfvlvania againft Sheaffer, in the Mayor’s •Court- of Philadelphia, a motion in arreft of judgement was over-ruled by the Recorder (Mr. Wilcocks) though the offence confifted in forging claims to Land-Warrants, -iffuable under the refolutions of Congrefs ; and' although the cognizance of all crimes and,offences, cognizable under the authority of the Union,' is exclufively veiled in the Diftridt and. Circuit Courts

Rawle

(the Attorney of the Diftridl). obferved, that the exception, taken in fupport of the motion in arreft of- Judgement, {truck at the root of the whole fyftem of the national government 5 for, if oppofition' to the pure, regular, and efficient adminiftration of its affairs, could thus be made by fraud, the experiment of force might' next be applied ; and doúbtlefs with equal impunity and fuecefs. He concluded, however, that it v was urineceffary to reafon from the inconveniency and mifehief of the exception; for, the offence was ftridlly within the very terms of the Conftitutión, arifing under the laws of the United States. If no fuch office had been created by the laws of the United,States, no attempt to corrupt fuch an officer ■ could have been made; and it is unreasonable to infill, that merely becaufe a law has not preferibed an exprefs and appre-priate puniffiment for the offence, that, therefore, the pftence, when committed, ffiall not be p.uniffied by the Circuit Court, upon the principles of common law puniffiment. The effedl, indeed, of the poiition is ftill more injurious j for, unlefs this offence is puniffiable in the Federal Courts, it certainly is not cognizable before any State tribunal. The true point/ of view for confidering the cafe, may be afeertained, by an enquiry, whether, if Mr. Cwce had'.accepted the bribe, and betrayed his' trull, he would not have been indictable in the Courts of the United States ? If he would be fo iridiftable, upon the ftrongeft principles of analogy, the offence of the' perfon who tempted him, muft be equally the fubjedl of animad verfiori before the fame -judicial authority. ■ The precedents cited-by the Defendant’s Courifel,. .are diffinguifhable from the prefent indictment.- The profecution againft Henjield .was riot exprefsly on the treaty, but on the law of nations, which is a part of .'the common law* of the United. States ; arid the power of in-didting for a breach of .treaty, not exprefsly providing the means of enforcing performance in the particular-jnftance, is itfelf a common law power. IJnlefs the judicial fyftem of - the. United States juftified a recourfe to'common law againft an individual guilty of a hreach~of treaty, the offence, where no fpecjfie penalty was to be found in the treaty, would, therefore, remain unpuniíhed. So, likewife, with, refpeft to Ravara, although he held the office of. a Confuí, he was indifted and puniihed at the common law. The offence charged in Refpub-lica v. Shaffer, did net arife under the laws of the United States', but was limply the forgery of the names of private citizens,• in order to defraud them of their rights; and even as far as the forgery might be fuppofed to deceive the public officers, if was a deception in regard to a mere official arrangement, for afeer»-taining transfers of donation claims,-and not in regard to any aft direfted.by law to be performed. But a further diftinftion. prefents itfelf. The donations to the foldiers were founded upon refolutions, of the United'States in.Congrefs, -palled long befor» the adoption of the prefent Conftitution. The Courts of the feveral States therefore held a jurifdiftion of the offence, which, without pofitive words or neceffary implication,.was not to be divefted. The cafe did not come within-the expreffions in the Conftitution, « cafes arilirtg under the Conftitution and laws of the United States,” &c. nor has it been eixprefsly provided for by any aft under the prefent Conftitution. The criminal jurifdiftion of the Circuit Court, which, wherever it exifts, muft be excluliye of State jurifdiftion, cannot, perhaps,/ fairly be held to operate retrofpeftively, by withdrawing, from, the State Judicatures powers they held, and duties they performed, previoufly to the Conftitution; from which the Circuit Court derived its birth.

Chase, Juftice.

Do you mean, Mr. Attorney, to fupport this indiftment folely at common law ? If you do, I have no difficulty upon the fubjeft : The indiftment cannot be maintained in this Court.

Raíale, anfwering in the affirmative, Chase, Juftice, flopped M. Levy, who was about to reply, in fupport of the motion in arreft of judgment; and delivered an opinion to the following effect.

Chase, Juftice,.

This is an indiftment for an offence highly injurious to morals, and deferring the fevereft puniihmerit; but, as it is an indiftment at common law, I difmifs, at once, every thing that has been faid about the Conftitution arid Laws of the United States.

In this country,' every man fuftains a two-fold political capacity ; one in relation to the State, and another in relation to the United Stales. In relation to the State, he is fubjeft to various municipal regulations, founded upon the State conftitution and policy, which do not affeft him- in his relation to the United States : For, the Conftitution of the Union, is the fource of all "the jurifdiftion of the national government; fb that the departments of the government can never aflame any power, that is not exprcfsLy granted by that inftrument, nor exercife a power in any other manner than is there preferibed. Befides.the par» ticular cafés, which the 8th feSlion of the if tirticle defignates, there is.a power granted to Congrefs to create, define, and pu-niih, crimes and offences, whenever they iliall deem it necefiary and proper by law to do fo, for effeftuating-the objefts of the government; and although bribery is not among the crimes and offences fpecifically mentioned, it is certainly included in this generdl provifion. The queftion, however,'does not arife about the power ; but about the exercife" of the power:—Whether the Courts of the United States can punifh a. man for any aft, before .it is declared by a law of the United States to be criminal? Now; it appears to my mind, to be as effential, that Congrefs fliould define the offences to be tried, and apportion the punifh» fnents to be inflidted, as that they fhould ereft Courts to try the criminal,, or to pronounce a fentence on conviftion.

It is attempted, however, to fupply the filence of the Confti-tution. and. Statutes of the Union, by reforting to the Common law, for a definition and punifhment of the offence which has been committed : But, in my opinion, 'the United States, as a Federal government, have no common law; and, confequently, no indictment 'can be maintained in their Courts, for- offences merely, at the common-law. If, indeed, the United States can be fuppofed, for-a moment, to have a common law, it muft, I prefume, be that of England--,-and, yet, it is impoffible to trace when, or how, the fyftem was adopted, or introduced. With xefpeft to the-individual States, the difficulty does not occur. When the American colonies were firft fettled by our anceftors, it was held, as-well by the fettlers, as by the Judges and lawyers of Englandthat they brought hither, as a birth-right and inheritance; fo much of the common law, as was applicable to their local fituation, and change of circumftances. But each colony judged for itfelf, what -parts of the common law .were applicable to its new condition 5 and in various modes, by Legiilative ails, by Judicial decifions, or by conftant bfage, adopted fome parts, and rejefted others. Hence,- he who ihall travel through the different States, will foon ’difeover, that the whole of the common law of England has been no where irb* troduced; that fome States have rejected what others -have adopted ; and that there is, in íbort, a great and eflential diver-fityin the fubjefts to which'the common law is applied, as well as in the. extent of its application. The common law', therefore, of one State, is not the common law of another; but the common law of England, is the law of eadh State, fo far a* each ftate- has adopted ⅜; and it rcfults from that pofition, con-' nefted with the Judicial aft, that the common law will always apply to fuits between citizen and citizen,, whether they are in-ftituted in a Federal; or State, Court..

But the queftion recurs, when and hcrw, have the Court» of the United'states acquired a comtfion law jurifdiftion, in criminal cafes. ?. The United States mull poflefs the common law themfelves, before they can communicate it to their Judicial agents: Now, the United States did not bring it with them from England; the Conftitution does not create it'; and no a£t of Congrefs has affumed it. Befides, what is the common law to which we are referred ? Is ft the common law entire, as it exifts in' England •, or modified as it exifts in fome of the States; and of the various modifications, which are we to feleft, the fyftem of Georgia or New Hatnpjhire, of Pennfylvania or Con--neclicut ?

Upon the whole, it may be a defetft in our political infütu-' lions, it may be an inconvenience in the adminiftration of ju-ftice, that the common law authority, relating to crimes and puniihments, has not been conferred upon the government of the United States, which is a government in. other refpefts alfa ' of a limited jurifdi&ion : but Judges cannot remedy political imperfeftions, nor fupply any Legiflative omiífiort. I will not fay whether the offence is at this time cognizable in. a State' Court. But, certainly, Congrefs might have provided,'by law, for the prefent cafe, as they have provided for other cafes, of a fimilar nature ; and .yet if Congrefs had ever declared and defined the offenee,-without preferibing a puni-íhment, I ihoula ■ ftill have thought it improper to exercife a diferetion upon that part of the fubjedl.

Peters, Jitflicé.

-Whenever a government has been efta-bliíhed, I have always fuppofed, that a power to preferve itfelf, was a neceflary, and an infeparable, concomitant. But the ex-iftence of the Federal government would be. precarious, it could no longer be called an independent government, if, for^hepu-niflnne'iit of offences of this nature, tending to obftruft and pervert the adminiftration of its affairs, an- appeal muft be made to the State tribunals, or the offenders muft efcape with abfo-lute impunity.

The power to punifh mifdemeanors, is originally and ftriélly a common law power ; of which, I think, the United States are conftitutionally poffeffed. It- might have been exercifed by Congrefs in the form of a Legiflative a£t; but, it may, alfo, in my opinion be enforced in a courfe of Judicial proceeding. Whenever, an offence aims at the fubverfion of any Federal in-ftitution, or at the.corruprion of its public officers,, it is an of-fence againft .the well-being of the United States ; from its very nature,, it is cognizable Under their authority ; and, confequently, it is within the jurifdi&ion of this Court, by virtue of the. i ith feSlion of the Judicial a£t.

■ The Court being divided in opinion-,-itbecame a doubt, ⅝⅜⅛-⅛ ther fentence could be pronounced upon -the defendantand a •wiih was exprefled by the Judges and the • Attorney of the Di», Uriel, that the cafe might be put intci fuch a form, as would ad-» mit of obtaining-the ultimate decifion.of the Supreme Court, upon the important .principle of the di'fcuffion: But the coun<* fel for the prifoner did not think themfelves authorifed to enter into'a compromife of that, nature. The Court, after a fhort confultation, and declaring, that the fentence was mitigated in confideration óf the defendant’s circumít anees, proceeded to adjudge,. _

_ That .die defendant be imprifoned for three months ; that he pay a fine of 200 dollars •, and* that he Hand committed, ’till this fentence be complied with, and the eofis of profecution paid. 
      
       See. ant. f. 397.
     