
    The Commonwealth v. John Feely.
    Jurisdiction of State Courts—Offences Created by Act of Congress.—The courts of this commonwealth have not jurisdiction to try offences created by acts of congress.
    
      
      Jurisdiction of State Courts—Offences Created by Act of Congress.—in the first and second headnote of Robertson v. Baldwin, 17 Sup. Ct. Rep. 326 (165 U. S. 275), it is held, the “judicial power” which the constitution (art. 3, §§ 1, 2) confines to courts created by congress, extends only to “cases" in courts of record; and congress is at liberty to authorize judicial officers of the several states to exercise such powers as are ordinarily given to officers of courts not of record. The power to arrest deserting seamen in the merchant service, and deliver them on board their vessel, is not a part of the “judicial power.” as defined by the constitution, and congress has power to confer it, by statute on justices of the peace. In the opinion of this case on page 328, the principal case is quoted as holding that the state courts could not take jurisdiction of an indictment for a crime committed against an act of congress. But in Me Sheazle, 21 Fed. Cas. 1216, it is said: “The only remaining question under this head is, whether the examination in the present case was made here by a competent magistrate. It has been contended, that no magistrate is competent for this purpose (that is, commit a prisoner under an extradition treaty, into custody), unless he be one commissioned under the general government. There is some plausibility in this, and it has been held by Judge Roane and others in Virginia, that any duty devolved by the general government on state courts or officers, who hold commissions under the states alone, need not be performed by them, unless they please. Serg. Const. Law, 275-290; Federalist No. 81; 1 Va. Cas. 321; 2 Va. Cas. 34; 1 Dana 442; Martin v. Hunter’s Lessee, 1 Wheat. [14 U. S.l 304, 354. See also, Houston v. Moore, 5 Wheat. [18 U. S.] 1, 27, 28; 7 Conn. 239; Car. Law Repos. 300; U. S. v. Lathrop, 17 Johns. 4; Conk. Prac. 399. In Wayman v. Southard, 10 Wheat. [23 U. S.] 1, 40, Chief Justice Mabskall says, in relation to the ‘Agency of state officers’ for the general government: ‘The laws of the Union may permit snc-h agency, but it is by no means clear -that they can compel it.’ It certainly would be an anomaly to hold any such officers, against their wishes, to be amenable and acting as officers for the general government, or to exercise compulsory control over them on subjects where the state authorities have imposed no such obligation. Justice Johnson [Martin.v. Hunter’s Lessee], 1 Wheat. [14 U. S.] 362. Some other cases sustain their doings in civil matters though not in criminal ones. U. S. v. Dodge, 14 Johns. 95.”
    
   The prisoner was indicted at the Superior Court of law for Wythe county, in October, 1813. The indictment charged that the prisoner “with force and arms feloniously did steal, take, and carry away out of the mail of the United States, three packages containing articles of value, one directed to Philadelphia, one to Pennsylvania, and one Northward, which packages had been delivered to Gardner I. Grant, (who was mail carrier) to carry them from Wythe court-house to Montgomery court-house, contrary to the form of the act of the cong'ress of the United States, in such case made and provided, and against the peace and dignity of the commonwealth.” The prisoner was tried on this indictment, and found guilty by the jury. He 322 moved to *arrest the judgment for the following reasons: “1st. Because he says that the offence in the indictment being created by an act of congress, this court being a state court, has not jurisdiction thereof. 2d. That no judgment can be rendered, the offence being laid as a felony in the indictment, and a misdemeanor only by law. 3d. That the indictment is insufficient, as it does not state what the articles of value were, which the packets contained.”

The superior court adjourned the case to the general court, on the following points.

“1st. Whether as the offence described in the indictment is created' by an act of congress, this court being a state court, has jurisdlotion thereof. 2d. Wheth er the offence created by the act of congress is a felony, or misdemeanor only. 3d. If the offence created by the act of congress be only a misdemeanor, can the court give a judgment on the indictment in this case, which charges the offence to have been feloniously committed. 4 th. Is the indictment sufficient in this- case to authorize the court to give a judgment thereon, as the particular articles of value contained in the package mentioned in the indictment are not set out and described. Sth. Is it necessary to be stated in the indictment that the packages contained articles of value, or 323 is the offence ^complete without it. 6th. If judgment is given against the prisoner, where is he to be confined; in the prison of the county where the offence was committed, or in the public jail and penitentiary house of this commonwealth.”

The general court, November 11th, 1813, consisting of judges White, Stuart, Brockenbrough, Semple, Allen, Randolph, Dabney and Daniel, entered the following judgment on 'their records. “The court doth unanimously decide, that as the offence described in the indictment in this case, is created by an act of congress, the said superior court, being a state court, hath not jurisdiction thereof ; and that as a state court hath not jurisdiction of the said offence, it would be improper for this court to decide the other questions submitted to them in the said adjourned case.”  