tion were exclusively cognizable by the United States, and were offences against the United States, and punishable by fine and imprisonment, where no other punishment was specially prescribed.

This case was brought up to the Supreme Court, but it was not argued. A difference of opinion still existed among the members of the court and, under the circumstances, the court merely said, that they did not choose to review their former decision in the case of The United States v. Hudson & Goodwin, or draw it in doubt. (a). The decision was for the defendant, and, consequently, against the claim to any common-law jurisdiction in criminal cases.1

These jarring opinions and decisions of the federal courts have not settled the general question as to the application and influence of the common law, upon clear and definite principles; and it may still be considered, in civil cases, as open for further consideration. The case of Hudson & Goodwin decided that the United States courts had no jurisdiction given them by the constitution or by statute, over libels; and the case of Worrall decided that they had no jurisdiction in the case of an attempt to bribe a commissioner of the revenue. If that were so, the common law certainly could not give them any. The cases were therefore very correctly decided upon the principle assumed by the court.

But the subsequent case of Coolidge did not fall within *339 that principle, because the offence there charged was

clearly a case of admiralty jurisdiction, and the courts of the United States would seem to have had general and exclusive jurisdiction over the case. Mr. Du Ponceau, in his "Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States," has ably examined the subject, and shed strong light on this intricate and perplexed branch of the national jurisprudence. He pursues the distinction originally taken in the Circuit Court in Massachusetts, and maintains, that we have not, under our federal government, any common law, considered as a source of jurisdiction; while, on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction conferred by the constitution

(a) 1 Wheaton, 415.

1 No indictment will lie against a bridge as a nuisance, on behalf of the United States; but a proceeding might be had at the instance of an individual in the federal or state courts. State of Pennsylvania v. Wheeling Co. 13 How. U. S. 519.

and laws of the Union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the constitution and law of the United States. But when the general jurisdiction and authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction. (a)

The principle assumed by the courts in the cases of Worrall and of Hudson & Goodwin, is considered to be a safe and sound principle. The mere circumstance that the party injured by the offence under prosecution was an officer of the government of the United States does not give jurisdiction; for neither the constitution, nor the judicial acts founded upon it, gave the federal courts a general jurisdiction in criminal cases, affecting the officers of government, as they have in cases affecting public ministers and consuls. Because an officer was appointed under the constitution, that would not of itself render *340 all cases in which they were concerned, or might be affected, cases arising under the constitution and laws, and cognizable by the judiciary. Such a wide construction would be transferring legislative power to the judiciary, and vest it with almost unlimited jurisdiction; for where is the act that might not, in some distant manner, be connected with the constitution or laws of the United States? It rests alone in the discretion of Congress, to throw over the persons and character of the officers of the government, acting in their official stations, a higher protection than that afforded by the laws of the states; and when laws are made for that purpose, the federal courts will be charged with the duty of executing them.

This appears to be sound doctrine, and to be deduced from the cases which have been mentioned. There is much weight undoubtedly due to the argument of the Circuit Court of Massachusetts; and an attempt to bribe an officer of the government, or to libel an officer of the government, in relation to his official acts, would seem to be an offence against that government.

(a) Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. Dig. 2, 1, 2.

*

They tend directly to weaken or pervert the administration of it; and if it once be admitted that such acts amount to an offence against the United States, they must of course be cognizable under its authority, and belong to the jurisdiction of the circuit courts. The great difficulty and the danger is, in leaving it to the courts to say what is an offence against the United States, when the law has not specifically defined it. The safer course undoubtedly is, to confine the jurisdiction in criminal cases to statute offences duly defined, and to cases within the express jurisdiction given by the constitution. The admiralty jurisdiction of the federal courts is derived expressly from the constitution; and criminal cases belonging to that jurisdiction by the common law, and by the law of nations, might well have been supposed to be cogniz able in the admiralty courts, without any statute authority. If the common law be a rule of decision in the exercise of *341 the lawful jurisdiction of the federal courts, why ought it not to apply to criminal as well as to civil cases, and upon the same principle, when jurisdiction is clearly vested? If Congress should, by law, authorize the district or circuit courts to take cognizance of attempts to bribe an officer of the government in the exercise of his official trust, and should make no further provision, the courts would, of course, in the description, definition, and prosecution of the offence, be bound to follow those general principles and usages which are not repugnant to the constitution and laws of the United States, and which constitute the common law of the land, and form the basis of all American jurisprudence. Though the judiciary power of the United States cannot take cognizance of offences at common law, unless they have jurisdiction over the person or subject-matter given them by the constitution or laws made in pursuance of it; yet, when the jurisdiction is once granted, the common law, under the correction of the constitution and statute law of the United⚫ States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise of that jurisdiction, and not specially provided for by statute. Without such

a guide, the courts would be left to a dangerous discretion, and to roam at large in the trackless field of their own imaginations. (a)

(a) Military and naval crimes and offences, committed while the party is attached to, and under the immediate authority of the army or navy of the United States, and in

The Supreme Court of the United States, in Robinson v. Campbell, (b) went far towards the admission of the existence Application and application of the common law to civil cases in the federal courts. The Judiciary Act of 1789 had de- cases.

of the common

law to civil

actual service, are not cognizable under the common-law jurisdiction of the courts of the United States. They are not included in the Judiciary Act of 24th September, 1789. They are cognizable in the military and naval courts-martial instituted under the acts of Congress. The circuit and district courts of the United States have no criminal jurisdiction but what is expressly conferred upon them by statute. United States v. Hudson, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336; Washington J., in Houston v. Moore, 5 Wheaton, 29; Sergeant's Constitutional Law, 131, (1st edit.) vide supra, p. 334, and infra, pp. 362, 363, 364. It seemed, however, to be left as an unsettled question, in the case of The United States v. Mackenzie, infra, p. 363, note, whether the military and naval courts of the United States, and the courts of civil jurisdiction, had concurrent powers in questions of the above nature, under the acts of Congress. If they had, an acquittal by a court-martial would be a bar to any criminal proceeding in any other court, for no person is to be put in jeopardy twice for the same offence. The better opinion in that case would also be, that a prosecution, instituted and pending before a naval tribunal, would be a good plea in abatement of any prosecution subsequently instituted in a national civil court of criminal jurisdiction; for it would be unjust, absurd, and impracticable to have a trial for the same crime going on at the same time in two distinct co-ordinate tribunals, under the same government. The one that first takes cognizance of the case attaches to itself, of course, exclusive jurisdiction. See infra, vol. ii. 122–125. The sounder doctrine, however, is, that the act of Congress of April 23d, 1800, c. 33, creating a naval code of martial law for the trial of crimes and offences committed in the naval service, withdrew the cognizance of crimes in the naval service from courts of civil jurisdiction, and placed them exclusively in courts-martial, acting under a distinct and peculiar code, and which Lord Mansfield termed "a sea military code, which the wisdom of ages had formed." That act of Congress specified particular crimes cognizable by naval courts-martial, and also declared, that all crimes committed by persons belonging to the navy, and not therein specified, should be punished "according to the laws and customs in such cases at sea." The opinions of Lord Mansfield and Lord Loughborough, in Johnstone v. Sutton, 1 Term R. 548, contain principles which go far, by their masterly strength, to establish the necessity and justice of the exclusive jurisdiction of the military tribunals, in cases of crimes committed in the naval service; for it is in that service that commanders must act " upon delicate suspicions - upon the evidence of their own eye; that they must give desperate commands ; that they must require instantaneous obedience; - and a military tribunal is capable of feeling all these circumstances." He further observes, that "where a man is charged with an offence against the articles, or where the articles are silent, against the usages of the navy, he can only be tried by a court-martial." The 4th section of the act of Congress of March 3d, 1825, c. 276, commonly called the Crimes Act, seems to be essentially a repetition of the 8th section of the act of Congress of April 30th, 1790, c. 36, and that provision did not apply to the navy of the United States, for it withheld that express jurisdiction to the courts of the United States which the cases already cited would seem to require. We would have expected some express jurisdiction

(b) 3 Wheaton, 212; 10 Ibid. 159, S. P.

clared (c) that the laws of the several states, except where the constitution, treaties, or statutes of the Union otherwise required, should be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they applied. (d)2 The subsequent act of May 8th, 1792, for regulating processes in the courts of the United States, (e) confirmed

given to the civil courts over crimes at sea in the United States navy, after the enactment of the naval code of 1800, and the specific provisions therein for the punishment of crimes committed in the navy, by naval courts-martial, if such had been the policy and intention of the law. Not only a sound construction of the statute law, but the discipline and efficiency of the naval military service, strongly sustain this conclusion. It is not a question susceptible of doubt, that Congress may, under the constitution, confer upon courts-martial in the army and navy the trial and punishment of crimes, capital and otherwise, for they are authorized “to make rules for the government and regulation of the land and naval forces"; and cases "arising in the land and naval forces" are excepted from the provision, that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury." Military law is a system of regulations for the government of the armies in the service of the United States, authorized by the act of Congress of April 10th, 1806, and known as the articles of war. And naval law is a similar system for the government of the navy, under the act of Congress of April 23d, 1800. But martial law is quite a distinct thing, and is founded on paramount necessity, and proclaimed by a military chief. In the case of Captain Mackenzie, above alluded to, the subject of jurisdiction was again brought before Judge Betts, holding the Circuit Court of the United States in New York, March 20th, 1843; (United States v. Mackenzie, 1 N. Y. Legal Observer, 371;) and, after a powerful discussion, he instructed and charged the grand jury, that the jurisdiction of the naval court-martial was exclusive, and that the civil tribunals had no jurisdiction in the case of Captain Mackenzie, then on trial in the harbor of New York, before a naval court-martial, on a charge of murder on the high seas, on board the United States sloop-of-war Somers, by hanging three of the crew for mutiny.

1

(c) Act of 24th September, 1789, c. 20, sec. 34.

(d) This provision was inapplicable to the practice of the national courts, and only furnishes a rule to guide them in the formation of their judgments. In the case of Swift v. Tyson, Sup. Court, U. S. 16 Peters U. S. 1, it was decided, that the statute only extended to the statutes and permanent local usages of a state, and the construction thereof adopted by the local tribunals, and to rights and titles to real estates, and to other matters immovable and intra-territorial in their nature and character. It did not extend to contracts, or other instruments of a commercial nature. (e) Ch. 36, sec. 2.

1 Trespass may be maintained in the state courts against a naval officer for illegally assaulting and imprisoning one of his subordinates, though the act was done on the high seas, and under the color of naval discipline. Wilson v. Mackenzie, 7 Hill

(N. Y.) 95.

2 Suydam v. Williamson, 24 How. U. S. 427. But state laws and the decisions of state courts do not afford the rule of decision in cases where the question is, whether a contract is protected from state legislation by the constitution of the United States. Jefferson Branch Bk. v. Skelly, 1 Black U. S. 436.