authorities of the State and the general government. Any thing which can prevent a federal officer from the punctual, as well as from an impartial, performance of his duty; an assault and battery; or the recovery of a debt, as well as the offer of a bribe; may be made a foundation of the jurisdiction of this Court; and, considering the constant disposition of power to extend the sphere of its influence, fictions will be resorted to, when real cases cease to occur. A mere fiction, that the defendant is in the custody of the marshal, has rendered the jurisdiction of the King's Bench universal in all personal actions. Another fiction, which states the plaintiff to be a debtor of the Crown gives cognisance of all kinds of personal suits to the Exchequer: And the mere profession of an attorney attaches the privilege of suing and being sued in his own Court. If, therefore, the disposition to amplify the jurisdiction of the Circuit Court exists, precedents of the means to do so are not wanting; and it may hereafter be sufficient to suggest, that the party is a federal officer, in order to enable this Court to try every species of crime, and to sustain every description of action.

But another ground may, perhaps, be taken to vindicate the present claim of jurisdiction: it may be urged, that though the offence is not specified in the Constitution, nor defined in any act of Congress; yet, that it is an offence at common law, and that the common law is the law of the United States, in cases that arise under their authority. The nature of our Federal compact, will not, however, tolerate this doctrine. The 12th article of the amendment, stipulates, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." In relation to crimes and punishments, the objects of the delegated power of the United States are enumerated and fixed. Congress may provide for the punishment of counterfeiting the securities and current coin of the United States; and may define and punish piracies and felonies committed on the high seas, and offences against the law

of nations. Art. 1. s. 8. And, so, likewise Congress may make all laws which shall be necessary and proper for carrying into execution the powers of the general government. But here is no reference to a common law authority: Every power is matter of definite and positive grant; and the very powers that are granted cannot take effect until they are exercised through the medium of a law. Congress had undoubtedly a power to make a law, which should render it criminal to offer a bribe to the Commissioner of the Revenue; but not having made the law, the crime is not recognised by the Federal Code, constitutional or legislative; and, consequently, it is not a subject on which the judicial authority of the Union can operate.

The cases that have occurred, since the establishment of the Federal Constitution, confirm these general principles. The indictment against Henfield, an American citizen, for enlisting and serving on board a French privateer, while she captured a Dutch merchant ship, &c. expressly charged the defendant with a violation of the treaties existing between the United States and the United Netherlands, Great Britain, &c. which is a matter cognisable under the Federal authority by the very words of the Constitution. The jurisdiction in the indictment against Ravara, was sustained by reason of the defendant's official character as consul.* And in a recent prosecution by the State of Pennsylvania against Shaffer, in the Mayor's Court of Philadelphia, a motion in arrest of judgment was over-ruled by the Recorder (Mr. Wilcocks) though the offence consisted in forging claims to Land-Warrants, issuable under the resolution of Congress; and although the cognisance of all crimes and offences, cognisable under the authority of the United States, is exclusively vested in the District and Circuit Courts.t

Rawle (the Attorney of the District) observed, that the exception, taken in support of the motion in arrest of judgment, struck at the root of the whole system of the national

2 Dallas, 97.
Ff

t4 Dallas, Append. xxxi.

government; for if opposition to the pure, regular, and efficient administration of its affairs, could thus be made by fraud, the experiment of force might next be applied; and doubtless with equal impunity and success. He concluded, however, that it was unnecessary to reason from the inconveniency and mischief of the exception; for, the offence was strictly within the very terms of the Constitution, arising under the laws of the United States. If no such office had been created by the laws of the United States, no attempt to corrupt such an officer could have been made; and it is unreasonable to insist, that merely because a law has not prescribed an express an appropriate punishment for the offence, that, therefore, the offence, when committed, shall not be punished by the Circuit Court, upon the principles of common law punishment. The effect, indeed, of the position is still more injurious; for, unless this offence is punishable in the Federal Courts, it certainly is not cognisable before any State tribunal. The true point of view for considering the case, may be ascertained, by an inquiry, whether, if Mr. Coxe had accepted the bribe, and betrayed his trust, he would not have been indictable in the Courts of the United States? If he would be so indictable, upon the strongest principles of analogy, the offence of the person who tempted him, must be equally the subject of animadversion before the same judicial authority. The precedents cited by the defendant's counsel, are distinguishable from the present indictment. The prosecution against Henfield was not expressly on the treaty, but on the law of nations, which is a part of the common law of the United States; and the power of indicting for a breach of treaty, not expressly providing the means of enforcing performance in the particular instance, is itself a common law power. Unless the judicial system of the United States justified a recourse to common law against an individual guilty of a breach of treaty, the offence, where no specific penalty was to be found in the treaty would, therefore, remain unpunished. So, likewise, with respect to Ravara, although he held the office of a consul, he

was indicted and punished at the common law. The offence charged in Respublica v. Shaffer, did not arise under the laws of the United States; but was simply 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 supposed to deceive the public officers, it was a deception in regard to a mere official arrangement, for ascertaining transfers of donation claims, and not in regard to any act directed by law to be performed. But a further distinction presents itself. The donations to the soldiers were founded upon resolutions of the United States in Congress, passed long before the adoption of the present Constitution. The Courts of the several States, therefore, held a jurisdiction of the offence, which, without positive words or necessary implication, was not to be divested. The case did not come within the expressions in the Constitution, "cases arising under the Constitution and laws of the United States," &c. nor has it been expressly provided for by any act under the present Constitution. The criminal jurisdiction of the Circuit Court, which, wherever it exists, must be exclusive of State jurisdiction, cannot, perhaps, fairly be held to operate retrospectively, by withdrawing from the State judicatures powers they held, and duties they performed, previously to the Constitution, from which the Circuit Court derived its birth.

CHASE, Justice. Do you mean, Mr. Attorney, to support this indictment solely at common law? If you do, I have no difficulty upon the subject: The indictment cannot be maintained in this Court.

Rawle, answering in the affirmative, CHASE, Justice, stopped M. Levy, who was about to reply, in support of the motion in arrest of judgment; and delivered an opinion to the following effect.

CHASE, Justice. This is an indictment for an offence highly injurious to morals, and deserving the severest punishment; but, as it is an indictment at common law, I dis

miss at once every thing that has been said about the Constitution and laws of the United States.

In this country, every man sustains a two-fold political capacity; one in relation to the State, and another in relation to the United States. In relation to the State, he is subject to various municipal regulations, founded upon the State constitution and policy, which do not affect him in his relation to the United States: For, the Constitution of the Union is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed. Besides the particular cases which the 8th section of the first article designates, there is a power granted to Congress to create, define, and punish, crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and offences specifically mentioned, it is certainly included in this general provision. The question, however, does not arise about the power, but about the exercise of the power-Whether the Courts of the United States can punish a man for any act, before it is declared by a law of the United States to be criminal? Now, it appears to my mind, to be as essential, that Congress should define the offences to be tried, and apportion the punishments to be inflicted, as that they should erect Courts to try the criminal, or to pronounce a sentence on conviction.

It is attempted, however, to supply the silence of the Constitution and Statutes of the Union, by resorting to the common law, for a definition and punishment of the offence which has been committed: But, in my opinion, the United States, as a Federal government, have no common law; and, consequently, no indictment can be maintained in their Courts, for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a