fender against the United States to commit or bail him. I perceive in the law no other course to be pursued.

This section, it is true, does not respect the process upon an indictment. But the law would be inconsistent with itself if it required a magistrate to arrest for any offence against the United States-if it commanded him on every arrest to commit or to bail, and yet refused a capias and permitted the same offender to go at large, so soon as an indictment was found against him. This section, therefore, appears to me to be entitled to great influence in determining the Court on the mode of exercising the power given by the 14th section in relation to process.

On the impeachment which has been mentioned, this point was particularly committed to Mr. Lee, and the law upon it was fully demonstrated by him.

The only difficulty I ever felt on this question was produced by the former decision of Judge Iredell. If the State practice on this subject had been adopted, I should have held myself bound by that adoption But I do not consider the State practice as adopted. Mundell's case was a civil suit; and the decision was, that the State rule respecting bail in civil actions must prevail. Sinclair's case was indeed a case similar to this; and in Sinclair's case a venire facias was issued. But I am informed by the Clerk that this was his act at the instance of the attorney, not the act of the Court. The point was not brought before the Court.

In Callender's case, a capias, or, what is the same thing, a bench warrant was issued. This was the act of the Court; but, not having been an act on argument, or with a view of the whole law of the case and of former decisions, I should not have considered it as over-ruling those decisions if such existed. But there has been no decision expressly adopting the State practice; and the decision in Callender's case appears to me to be correct.

I think the capias the more proper process; it is conformable to the practice of England at the time of our revolu

tion, and is, I think, in conformity with the spirit of the 33d section of the Judicial Act. I shall therefore adopt it.

To issue the capias to take into custody a person actually in custody would be an idle ceremony. In such a case the order of the Court very properly supplies the place of a capias. The only difference between proceeding by capias and by order, which I can perceive, would be produced by making the writ returnable to the next term.

V.

REPORT

OF THE CASE OF THE UNITED STATES v. HUDSON & GOODWIN, AS DECIDED IN THE SUPREME COURT OF THE UNITED STATES, FEB. 15TH, 1812.

(7 Cranch, 32.)

THE UNITED STATES v. HUDSON & GOODWIN.

Absent WASHINGTON, Justice.

THIS was a case certified from the Circuit Court for the district of Connecticut, in which, upon argument of a general demurrer to an indictment for a libel on the President and Congress of the United States, contained in the Connecticut Courant, of the 7th of May, 1806, charging them with having in secret voted two millions of dollars as a present to Bonaparte for leave to make a treaty with Spain, the Judges of that Court were divided in opinion upon the ques tion, whether the Circuit Court of the United States had a common law jurisdiction in cases of libel?

Pinkney, Attorney General, in behalf of the United States, and Dana for the defendants, declined arguing the case.

The Court, having taken time to consider, the following opinion was delivered (on the last day of the term, all the Judges being present) by JOHNSON, J.

The only question which this case presents is, whether the Circuit Courts of the United States can exercise a com

Hh

mon law jurisdiction in criminal cases. We state it thus broadly because a decision on a case of libel will apply to every case in which jurisdiction is not vested in those Courts by Statute.

Although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdiction been asserted; and the general acquiescence of legal men shews the prevalence of opinion in favour of the negative of the proposition.

The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several States-whatever is not expressly given to the former, the latter expressly reserve.. The judicial power of the United States is a constituent part of those concessions-that power is to be exercised by Courts organised for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other Courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorise them to confer.

It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its Courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those Courts as a consequence of their creation.

And such is the opinion of the majority of this Court: For, the power which Congress possess to create Courts

of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to particular objects; and when a Court is created, and its operations confined to certain specific objects, with what propriety can it assume to itself a jurisdiction-much more extended-in its nature very indefinite-applicable to a great variety of subjects— varying in every State in the Union-and with regard to which there exists no definite criterion of distribution between the District and Circuit Courts of the same district?

The only ground on which it has ever been contended that this jurisdiction could be maintained is, that, upon the formation of any political body, an implied power to preserve its own existence and promote the end and object of its creation, necessarily results to it. But without examining how far this consideration is applicable to the peculiar character of our Constitution, it may be remarked that it is a principle by no means peculiar to the common law. It is coeval, probably, with the first formation of a limited government; belongs to a system of universal law, and may as well support the assumption of many other powers as those more peculiarly acknowledged by the common law of England.:

But if admitted as applicable to the state of things in this country, the consequence would not result from it which is here contended for. If it may communicate certain implied powers to the general government, it would not follow that the Courts of that government are vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.

Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the State is not among those powers. To fine for contempt-imprison for contumacy—