cognisable by the States; but whenever the offence is directed against the sovereignty or powers confided to the United States, it is cognisable under its authority. Upon these principles and independent of any statute, I presume that treasons, and conspiracies to commit treason, embezzlement of the public records, bribery and resistance of the judicial process, riots and misdemeanors on the high seas, frauds and obstructions of the public laws of trade, and robbery and embezzlement of the mail of the United States, would be offences against the United States. At common law, these are clearly public offences, and when directed against the United States, they must upon principle be deemed offences against the United States.

If then it be true, that these are offences against the United States, and the Circuit Court have cognisance thereof, does it not unavoidably follow, that the Court must have a right to punish them? In my judgment no proposition of law admits of more perfect demonstration. To suppose a power in a Court to try an offence, and not to award any punishment, is to suppose, that the legislature is guilty of the folly of promoting litigation without object, and prohibiting acts, only for the purpose of their being scoffed at in the most solemn manner. If therefore it authorise a trial of an offence, it must be deemed to authorise the Court to render such a judgment, as the guilt or innocence of the party may require. As to civil actions, the application of the principle has never admitted a doubt; yet in no instance, that I recollect, is the form or the substance of the judgments prescribed by any law. These judgments, however, must unavoidably differ, not only in different actions, but in the same action, according to the nature of the claims and the pleadings of the parties. It is no answer to say, that the laws of the States will govern in such cases; for these are not always applicable, as suits may be brought in the United States Courts, which are not cognisable by State Courts; as for instance, equity and admiralty causes: And I i

farther, no such general and universal adoption of the practice or laws of the States has been authorised by Congress, or sanctioned by the Courts of the United States. The invariable usage of these Courts has been, in all cases not governed by State laws, to regulate the pleadings and pronounce the judgment of the common law. When I speak here of the common law, I use the word in its largest sense, as including the whole system of English jurisprudence. For the same reason, therefore, that governs in civil causes, I hold that the cognisance of offences includes the power of rendering a judgment of punishment, when the guilt of the party is ascertained by a trial.

But it may be asked, what punishment shall be inflicted? The common law affords the proper answer. It is a settled principle, that where an offence exists, to which no specific punishment is affixed by statute, it is punishable by fine and imprisonment. This is so invariably true, that, in all cases, where the legislature prohibits any act without annexing any punishment, the common law considers it an indictable of fence, and attaches to the breach the penalty of fine and imprisonment. I have no difficulty in saying, that the same rule must be held to exist here, for the same reason that it is adopted there. If, therefore, treason had been left without punishment by the act of Congress, I have no doubt, that the punishment by fine and imprisonment must have attached to the offence.

Upon what ground the common law can be referred to, and made the rule of decision in criminal trials in the Courts of the United States, and not in the judgment or punishment, I am at a loss to conceive. In criminal cases, the right of trial by jury is preserved, but the proceedings are not specifically regulated. The forms of the indictment and pleadings, the definition and extent of the crime, in some cases the right of challenge, and in all the admission

Com. Dig. Indict. D.-8 Co. 60.6.-2 Inst. 131.-Bac. Abrid. Fine D.

and rejection of evidenc, are left unprovided for. Upon what ground then do the Courts apply in such cases the rules of the common law? I can perceive no correct ground, unless it be, that the legislature have constantly had in view the rules of the common law, and deemed their application in casibus omissis peremptory upon the Courts.

The privilege of the writ of habeas corpus is so high and interesting, that it has become a prominent article in the Constitution; and the judicial act of the 24th of September, 1789, ch. 20, sect. 14, has authorised the Courts of the United States, and the Judges thereof, to issue that writ. But if nothing more could be done under it, than the legislature have expressly provided, it would be a mere dead letter for its most important purposes. It is only by engrafting on the authority of the statute the doctrines of the common law, that this writ is made the great bulwark of the citizen against the oppressions of the government.

I might enforce the view which I have already taken of this subject, by an examination in detail of the organisation and exercise of the judicial powers of the Courts of the United States, with reference to their equity, admiralty, and legal jurisdiction; but it cannot be necessary. If I am right in the positions, which I have already assumed and explained, there is an end of the question, which has been submitted. If I am wrong, the error is so fundamental, that I cannot hope to reach its source by any merely illustrative process.

The result of my opinion is, 1. That the Circuit Court has cognisance of all offences against the United States. 2. That what those offences are, depends upon the common law applied to the sovereignty and authorities confided to the United States. 3. That the Circuit Court, having cognisance of all offences against the United States, may punish them by fine and imprisonment, where no punishment is specially provided by statute.

I have considered the point as one open to be discussed,

notwithstanding the decision in the United States v. Hudson & Goodwin, February term, 1812, which certainly is entitled to the most respectful consideration; but having been made without argument, and by a majority only of the Court, I hope that it is not an improper course to bring the subject again in review for a more solemn decision, as it is not a question of mere ordinary import, but vitally affects the jurisdiction of the Courts of the United States; a jurisdiction which they cannot lawfully enlarge or diminish. I shall submit, with the utmost cheerfulness, to the judgment of my brethren, and if I have hazarded a rash opinion, I have the consolation to know, that their superior learning and ability will save the public from any injury by my error. That decision, however broad in its language, has not, as I conceive, settled the question now before the Court, so far as it respects offences of admiralty and maritime jurisdiction. The Constitution has given to the judicial power of the United States the jurisdiction as "to all cases of admiralty and maritime jurisdiction," and this jurisdiction of course comprehends criminal, as well as civil suits. admiralty is a Court of extensive criminal, as well as civil jurisdiction, and has immemorially exercised both. At least no legal doubt of its criminal authority has ever been successfully urged. By the law of the admiralty, offences, for which no punishment is specially prescribed, are punishable by fine and imprisonment; and as offences of admiralty jurisdiction are exclusively cognisable by the United States, it follows that all such offences are offences against the United States. We have adopted the law of the admiralty in all civil causes cognisable by the admiralty: must it not also be adopted in offences cognisable by the admiralty ? It will perhaps be said, that express jurisdiction is given in civil cases of admiralty jurisdiction, but not in criminal cases. This is true in terms; but I contend, that criminal cases are necessarily included in the grant of cognisance of all "crimes and offences cognisable under the authority

The

of the United States;" for crimes and offences within the admiralty jurisdiction are not only cognisable but cognisable exclusively under the authority of the United States. And Congress, in punishing certain offences upon the high seas, which are neither piracies nor felonies, have undoubtedly acted upon the conviction, that such offences were of admiralty and maritime jurisdiction.* Whatever room, therefore, there may be for doubt, as to what common law offences are offences against the United States, there can be none as to admiralty offences.

If this be true, then the reasoning, which I have before urged, applies in its full force, and I will not take up time in repeating it.

On the whole, my judgment is, that all offences within the admiralty jurisdiction are cognisable by the Circuit Court, and in the absence of positive law, are punishable by fine and imprisonment.

See 4 Bl. Com. 5, 44, 263.—2 Bro. Civ. and Adm. Law. Davis, J. did not concur, with a view to bring the question solemnly before the Supreme Court; so it was certified to the Supreme Court, as upon a division of the Judges.

* See act 24th Sept. 1789, ch. 20, sect. 12, 13, 16, 17, &c.