A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States

States; or rather, that in the case before us, the State Courts alone have jurisdiction, because, Congress having passed no law defining the crime, or the punishment of rape, the Courts of the United States cannot take cognisance of the offence. The Constitution in the 1st section of the 3d article, declares in what Courts the judicial power shall be vested, viz. "in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."-In the 2d section, it enumerates the different cases to which the judicial power shall extend, and then goes on to direct the distribution of that power among the different Courts." In all cases affecting Ambassadors, other public ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction: in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such restrictions, as the Congress shall make." Thus the judicial power, extending to all cases affecting Consuls, and that portion of it which respects Consuls, being vested in the Supreme Court, it follows, that as soon as the Supreme Court was organised by law, it became immediately vested with original jurisdiction in every case by which a Consul might be affected. But was this an exclusive jurisdiction The opinion of the Supreme Court, Marbury v. Madison, 1 Cranch, 137, goes far towards establishing the principle of exclusive jurisdiction. The point decided in that case, was, that where the Constitution had vested the Supreme Court with appellate jurisdiction, it was not in the power of Congress to give it original jurisdiction; and the whole scope of the argument maintained in the Court's opinion, goes to prove, that where the Constitution had given original jurisdiction, it was not in the power of Congress to give appellate jurisdiction. This will appear from the following extract from that opinion. "If Congress remains at liberty "to give this Court appellate jurisdiction, where the Consti

"tution has declared their jurisdiction shall be original, the "distribution of jurisdiction made in the Constitution, is form "without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and "in this case, a negative, or exclusive sense must be given to "them, or they have no operation at all. If the solicitude "of the Convention, with respect to our peace with foreign "powers, induced a provision that the Supreme Court should "take original jurisdiction in cases which might be supposed "to affect them; yet the clause would have proceeded no fur"ther than to provide for such cases, if no further restriction "on the power of Congress had been intended. That they "should have appellate jurisdiction in all other cases, with such "exceptions as Congress might make, is no restriction, unless "the words be deemed exclusive of original jurisdiction." Now taking this to be the construction of the Constitution, all these parts of the "act to establish the judicial Courts of the United States," which vest jurisdiction in cases affecting Consuls, in the District or Circuit Courts, would be unconstitutional and void. And, if it was intended by the Constitution, that no inferior Court of the United States should have jurisdiction, it cannot be supposed that a State Court was to have it, because there is much stronger reason for denying it to the State Courts, than to the inferior Courts of the United States. It will be perceived, that this principle shakes the decision in the case of Ravara, who was convicted in the Circuit Court, though not that part of the decision which respects the privilege of a Consul. But if the two cases cannot be reconciled, the Circuit Court must give way. Supposing, however, for arguments' sake, that the Constitution does not vest the Supreme Court with exclusive jurisdiction; let us see whether Congress has not excluded the State Courts by the judiciary act, passed 24th September, 1789. By the 9th section, the District Courts are vested exclusively of the Courts of the several States, with cognisance of "all crimes and offences that shall be cogni

sable under the authority of the United States, committed within their respective districts, where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not exceeding six months, is to be inflicted." Consuls are embraced in this jurisdiction, as plainly appears by considering the whole section, and as was declared by this Court, in Manhardt v. Soderstrom, (1 Binn. 138.) Then comes the 11th section; by which the Circuit Courts are vested with exclusive cognisance of "all crimes and offences cognisable under the authority of the United States, except where the said act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts, of the crimes and offences cognisable therein." Does not this exclude the State Courts from jurisdiction in the case of Consuls? The only argument attempted, or that can be devised, in support of the negative, is, that no offence is cognisable in any Court of the United States, until Congress has declared it to be an offence, and prescribed the punishment. This is the only consideration which ever had the least weight in my mind. But upon mature reflection, I am unable to deny, that the Courts of the United States can take cognisance, when I find it written in the Constitution, that the Supreme Court shall have jurisdiction in all cases affecting a Consul. Is he not affected in criminal cases, much more than in civil? How then can I say, that the Supreme Court has no jurisdiction? But how, or by what law is he to be punished, in case of conviction? Shall he be punished by the law of Pennsylvania, where the offence was committed, inasmuch as there is no other express law which reaches his case? And it is on account of the person only that jurisdiction is given to the Courts of the United States. Does the 34th section of the judiciary act apply to the punishment of offences, by which it is enacted, "that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall

otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the Courts of the United States, in cases where they apply ?" May a person convicted in a Court of the United States, of a crime of the highest grade, concerning which Congress has made no provision, be punished, according to the opinion of Judge STORY, in The United States v. Coolidge, 1 Gallison's Rep. 488, by fine and imprisonment, on the principles of the common law. Or is the Constitution to be so construed, as to exclude the jurisdiction of all inferior Courts, and yet suffer the authority of the Supreme Court to lie dormant, until called into action by a law which shall form a criminal code on the subject of Consuls? These are questions which may embarrass those who have to answer them, but are not necessary to be answered here. No embarrassment, however, could equal that into which this Court would be thrown, should it determine, that no Court of the United States has jurisdiction, in a case which affects a Consul in every thing short of life, when the Constitution declares, that the Supreme Court shall have jurisdiction in all cases affecting him. Upon full consideration, I am of opinion that the indictment should be quashed, because this Court has no jurisdiction.

Brackenridge, J. concurred in the opinion to quash the indictment, because exclusive jurisdiction was vested in the Courts of the United States. Concerning the privileges of a Consul he did not think it necessary to give an opinion.

Exc

Indictment quashed.

ERRATA.

This markt is intended to shew that the lines are to be counted from the top of the page, and this from the bottom of the text.

that the error is in the notes.

The letter n, means

Page 1, line 4 after the words "of the same State," add "claiming lands under grants of different States "

P. 3, line 5 n. for “into," read “ in.”

P. 4, line 1 † for "