had not jurisdiction. No doubt can be entertained of the correctness of this opinion, nor can it be supposed, if the suit had been brought before a federal Court, that it would have proceeded by any other rule than the common or statute law of Pennsylvania, as applicable to the particular case. The two others were of a criminal nature; but 1 can see no difference in the principle.

Ravara was consul of Genoa, and was indicted for writing sundry anonymous and threatening letters, with a view to extort money; Kosloff was consul of Russia, and his alleged offence was the heinous and horrible crime of rape. The former was an offence merely at common law, the latter was so likewise, but the punishment of it was affixed by the statute law of the State. One of these cases was brought before a federal tribunal, the other was not; but I see no reason, if both had been so tried, why the same course should not have been taken in the one that was in the other. Ravara was tried and convicted on the common law of the State of Pennsylvania; Kosloff might have been tried, convicted, and punished, according to my opinion, on the common and statute law combined, because they were the laws properly applicable to the case.

This appears to have been the sense of the national legislature, when they provided, in the 34th section of the Judiciary Act, "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 the rules of decision in trials at common law, in the Courts of the United States, in cases where they apply." This statute goes the whole length of my argument, and I cannot consider it otherwise than as declaratory of what the law was before it was enacted.

It has been said, however, that this section of the Judiciary Act was only meant to be applied to civil, and not to criminal cases. But how has this been proved? In no way that I know of. The doctrine rests entirely on the obiter dictum of a single Judge, expressed in the modest language of doubt, in a case in which the decision of this point was not necessary to that of the question before him, I mean the case of The United States v. Aaron Burr, which will be presently adverted to, with all the respect due even to the doubts of the great character to whom I allude. In no other case do I find mention made of this construction of the statute, and there is no decision which bears directly upon it. This point, therefore, I think I have a right to consider as entirely open to investigation.

If we look attentively at this provision of the Judicial Act, we shall find abundant reason to believe that it was meant to include criminal as well as civil trials. For the section which it immediately follows, which is comparatively long, and goes very much into detail, is entirely devoted to subjects which concern criminal jurisdiction. This

is the last section but one in the Act; the last one treats variously of subjects of civil and criminal law, and these two concluding sections appear to have been made with a view to both, and not exclusively to either.*

* The following are the sections above referred to. They are in the Act of Congress of the 24th of September, 1789, commonly called the Judiciary Act:

SECT. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by any justice or Judge of the United States, or by any justice of the peace, or other magistrate of any of the United States, where he may be found, agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested, and imprisoned, or bailed, as the case may be, for trial before such Court of the United States, as by this Act has cognisance of the offence: And copies of the process shall be returned as speedily as may be into the clerk's office of such Court, together with the recognisances of the witnesses for their appearance to testify in the case; which recognisances the magistrate, before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the Judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the Supreme or a Circuit Court, or by a justice of the Supreme Court, or a Judge of a District Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a person committed by a justice of the Supreme, or a Judge of a District Court, for an offence not punishable with death, shall afterwards procure bail, and there be no Judge of the United States in the district to take the same, it may be taken by any Judge of the Supreme or Superior Court of law of such State.

SECT. 34. And be it further 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.

SECT. 35. And be it further enacted, That in all the Courts of the United States, the parties may plead and manage their own cases personally, or by the assistance of such counsel or attorneys at law, as by the rules of the said Courts, respectively, shall be permitted to manage and conduct causes therein.

Those who contend that the Legislature did not mean to include criminal trials within this section of the Judiciary Act, should prove that Congress have not a right to designate the laws of the particular States as the rule of decision in criminal cases. This would be very difficult, if I have sufficiently shewn that the federal Courts, in the case of consuls at least, cannot exercise the exclusive jurisdiction given to them by the Constitution over this description of persons, without the aid of those laws.

It seems best, therefore, to adhere to the plain and obvious sense of the section before us, and to follow the trite but true maxim, ubi lex non distinguit, ibi et nos non distinguere debemus.

I now venture to approach with the greatest diffidence the high authority which is generally, but, I think, too hastily, considered as bearing against my doctrine-an authority to which I have long been

And there shall be appointed, in each district, a meet person learned in the law, to act as attorney for the United States in such district, who shall be sworn, or affirmed, to the faithful execution of his office, whose duty it shall be to prosecute, in such district, all delinquents, for crimes and offences cognisable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the Supreme Court, in the district in which that Court shall be holden. And he shall receive, as a compensation for his services, such fees as shall be taxed therefor in the respective Courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as attorney general for the United States, who shall be sworn, or affirmed, to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court, in which the United States shall be concerned, and to give his advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall, by law, be provided.

accustomed to bow with profound reverence,-in short, no less a one than that of the Chief Justice of the United States. In the case of The United States v. Aaron Burr, tried at Richmond, before the Circuit Court, where the learned Judge presided, in the year 1807, he is reported to have advanced the proposition, in the broadest terms, that the laws of the several States could not be regarded as rules of decision in trials for offences against the United States.*

In order to understand the true bearing of this expression, it ought to be taken in connection with the case then before the Court. The defendant, Burr, had just been acquitted of a charge of high treason, by the verdict of a petty jury, but was still in Court, not having been formally discharged from his commitment. At the same time, another bill of indictment had been found against him for a high misdemeanour, which remained to be tried. A question arose about holding him to bail to take his trial, and about the mode of process which should be employed. The counsel for the prosecution contended that a capias was the proper mode, according to the modern usage of the common law, while their opponents insisted that a summons only could be ordered, according to the course of the law of Virginia. In support of this opinion they cited the 34th section of the statute above mentioned.

* 2 Robertson's Report of Burr's Trial, 482.