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It would have been sufficient to have answered that the statute directed the State laws to be the rule of decision in cases only where they applied, that consequently they did not apply to the present case, which was an offence alleged to have been committed in violation of the national law, and that the State law, when it applied was only to be the rule on the trial of the cause, and not to prescribe the forms of incidental proceedings. But the counsel thought proper to go into a wide field of argument, and to contend that the statute only intended to make the State laws the rule in civil cases, and that it could not be so in any case of a criminal nature. The Court neither awarded a summons nor a capias, but very properly conceiving that the statute gave them power by a necessary implication to devise the proper process in such case, they simply made an order on the defendant to give bail or stand committed; thus deciding in the true spirit of the American common law, which abhors unnecessary forms, and is averse to putting an accused party to unnecessary expense.

In delivering his opinion, the Chief Justice expressed himself in the terms above mentioned, that the laws of the several States cannot be regarded as rules of decision in trials for offences against the United States; so far I think he was perfectly correct. Taking his last expression according to what 1 conceive to be its true meaning, I do not find that it militates at all against my opinion, which extends no farther than the words of the statute,

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which makes the State laws the rule of decision only in cases where they apply. But those laws could not apply to an offence properly and solely against the United States, being a violation of the national Constitution and laws, and not of the local laws of any State. There, undoubtedly, the laws of the United States were exclusively to prevail, and that was a very different case from that of a consul violating the municipal laws of the place of his residence.

It is true that the learned Chief Justice, in giving his opinion on the same question, is also reported to have said that no man can be condemned or prosecuted in the federal Courts on a State law." I think it is not treating a Judge fairly to bind him down to the unguarded generality of an expression which falls from him obiter in deciding suddenly on an incidental motion at the end of a long and tedious trial, and to which he is, perhaps, unnecessarily led by the devious course which counsel sometimes think proper to follow in their arguments. I will not do this injustice to the eminent magistrate whose opinion I have thus respectfully taken the liberty to advert to, I shall take these words in connexion with his opinion on the precise point before us, and observe, that he there does not speak in positive terms, but merely expresses a sudden thought then arising in his mind. His words are, "it seems to me" that this clause in the statute does not refer to criminal proceedings. It is evident that he did not mean to advance this position

as positive law, but as one that might be re-considered at a future day.

1 have often wondered how jurists will sometimes wander to a great distance in search of principles which are close at their hand, and thus involve simple questions in imaginary difficulties. If it should be asked, for instance, without reference to any particular system of jurisprudence, what is to be the rule of decision in civil cases? it seems the simple answer would be, "the law which governs the contract or the civil right or wrong which is the subject of controversy." What is to be the rule on the trial of criminal causes? The law which is alleged to have been violated. And again, what rule is to be followed in forms of proceeding, and other incidental matters in either case? The answer is at hand the law of the nation or government whose Judges administer justice in the particular case. What difficulty is there now in applying these principles to the federal Courts? None. The law of the United States, in perfect accordance with them, has made the State laws the rule of decision in the trial of causes in cases where they apply, and in no others; as to the forms of proceedings in civil cases, it has adopted those which are in use in the different States, under certain restrictions, and reserving to itself the power of alteration and amendment. In criminal cases, the rule is not so precise, but no inconvenience has resulted from the practice which has been followed, and may be now said to be established by usage.

Before I quit this part of our subject, I beg leave to refer you, gentlemen, to the able and luminous opinion of our venerable patron, Mr. Chief Justice Tilghman, in the case of The Commonwealth v. Kosloff. Although he only pronounced decisive judgment on the question immediately before him, I am much mistaken if, on the whole, his mind did not come precisely to the same conclusions which you have seen forced upon me. Permit me here to quote the concluding part of his argument, which confirms and illustrates the opinion with which I have been so far endeavouring to impress you.

"I am," says he, "unable to deny that the "Courts of the United States can take cognisance" (of this case) "when I find it written in the Con"stitution that the Supreme Court shall have ju"risdiction in all cases affecting a consul. But "how, or by what law is he to be punished? 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? "Does the 34th section of the Judiciary Act apply "to the punishment of offences ?" (Here the learned Judge expresses a doubt merely about the punishment, not about the trial of the crime.) "May a "person convicted," (again admitting the right to convict,)" of a crime of the highest grade, con"cerning which Congress has made no provision, “be punished, according to the opinion of Judge "Story, by fine and imprisonment, on the princi"ples of the common law? Or is the Constitution

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to be so construed as to exclude the jurisdiction "of all inferior Courts, and yet suffer the autho"rity 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, 66 COULD EQUAL THAT INTO WHICH THIS COURT 66 WOULD BE THROWN, SHOULD IT DETERMINE THAT "NO COURT OF THE UNITED STATES HAS JURIS"DICTION IN A CASE WHICH AFFECTS A CONSUL 66 IN EVERY THING SHORT OF LIFE, WHEN THE "CONSTITUTION DECLARES, THAT THE SUPREME "COURT SHALL HAVE JURISDICTION IN ALL CASES "AFFECTING CONSULS."

Having shewn, as I think, in a satisfactory manner, that where jurisdiction is given in personam, every thing else that is necessary to its due exercise necessarily follows, I hope it will not be dif ficult to prove that the same principle applies where jurisdiction is given in subjectam materiam.

Suppose the federal Constitution had declared, in general terms, that the judiciary of the United States should have cognisance of all cases of violence upon the persons of aliens; it is evident that this jurisdiction could not have been exercised within the limits of the States, but by means of the law of the State where the crime was committed, unless Congress had at the same time power given to them to legislate upon those subjects, and then, until they

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