but to the President of the United | so, the state courts have concurrent States. But even where there was no cause of complaint, cases may be easily supposed, in which the President might think it more conducive to the peace of the nation to send a foreign agent out of the country to be punished by his Own sovereign, than to inflict punishment on him, by our own laws. These considerations are so manifest, that when the people of the United States were about to form a federal government, through which alone they were to maintain an intercourse with foreign nations, it would have seemed a want of common prudence, not to commit to that government the management of all affairs respecting the public agents of those nations. Let us now advert to the instrument of our federal union, and we shall soon perceive, that the statesmen who framed it, were perfectly aware of the importance of placing all foreign public agents, consuls included, under the complete superintendance of the federal government. It was through the judicial power, that those persons could principally be affected. Accordingly we find it provided by the 2d sect. of the 3d art. of the constitution, that the judicial power shall extend "to all cases affecting ambassadors, other public ministers, and consuls"-words more compre. hensive cannot be devised. They include suits of every kind, civil, and criminal. This is not denied by the attorney general of Pennsylvania, nor, as I understand, is it denied, that by virtue of this provision, Congress has a right to declare by law, that in no case civil or criminal, should a state court have jurisdiction over a consul. But it is contended, that until Congress does by law declare jurisdiction with the courts of the United 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 cognizance of the offence. The constitution in the 1st sect. 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 sect. 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 facts, 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 organized by law, it became immediately vested with original jurisdiction in every case in which a consul might be affected. But was this an exclusive jurisdiction? The opinion of the supreme court, in Marbury v, Madison, Cranch 137, goes far towards establishing the principle of exclusive jurisdiction. The point decided in that case, was, that where the constitution had vested | district or circuit courts, would 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 constitution has declared their jurisdiction shall be origiginal, and original jurisdiction where the constitution has declared it shall be appellate, 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 affirm-see whether Congress has not exed, and in this case, a negative or cluded the states' courts by the exclusive sense must be given | judiciary act, passed 24th Septemto them, or they have no opera-ber, 1789. By the 9th section, the tion at all. If the solicitude of the district courts are vested excluconvention "with respect to our sively of the courts of the several peace with foreign powers, in-states, with cognizance of "all duced a provision that the su- crimes and offences that shall be preme court should take original cognizable under the authority of jurisdiction in cases which might the United States, committed be supposed to affect them; yet within their respective districts, the clause would have proceeded where no other punishment than no further than to provide for whipping, not exceeding thirty such cases if no further restric-stripes, a fine not exceeding 100 tion on the power of Congress had dollars, or a term of imprisonbeen intended. That they should ment not exceeding six months, have appellate jurisdiction in all is to be inflicted." Consuls are other cases, with such exceptions embraced in this jurisdiction, as as Congress might make, is no re- plainly appears by considering striction unless the words be the whole section, and as was dedeemed exclusive of original ju-clared by the court in Manhardt v. risdiction." Now, taking this to be the construction of the constitution, all those parts of the "act to establish the judicial courts of the United States," which vest jurisdiction in cases affecting consuls, in the Soderstrom, (1 Bin. 138.) Then comes the 11th section by which the circuit courts are vested with exclusive cognizance of“ all crimes and offences cognizable under the authority of the United States, except where the said act otherwise provides, or the laws of the United States shall otherwise direct, current jurisdiction with the district courts, of the crimes and offences cognizable 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 cognizable 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 cognizance, 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, in as much 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 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, by fine and imprisonment, on the principles of the common law? 1st Galleson's Rep. 488. 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. Justice Brackenridge concurred on the second ground, declining to give any opinion on the first, as he did not deem it necessary. April 30. LAW DECISION. United States District Court, Loui siana District.-Present, the Hon. Dominick A. Hall. HEIRS OF LIVINGSTON AND FULTON, act apply to the punishment of From the New Orleans Gazette 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 VOL. II. vs. JOHN CROMWELL, GEORGE SHIRAS AND OTHERS. Last week an incidental point 2 X was ruled in a series of cases, | which have excited much interest, and involved a question supposed, and we believe justly, to be of great importance to the commerce of the states and territories of the west, to the navigation of the Mississippi and its tributary streams. We have been favoured with a copy of the opinion of his honour Judge Hall, delivered in one of the cases in question, which we take great pleasure in laying before our readers, together with a brief sketch of such proceedings in relation to the subject as we are acquainted with. In the year 1811 the legislature of the then territory of Orleans granted to Messrs. Robert R. Livingston and Robert Fulton, their heirs, &c. "the sole and exclusive right and privilege to build, make, use, employ and navigate all and every kind or species of boats or vessels or water craft, which may be urged or impelled through the water by the force of fire or steam, in all creeks, waters, &c. within the jurisdiction of the said territory, for and during the full term of eighteen years from and after the 1st day of January then next ensuing." To this grant certain conditions were annexed, which the grantees were required to comply with; and it was provided also "that any person or persons, whosoever, without being properly authorised by the said Livingston and Fulton, or their heirs, &c. who should make, use, employ or navigate any boat or water craft, which should or might be urged, &c. through the water by the force of fire or steam, within the jurisdiction of said territory, should for each and every offence, forfeit and pay the said Livingston and Fulton, their heirs, &c. $5000, and should also forfeit to the said Livingston and Fulton, all such boats or water craft, together with the steam engine and all apparatus thereof." Under this privilege Messrs. Livingston and Fulton, in the year 1812, commenced running steam boats on the Mississippi, which they have continued successfully ever since-but not without rivals, or free from interruption or inter. ference in the enjoyment of the exclusive privilege, which they derived from the territory of Orleans, and which they now hold under the state of Louisiana. About the time or soon after the time when Messrs. Livingston and Fulton commenced their operations, several steam boats were built upon the western waters, and in the necessary course of trade found their way to New Orleans: there they were denounced as intruders by those interested in the privilege of Messrs. Livington and Fulton. To these uncourteous denunciations the strangers of the west answered in the tone of defiance, and immediately the artillery of the bar was marshalled on the sides of the respective combatants. For some time the contest was carried on in the state courts with various success: from thence it was recently removed to the United States court, where the defendants in the present action, with several others, were prosecuted for the penalties accruing under the privilege, and ordered to be held to bail-some not being able to find security were confined in prison. It was moved that the bail should be released in the cases in which it had been given, and that such of the defendants as were in prison should be discharged. As the points taken by the coun 1 sel for the parties are examined by the judge, it is unnecessary to detail their arguments at length. The case on the part of the defendants was opened by Mr. Dick, who contended that the court had no jurisdiction. 1. Because neither of the parties are citizens of the state in which the suit is brought; the plaintiffs declaring as citizens of New York, and the defendants being designated as citizens of Kentucky. That this point depended on the constitution and laws of the United States-the limits of the judicial E authority which congress can confer on the courts which they may ordain and establish are designated in the 2d sec. of the 3d art. of the constitution. But as the district and circuit courts owe their organization to, so they derived their power immediately from congress. Their authority being thus limited, the judicial act must be sought in order to determine its extent, and ascertain its boundaries. By the 11th section of that act the circuit courts have original cognizance of civil suits in three cases only. 1. Where the United States is plaintiff; 2d. Where an alien is a party; and 3d. Where the suit is between a citizen of the state where the suit is brought, and a citizen of another state. In support of these positions, all the decisions of the supreme court touching questions of jurisdiction were cited. 2. Because the plaintiffs claim under a special and private act of the state of Louisiana, derived from its sovereignty, and solely cognizable by its courts. Mr. Duncan and Mr. Hawkins followed on the same side. On the part of the plaintiffs, Mr. Grymes and Mr. Winston contended: 1. That the judicial authority | vested in the courts of the United States was derived immediately from the constitution, and that congress could no more abridge than enlarge it. That by the constitution it was declared that the judicial powers of the United States shall extend to controversies "between citizens of different states," and that the present parties stood in these relations. 2. That the right accruing to the plaintiffs under the state act was a civil right, remedial in any court having jurisdiction between the parties. After taking some time to consider upon the important question raised at the bar, Judge Hall pronounced the following DECISION. This is a motion to discharge the bail ordered in this case, on the ground of want of jurisdiction and for other causes. If it shall appear in the course of the examination of the subject, that the court has no jurisdiction, I shall dismiss the suit. It is contended, that the 11th section of the Judiciary act gives this court cognizance of cases between citizens of different states, only where the suit is between a citizen of the state where the suit is brought, and a citizen of another state the plaintiffs and defendants are citizens of different states, but neither are citizens of this state; it is therefore concluded that this action cannot be maintained. In answer to this, it is said, first, that in the same section it is declared, "that no civil suit shall be brought before either of the said courts against an inhabitant of the United States in any other district than that whereof he is an inhabitant, or in which he may be found at the time of serving the writ;" |