United States v. Worrall. have been made; and it is unreasonable to insist, that merely because a law has not prescribed an express and appropriate punishment for the offence, that, therefore, the offence, when committed, shall not be punished by the circuit court, upon the principles of common-law punishment. The effect, indeed, of the position is still more injurious; for unless this offence is punishable in the federal courts, it certainly is not cognisable before any state tribunal. The true point of view for considering the case, may be ascertained, by an inquiry, whether, if Mr. Coxe had accepted the bribe, and betrayed his trust, he would not have been indictable in the courts of the United States? If he would be so indictable, upon the strongest principles of analogy, the offence of the person who tempted him, must be equally the subject of animadversion before the same judicial authority. The precedents cited by the defendant's counsel are distinguishable from the present indictment. The prosecution against Henfield was not expressly on the treaty, but on the law of nations, which is a part of the common law of the United States; and the power of indicting for a breach of treaty, not expressly providing the means of enforcing performance in the particular instance, is itself a common-law power. Unless the judicial system of the United States justified a recourse to common law, against an individual *393] guilty of a breach of treaty, the offence, where no *specific penalty was to be found in the treaty, would, therefore, remain unpunished. So, likewise, with respect to Ravara, although he held the office of a consul, he was indicted and punished at the common law. The offence charged in Respublica v. Schaffer, did not arise under the laws of the United States; but was simply the forgery of the names of private citizens, in order to defraud them of their rights; and even so far as the forgery might be supposed to deceive the public officers, it was a deception in regard to a mere official arrangement for ascertaining transfers of donation claims, and not in regard to any act directed by law to be performed. But a further distinction presents itself. The donations to the soldiers were founded upon resolutions of the United States in congress, passed long before the adoption of the present constitution. The courts of the several states, therefore, held a jurisdiction of the offence, which, without positive words or necessary implication, was not to be divested. The case did not come within the expressions in the constitution, "cases arising under the constitution and laws of the United States," &c., nor has it been expressly provided for by any act under the present constitution. The criminal jurisdiction of the circuit court, which, wherever it exists, must be exclusive of state jurisdiction, cannot, perhaps, fairly be held to operate retrospectively, by withdrawing from the state judicatures powers they held, and duties they performed, previously to the constitution from which the circuit court derived its birth. CHASE, Justice.-Do you mean, Mr. Attorney, to support this indictment, solely at common law? If you do, I have no difficulty upon the subject: the indictment cannot be maintained in this court. Rawle, answering in the affirmative, CHASE, Justice, stopped M. Levy, who was about to reply, in support of the motion in arrest of judgment; and delivered an opinion to the following effect: CHASE, Justice.-This is an indictment for an offence highly injurious to United States v. Worrall. morals, and deserving the severest punishment; but as it is an indictment at common law, I dismiss, at once, everything that has been said about the constitution and laws of the United States. In this country, every man sustains a two-fold political capacity; one in relation to the state, and another in relation to the United States. In relation to the state, he is subject to various municipal regulations, founded upon the state constitution and policy, which do not affect him in his relation to the United States: for the constitution of the Union is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power, that is *not expressly [*394 granted by that instrument, nor exercise a power in any other manner than is there prescribed. Besides the particular cases, which the 8th section of the 1st article designates, there is a power granted to congress to create, define and punish crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and offences specifically mentioned, it is certainly included in this general provision. The question, however, does not arise about the power, but about the exercise of the power:-Whether the courts of the United States can punish man for any act, before it is declared by a law of the United States to be criminal? Now, it appears to my mind, to be as essential that congress should define the offences to be tried, and apportion the punishments to be inflicted, as that they should erect courts to try the criminal, or to pronounce a sentence on conviction. It is attempted, however, to supply the silence of the constitution and statutes of the Union, by resorting to the common law, for a definition and punishment of the offence which has been committed: but, in my opinion, the United States, as a federal government, have no common law; and consequently, no indictment can be maintained in their courts, for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and yet, it is impossible to trace when, or how, the system was adopted or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the judges and lawyers of England, that they brought hither, as a birth-right and inheritance, so much of the common law, as was applicable to their local situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts, and rejected others. Hence, he who shall travel through the different states, will soon discover, that the whole of the common law of England has been nowhere introduced; that some states have rejected what others have adopted; and that there is, in short, a great and essential diversity, in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one state, is not the common law of another; but the common law of England is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits United States v. Worrall. between citizen and citizen, whether they are instituted in a federal, or state court. *395] *But the question recurs, when and how, have the courts of the United States acquired a common-law jurisdiction, in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents: Now, the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut? Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common-law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction: but judges cannot remedy political imperfections, nor supply any legislative omission. I will not say, whether the offence is at this time cognisable in a state court. But, certainly, congress might have provided, by law, for the present case, as they have provided for other cases of a similar nature; and yet, if congress had ever declared and defined the offence, without prescribing a punishment, I should still have thought it improper to exercise a discretion upon that part of the subject. PETERS, Justice.-Whenever a government has been established, I have always supposed, that a power to preserve itself was a necessary, and an inseparable concomitant. But the existence of the federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the state tribunals, or the offenders must escape with absolute impunity. The power to punish misdemeanors, is originally and strictly a common-law power; of which, I think, the United States are constitutionally possessed. It might have been exercised by congress, in the form of a legislative act; but it may also, in my opinion, be enforced in a course of judicial proceeding. Whenever an offence aims at the subversion of any federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognisable under their authority; and consequently, it is within the jurisdiction of this court, by virtue of the 11th section of the judicial act. *The Court being divided in opinion, it became a doubt, whether *396] sentence could be pronounced upon the defendant; and a wish was expressed by the judges and the attorney of the district, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the supreme court, upon the important principle of the discussion: but the counsel for the prisoner did not think themselves authorised to enter into a compromise of that nature. The Court, after a short consultation, and declaring, that the sentence was mitigated in consideration of the defendant's circumstances, proceeded to adjudge Wilkinson v. Nicklin. That the defendant be imprisoned for three months; that he pay a fine of $200; and that he stand committed, until this sentence be complied with, and the costs of prosecution paid. HOLLINGSWORTH V. ADAMS. Jurisdiction in foreign attachment. Process of foreign attachment cannot be issued by a circuit court, when the defendant is domiciled abroad, or not found within the district, so that it can be served upon him.' FOREIGN ATTACHMENT, returnable to the present term. The defendant was stated to be a citizen of Delaware, in the process which had issued; and M. Levy, having produced an affidavit in proof of that fact, moved to quash the writ, on the ground that the federal courts had no jurisdiction, in cases of foreign attachment. By the 11th section of the judicial act (1 U. S. Stat. 78), it is expressly provided, that "no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court; and no civil suit shall be brought before either of the said courts against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." Now, this is a civil suit, brought here by original process against the defendant, who is an inhabitant of another district, and was not found in Pennsylvania at the time of serving the writ. Thomas and Hallowell, on behalf of the plaintiff, wished for time to inquire into the practice; but not being able, on the next day, to assign any satisfactory reason in maintenance of the action, THE COURT directed the writ to be quashed, with costs. WILKINSON et al. v. NICKLIN et al. Bills of exchange. The indorsement of a bill in blank, passes all the interest in it, to every indorsee in succession, discharged from any obligation subsisting between the original parties, which does not appear upon its face. The fact that a bill is noted for non-acceptance, is not notice to a subsequent indorsee, of the existence of any equity between the original parties. THIS was an action brought by the indorsees of a bill of exchange, drawn by McClenachan & Moore, upon George Barclay, of London, in favor of the defendants, and by them indorsed *in blank, to Arthur Crammond [*397 & Co., who likewise indorsed and discounted it with their bankers, the present plaintiffs, under the following circumstances: The defendants, having opened a commercial correspondence with Arthur Crammond & Co., of London, remitted the bill of exchange in question, to be passed to their credit, in their general account with those gentlemen. The bill was noted 1 Poland v. Sprague, 12 Pet. 300; Chaffee v. Hayward, 20 How. 208; Picquet v. Swan, 5 Mason 35; Richmond v. Dreyfous, 1 Sumn. 131; Clark v. New Jersey Steam Nav. Co., 1 Story 531; Sadler v. Fallon, 2 Curt. 579; Day v. Newark India Rubber Man. Co., 1 Bl. C. C. 628; Wilson v. Pierce, 15 Law Rep. 187. Wilkinson v. Nicklin. on the face of it for non-acceptance. It was, afterwards, on the 4th of August 1796, paid in short, on account of Arthur Crammond & Co., with their blank indorsement, to the banking-house of the plaintiffs; but on the 19th of the same month, the amount was carried out to the credit of Arthur Crammond & Co., as if it had been then discounted by the plaintiffs; and it was said by a witness, examined under a commission, that, after this discount, the money had been duly paid upon the drafts of Arthur Crammond & Co. The counsel for the defendants stated, that they proposed to show by evidence, that the bill of exchange was remitted on account of the defendants; and that Arthur Crammond & Co. were in very great pecuniary embarrassment, at the time of the alleged discount of the bill of exchange, and had soon afterwards become bankrupt. From these premises, from the nature of the previous deposit, and, above all, from the dishonored state of the bill, when it was deposited and discounted (which was enough to have prompted an inquiry into the real circumstances of the case), it was intended to argue, that the plaintiffs knew that the bill was, in fact, the property of the defendants; and that the eventual discount was colorable and collusive, for the mere purpose of recovering the damages, or of securing a pre-existing balance due to the plaintiffs from Arthur Crammond & Co., who were on the eve of a public failure. 3 T. R. 80. If the plaintiffs did know the facts, they cannot be entitled to any more benefit from the possession of the bills, than Arthur Crammond & Co. themselves. The counsel for the plaintiffs (who had, indeed, anticipated the defence in their opening) insisted, that the general, unrestricted nature of the indorsement, had empowered Arthur Crammond & Co. to pass the bill to whomsoever they pleased; and that whatever might be the imputation on them for a breach of trust, it could not affect the plaintiffs, who had paid a valuable consideration for the bill; and who ought not to be charged with collusion and fraud, upon strained inferences and slight presumptions. Their knowledge of the transactions between the defendants and Arthur Crammond & Co. has not been proved; and it would be a violation of the most important commercial principles, of the most authoritative adjudications, to permit such a defence to be made, against the claim of an indorsee. The distinction between restricted indorsements, and indorsements *which *398] leave the bill to a free negotiation, has been fully established (2 Burr. 1216, 1226-7); and an indorsee, in the latter case, cannot be affected even by letters accompanying the bill. Rep. temp. Hardw. 11. Nor does the reason of the case in 3 T. R. 80 (where the note was negotiated after the term of payment had elapsed), apply to a protest for non-acceptance. Bills are often so protested, and yet are eventually paid. The strongest presumption arising upon a protest for non-acceptance, is, that the drawee has not effects of the drawer in his hands, at the time of presenting the bill: but when a note has been protested for non-payment, the fair presumption is, that the drawer is either unable to pay it, or has a legal excuse for not paying it; and the purchaser of the note, under such circumstances, has a reasonable warning, and must take it at his peril. 344 |