having him near him, so that he could always learn the state of his health, and the treatment from his master-in which he must be considered as having an interest, and a right to seek redress if ill treated. I would incline therefore to consider it a fraud upon the parent to assign out of the city or liberties-and to the country, where such a thing as the occupation or profession of a waiter is not so well known-but the child must be employed as a servant generally in all manner of servile labour, the care of cattle, &c. &c. a fraud also, and out of his contemplation, in binding him to an apprenticeship, to carry him to a distance.

Whatever, therefore, may be the terms of the act, it would not seem to be within the reason of it, that the apprentice could be assigned even with his own supposed consent without that of the parent.

I say, supposed consent-because he could not in reality have a will, or dare to express it, while under the power of the master. If he had no parents or guardian, having originally bound himself, or his parents dying, and having no guardian, his consent might suffice from the necessity of the case-but having a parent or guardian the intervention of these would seem to be necessary. For the terms of this miserably drawn act would seem to look to the intervention of these, so that in a case where there was a parent, or no parent but a guardian, it would seem that the consent of the apprentice should alone suffice.

It would seem a construction contrary to all reason, that a parent should bind his child an apprentice in a city, which is a little world itself in which he lives, and that he the apprentice should by his consent alone to an assignment, be carried to a country situation, and to a distance; and that being bound to learn one mystery, he should by his own consent merely be assigned to learn another; bound to a shoemaker, for instance, and ́assigned to learn the trade of a taylor. To construe this law liberally, as I am inclined to do in favour of minors and parents, I would hold it that an assignment must be with the consent of both apprentice and parents, and guardian, where there are such. In this case and upon these grounds, I am of opinion that the assignment is void.

Qui hæret in litera hæret in cortice, the reason of a law must prevail.

OHIO. ST. CLAIRSVILLE, COMMON PLEAS.

United States vs. Alexander Campbell.

[One sovereign state cannot make use of the municipal courts of another government to enforce its penal laws. The United States cannot prosecute in the State courts for offences against their laws. The constitution of Ohio does not authorise a prosccution by information.]

Information filed by J. C. Wright, collector of the revenue for the 6th collection district of Ohio, against Alexander Campbell, for selling domestic distilled spirits without a license therefor from the collector, contrary to the act of congress in such case made and provided, and praying "that the said Alexander Campbell may forfeit and pay to the said United States the sum of 150 dollars penalty, and also the further sum of 15 dollars duty, by law imposed upon a license to retail," &c. "according to the provisions of the acts of congress in such cases made and provided," &c.

The defendant filed the following exceptions to the jurisdiction of this court.

"And the said Alexander Campbell says, that the information filed against him by John C. Wright, collector, contains no matter or thing to which he the said Alexander Campbell is in this court bound to answer, for that the retailing liquor by the quart is not an offence against any of the laws of the state of Ohio, of offences against which laws only, this court can take jurisdiction -and for that also by the constitution of the state of Ohio, no man can be held to answer any offence in the courts of the said state except upon indictment or presentment of a grand jury; wherefore the said Alexander Campbell prays that he may be discharged from answering said information, and that the same may be quashed.-C. Hammond, attorney for defendant."

A similar decision is said to have taken place in the Superior Court of Virginia. No. XXI.

P

TAPPAN, J.-This is a very important question of jurisdiction, upon which, if I had doubts, I would take further time to deliberate before giving an opinion; as I have none, I will not delay the cause by a continuance, but proceed to give my opinion notwithstanding the pressure of business may prevent my adverting to many of the reasons and grounds whereon that opinion is founded.

There can be no hesitation in asserting that a proceeding by information is a criminal prosecution, and that it hath always been used as such-4th Bl. Com. chap. 23d. the king v. Berchet and others, 1st Shower, 106-I refer to these authorities as fully supporting both propositions.

The first question will then be, can the United States prosecute for offences against their laws in the state courts?

This will depend upon the constitution of the United States, and the constitution of this state.

The state of Ohio is a sovereign and independent state, not controllable by any earthly power in the making or administra tion of its laws, except only in such particulars as it hath delega ted a portion of that sovereignty to the United States by the federal constitution, and as it hath limited itself in the exercise of power by the same constitution.

The constitution of the United States creates a distinct and separate government from the several state governments, and delegates specific and limited powers to the government so created. By the 3d article, section 1st and 2d: The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish-and "The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty, and maritimne jurisdiction; to controversies to which the United States shall be a party," &c. The judicial power of the United States extends to the case now before this court, and that power is wholly vested in the United States' courts; the supreme court of the United States hath an appellate jurisdiction in all controversies to which the United States shall be a party; there is no clause in the constitution of the United States which authorises

congress to give jurisdiction to the state courts, or to require the performance of any judicial duties of them; it cannot be said that congress by their laws ordained and established us a court of the United States, for by the operation of the 8th sect. of the 3d article of the constitution of this state, if such were the fact we should cease to be a state court; and will it be imagined that an appeal can be taken from this court to the supreme court of the United States? The powers not delegated to the United States by the constitution are expressly reserved to the states or to the people; it follows necessarily and clearly to my mind, that congress have no power to vest any jurisdiction whatever in the state courts.

This is a criminal prosecution; it may well be doubted whe ther one sovereign state can sue in the municipal courts of ano, ther state; but waving this point as not necessary to be here decided, I assume it to be a settled principle in jurisprudence, that one sovereign state cannot make use of the municipal courts of another government to enforce its penal laws. No one would doubt for an instant, if the government of Great Britain or France, or even one of the other states of the union, were to attempt to maintain a criminal prosecution in our courts, that it would not be permitted; and yet as to its judicial power, and its penal laws, the government of the United States is as much an independent state and separate government as Great Britain, France, or either of the United States.

It hath been urged, that the constitution gives to congress the power to lay and collect taxes, duties, imposts, excises, &c. and to make all laws which shall be necessary and proper for carrying that power into execution: that to collect the excise they have judged it necessary to vest a jurisdiction in certain cases in the state courts. If they have judged it to be necessary, they have been mistaken-convenience is not necessity-their own tribunals are sufficient to enforce their laws. If it be true, that congress, under this provision of the constitution, may pass any laws they deem necessary to carry their specific powers into execution, and are themselves the sole judges of such necessity, where are they to stop? Possessing the sword and the purse of the whole confederacy, nothing more than the establishment of such a principle is wanting to vest congress with absolute power, and to effect a complete consolidation of the states. We have

seen that the constitution of the United States doth not give congress the power of vesting jurisdiction in the state courts-the constitution and laws of Ohio do not give us jurisdiction, nor can we sustain it on general principles of law.

An opinion has been read in which it is stated that the 3d article of the constitution of the United States vests in the government of the United States a privilege of having their causes determined in their own courts, and that this privilege may be waived by them-by the 1st art. of the constitution, the legislative powers of the United States are vested in congress-by the 2d art. the executive power of the United States is vested in a president. I do not see why this doctrine of privilege and waiver, may not with as much reason be applied to the legislative and executive as to the judicial power, and so the whole government of the United States waived. This theory is new, it is beyond my comprehension.

The second question raised in this case is, whether this court can sustain a criminal prosecution by information under the constitution of this state.

By the 10th section of the 8th article of the constitution of Ohio, it is declared, "That no person arrested or confined in jail shall be put to answer any criminal charge but by presentment, indictment, or impeachment."

An information is as much a criminal prosecution as an indictment; the same process issues on the one as on the other, to bring the person charged or informed against before the court, and that process with us is a capias-the defendant hath been taken by a capias, and is now holden to answer this information.

I think that a fair construction of our constitution requires us to say, that the proceeding by information is prohibited by it. If we examine the history of informations we shall find that they have crept into use against the plain meaning of Magna Charta; that although in England a series of precedents support them, yet they are neither suited to our principles of government, nor countenanced or permitted by the state constitution. Such is the unanimous opinion of the court.