of your fellow-citizens may be said to depend. But whatever be the consequence, it is your duty, it is our duty, to do only what is right. [After stating the substance of the charges against the defendant, the learned Judge proceeded :]

It has not been contended, on the present occasion, that the defendant has any peculiar exclusive right to take a part in the present war between the European powers, in relation to all whom the United States are in a state of peace and tranquillity.

If he has no peculiar or exclusive right, it naturally follows, that what he may do every other citizen of the United States may also do. If one citizen of the United States may take part in the present war, ten thousand may. If they may take part on one side, they may take part on the other; and thus thousands of our fellow-citizens may associate themselves with different belligerent powers, destroying not only those with whom we have no hostility, but destroying each other. In such a case, can we expect peace among their friends who stay behind? And will not a civil war, with all its lamentable train of evil, be the natural effect?

Yet what is right must be done, independent of the consequences, which I have only stated, in order to lay before you the necessity of seriously considering the case entrusted to you before you decide upon it.

Two principal questions of fact have arisen, and require your determination. The first is, that the defendant, Gideon Henfield, has committed an act of hostility against the subjects of a power with whom the United States are at peace: this has been clearly established by the testimony. The second object of inquiry is, whether Gideon Henfield was at that time a citizen of the United States. This he explicitly acknowledged to Mr. Baker; and, if he declared true, it was at that time the least of his thoughts to expatriate himself.

The questions of law coming into joint consideration with the facts, it is the duty of the Court to explain the law to the jury, and give it to them in direction.

It is the joint and unanimous opinion of the Court, that the United States, being in a state of neutrality relative to the present war, the acts of hostility committed by Gideon Henfield are an offence against this country, and punishable by its laws.

It has been asked by his counsel, in their address to you, against what law has he offended? The answer is, against many and binding laws. As a citizen of the United States, he was bound to act no part which could injure the nation; he was bound to keep the peace in regard to all nations with whom we are at peace. This is the law of nations; not an ex post facto law, but a law that was in existence long before Gideon Henfield existed. There are, also, positive laws, existing previous to the offence committed, and expressly declared to be part of the supreme law of the land. The Constitution of the United States has declared that all treaties made, or to be made, under the authority of the United States, shall be part of the supreme law of the land. I will state to you, gentlemen, so much of the several treaties in force between America and any of the powers at war with France, as applies to the present case. The first article of the treaty with the United Netherlands, declares that there shall be a firm, inviolable, and universal

peace and sincere friendship between the States General of the United Netherlands and the United States of America, and between the subjects and inhabitants of the said parties.

The seventh article of the definitive treaty of peace between the United States and Great Britain, declares that there shall be a firm and perpetual peace between His Britannic Majesty and the United States, and between the subjects of the one and the citizens of the other.

And the first article of the treaty with Prussia declares that there shall be a firm, inviolable, and universal peace and sincere friendship between His Majesty the King of Prussia and his subjects, on the one part, and the United States of America and their citizens on the other.

It may be observed, that the treaty would not be less sufficient in relation to the present question, if "subjects" and "citizens" had not been mentioned.

These treaties were in the most public, the most notorious existence, before the act for which the prisoner is indicted was committed.

The notoriety may, indeed, be said to have been greater than that of the general Acts of Congress; since, besides the same mode of publication, they are expressly referred to in the Constitution.

Much has been said on this occasion, by the defendant's counsel, in support of the natural right of emigration; but little of it is truly applicable to the present question.

Emigration is, undoubtedly, one of the natural rights of man. Yet it does not follow from thence that every act inconsistent with the duty is inconsistent with the state of a citizen.

Nothing is more inconsistent with the duty of a citizen than treason; but it is because he still continues a citizen that he is liable to punishment.*

From the several charges in the text may be deduced three points:

(1) That the participation by the citizens of a neutral state in an attack by one belligerent power upon another, is an offence against the laws of nations, and may be punished as such by such neutral state.

(2) That though there has been no exercise of the power conferred upon congress by the constitution "to define and punish offences against the laws of nations," the federal judiciary has jurisdiction of an offence against the laws of nations, and may proceed to punish the offender according to the forms of the common law.

(3) That a violation by a citizen of the Union of a treaty with a foreign State, may be punished in the Federal courts by indictment.

Perhaps to these may be added the much controverted position that the federal courts have common law cognizance of offences against the sovereignty of the United States.

The first point can give but little trouble. It is fully supported by the citations given by Chief Justice Jay from the civilians; and the late accomplished and lamented Mr. Wheaton, in his Commentary on the Law of Nations, lays down the same doctrine, though without reference to this case. Wheat. Law of Nat. 471.

The second and third points, however, so far as they involve the third, have been the subject of frequent discussion, and of a variety of adjudication which on a former occasion was traced as follows:

"The inclination of authority, as has been already noticed, is, that the federal courts have no common law jurisdiction whatever in criminal cases. (See 4 Tucker's Blackstone, app. 10.) In the first case in which the question was mooted, (U. S. v. Ravara, 2 Dallas 297, post, p. 90), it was argued that the offence committed was not an offence at common law, nor made so by any positive law of the United States, but it was not urged that, unless defined by statute, it could not be punished; and the court found the defendant guilty, the offence being held indictable at common law. In a case arising shortly afterwards, (U. S. v. Worrall, 2 Dallas 384, see post), Mr. Dallas, counsel for the defendant, argued that, by the 12th article of the amendment to the constitution, "the powers not delegated to the United States, nor prohibited to the States, are

After some other observations, explanatory of the legal principles which had been agitated in the course of the trial, the Judge concluded

reserved to the states respectively, or to the people." In relation to crimes and punishments, the objects of the delegated powers of the United States, he urged, are enumerated and fixed. Every power is matter of definite and positive grant, and the very powers that are granted cannot take effect until they are exercised through the medium of the law. Congress has, undoubtedly, power to make a law which shall render it criminal to offer a bribe to the commissioner of the revenue, (the case before the court,) but not having done so, the crime is not recognized by the federal code, and consequently it is not a subject on which the judicial authority of the Union can operate. Mr. Dallas cited but three cases, which are probably all that had at that time been decided; the case of Henfield, who had been punished expressly for a violation of a treaty; that of Ravara, which he endeavoured to weaken; and that of Schaffer, decided in the Mayor's Court of Philadelphia (4 Dallas, app. 26), where it was held that, although all powers which are essential to the independence, protection or defence of the government, ought to be considered as granted by the constitution, yet where it is found that congress has not by any act legislated on a point, and thereby divested a state of a jurisdiction which, at the time, it constitutionally possessed, such jurisdiction continues in the state courts. The court were divided in their opinions, Chase, Circuit J., holding that there could be no indictment under the constitution for a common law offence, and Peters, District J., maintaining the contrary doctrine.

"In the following year (1799), at a Circuit Court in Connecticut, the defendant was indicted for accepting a commission from the French republic, and cruising against and capturing British property. No question of jurisdiction was raised, and he was convicted, it being held that he could not expatriate himself. (See post, Williams's case.) Shortly afterwards, Judge Washington seems to have held that there could be no indictment for perjury at common law in the courts of the United States, (See 1 W. C. C. R. 84; the report of which case appears to be defective in the conclusion of Judge Washington's opinion,) and Chief Justice Marshall (U. S. v. Burr, 4 Cranch, 500) hints that he too is of the opinion that no common law offence, not specified by statute, is indictable in the federal courts; and such certainly is the assumption on which he reasons in more than one succeeding case. (U. S. v. Bevans, 3 Wheat. 336; U. S. v. Wiltberger, 5 Wheat. 76.) But in a case which occurred in the Circuit Court of Massachusetts (U. S. v. Coolidge, 1 Gall. 488), on an indictment for an offence committed on the high seas, the ques tion arose, directly, whether the Circuit Court had jurisdiction to punish offences against the United States, which had not been defined, and to which no punishment had been affixed. The judge, admitting that the courts of the United States were of limited jurisdiction, and could exercise no authority not expressly granted to them, contended, that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that, if this distinction was made, it would dissipate the whole difficulty and obscurity of the subject. Congress, he said, might, under the constitution, confide to the Circuit Courts jurisdiction of all offences against the United States, and they had conferred on them jurisdiction of almost all; that by the judiciary act the Circuit Courts have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where that or another statute of the United States otherwise provides; that, in order to ascertain what are crimes and offences against the United States, recourse must be had to the common law, taken in connection with the constitution; and that congress has provided for the punishment of many crimes which it has not defined, an explanation and definition of which can only be found in the common law. The inference, he urged, was plain, that the Circuit Courts have cognizance of all offences against the United States; that what these offences were depended upon the common law, applied to the powers confided to the United States; that the Circuit Courts, having such cognizance, might punish by fine and imprisonment where no punishment was specially provided by statute; that the admiralty was a court of extensive criminal, as well as civil, jurisdiction; and that offences of adiniralty were exclusively cognizable by the United States, and punishable by fine and imprisonment, where no other punishment was specially prescribed. The District Judge dissenting, the case came before the Supreme Court of the United States; and it is evident, from the reported case (1 Wheat. 415), that a strong desire existed in the minds of the judges to hear the whole question of the extent of juris diction re-argued. The Attorney General, however, declining to do so, being unwilling to attempt to shake the United States v. Hudson & Goodwin (7 Cranch. 32), by the authority of that case the court felt themselves bound, and so certified to the Circuit Court. Chancellor Kent does not seem to think that the case of U. S. v. Coolidge should be governed by the same principle as those of Hudson v. Goodwin, and U. S. v. Worrall, the one a libel and the other an attempt to bribe a commissioner of the revenue, the two latter being decided on the ground that the constitution had given to the courts no jurisdiction in such cases; whereas, the case of Coolidge was one of admiralty, over which the federal courts seem to have a

by remarking, that the jury, in a general verdict, must decide both law and fact, but that this did not authorize them to decide it as they pleased;

general and exclusive jurisdiction." Kent's Comm, vol. i. p. 338.-Wharton's Crim. Law, p. 40. See also Rawle on Const. 258. Serg. on Const. 272.

But even assuming that the doctrine that the common law, as a source of jurisdiction, does not control the federal courts, is now finally established, it by no means follows that the common law, as a rule for the exercise of a jurisdiction previously given, does not apply undiminished except so far as it interferes with positive statute. Thus it may be argued, that as congress has power to "define and punish offences against the law of nations," the jurisdiction of the states is thereby divested of the particular subject matter; and that consequently as the jurisdiction exists somewhere, it exists in the federal courts, ready to be exercised through the statutory medium, when congress specifies the procedure, but when no legis. lation has taken place, through the agency of the common law. Marbury v. Madison, 1 Cranch, 137, tends to the doctrine that the federal jurisdiction in this and kindred cases is exclusive; and such is the express ruling of Com. v. Kosloff, S. & R. 545, where Chief Justice Tilghman refused to take cognizance of a suit respecting a consul. The pregnant inquiry pressed home in the latter case:—“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 be dormant until called into action by law," &c., gives no obscure intimation of the leaning of that wise and clear headed judge on this very point.

It is not inconsistent, therefore, with the doctrine discarding the common law as an origin of jurisdiction to the federal courts, to hold that where an express subject matter is ceded to the federal government by the constitution, that subject matter is to be acted upon through the medium of common law forms. This distinction is dwelt upon by the late Mr. Duponceau in his notice of this very case.

"Judge Wilson, who presided at this trial, in his charge to the jury, took the ground of its being also an offence at commom law, of which the law of nations was a part, and maintained the doctrine that the common law was to be looked to for the definition aud punishment of the offence. This ground had not been adverted to in argument, or, at least, very slightly. But it would seem that the common law considered as a municipal system had nothing to do with this case. The law of nations, being the common law of the civilized world, may be said, indeed, to be a part of the law of every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts, or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization, or involving the country into a war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. It defines offences and affixes punishments, and acts everywhere proprio rigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental principles. Whether there is or not a national common law in other respects this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state. Judge Wilson, therefore, in my opinion, rather weakened than strengthened the ground of the prosecution in placing the law of nations on the same footing with the municipal or local common law and deriving its authority exclusively from the latter. It was considering the subject in its narrowest point of view." Dup. Jur. 3.

A distinction of a parallel character is taken by Mr. Dallas, in his speech in Worral's case, which will be presently given, where he argues that in the case in the text the defendant was indicted for an infraction of a treaty, which is the supreme law of the land, and that consequently that case is no authority for the position that at common law alone any offence against the sovereignty of the United States is indictable.

There are, however, great difficulties in the way of giving the federal courts criminal jurisdictions over infractions of treaties, or of the law of nations, and at the same time refusing them such jurisdiction over common law offences. If the common law is inadmissible to execute the jurisdiction in the latter case, the question is a critical one, whether the former can be taken in to help out the jurisdiction of the latter; and such, in fact, appears to have been the view of Judge Wilson, who, declining to place the case on the narrow ground of the law of nations alone, declared the offence to be cognizable at common law. Supposing, therefore, that Henfield's case is in such direct conflict with U. S. v. Coolidge, and U. S. v. Hudson, that either the former or the two latter must fall, the question arises, which is to be considered as law?

Henfield's case, it is true, was not reviewed by the court in banc, but the ruling of the court at the trial was made after a full and ample discussion by counsel distinguished for their learning and sagacity, and received the assent both of Judge Peters, the District Judge, and of all the judges of the Supreme Court but one. Chief Justice Jay, to whom as a con

they were as much bound to decide by law as the judges: the responsibility was equal upon both.

The jury retired about nine on Saturday evening, and came into court again about half-past eleven, when they informed the Court they had not agreed. They were desired to retire again, which they did, and returned on Monday morning, having delivered into the hands of Judge Wilson a privy verdict on Sunday morning, soon after the adjournment of the Court.

One of the jurymen now expressed some doubts, which occasioned the judges separately to deliver their sentiments on the points of law adverted to in the charge on Saturday evening, each of them assenting to the same, particularly as to the change of political relation in the defendant, from his having been some time absent from home previous to his entering on board the privateer.

The jury again retired, and the Court adjourned. At half-past four the Court was convened, and the jury presented a written verdict, which the Court refused to receive, as being neither general nor special. Another adjournment took place, and about seven o'clock a verdict of "Not Guilty" was delivered.*

stitutional lawyer, no one can be pronounced superior, and to whom of all the judges who ever sat on that bench the character of a cotemporaneous expositor most properly belongs, announces the jurisdiction in advance with great solemnity, in a charge which exhibits grave deliberation. Ante p. 49. Judge Wilson and Judge Iredell, both of whom sat in the constitutional convention, proclaimed the same doctrine at the trial. The prosecution was instituted by Mr. Edmund Randolph, certainly not one of that class which leaned to an enlarged view of the judicial power, and his official opinion as Attorney General was given beforehand that the offence was one which the federal courts have power to punish. Mr. Jefferson, almost at the same moment, in substance directs Mr. Morris to explain to the British court that the acquittal arose not from a want of power to punish, but a doubt in the minds of the jury as to the guilty intent; (see next note) and Chief Justice Marshal many years afterwards, laments over the verdict of the jury, not as the necessary result of a lack of jurisdiction but as a melancholy exhibition of party zeal. (Ibid.) By none of these is there the least intimation of a doubt as to the jurisdiction of the court; and when the character of the men themselves is recollected-the sound, wary, experienced judgment of Chief Justice Jay-the singular sagacity of Mr. Jefferson in every branch of our system, and his peculiar sensitiveness to judicial encroachments--and the excellent capacity and long experience of Judge Iredell, Judge Wilson, and Judge Peters-it cannot now be said that the jurisdiction was assumed inconsiderately or acquiesced in blindly. It undoubtedly was exercised because the united opinion of the day required its exercise. It was exercised in conformity with the opinion announced by Washington in his proclamation of neutrality—a paper unanimously adopted by the cabinet, as a correct exposition to foreign States of the power of the federal government-that the federal government in such cases could through its courts punish the offender. 10 Wash. Writ. by Sparks, 535, ante p. 53. How far this opinion is to be considered as shaken in U. S. v. Hudson, where the proceedings were exparte, and U. S. v. Coolidge, where the Attorney General abandoned the question, is yet to be determined.

• Chief Justice Marshall (Life of Washington, p. 273-74 vol. 2) thus notices the result: "The administration received additional evidence of the difficulty that would attend an adherence to the system which had been commenced in the acquittal of Gideon Henfield. A prosecution had been instituted against this person, who had enlisted in Charleston on board a French privateer equipped in that port, which had brought her prizes into the port of Philadelphia. This prosecution had been directed under the advice of the attorney gene. ral, who was of opinion that persons of this description were punishable for having violated subsisting treaties, which by the constitution are the supreme law of the land, and that they were also indictable at common law, for disturbing the peace of the United States.

It could not be expected that the Democratic party would be inattentive to an act so susceptible of misrepresentation. Their papers sounded the alarm, and it was universally asked, "what law had been offended, and under what statute was the indictment supported? Were the American people already prepared to give to a proclamation the force of a legislative act, and to subject themselves to the will of the Executive? But if they were already sunk to such a state of degradation, were they to be punished for violating a proclamation which had not been published when the offence was committed, if indeed it could be termed