Page:United States Reports, Volume 2.djvu/401

 Cincurr Conn', Pennj-Ivaniu Diftrifl. gg; _ But the quellion recurs, when and how, have the Courts. of 1798. the (haired Mate: acquired a common law jurifdiétion, in crimi- www nal cafes? The United State: mult pollefs the common law themfelves, before they can communicate it to their ]udicial agents: Now, the United Mate: did not bring it with them from England ; the Conllitution does not create it; and no aél of Congrefs has alfumed it. llclidcs, what is the common law no which we are referred? ls it the common law entire, as it exifls in Engbznd; or modified as it exifls in fome of the States; and of the various modihcarions, which are we to feleét, the fyflcm of Georgia or New- Ifanyjbire, of Pertrxjlvtznitz or Ceu- Iltqifllf ? ` Upon the whole, it may be a defeé]: in our political inflitu• tions, it may be an inconvenience in the adminillration of ju- {lice, that the common law authority, relating to crimes and Spnilhments, has not been conferred upon the government of e United Slater, which is a government its other refpeéls alfo of a limited jurifdiclion: but judges cannot remedy political imperfections, not fupply any Legiilative ornilhon. I will not fay_ whether the olliznce is at this time cognizable in a State Court. But, certainly, Congrefs might have provided, by law, for the prefent cafe, as they have provided for other cafes, of a limilar nature; and yet if Congrcfs had ever declared and defined the offence, without prefcribinlg a punilhment, I ihoald itill lzave thought it improper to exerc` e a difcretion upon that part of the {ubjeét. Perus, jzylire. Whenever a government has been ella- blifhed, I have always fuppofcd, that a power to preferve itfelf, was a necelfary, and an infepztrable, concomitant. But the ex- iflcence of the Federal govemment would be precarious, it could no longer be called an independent government, if, for the pu- nilhment of offences of this nature, tending to obllruelt and per- vert the adminiltration of its alfairs, an appeal mul! be made to the State tribunals, or the oHenders. muil: efcape with abio- lute impunity. The power to punilh mihlemeanors, is originally and liriclly a common law power; of which, I think, the Ur1itedS!ate.r are- conllitutionally poll'e{l`ed. It might have been exereifed by. Congrefs in the form of a Legillative a&; but, it may, allb, in my opinion be enforced in a eourfe of judicial proceeding. Whenever an ollirncc aims at the fubverlion of any Federal in- flitution, or at the corruption of its public ollicers, it is an of- fence againlt the well-being of the United Slater; from its very _ nature, it is eognizable under their authority ; and, confcquent- ly, it is within the jurifdiélion of this Court, by virtue of the 1 rtbfflim of the judicial af}. ‘ Ddd a The

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