
3 U.S. 467 (____)
3 Dall. 467
RESPUBLICA
versus
COBBET.
Supreme Court of United States.

The argument embraced two propositions.
*472 After advisement, the unanimous opinion of THE COURT was delivered by THE CHIEF JUSTICE, in the following terms.
M`KEAN, Chief Justice.
This action is brought on a recognizance to the commonwealth of Pennsylvania, for the good behaviour, entered into by the Defendant before me. The Defendant has appeared to the action, and exhibited his petition to the Court, praying that the jurisdiction thereof be transferred to the Circuit Court of the United States, as he is an Alien, and a subject of the King of Great Britain. His right to this claim of jurisdiction is said to be grounded on the 12th section of the act of Congress, entitled "An act to establish the *473 Judicial Courts of the United States, passed the 24th of September 1789, in the first clause of which section it is enacted, that if a suit be commenced in any State Court against an alien, &c. and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, on a petition of the Defendant, and a tender of bail to appear in the Circuit Court, &c. it shall be the duty of the State Court to accept the surety, and proceed no further in the case, &c.
Previous to the delivery of my opinion in a cause of such importance, as to the consequences of the decision, I will make a few preliminary observations on the constitution and laws of the United States of America.
Our system of government seems to me to differ, in form and spirit, from all other governments, that have heretofore existed in the world. It is as to some particulars national, in others federal, and in all the residue territorial, or in districts called States.
The divisions of power between the national, federal, and state governments, (all derived from the same source, the authority of the people) must be collected from the constitution of the United States. Before it was adopted, the several States had absolute and unlimited sovereignty within their respective boundaries; all the powers, legislative, executive, and judicial, excepting those granted to Congress under the old constitution: They now enjoy them all, excepting such as are granted to the government of the United States by the present instrument and the adopted amendments, which are for particular purposes only. The government of the United States forms a part of the government of each State; its jurisdiction extends to the providing for the common defence against exterior injuries and violence, the regulation of commerce, and other matters specially enumerated in the constitution; all other powers remain in the individual states, comprehending the interior and other concerns; these combined, form one complete government. Should there be any defect in this form of government, or any collision occur, it cannot be remedied by the sole act of the Congress, or of a State; the people must be resorted to, for enlargement or modification. If a State should differ with the United States about the construction of them, there is no common umpire but the people, who should adjust the affair by making amendments in the constitutional way, or suffer from the defect. In such a case the constitution of the United States is federal; it is a league or treaty made by the individual States, as one party, and all the States, as another party. When two nations differ about the meaning of any clause, sentence, or word in a treaty, neither has an exclusive right to decide it; *474 they endeavour to adjust the matter by negociation, but if it cannot be thus accomplished, each has a right to retain its own interpretation, until a reference be had to the mediation of other nations, an arbitation, or the fate of war. There is no provision in the constitution, that in such a case the Judges of the Supreme Court of the United States shall control and be conclusive: neither can the Congress by a law confer that power. There appears to be a defect in this matter, it is a casus omissus, which ought in some way to be remedied. Perhaps the Vice-President and Senate of the United States; or commissioners appointed, say one by each State, would be a more proper tribunal than the Supreme Court. Be that as it may, I rather think the remedy must be found in an amendment of the constitution.
I shall now consider the case before us. It is an action brought in the name of the commonwealth of Pennsylvania, against an alien, a British subject. By the express words of the second sentence of the 2nd section of the 3d Article of the constitution of the United States, in such an action the Supreme Court shall have original jurisdiction; whereas it is now prayed by the Defendant, that original jurisdiction be given to the Circuit Court. From this, it would reasonably be concluded, that the Congress, in the 12th section of the judicial law, did not contemplate an action wherein a State was Plaintiff, though an alien was Defendant, for it is there said, "that is a suit be commenced in any State Court against an alien, &c." as it does not mention by a State, the presumption and construction must be, that it meant by a citizen. This will appear pretty plain from a perusal of the 11th section of the same act, where it is enacted, that the Circuit Courts shall have original cognizance, concurrent with the Courts of the several States, of all suits of a civil nature, of a certain value, where the United States are Plaintiffs or Petitioners, or where an alien is a party. This confines the original cognizance of the Circuit Courts, concurrent with the Courts of the several States, to civil actions commenced by the United States, or citizens against aliens, or where an alien is a party, &c. and does not extend to actions brought against aliens by a State, for of such the Supreme Court had, by the constitution, original jurisdiction. I would further remark, that the jurisdiction of the Circuit Courts is confined to actions of a civil nature against aliens, and does not extend to those of a criminal nature; for although the word "suit" is used generally in the 12th section, without expressing the words "of a civil nature," yet the slightest consideration of what follows, manifestly shews that no other suit was meant; for the matter in dispute must exceed five hundred dollars in *475 value, special bail must be given, &c. terms applicable to actions of a civil nature only.
Let us now consider, whether this suit against William Cobbet is of a civil or criminal nature. It is grounded on a recognizance for the good behaviour entered into before the Chief Justice of this State. This recognizance, it must be conceded, was taken to prevent criminal actions by the defendant, in violation of the peace, order, and tranquility of the society; it was to prevent crimes, or public wrongs, and misdemeanors, and for no other purpose. It is evidently of a criminal nature, and cannot be supported, unless he shall be convicted of having committed some crime, which would incur its breach since its date, and before the day on which the process issued against him. Besides, a recognizance is a matter of record, it is in the nature of a judgment, and the process upon it, whether a scire facias or summons, is for the purpose of carrying it into execution, and is rather judicial than original; it is no farther to be reckoned an original suit, than that the Defendant has a right to plead to it: it is founded upon the recognizance, and must be considered as slowing from it, and partaking of its nature; and when final judgment shall be given the whole is to be taken as one record. It has been well observed by the attorney general, that by the last amendment, or legislative declaration of the meaning of the Constitution, respecting the jurisdiction of the courts of the United States over the causes of States, it is strongly implied, that States shall not be drawn against their will directly or indirectly before them, and that if the present application should prevail this would be the case. The words of the declaration are: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." When the judicial law was passed, the opinion prevailed that States might be sued, which by this amendment is settled otherwise.
The argument ab inconvenienti is also applicable to the construction of this section of the act of Congress. Can the Legislature of the United States be supposed to have intended (granting it was within their constitutional powers) that an alien, residing three or four hundred miles from where the Circuit Court is held, who has, from his turbulent and infamous conduct in his neighbourhood, been bound to the good behaviour by a magistrate of a state, should, after a breach of his recognizance and a prosecution for it commenced, be enabled to remove the prosecution before a Court at such a distance, and held but twice in a year, to be tried by a jury, *476 who know neither the persons, nor characters, of the witnesses, and consequently are unqualified to try their credit; and to oblige the prosecutor and witnesses to incur such an expence of time and money, in order to prove that he had committed an assault, or any other offence that would amount to a violation of it? If so, such a recognizance, though it would operate as a security to the public against a citizen, would be of little avail against an alien. It cannot be conceived, that they intended to put an alien in a more favorable situation than a citizen in such a case, and by difficulties thrown in the way to discourage and weaken, is not defeat the use of, a restraint, found often to be very salutary in preserving the peace and quiet of the people. Many other inconveniences have been mentioned by the counsel, which I shall not repeat. If, therefore, any other construction can be made it ought to prevail.
Upon the whole, our opinion is, that where a State has a controversy with an alien about a contract, or other matter of a civil nature, the Supreme Court of the United States has original jurisdiction of it, and the circuit or district courts have nothing to do with such a case. The reason seems to be founded in a respect for the dignity of a State, that the action may be brought in the first instance before the highest tribunal, and also that this tribunal would be most likely to guard against the power and influence of a state over a foreigner. But that neither the constitution nor the congress ever contemplated, that any court under the United States should take cognizance of any thing favouring of criminalty against a State: That the action before the court is of a criminal nature and for the punishment of a crime against the State: That yielding to the prayer of the petitioner would be highly inconvenient in itself and injurious in the precedent: And that cognizance of it would not be accepted by the Circuit Court, is sent to them; for even consent cannot confer jurisdiction. For these reasons, and others, omitted for the sake of brevity, I conclude, the prayer of William Cobbet cannot be granted.
The Petition rejected.
