the law permits the States to exercise full control over public ways of all kinds within their respective localities.1 Even roads may be laid out by a State across lands within its limits belonging to the United States, and the general government cannot interfere.2 But Regulate Commerce. Under the authority to regulate commerce, Congress may exercise any jurisdiction over the public ways of the country required for this object;3 and perhaps there may be some jurisdiction from other provisions of the national Constitution. 4 Even without congressional legislation, the courts of the United States under their equity powers may order the abatement of bridges and other structures over navigable rivers, if clearly they are nuisances embarrassing commercial intercourse between the States, though authorized by the legislatures of the States in which they are located. It is otherwise where the waterway is entirely within the territorial limits of the State, not extending, as a public highway, into any other State. There have been doubts of the authority of the judiciary in any circumstances thus to take action in advance of legislation, and practically such action is and should be limited to cases clear in the law and the facts urgent. Further as to § 175. State Jurisdiction. Subject only to the national interference just explained, the statute of a State may go as far as its legislature chooses in authorizing bridges and the like structures 1 P. v. St. Louis, 5 Gilman, 351; C. v. Alger, 7 Cush. 53; Moore v. Sanborne, 2 Mich. 519, 59 Am. D. 209; Bailey v. Philadelphia Rld. 4 Harring. Del. 389, 44 Am. D. 593; Rogers v. Kennebec and Portland Rld. 35 Me. 319, 323; Eldredge v. Cowell, 4 Cal. 80; Cox v S. 3 Blackf. 193; Depew v. Trustees, 5 Ind. 8; Kellogg v. Union Company, 12 Coun. 7; Willson v. Black Bird Creek Marsh, 2 Pet. 245; Savannah v. S. 4 Ga. 26; Stoughton v. S. 5 Wis. 291; Morgan v. King, 18 Barb. 277; Withers v. Buckley, 20 How. U. S. 84; Parker v. Cutler Mill Dam, 20 Me. 353, 37 Am. D. 56; Illinois River Packet Co. v. Peoria Bridge, 38 Ill. 467; Chicago v. McGinn, 51 Ill. 266, 2 Am. R. 295; Attorney-General v. Stevens, Saxton, 369, 22 Am. D. 526; Hutchinson v. Thompson, 9 Ohio, 52; Flanagan v. Philadelphia, 42 Pa. 219; P. v. Tibbetts, 19 N. Y. 523; Mobile v. Eslava, 9 Port. 577, 33 Am. D. 325; Avery v. Fox, VOL. I.- -7 1 Abb. U. S. 246; Delaware and Hudson Canal v. Lawrence, 2 Hun, 163. 2 U. S. v. Rld. Bridge, 6 McLean, 517. 8 U. S. v. New Bedford Bridge, supra; Pennsylvania v. Wheeling and Belmont Bridge, 18 How. U. S. 421; Gibbons v. Ogden, 9 Wheat. 1. It may forbid or regulate the construction of a bridge across the Mississippi. U. S. v. Milwaukee and St. Paul Ry. 5 Bis. 410. See Pennsylvania v. Wheeling and Belmont Bridge, supra. 5 Bishop Non-Con. Law, § 953; Pennsylvania v. Wheeling and Belmont Bridge, 13 How. U. S. 518, 18 How. U. S. 421; Georgetown v. Alexandria Canal, 12 Pet. 91; U. S. v. Railroad Bridge, 6 McLean, 517; Gilman r. Philadelphia, 3 Wal. 713. Bishop Non-Con. Law, § 953; Milnor v. New Jersey Rld. 6 Am. Law Reg. 6, Grier, J. See Silliman v. Hudson River Bridge, 1 Black, 582. 97 even over the large rivers and the harbors of the country. But where, in these cases, the national legislature has already laid down a rule, it bounds the State power.2 Congress may constitutionally legalize a bridge already erected. And 3 § 176. Crimes against Commerce. Though Congress has authority thus to regulate the ways of commerce within the States, concurrently with them, or doubtless even to their exclusion 5 should she be so unwise, as to crime she has not to any considerable extent legislated to punish what is done within counties. Therefore Within the Counties the dominion of the States and the common-law jurisdiction of their courts are practically almost as exclusive as if Congress had no constitutional authority in exceptional localities there. But some things are by congressional legislation made punishable when done "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State; " the construction whereof appears practically to be that the words "out of the jurisdiction of any particular State" do not qualify "high seas," but do qualify the subsequent words: so that if the offence is upon seas washing an open coast, and 1 See cases cited to the last section; Hudson v. S. 4 Zab. 718; Palmer v. Cuyahoga, 3 McLean, 226; C. v. New Bedford Bridge, 2 Gray, 339. 2 Columbus Insurance Co. v. Curtenius, 6 McLean, 209; Columbus Insurance Co. v. Peoria Bridge, 6 McLean, 70; Jolly v. Terre Haute Draw-Bridge, 6 McLean, 237; Gibbons v. Ogden, 9 Wheat. 1. & Clinton Bridge, 10 Wal. 454. 4 See Waring v. Clarke, 5 How. U. S. 441. And see Rex v. Bruce, Russ. & Ry. 243, 2 Leach, 1093. 5 C. v. Peters, 12 Met. 387. See P. v. Westchester, 1 Par. Cr. 659. An act of Congress made it felony "if any person or persons shall plunder, steal, or destroy any money, goods, merchandise, or other effects from or belonging to any ship, or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked, lost, stranded, or cast away upon the sea or upon any reef, shoal, bank, or rocks of the sea, or in any other place." And this provision being in regulation of commerce, the national courts were held to have jurisdiction of the offence though committed while the wrecked vessel is lying upon the shore, and even after the property is thrown upon the shore separated from the vessel. U. S. v. Pitman, 1 Sprague, 196; U. S. v. Coombs, 12 Pet. 72. See R. S. of U. S. § 5358. 7 U. S. v. Bevans, 3 Wheat. 336; Thompson v. Steamboat Morton, 2 Ohio St. 26. Internal Commerce of States within the marine league belonging to the territory of the State, still it is punishable as committed against the United States; but not, if it is in a harbor or the like place within the limits of a county.1 The consequence seems to be that whatever of wrong is done on the open coast below the water-margin is exempt from punishment; unless it is within some act of Congress, or unless the State has made, as Virginia has,2 a statutory provision for such localities; or has extended over them her county lines, as has New York.3 § 177. The Nature of the Criminal Thing, though done within the local limits of a State, may make it an offence against the United States. Therefore Treason is a crime against either the United States or a State, according as its purpose is the subjugation of the one government or the other.5 But A Statute, within the constitutional power of the United States, is required to make national treason practically punishable, because there are no common-law national crimes.6 § 178. Acts offending both United States and State. There are, we have seen,7 wrongful acts of a nature to violate duties both to the United States and to a State. And some of them are crimes within the positive laws of each. It is probably the doctrine of the courts, though not free from doubt in principle, that whenever Congress may constitutionally render a thing a crime against the United States, she can make her legislation exclusive of State law. But however this may be, if the national statute neither in terms nor by necessary implication excludes the State law, the latter is not superseded. Thus, — Counterfeiting the coin or bills of the United States, or foreign coin made current by act of Congress, is commonly declared by a State statute an offence against the State wherein it trans 1 U. S. v. Grush, 5 Mason, 290; C. v. Peters, 12 Met. 387; U. S. v. Bevans, 3 Wheat. 336. See U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Holmes, 5 Wheat. 412. 2 C. v. Gaines, 2 Va. Cas. 172. 8 Ante, § 149. And see Ex parte Byers, 32 Fed. Rep. 404; Manchester v. Massachusetts, 139 U. S. 240. + See, for illustrations, U. S. r. Coombs, 12 Pet. 72; S. v. Caroline, 20 Ala. 19; U. S. r. Bailey, 9 Pet. 238; U. S. v. Barton, Gilpin, 439. 5 Charge on Law of Treason, 1 Story, 614; P. v. Lynch, 11 Johns. 549. 6 Post, § 194. 7 Ante, § 155. 8 Ante, § 176. See Fox v. Ohio, 5 How. U. S. 410; C. v. Fuller, 8 Met. 313; S. v. Pitman, 1 Brev. 32, 2 Am. D. 645, C. v. Barry, 116 Mass. 1. 9 Ante, § 172 et seq.; Harlan v. P. 1 Doug. Mich. 207; Fox v. Ohio, supra; Moore v. Illinois, 14 How. U. S. 13; P. v. Kelly, 38 Cal. 145. pires; but a national enactment makes it such also against the United States.1 Congress has not attempted herein to restrict the power of the States.2 Other Crimes - there are within the like concurrent jurisdiction. 3 § 179. Whether both Governments may prosecute, in these circumstances, we shall consider further on. 4 § 180. Offices Exclusive. It seems to be settled in authority, while it is just in principle, and promotive of harmony in our complicated system, that the United States and States may severally appropriate, each to itself, as many persons to carry on its governmental functions as it needs, may exempt them from all conflicting duties to the other government, and may even prevent their rendering any service to it. Yet a man in the employ of the United States, for instance, could not be permitted, further than official duty required, to violate the law of a State; but what are all the limitations and the entire consequences of this doctrine we may not be able to say. One proposition is that Tax on Salaries. - Neither the United States nor a State can tax the salaries of the officers of the other. § 181. Consuls are answerable neither criminally nor civilly in the courts of a State, but only of the United States. It appears that the offence itself, or the civil wrong for which the consul is called in question, may be in violation of the laws of a State, the mere forum being the national tribunal. 1 Fox v. Ohio, 5 How. U. S. 410; S. v. Antonio, 3 Brev. 562, 2 Tread. 776; S. v. Tutt, 2 Bailey, 44, 21 Am. D. 508; Harlan v. P. 1 Doug. Mich. 207; Sutton v. S. 9 Ohio, 133; Chess v. S. 1 Blackf. 198; C. v. Fuller, 8 Met. 313; S. v. Pitman, 1 Brev. 32; Hendrick v. C. 5 Leigh, 707; Jett v. C. 18 Grat. 933; Sizemore v. S. 3 Head, 26. See Rouse v. S. 4 Ga. 136; Manley v. P. 3 Seld 295, 302, 303; S. v. Brown, 2 Or. 221. And see Vol. II. § 283-287. 2 Vol. II. § 285 and note; S. v. Adams, 4 Blackf. 146; Harlan v. P. 1 Doug. Mich. 207; Fox v. Ohio, supra ; S. v. McPherson, 9 Iowa, 53; P. v. White, 34 Cal. 183. See P. v. Westchester, 1 Par. Cr. 659. As to perjury in naturalization papers, see Vol II. § 1023; Rump v. C. 30 Pa. 475; P. v. Sweetman, 3 Par. Cr. 358. Post, § 983-989. And see Fox v. Ohio, 5 How. U. S. 410, 432; U. S. v. Marigold, 9 How. U. S. 560; Moore v. Illinois, 14 How. U. S. 13, 20. 3 S. v. Martindale, 1 Bailey, 163; Kentucky r. Ohio, 24 How. U. S. 66. And see C. v. Knox, 6 Mass. 76. U. S. v. Hart, Pet. C. C. 390. 7 The Collector v. Day, 11 Wal. 113. 8 Dobbins v. Erie, 16 Pet. 435. 9 Const. U. S art. 3, § 2; Mannhardt r. Soderstrom, 1 Binn. 138; Hall v. Young, 3 Pick. 80, 15 Am. D. 180; Sartori v. Hamilton, 1 Green, N. J. 107; U. S. v. Lathrop, 17 Johns. 4; Valarino v. Thompson, 3 Seld. 576; C. v. Kosloff, 5 S. & R. 545; Griffin v. Dominguez, 2 Duer, 656; U. S. v. Ravara, 2 Dall 297. And see U. S. v. Ortega, 11 Wheat. 467; 1 Kent Com. 45. CHAPTER IX. FURTHER OF THE NATURE AND SOURCES OF THE NATIONAL JURISDICTION OUTSIDE THE STATES. § 182. In a Previous Chapter, the jurisdiction which a nation is entitled to exercise outside her territorial limits was considered. 1 Here we are to look further into the doctrine 2 that the United States is, under the Constitution, a nation. . § 183. Constitutional Provisions. The more important of those leading to this result are the following: The President "shall have power, by and with the advice and consent of the Senate, to make treaties, . . . and he shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers, and consuls." 3 "The Congress shall have power . . . to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; . . . to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; . . . to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces," &c. On the other hand, "no State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal;" or "without the consent of Congress ... keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war unless actually invaded or in such imminent danger as will not admit of delay."5 So that 1 Ante, § 109 et seq. 2 Ante, § 158. 8 Const. U. S. art. 2, § 2. 4 Const. U. S. art. 1, § 8. |