Edmonds, J.:
It appears on the return of the habeas corpus, that the prisoners were held in custody on a warrant issued by one of our State magistrates, charging them with the crime of murder, in causing the death of certain persons named, and that they have already been arrested on process issued out of the United States courts, for the same act, on a charge of manslaughter.
There are two important questions presented in this matter; one, whether the offense charged in the warrant is murder under our statute, and the other, whether, if it is, the offense is not, under the law of congress, cognizable by the federal courts to the exclusion of the State courts.
There is another question which it may be necessary to examine, and that is, whether the offense, if not murder, is not manslaughter, under the State statute.
The question of jurisdiction is the most material one, for if the State courts have not, under the circumstances, cognizance of the offense charged, the defendants are entitled to an absolute discharge from their arrest; whereas, otherwise, the question may be merely whether they shall be let to bail or not.
[342]*342I begin by saying that I cannot recognize the distinction taken by one of the counsel, that because congress has not made the offense which its statute aimed at, murder, but only manslaughter, therefore the State tribunals are at liberty to take cognizance of the matter if the State laws elevate the crime to that grade. That would be making the punishment, and not the offense, the standard of jurisdiction, and would permit the State authorities, by increasing the penalty, to obtain jurisdiction over offenses clearly cognizable only by the federal coiuts.
It is the nature and quality of the act, and not the extent of the penalty or punishment, which is to be the measure of the jurisdiction.
And, for this fact, I must look into the warrant to see what that is.
That sets forth that the steamer Henry Clay was engaged in carrying passengers on the Hudson; that on one of her trips, with certain passengers on board, she caught fire and was consumed, whereby the persons named in the warrant were killed.
After this preliminary statement of facts, the warrant charges that the prisoners, who then had charge of the boat, “for the purpose of excelling in speed” another boat, “or for the purpose of increasing the speed ” of their steamer, “ did create or allow to be created an undue or an unsafe quantity of steam, and in so doing did make, or cause, or allow to be made, excessive fires, and did not use ordinary prudence in the management of said fires,” but, though remonstrated with, “for a long while, continued the same,” in consequence whereof the boat took fire, all the deaths ensued, and it concludes that the deceased were murdered by the prisoners by an act which was “ eminently dangerous to others, and evinced a depraved mind, regardless of human life, though without any premeditated design to effect the death of any particular individual.”
The proceedings of the Hnited States authorities charge that the defendants, “by their misconduct, negligence, or [343]*343inattention to their duties on hoard the said steamboat, did cause the death ” of some of the same persons.
The proceedings in the United States courts are under the law of congress, which enacts that every captain, engineer, pilot, or other person employed on board any steamboat, etc., by whose misconduct, negligence, or inattention, to his or their respective duties, the life or lives of any person or persons on board the said vessel may be destroyed, shall be deemed guilty of manslaughter. (5 United States Statutes at Large, 306, § 12.)
The proceedings in the State courts are under the State statute, which enacts that the killing of a human being without the authority of law, when perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any .particular individual, is murder.
And the question before me is, whether they are liable to be proceeded against in the State courts, or whether those courts are not ousted of them jurisdiction by that of the federal courts.
The fact that the federal courts have already instituted proceedings, and thus assumed jurisdiction, is not material on this inquiry; for it is the termination, and not the commencement of proceedings, in one court, which may be pleaded in another. It is the judgment, and not the proceedings preliminary thereto, which is a bar to a second judgment.
It is no unusual thing for proceedings to be instituted for the same cause of action in two different courts having concurrent jurisdiction; nor is it unusual, where the United States a,nd the State courts have concurrent jurisdiction, for them to allow a judgment rendered in one to be a bar to the recovery of a judgment in the other. (1 Kent’s Com. 399.)
It is therefore unnecessary for me to dwell upon the consideration which was pressed on the argument, that the prisoner may be in danger of being twice convicted for the same offense; for the time to raise the objection has not yet arrived, and when it shall arrive, the several courts will be able to [344]*344afford the adequate relief against what wordd be so flagrant a wrong.
The jurisdiction of the federal authorities over the subject is claimed zto rest on that clause of the Constitution which gives congress the power “ to regulate commerce among the several States ” (art. 1, § 8), and that which gives to the United States courts judicial power over “ all cases of admiralty and maritime jurisdiction.” (Art. 3, § 2.)
It is well settled that until congress does exercise its power over a subject properly within its jurisdiction, the previously existing authority of the State to act upon the same subject is unaffected. It is only necessary to refer in illustration to the question of State insolvent laws, determined in Sturgiss or Crowningshield. (4 Wheat. 182.)
But whether, in all cases when congress does take cognizance of a subject, it is to the exclusion of all State authority on it, is another question, and not perhaps quite so well-settled.
The rule is very well stated by the Supreme Court of this State, in the case of The United States v. Lathrop (17 Johns. R. 9). There it is said: “ The jurisdiction of the State courts is in no instance excluded where they had a pre-existing jurisdiction, except in those cases of a national character, such as admiralty and maritime matters, and suits against embassadors and other public ministers, consuls, etc.; but the jurisdiction of the State courts is excluded in cas.es of crimes and offenses cognizable under the authority of the United States, and in suits for penalties and forfeitures incurred under the laws of the United States.”
But this rule leaves the question open in this case, whether the offense with which these prisoners are charged is not a matter of “ admiralty and maritime jurisdiction,” and whether it is not “cognizable under the authority of the United States,” and therefore excluded from the cognizance of the State courts ?
It is not easy, from the reports, to ascertain where the dividing line is. In some cases it is very faint, and not easy [345]*345definable, as in cases of collision on tide waters, and maritime contracts.
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Edmonds, J.:
It appears on the return of the habeas corpus, that the prisoners were held in custody on a warrant issued by one of our State magistrates, charging them with the crime of murder, in causing the death of certain persons named, and that they have already been arrested on process issued out of the United States courts, for the same act, on a charge of manslaughter.
There are two important questions presented in this matter; one, whether the offense charged in the warrant is murder under our statute, and the other, whether, if it is, the offense is not, under the law of congress, cognizable by the federal courts to the exclusion of the State courts.
There is another question which it may be necessary to examine, and that is, whether the offense, if not murder, is not manslaughter, under the State statute.
The question of jurisdiction is the most material one, for if the State courts have not, under the circumstances, cognizance of the offense charged, the defendants are entitled to an absolute discharge from their arrest; whereas, otherwise, the question may be merely whether they shall be let to bail or not.
[342]*342I begin by saying that I cannot recognize the distinction taken by one of the counsel, that because congress has not made the offense which its statute aimed at, murder, but only manslaughter, therefore the State tribunals are at liberty to take cognizance of the matter if the State laws elevate the crime to that grade. That would be making the punishment, and not the offense, the standard of jurisdiction, and would permit the State authorities, by increasing the penalty, to obtain jurisdiction over offenses clearly cognizable only by the federal coiuts.
It is the nature and quality of the act, and not the extent of the penalty or punishment, which is to be the measure of the jurisdiction.
And, for this fact, I must look into the warrant to see what that is.
That sets forth that the steamer Henry Clay was engaged in carrying passengers on the Hudson; that on one of her trips, with certain passengers on board, she caught fire and was consumed, whereby the persons named in the warrant were killed.
After this preliminary statement of facts, the warrant charges that the prisoners, who then had charge of the boat, “for the purpose of excelling in speed” another boat, “or for the purpose of increasing the speed ” of their steamer, “ did create or allow to be created an undue or an unsafe quantity of steam, and in so doing did make, or cause, or allow to be made, excessive fires, and did not use ordinary prudence in the management of said fires,” but, though remonstrated with, “for a long while, continued the same,” in consequence whereof the boat took fire, all the deaths ensued, and it concludes that the deceased were murdered by the prisoners by an act which was “ eminently dangerous to others, and evinced a depraved mind, regardless of human life, though without any premeditated design to effect the death of any particular individual.”
The proceedings of the Hnited States authorities charge that the defendants, “by their misconduct, negligence, or [343]*343inattention to their duties on hoard the said steamboat, did cause the death ” of some of the same persons.
The proceedings in the United States courts are under the law of congress, which enacts that every captain, engineer, pilot, or other person employed on board any steamboat, etc., by whose misconduct, negligence, or inattention, to his or their respective duties, the life or lives of any person or persons on board the said vessel may be destroyed, shall be deemed guilty of manslaughter. (5 United States Statutes at Large, 306, § 12.)
The proceedings in the State courts are under the State statute, which enacts that the killing of a human being without the authority of law, when perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any .particular individual, is murder.
And the question before me is, whether they are liable to be proceeded against in the State courts, or whether those courts are not ousted of them jurisdiction by that of the federal courts.
The fact that the federal courts have already instituted proceedings, and thus assumed jurisdiction, is not material on this inquiry; for it is the termination, and not the commencement of proceedings, in one court, which may be pleaded in another. It is the judgment, and not the proceedings preliminary thereto, which is a bar to a second judgment.
It is no unusual thing for proceedings to be instituted for the same cause of action in two different courts having concurrent jurisdiction; nor is it unusual, where the United States a,nd the State courts have concurrent jurisdiction, for them to allow a judgment rendered in one to be a bar to the recovery of a judgment in the other. (1 Kent’s Com. 399.)
It is therefore unnecessary for me to dwell upon the consideration which was pressed on the argument, that the prisoner may be in danger of being twice convicted for the same offense; for the time to raise the objection has not yet arrived, and when it shall arrive, the several courts will be able to [344]*344afford the adequate relief against what wordd be so flagrant a wrong.
The jurisdiction of the federal authorities over the subject is claimed zto rest on that clause of the Constitution which gives congress the power “ to regulate commerce among the several States ” (art. 1, § 8), and that which gives to the United States courts judicial power over “ all cases of admiralty and maritime jurisdiction.” (Art. 3, § 2.)
It is well settled that until congress does exercise its power over a subject properly within its jurisdiction, the previously existing authority of the State to act upon the same subject is unaffected. It is only necessary to refer in illustration to the question of State insolvent laws, determined in Sturgiss or Crowningshield. (4 Wheat. 182.)
But whether, in all cases when congress does take cognizance of a subject, it is to the exclusion of all State authority on it, is another question, and not perhaps quite so well-settled.
The rule is very well stated by the Supreme Court of this State, in the case of The United States v. Lathrop (17 Johns. R. 9). There it is said: “ The jurisdiction of the State courts is in no instance excluded where they had a pre-existing jurisdiction, except in those cases of a national character, such as admiralty and maritime matters, and suits against embassadors and other public ministers, consuls, etc.; but the jurisdiction of the State courts is excluded in cas.es of crimes and offenses cognizable under the authority of the United States, and in suits for penalties and forfeitures incurred under the laws of the United States.”
But this rule leaves the question open in this case, whether the offense with which these prisoners are charged is not a matter of “ admiralty and maritime jurisdiction,” and whether it is not “cognizable under the authority of the United States,” and therefore excluded from the cognizance of the State courts ?
It is not easy, from the reports, to ascertain where the dividing line is. In some cases it is very faint, and not easy [345]*345definable, as in cases of collision on tide waters, and maritime contracts. (See Waring v. Clarke, 5 How. U. S. R. 441.)
In other cases it is more marked; as in the case of the reclamation of fugitive slaves, where it is held that the exercise of the power by the nation is exclusive of all interference by the State. (Priggs Case, 16 Peters, 539.)
And in others, it is in a measure apparently obliterated, as in case of imposition of taxes, and the government of the militia, where both authorities have jurisdiction under certain circumstances. (Houston v. Moore, 5 Wheat. 1.)
In the United States v. Bevans (3 Wheat. 336), it was held that the United States courts had not jurisdiction of the crime of murder, committed on board a national vessel in the harbor of Boston, because it was committed within the jurisdiction of a State, and the law of congress gave the United States courts cognizance only of “ offenses committed on the high seas or in any river, haven, basin or bay, out of the jurisdiction of any particular State.” It was also held that the cession of admiralty and maritime jurisdiction to the federal courts did not give them cognizance of the offense, because that could not be construed into a cession of the waters on which those cases arise, and the power of exclusive legislation (which is jurisdiction) is united with cession of territory, and the general jurisdiction over the place adheres to the territory as a portion of the State sovereignty not given away.
In one aspect that case is like that now under my consideration, and decides, at all events, that the mere grant of admirality and maritime jurisdiction does not exclude State authority. But there was another point in that case, and that was, that congress had not legislated as to the offense when committed within State territory. Since then congress has supplied the defect, and legislated for such a case. But still it is unsettled whether, since congress has done so, the State is excluded from all authority, and that is the precise question before me; and it is a grave one when we consider the language of the court, “that exclusive legislation (which is jurisdiction) is united with cession of territory.”
[346]*346There has been no cession of territory at the place where th.e offense charged in this case was committed; and when we consider that the argument urged by the prisoners here, if allowed to prevail, will necessarily deprive the State of all power of legislation on the subject of steamboats in our navi gable waters, the point becomes too serious to be lightly oi summarily disposed of.
On the other hand, it was held in Houston v. Moore, surpra, that in every case in which the State tribunals should not be expressly excluded by the acts of the national legislature, they would of course take cognizance of the causes to which these acts might give birth, and that the grant of jurisdiction generally was not of itself sufficient to rest an exclusive jurisdiction. Chancellor Kent (1 Com. 400) sums up his examination of the question in these words: “ The conclusion then is, that in judicial matters the concurrent jurisdiction of the State tribunals depends altogether upon the pleasure of congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject-matter can constitutionally be made cognizable in the federal courts, and that without an express provision to the contrary, the State courts will retain a concurrent jurisdiction, in all cases' where they had jurisdiction originally over the subject-matter.”
Our Court for the Correction of Errors, in Delafield v. State of Illinois (2 Hill, 164), took the same view of the question. Bronson, J\, in delivering the opinion of the court, says: “ There is, I think, no instance in the whole history of the law, where the mere grant of jurisdiction to a particular court, without any words of exclusion, has been held to oust any other court of the powers which it before possessed.” In stating his views he alludes to criminal cases, and denies that a person, who within our territory commits a crime which is cognizable in the United States courts, is thereby exempt from being prosecuted in the State courts, and he remarks, “ probably no one is prepared to carry the doctrine of exclusive jurisdiction so far.”
From this examination, it is by no means certain that the [347]*347State authorities have not jurisdiction although the federal authorities have claimed and exercised it.
There is still another view of the case, in which it may he that the State tribunals may have jurisdiction in cases like this. Somthing more is necessary to convict, under the State • jurisdiction, than under that of the federal authorities. In the latter, any misconduct, negligence, or inattention, which results in a sacrifice of life, may be enough for conviction, but under the former, more must necessarily be proved, namely, some act that evinces a depraved mind, regardless of human life — some act imminently dangerous, not one which may or may not harm, but one that must almost necessarily do so. And it may be well that that is an offense in respect to which congress has not legislated, so that in any view, the State authority may be untrammeled. I am not so clear that it may not be so as to leave no doubt on my mind. From the views I have thus stated, it will be perceived that I am by no means clear that the State courts have not jurisdiction. If I was satisfied of that, the priseners would be entitled to their discharge. But as, to say the least, it is a matter of doubt, it is my duty to hold them until the question can be determined in the proper forum.
This result renders it necessary for me to examine the other question raised—whether any crime against our laws is charged in the warrant, and if so, what one, so as to determine in what manner the prisoners shall be tried. That involves the question whether an unlawful killing by an act imminently dangerous and evincing a depraved mind, regardless of human life, of itself constitutes the crime- of murder under our statute, and whether it is not also necessary to prove an intention to hurt some one. The revisors, in their notes to this statute, say it was not intended there should be any departure from the then existing law, except as to implied malice, and for this particular enactment they refer to Hale’s Pleas of the Crown. There it is stated that the intent to do bodily harm is necessary, in such a case, to constitute murder, and that writer, in illustration, instances the case of a [348]*348man who, knowing that people are passing along the street, throws a stone or shoots an arrow over the house or wall with the intent to do hurt to people, some one is thereby slain— this is murder; and if it were without such intent, it is manslaughter. I am not at liberty to depart from the rule as thus stated, and it must govern me in the construction of our statute, until the court shall put a different interpretation upon it. And this view of the statute is confirmed by the fact, that the revisors recommended a provision that would have made an unlawful killing, murder, when perpetrated from a premeditated design to do some great bodily injury, although without a premeditated design to effect death; but the legislature refused to enact it — thus implying to my view, that a design to do great bodily harm, or an intention to kill, must attend an act imminently dangerous, etc., to make the crime murder. I at one time thought that there could be no conviction for murder under this clause of our statute, unless there was an intention to take the life of some one, though it was not necessary to prove an intent to take the life of any particular individual. Therefore, it was that in the case of Austm (7 N. Y. Leg. Obs. 117) I remarked, whether the act was murder or manslaughter under our statutes depended entirely upon the existence of an intention to kill either some particular person or generally some one of a number of persons, against whom, in a mass, the fatal áct is perpetrated. There is only one homicide known tó our law which becomes murder in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. I am not yet satisfied that in this I was wrong, though it is not necessary to decide that point here. It is enough for this occasion that I deem there should be evidence at least of an intention to do some bodily- harm; and that must be so or our statute must be held to punish a homicide perpetrated without any intention to do wrong, more severely than one perpetrated by one actually engaged in the commission of a crime or misdemeanor not amounting to a felony. Under our. statute the [349]*349latter is manslaughter only, and it cannot be that it means to treat the other as murder. Now, in this case there is no allegation of an intention to do bodily harm, but, on the contrary, the facts alleged negative that idea; and thus, as one essential element to constitute the crime of murder is wanting, the prisoners ought not to be held on that charge. They ought not, however, to be fully discharged, but may properly be held for manslaughter, and, I am inclined to think, in the first degree. That is defined in our statute to be “the killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of any other, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony.” (2 R. S. 661, § 6.) And it is also enacted that, if the person haying charge of a steamboat navigating our waters, or the person having charge of the boiler, for the purpose of excelling any other boat in speed, or for the purpose of increasing the speed of such boat, create or allow to be created an undue or unsafe quantity of steam, they shall be guilty of a misdemeanor. (Laws of 1839, eh. 175, 63.) Here it is alleged in the warrant, in the very language of the statute, that the killing occurred while the prisoners were engaged in performing those very acts. So that, although the warrant calls the offense murder, that which it - details is, in fact, not murder, but manslaughter. WEether "it is manslaughter in the first or some other degree, depends upon some question of interpretation, which I do not feel myself now called upon to consider. It is enough for this case, that I am satisfied that the prisoners are not, under the statute, properly chargable with the crime of murder, which is not bailable, but with an offense for which they may be let to bail. The conclusion, then, at "which I have arrived is, that the absence of jurisdiction in the State courts is not so clear as to warrant the total discharge of the prisoners; that they cannot, however, be held on the charge of murder, but may be held on the charge of manslaughter; and that, as that offense is bailable, they may be admitted to bail.
[350]*350At the conclusion of the opinion, Mr. Wells, district attorney of Westchester, asked whether it was the intention of the judge to admit the parties to bail himself, or remand them to Westchester for that purpose?
Whether they shall be so let to bail is a matter in the discretion of the court or officer before whom they may be brought.
I have nothing on which to rest my. discretion except the warrant, the inquisition, and the complaint. From them it appears that the great destruction of human life charged— fifty-five persons having been killed—was caused by the “culpable negligence and criminal recklessness ” of these defendants.
I have no means of determining that it was not so, and I should feel myself bound, under such circumstances, to refuse to admit them to bail.
I prefer, however, remitting the case to the officer who issued the warrant to determine that point. He can look into the depositions taken before the coroner to see whether there is anything’ to mollify the severity of the restraint, which might otherwise seem to be required; and, besides, I see no good reason why the magistrate of the county where the' offense was committed, before whom the proceedings have been commenced, and who is fully competent to dispose of the case, should be unnecessarily ousted of his jurisdiction.
After some conversation among the counsel it was agreed between them that the prisoners should be let to bail in the sum of $10 000 each; and the judge took bail accordingly.