Bussell, Oity Judge..
It was not controverted, on the argument against the defendants, that it was for acts claimed to be a violation of a criminal statute of this State that the indictment in this case was found. The ground taken was, that whatever violations of the laws of this State the defendants had committed proceeded from obedience to an order of the President of the United States, for which, under [590]*590the act of Congress of March 3, 1863, they were not responsible to the tribunals of this State. The motion made, on the part of the defendants, was for an order of this court, sending the indictment to the next Circuit Court of the United States, for this district, in pursuance of section 5 of that act. The question is, is this court bound, or ought it to grant such a motion. At first blush, it would seem strange that the courts' of this State had not the right to take cognizance of offenses against its laws, without reference to the social, political, official, or other standing of the parties charged. They certainly are the most appropriate tribunals to entertain such a jurisdiction. The State makes its own laws, and its courts, should see that they are enforced. If justice is supposed to be administered without reference to position or complexion, or any other extraneous consideration, the defendants, it is fair to presume, will be treated as other citizens, entitled to the same rights, and subject to the same legal accountability. Without discussing the question of State sovereignty, it is not improper to refer to the instances showing that this State has been considered capable of impartiality to all, and proving that it has uniformly asserted its rights to vindicate and enforce its own laws. One is the celebrated case of The People v. Croswell (3 Johns. Cases, 336), where the defendant was indicted and committed for libel upon President Jefferson, in a newspaper published in the city of Hudson, in this State. The other is the familiar case of The People v. McLeod (1 Hill R., 377), where the Supreme Court of this State (composed of Nelson, Chief Justice, and Bronson and Cowen, JJ.), remanded the defendant, upon habeas corpus, for trial upon an indictment for murder, though the act charged upon him had been adopted by the British Government (of which he was the subject), and had become the subject of diplomacy between that government and our own. If, notwithstanding these proceedings, Congress had the power to take away the jurisdiction of this court in the present case, and confer it upon the Circuit Court of the United States, and has done so, this court would readily yield its obedience to such a law. On the argument of the [591]*591present motion, the prosecution discussed two points: First, as to the constitutionality of the act of March 3, 1863 ; and, second, as to whether, even if Congress could constitutionally enact such a law, the law as enacted was so framed, or worded, as to amount to a constitutional exercise of its power, Whatever may be my views upon the first point presented, I do not deem it necessary to pronounce upon that point, for it coincides with the views of the prosecution as to the second point urged. Assuming that the act as drawn, gives the Circuit Court of the United States the power to try the present indictment, it is not easily seen where that court would get the power to punish, in case of conviction, or who, in the event of conviction and sentence, would have the right to pardon. -If we suppose that the present prosecution could be transferred to the Federal courts and could be directed to be there continued with the same effect as if it regularly proceeded in the courts of this State, that does not obviate the present difficulty. The trouble is, Congress has not so said, though the fifth section of the act uses these words: “ That if any suit or prosecution, civil or military, has been, or shall be, commenced in any State, or court,” &c., when it comes to provide for the powers of the Circuit Court over the matters removed to it, it uses terms applicable solely to civil proceedings. The provision is as follows: “ And such copies (meaning of the process and proceedings against the party seeking the removal in the court of original jurisdiction), being filed as aforesaid, in such court of the.United States, the case shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute, or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding.” All the expressions in this sentence are such as are used to designate civil proceedings. Criminal proceedings are not commenced by original process, nor does the amount in dispute, nor do the damages claimed, nor does the citizenship of the parties at all affect them. Civil proceedings are affected by such, matters. If it is granted that, in the outset [592]*592of section five, Congress meant to transfer criminal as well as civil proceedings to the Federal courts in the cases named, it has only accomplished its intention in reference to civil proceedings. If the present indictment is transferred to the Circuit Court, the power to try it is not even given; and even if it is, expressly or. impliedly, the power to punish is certainly not given, and that power cannot be exercised by implication. If this be the correct interpretation of this act, to transfer a criminal prosecution under its provisions to the Federal court would be to terminate it. A guilty party could not be punished. Such a law must be unconstitutional. The principle by which this act of Congress is to be construed is a severe one. No court of competent jurisdiction is to be interfered with in the assertion of its authority, unless the legislative power has so said in a law validly passed, and couched in plain, intelligible and unambiguous language. Under the judiciary act of September 24, 1789 (1 Statutes at Large, p. 73; § 12, p. 79), provision was made for the removal of certain civil actions, commenced in the State courts, into the Circuit Court of-the United States, and the formula by which that was to be done was carefully prescribed. In this State, in Redmond v. Russell (12 Johns. R., 153), it was held, as early as 1815, that this .provision of the judiciary act of 1798 must, and would be, strictly adhered to and observed; that the one set of courts could not lose, nor could the other set acquire jurisdiction, but in the very mode prescribed. (See, also, Conkting’s Treatise, 3d ed., 173,174, 476, 480.) The Supreme Court of the United States has also held, that, if a cause is improperly removed to a Circuit Court, it is its duty to remand it to the State court. (Follard v. Dwight, 4 Cranch R., 421.) Under the judiciary act of 1789, the proceedings for removal, as under the act in question, of 1863, are to take place in State courts.
Under the act to provide for the collection of duties on imports of March 2, 1833 (4 Stat. at Large, 632), the jurisdiction of the Circuit Courts of the United States was extended to all cases, in law and equity, arising under the revenue laws [593]*593of the United States, and if any suit was commenced in a State court for any matter growing out of these laws, the application for its removal was directed to be ‘by a petition to the appropriate Circuit Court. It would seem by this that Congress has had before its mind the subject, which of the two sets of courts should be the instruments through or by which the jurisdiction of one of them is to be transferred to the other. If, in some instances, the State courts are preferred, and, in ■others, the Federal, the argument is deducible that there is some reason for these respective preferences. There must be some amount of confidence and discretion reposed in both sets of courts in the performance of this duty. In Gordon v. Longest (16 Peters R., 97), the Supreme Court of the United States held that the judge of a State court, to which an application is made for the removal of a cause into a court of the United States, must exercise a legal discretion as to the right claimed to remove the cause. As I understand this decision, the court is to be satisfied of two things: First, that the law under which the removal is sought is valid; and, secondly, that it has been literally adhered to in the steps taken to accomplish the removal. The' discretion is not arbitrary, but must yield to the law. In this case I am not satisfied that the fifth section of the act of 1863, so far as it affects the transfer of criminal prosecutions from the State to the Federal courts, is valid, and must therefore deny the motion on the part of the defendants. This conclusion does not at all conflict with the judgment of the general term of the Supreme Court of this district, in the case of Jones V. Seward (26 How. Pr. R., 433); nor does it conflict with the Constitution of the United States- in its declaration that that instrument, and the laws made in pursuance of it and the treaties of the United States, shall be the supreme law of the land; nor with the provision that the judicial power of the United States shall extend to all cases, in law and equity, arising under that instrument, or the laws or treaties of the United States. The case of Jones v. Seward was a civil proceeding, and did not involve the question submitted to this court. As the Constitution of the United States does not [594]*594execute itself, but becomes effective by the action of Congress, •which body must pass the proper laws in execution of the powers it gives, the defendants cannot place themselves upon that instrument. This subject will be found fully considered in the matter of Metzges (1 Brevard S. C. R., 248).
I came to the present conclusion more willingly because the defendants, on the trial of the indictment, can claim the benefit of the same legal principles and rules as would be applicable in the United States courts. The judiciary act of 1789 (4th Statutes at Large, 85, § 25), provides for the reviewupon a writ of error, by the Supreme Court of the United States, of the final judgment or decree, in any suit, of the highest court of law or equity in any State, “ where is drawnin question the validity of a treaty or statute of, or an authority exercised in, the United States,'and the.decision is against their validity; or where is drawn in question the validity of a statute .of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is against their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party under such clause of the said Constitution.” This provision of the judiciary act came under the consideration of the Supreme Court of the United States in Cohens v. The State of Virginia (6 Wheat. R., 264), where it was discussed by Chief Justice Marshall in one of the most masterly opinions which ever emanated from his great mind. Should any injustice be done to the defendants by the courts of this State, it can be corrected in the mode, designed by this provision of the judiciary act. ISTo such apprehension ought' to be indulged; for it can hardly be possible that this State, which has so promptly and effectually sustained every legal effort of the general government in the present emergency, will consent to do wrong to any of the agents of the general government for yielding obedience to any of its lawful commands.
[595]*595Hoffman, Recorder. The defendants have been indicted by the grand jury in and for the city and county of New York, for the forcible seizure and confinement of one Arguelles, in violation of the laws of the State of New York against kidnapping.
To this indictment no plea has been interposed by the defendants, but, under the provisions of section five of chapter eighty-four of the laws of the thirty-seventh Congress, they have presented a petition to this court, stating that the act complained of was done by order of the President of the United States, and asking, for that reason, that the indictment may be removed from this court into the United States Circuit Court for trial;
Section four of the act of Congress referred to provides that any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, for any search, seizure, arrest or imprisonment made, done or committed, or acts omitted to be done, under and by virtue of such order, &c., and that such defense may be made by special plea or under the general issue; and section five of the act under which this application is made, is as follows:
“ § 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then, at the next session of the court in which such suit or prosecution is pending, file a petition stating the facts and verified by affidavit, for the removal of the cause for trial to the next Circuit .Court-of the United States, to be holden in the district where the suit [596]*596is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court, and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or 1 prosecution,’ and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding.”
I will not now discuss the character of this most remarkable legislation. At the proper time and in the proper place it will, I trust, receive the consideration and construction which it merits. The question of its constitutionality, except so far as it affects the question of the transfer of the indictment to the courts of the United States, is not involved in this motion, and I shall not examine here any question but the one at issue. Upon the argument of the motion the counsel for the defendant asserted that if the indictment should be removed to the United States Circuit Court, and a trial should be there had, followed by a conviction, that the judges of the United States Court could sentence the defendant, under the laws of the State of New York, to suffer the punishment prescribed by those laws, and that the power to pardon would rest in the President of the United States.
If these assertions were well founded, we should have the strange picture presented of a United States judge administering the penal laws of the State of New York, and the President of the United States extending a pardon to one convicted of a crime against the laws of that State, which had been committed by his own order. Such a result would seem to be more appropriate to an act entitled “An act to prevent the [597]*597punishment of any man who shall commit a crime by order of the President of the United States.”
But I think these assertions of counsel are not well founded,. and cannot be maintained.
There is no authority for saying that a judge of a United States court could sentence a criminal in pursuance of the laws of a State. Those judges have no powers except such as are conferred • on them by the laws of the United States, under the Constitution of the United States. Congress has never conferred upon them the power to pass any sentence upon any criminal offender against the laws of a State. Even the act of 1863 is silent upon the subject, and no powers to that effect had ever been given before, because (if for no other reason) no one, until 1863, ever contemplated that a court of the United States would be called upon to try offenders against the criminal laws of a State.
If, then, this indictment were transferred, and the defense that the act complained of was done by the order of the President of the United States should fail, and the defendant should be convicted, no judgment whatever could follow upon that conviction.
Again, if a judgment could follow, no pardon could be extended to the offender; the President of the United States could not pardon, for the same reason that the offense is against the laws of the State, and not against the laws of the United States; and section two of article two of the Constitution of the United States confers upon the President the power to pardon and reprieve only for offenses against the United States.
That it did not confer upon the President the power to pardon offenders against the laws of a State, if convicted in a United States court, is perhaps a good argument to show that the framers of the Constitution never contemplated that an offender against the laws of a State should be tried in the courts of the United States.
The governor of the State of New York could not pardon, because this power, under the Constitution of the State, clearly relates only to cases of conviction in the courts of the State, [598]*598It is very clear the framers of the Constitution never contemplated that any other courts would" be clothed with power to • enforce the State’s penal laws.
Again, section 6 of the act of Congress above mentioned provides .that any suit or prosecution described in that act, in which final judgment may be rendered in. the" Circuit Court, may be carried by writ of error to the Supreme Court, whatever may be the amount of the judgment. The closing words of this, section show that it relates only to civil suits or proceed-, ings, and not to criminal; and it is the only proviso on that subject in the act.
Now, it is well settled that the judgments of" the United States Circuit Courts in criminal cases are final, and the Supreme Court possesses no appellate jurisdiction in such cases. (United States v. Moore, 3 Cranch R., 159; ex parte Kearney, 7 Wheat. R., 38; ex parte Watkins, 33 Pet. R., 193.)
It is only in cases where the Circuit "judges are divided in opinion, that the case can be brought before the Supreme Court. (Act of April 29, 1802.) '
■ If, therefore, this indictment remains in this court, and a question under the act of Congress of 1863 shall arise in the progress of the cause, the Supreme Court of the United States, in the exercise of its appellate jurisdiction, could ultimately review the judgment of this court, and pass upon the constitutionality of the law in question.-
If, on the other hand, it is transferred to the United States Circuit Court, the question of the constitutionality or unconstitutionality of the law of Congress cannot be submitted to the adjudication of. the Supreme Court of the United States.
These suggestions are, in my judgment, material to the question under consideration, because they tend to show, in the first place, that although the words of the act of 1863 are very broad, yet Congress could hardly be considered to have intended (even if they had the power to dó so) to confer jurisdiction upon the United States court to - try, in the first instance, an indictment found in a State court, inasmuch as they have whplly neglected to provide any way in which that jurisdiction [599]*599could be exercised, and in which the case could be prosecuted to judgment and execution, and inasmuch as the effect would be to deprive the Supreme Court of the appellate jurisdiction, in the exercise of which it could reverse the judgment of the State court, if the indictment was not removed.
In the second place, these suggestions tend to show that, even if Congress did so intend, it is not only an instance of legislation not contemplated by the Constitution of the United States, but it is so improvident and incomplete that no courts can give effect to it.
II. But, independent of these suggestions, Congress has no power, in my judgment, to confer upon the United States courts jurisdiction to try indictments found in the State courts.
The case of Jones v. Seward, decided in the Supreme Court in this district, is no authority in this case. I need not pause to state the difference in the two cases. They are wholly unlike.
The argument of the defendant’s counsel is, that, upon the trial of this indictment, the consideration of.a law of the United States will be involved; that, in every case arising under the laws of the United States, the courts of the United States have appellate jurisdiction to reverse the judgments of the State courts; and that, in all cases to which appellate jurisdiction extends, Congress has the power of conferring original jurisdiction. In support of this, he quotes the dictum of Chief Justice Mabshall, in the case of Osborn v. The United States (9 Wheat. R., 821), which is as follows:
“We perceive no grounds upon which the proposition can be maintained, that Congress is incapable of giving to the Circuit Court original jurisdiction in any case to which the appellate jurisdiction extends.” •
’ Whatever Chief Justice Mabshall has said is entitled to the greatest respect, and I should hesitate about refusing to assent to it, if I could not find a warrant for such refusal in his own recorded declarations. I do find such warrant in his opinion in the case of Cohen v. Virginia (6 Wheat. R., 264), in which he says:
[600]*600“ It is a maxim, not to be disregarded, that general expressions, in every opinion, are to. be stated in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit in which the very point is presented for decision.”
Mow, in the light of this maxim, I propose to show that what Chief Justice Marshall said in the case of Osborn has no application to, and is no authority in, the case now under consideration.
The Bank of the United States sued Osborn in the United States Circuit Court, by authority of its charter, which was under an act of Congress, and which gave the United States courts original jurisdiction of suits by and against the bank. The court decided that that provision in the charter was warranted by the third article in the Constitution, which declared that the judicial power of the United States should extend to all cases arising under the Constitution and “ the laws of the United States.” Judge Marshall said: “ This suit is a case ; and the question is, whether it arises under the laws of the United States;” and soon after he says: “The Constitution enumerates cases in which the jurisdiction of the United States courts is original and exclusive, and then defines that which is appellateand he adds as follows:
“ It is not insinuated that the judicial power, in cases depending upon the character of the cause, cannot be exercised, in the first instance, in the courts of the Union.”
And then he uses the words cited by defendant’s counsel, and soon after uses this all-important language:
“We think, then, that when a question, to which the judicial power of the Union is extended, forms an ingredient in the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact may be involved in it. The case of the bank is, we think, a very strong case of this description. The charter of incorporation not only gives it, but gives it every facility which it possesses.”
[601]*601“ This being (meaning the bank) can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States."
“ Can a being thus constituted have a case which does.literally as well as substantially arise under the law ?”
And in another place he says: “ The act itself is the first ingredient of the case — its origin.”
It was under such a state of facts, and in such case, that Judge Marshall gave utterance to the dictum quoted by defendant’s counsel.- It was applicable to such a case, and to every case where a question arising under an act of Congress is involved “ in the character of the cause; ” “ forms an ingre-' dient of the original cause; ” exists in its very inception, and without the commencement of which the cause cannot proceed a single step.
It has no application to a case in the origin of which neither the Constitution nor the laws of the United States are involved, and in which a question involving either may never arise, or, if it does, can only arise “ in the progress of the cause.”
In the case of Cohens v. Virginia, above cited, we find Chief Justice Marshall furnishing an authority upon this point, when he says, as follows, viz.:
“ That the Constitution or a law of the- United States is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the courts of the Union, but for that circumstance, would have no jurisdiction, and which, in consequence, could not originate in the Supreme Court. In such a case, the jurisdiction could only be exercised in the appellate form.”
In the same case, Judge Marshall says: “ The original jurisdiction of the Supreme Court, where a State is a party, refers to those cases in which jurisdiction might be excluded in consequence of the character of the party, and an original suit might be brought in any of the Federal courts; not to those cases in which the original suit might not be initiated in a Federal court of the last description, in every case between a State and its citizens, and put off every case in which a State ‘ [602]*602is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction.”
It needs no argument to show the application of these words of Judge Marshall to the case now under consideration, a case in which “the State of Mew York is seeking to enforce its penal laws,” and which could not have been instituted in the courts of the Union. A case in which a question under a law of the United States may never be presented at all, or if' it should be, can only be “in the progress of that cause.” For an indictment by the people of the State of Mew York against one of its citizens, for an offense against its penal laws, does not involve in itself any question under any law of Congress. If such question should ever arise, it could only be on the progress of the defense. If it should then arise, and a decision should be had adverse to the law, the Supreme Court of the United States would, in the exercise of its appellate jurisdiction, reverse the judgment of the State courts. If it should not arise, then the courts of the United States could have no jurisdiction-at all.
It is not enough that an act of Congress gives the United States CircuitUourt jurisdiction. It can have no jurisdiction which is not conferred by the Constitution as well as by the law.
The construction which I contend for is, I think, just and . reasonable. It secures to the State all its rights, and it secures to the Federal government all its merits, and all it has any right to demand. It secures to the State its right, in the first instance, to prosecute all offenders against its laws,, in its own courts, and to insure them punishment in case of conviction.
It secures to the Federal government the right to review; in. its Supreme Court, the judgment of the State courts, in - all cases where a defense to an indictment arises under an act of Congress, if such defense should be overruled by the State courts. If the judgment of the State courts was erroneous, it would be reversed; if it was not, it would be affirmed, and the case would be remanded to the State court for judgment.
On the other han.d, the construction of the Constitution contended for by defendant’s counsel, would deprive the State [603]*603courts'of all power and right to enforce the penal laws, of the State, in all cases in which Congress should undertake to declare what should be a defense to them.
It would subject all the penal laws of a State to the will of Congress. It would, under the act in question, entitle any criminal indicted in our courts for any offense, to allege that he acted by order of the President, and to claim the removal of the cause into á court of the United States. It would, as I have shown, transfer an indictment for any offense against a State law, to a court organized under a United States law, which has no power to enforce the laws of the State, or to punish in accordance therewith. If the defendant, upon such transfer, could be tried and convicted, it would place him in a position to which no power of pardon could extend; and last, but not least, the transfer to the United States Circuit Court in the case now under consideration, or in any case else, would prevent hereafter the consideration by the Supreme Court of the United States, of the extraordinary act of Congress under which this motion to transfer has been made.
Considerations such as these may have influenced Judge Marshall, when he, in the .case of Cohens v. Virginia, used the language I have before quoted, and they may also have influenced Chief Justice McKean, when he declared, in Respublica v. Cobbett (3 Dallas R., 476), “That neither the Constitution nor the act of Congress, ever contemplated that any court under the United States should take cognizance of anything savoring of criminality against the State.”
Believing, therefore, as I do, that the State of Kew York has the right, under the Constitution of the United States, to try in its own courts all offenders against its general laws, subject to the right of the United States Supreme Court to review their judgments, if, in the progress of the trial, a question should arise under any law of the United States, and believing, as I do, that Congress has no power to deprive the State of Mew York of that right, I concur in the decision of Judge Bussell denying the defendant’s motion to transfer the indictment. Motion denied.