Mr. Justice NELSON
delivered the opinion of the court.
The defendant was indicted, in the Circuit Court c-f the United States for the District of Arkansas, for the alleged murder of one Seaborn Hill, in the Indian country west of the State of Arkansas.;
The defendant is a white man, and so was Hill, the deceased.
At á Ciicuit Court held at the city of Little Rock, on the 28th of April,. 1853, the indictment came on for trial before the judges of that court; whereupon a motion was made, on behalf of the defendant, to quash the indictment, for want of jurisdiction of the court to try the same.
And, upon the argument, the judges being divided in opinion,
the following question was certified to this court for its decision.
1. Did the act of Congress entitled “An act to divide the District of Arkansas into two judicial districts,” approved .the 3d of March* 1851, by which the Western District of Arkansas was created, take away the power and jurisdiction of the Circuit Court of the United States for the Eastern District to try the indictment pending against the prisoner, James L. Dawson, a white man, found in. the Circuit Court of the United States for the District of Arkansas, by a grand jury impanelled on the 16th April, 1845, for feloniously killing Seaborn Hill, a white man, on the 8th of July, 1844, in the country belonging to the Creek nation of Indians west of Arkansas, and which formed a part of the Indian country annexed to the judicial district of Arkansas, by the act of Congress approved on the 17th of June, 1844, “An act supplementary to the act entitled ‘An act to regulate trade and intercourse with Indian tribes, and to preserve peace on the frontiers,’ ” passed 30th of June, 1834.
To state the question presented for pur decision in a more simple form, it is this: At the time the State of Arkansas composed but one judicial district, in which the federal courts were held, the Indian country lying west of the State was annexed to it for the trial of crimes committed therein by persons other than Indians. In this pondition of the jurisdiction of these courts, the crime in question was committed in the Indian country, and the indictment found in the Circuit Court, at the April term, 1845, while sitting at the city of Little Rock, the place of holding the court.
Subsequent to this, the State was divided into two judicial districts,, the one called the Eastern, the other the Western District of Arkansas. The Indian country was attached to and has since belonged to the western district. The question presented for our decision is, whether or not the Circuit Court for the Eastern District' is competent to try this indictment^ since change in the arrangements of the. districts.
By the 24th section of act of Congress, June 30th, 1834, (4 Stat. at Large) 733,) it was provided, that all that part of the Indian country west of the Mississippi river, bounded north by the northern boundary of lands assigned to the Osage tribe of Indians, west by the Mexican possessions, south by Red river*- and east by the west line of the Territory of Arkansas, and State of Missouri, should be annexed-to the territorial government of Arkansas, for the sole purpose of carrying the several provisions of the act into effect. And the 25th section enacted, that so much of the laws of the United States as provides for the punishment of crimes committed within any place within
the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country, provided the same shall not extend to crimes committed by one Indian against the person or property of another Indian.
The act of Congress, June 7th, 1844, (5 Stat. at Large, 680,) which was enacted after the Territory of Arkansas became a State, provided, that the courts of the United States' for the District of the State of' Arkansas, should be vested with the same power and jurisdiction to punish crimes committed within the Indian country designated in the 24th section of the act of 1834, and therein annexed to the Territory of Arkansas, as were vested in the courts of the United States for said territory before the same became a State; and that, for .the sole purpose of carrying the act into effect, all that Indian country theretofore annexed by said 24th section to the said territory, should be annexed to the State of Arkansas.
As we have already stated, the crime in question was committed in this Indian country after it was annexed, for the purposes stated, to the State of Arkansas; and the indictment was found in the Circuit Court of the United States for the District of Arkansas, which, we have seen, was coextensive with the State. And, if no change had taken place in the arrangement of the district, before the trial, there could, of course, have been no question as to the jurisdiction of the court.
But by the act of Congress, 3d March, 1851, it was provided, that the counties of Benton and eight others enumerated, and all that part of the Indian country annexed to the State of Arkansas for the purposes stated, should constitute a new judicial district, to be styled “ The Western District of Arkansas,” and thh residue of said State should be and remain a judicial district1, to be styled “ The Eastern District of Arkansas.”
The 2d section provides, that the judge of - the District Court should hold two term's of his court in this western district ir. each year at Van Burén, the county seat in Crawford county. And the third confers upon him, in addition to the ordinary powers of a district court, jurisdiction within the district, of all causes, civil or criminal, except, appeals and writs of error, which are cognizable before a circuit court of the United States. The fourth provides for the appointment of a district-attorney and marshal for the district, and also for a clerk of the court.
It will be seen, on a careful perusal of this act, that it simply erects a new judicial district out of nine of the western counties in the State, together with the Indian country, and confers on the district judge, besides the jurisdiction already possessed, eircuit court powers within the district, subject' to the limitation as to appeals and writs of error; leaving the powers and juris
diction of the circuit and district courts as they existed in the remaining portion of the State, untouched. These remain and continue within the district after the change, the same as before; the only effect being to restrict the territory over which the jurisdiction extends. He.nce no provision is made as to the time or place of holding the circuit or district courts in the district, or in respect to the officers of the courts, such as district-attorney, marshal, or clerk, or for organizing the courts for the despatch of their business. These are ail provided for under the old. organization. 5 Stat. at Large, 50, 51, 176, 177, 178.
We do not, therefore, perceive any objection to the jurisdiction of these courts over cases pending at the time the change took place, civil and criminal, inasmuch as the erection of the new district was not' intended to affect it in respect to such cases, nor has it, in our judgment, necessarily operated to de prive them of it.
It has been supposed that a provision in the sixth amendment of the Constitution of the United States , has a bearing upon this question, which provides, that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and- district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The argument is, that, since the erection of the new district out of the nine western counties in the fútate, together with the Indian country, it is hot competent for the Circuit Court, in view of this amendment, to try the prisoners within the remaining portion of the old district, inasmuch as that amendment requires the district within which the offence is committed, and the trial is to.be had, must be ascertained and fixed previous to the commission of the offence.
But it will be seen from the words of this amendment, that it applies only to the case of offences committed within the limits of .a State; and, whatever might be our conclusion if this of-fence had been committed within the State of Arkansas, it is sufficient here to say, so far as it respects the objection, that the offence was committed out of its limit, and within the Indian country.
The language of the amendment is too particular and specific to leave any doubt about it: “ The accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and" district wherein the crime shall be committed, which district shall have been previously ascertained. by law.”
The only regulation in the Constitution, as it respects crimes com'mitted:out of the limits of a. State; is to be found in the 3d art., sec. 2, of the .Constitution, as follows: “ The trial of crimes, ■except in cases-of impeachment, shall be by jury, and such trial
shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may, by law, have directed.”
Accordingly, in the first crimes act, passed April 30,1790, § 8, (1 Statutes at Large, p. 114,) it was provided, that “the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought.”
A crime, therefore, committed against the laws of the United' States, out of the limits of a State, is not local, but may be tried at such place as 'Congress shall designate by law.
This furnishes an answer to the argument against the jurisdiction of the court, as it respects venue, trial in the county, and j'iry from the vicinage, as well as in respect to the necessity of particular or fixed districts before the offence.
These considerations have no application or bearing upon the question.
In this case, by the annexation of the Indian country to the State of Arkansas, in pursuance- of the act of 1844, for the punishment of crimes committed in that country, the place of indictment and trial was in the Circuit Court of the United States for that State, in which the' indictment has been found, and was pending in 1851, when the Western District was set off; and as that change did not affect the jurisdiction of the court, as it respected pending cases, but remained the same after the alteration of the district as before, it follows that the trial of the indictment in this court will be at the place and in the court, as prescribed by law, which is all that is required in the case of an offence committed out of the limits óf a State.
We shall direct, therefore, an answer in the negative, to be certified to the court below, to the first question sent up for our decision, as we are of opinion the court possesses jurisdiction to hear and give judgment on the indictment.
The second question sent up in the division of opinion is as • follows:
Can the District Court of the United States, for the Western District of Arkansas, take jurisdiction of the case aforesaid, upon the indictment aforesaid, so found, in the year 1845, in said Circuit Court, for the District of Arkansas
1
As our conclusion upon the first question supersedes the necessity of passing upon.the second, it will be unnecessary to examine it, and shall, therefore, confine our answer and certificate to the court below to the first.
Mr. Justice McLEAN dissented.
Mr. Justice McLEAN,
The facts and law of this case, as I understand them, have led me to a different conclusion- from that of a majority of the court. The twenty-fourth section of the .act of the 30th June, 1834, after malting various provisions, defining the limits of the - Indian GOuntry, and imposing penalties for several offences by white persons, provides, “ that for the sole purpose of carrying this act into effect, the Indian country, bounded east by Arkansas and Missouri, west by Mexico, north by the Osage country, and south, by Red River, shall be, and hereby is, annexed to the Territory of Arkansas.”
On the 8th of July, 1844, a murder was committed at the Creek agency, in the Creek country, west of Arkansas, for which the .grand jury found a bill of indictment in the Circuit Court of Arkansas, at April term, 1845.
By an act of March 3, 1851, it is provided, “that from and after the passage of this act, the counties of Benton, Washington, Crawford, Scott, Polk, Franklin, Johnson, Madison, and Carroll, and all that part of the Indian country lying within.the present judicial district of Arkansas, shall constitute a new judicial district, to be styled, the Western District of Arkansas; and the residue of said State shall be and remain a judicial district, -to be styled, the Eastern District of Arkansas.”
After the division of the district, Dawson, the defendant, was arrested for the alleged murder; and the question, whether the Circuit Court of the United States, sitting within the Eastern District, has jurisdiction to try-the case, has been referred to this court-. . -
When the offence was committed, and the indictment .was found, the District of Arkansas included the State and the. Indian country described; but when the defendant was arrested, and the c^,se was called for trial, the district had been divided; and the question is raised in the Eastern District, the murder having been committed in the Western.
-In the act dividing the district, Congress had power to provide that all offences, committed in the district. before the division, should be tried in the Eastern District. But no. such provision being made, the question is, whether the jurisdiction may. be exercised in that district without it.
Since the division of the district, capital punishments have been inflicted in the Western District for offences committed before the division. This deprived the accused of no rights which they could claim under the Constitution of the .United States, or the laws of the Union. The sixth article óf .the
amendment to the Constitution declares that, “in all criminal prosecutions, the accused shall enjoy'the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district Shall have been previously ascertained by law.”
As the State and district are connected by the copulative conjunction, in' this provision, the case before us is not technically within it. The crime is alleged to have been committed within, the Indian' country, which the district includes, but it is not within the State. But the case appears to me to
be
within the policy of the provision. Nine counties of the State of Arkansas are within the district, and from which the jury to try the defendant might be< summoned. This brings the case substantially within the above provision. Had the place of the rpurder been within one of the above counties, the constitutional provisions must have governed the case. All the rights guaranteed by the Constitution would have been secured to the criminal by a trial in the Western District; but those rights are not realized by him on a trial in the Eastern District. And that is made the place of trial because the alleged murder was not committed within the State.
In the 2d section of the 3d article of the Constitution, it is declared that “ the trials of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but, when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” The latter clause of this provision covers the ease now before us. The crime charged was not committed within any State; but it was committed within a district, within which such offences are to be tried, as “ directed by Congress.” And there seems to me to be no authority to try such an offender in any other district, or at any other place. The act of. 1834 provides that an offender, under the act, when arrested, should be sent for trial to the district where jurisdiction may be exercised.
The punishments inflicted in the Western District of Arkansas, for crimes committed before the division of the district, were in accordance with the above provision of the Constitution and the principles of the common law, both of which are opposed to a trial of the same offences in the Eastern District. The tribunal is the same in both districts, except the circuit judge may-not be bound to attend the Western District; but the Western District includes the place of the crime which, by the laws of England and of this country, is the criterion of jurisdiction in criminal cases. This is never departed from, where the limits of the jurisdiction áre prescribed.
On what ground can jurisdiction be exercised in thé Eastern District ? Not, I presume, on the ground that the crime was committed before the district was divided. If this be assumed and sustained, the capital punishments, which have been inflicted in the Western District, for similar offences, have been without authority. The offenders have been tried, and they have had, substantially, the benefits secured by the Constitution. They have had a jury from the district, and as near the vicinage as practicable. These privileges they would not have realized had they been tried in the Eastern District. If tried in the Eastern District, the jury must have been summoned from that district, and not from the district in which the offence was committed. The considerations in favor of the Western District, as the legal place of trial, greatly outweigh, it seems to me, any that can arise in favor of the Eastern District.
There is, however, a fact which may be supposed of great weight in deciding the question; and that is, the indictment was found before the division.- of the district. I will examine this. It is admitted the jurisdiction was in the Circuit Court for the entire district, wheq the indictment was found. This gave 'jurisdiction; but every step taken in the cause, subsequent to the finding of the bill, is as much the exercise of jurisdiction as the finding of the bill.
The establishment of the Western District, in effect, repealed the jurisdiction of the Eastern District, as to causes of action arising in the Western District, as fully as if the law had declared, “no jurisdiction shall hereafter be taken in any case, civil or criminal, which is of a local character, and arises in the Western District. Offences committed in that district are made local by the acts of Congress. This is not a case where, if jurisdiction once attaches, the court may filially determine the matter. There seems to me to be no reason for such a rule in a criminal case, especially when it iá opposed to the policy of the Constitution and to the principles of common law.
A case lately decided in this court may have some bearing on this question. Under the fugitive slave law of 1793, certain penalties were inflicted for aiding a fugitive from labor to escape. A number of actions .were brought in several of the States — in Ohio, Indiana, and Michigan — for the recovery of this penalty; but it was set up in defence, that this penalty was repealed by repugnant provisions in the law of 1850, on the i?ame subject, and thi3 court so .held.. The actions which had been pending for years were stricken from the docket. But it may be said the repeal, in the case stated, operated on the right of action. This is admitted. And so, it may be said, the West-tern District was repugnant to the Eastern, so far as causes of
local actions arise in the Western District; and is not this repugnancy as fatal to the trial, as the repeal of the penalty in the act of 1793?
All this difficulty arises from an omission of Congress to make, in the law dividing the district, the necessary provision; and it appears to me that we have no power, by construction or otherwise, to supply the omission. This could not be done in an action of ejectment. A writ of possession, in such a case, could not be- issued to the Western District on a judgment entered in the Eastern. And if such a jurisdiction could not be sustained in a civil action, much less could it be sustained in a criminal case.
If a person guilty of a crime- in the Indian country, before the division, could not be indicted and tried in the Eastern District, it follows, that the fact of the crime having been committed in the Indian country, can afford no ground of jurisdiction in the present case. It must rest alone, then, it would seem, for jurisdiction, on the ground that, the indictment having been found in the Eastern District, the same jurisdiction may try the defendants, and, if found guilty, sentence them to be executed. This view must overcome the locality of the crime, and the right which the defendants may claim, to have a jury as near the vicinage as practicable, at least a jury from the district where the crime was committed. These appear to me to be objections entitled to great consideration. A jurisdiction in so important a case should not be maintained under reasonable doubts of its legality.
The cases referred to in the argument to retain the jurisdiction, do not, as it appears to me, overcome the objections. Numerous instances are cited where the territory of a judicial district has been changed, provision being made in the act, that the jurisdiction should be continued where suits had been comménced. This, shows the necessity of such a provision, and is an argument against the exercise of the jurisdiction, where no provision has been made. And in those cases, like the present, where a district has been changed, without any provision, as to jurisdiction, there is no exercise of it shown, in a criminal case, especially where the punishment is death.
Where jurisdiction attaches from the citizenship of the parties, a' change of residence does not affect the jurisdiction. The case of Tyrell
v.
Roundtree, 7 Peters, 464, seems to have no bearing upon this question. That action was commenced by an attachment, Which was laid upon the land before the division of the county; and this court said, the land remained in the. custody of the officer subject to the judgment of the court. An interest was vested in him for the purposes of that judgment.
The judgment was not a general lien on it; but was a specific appropriation of the property itself. And they say the division of the county could not divest this vested interest, or deprive the officer of the power to finish a process, which was rightly begun.
There may be cases where counties have been divided after jurisdiction was taken in a local action, and the suit has been carried into judgment, but such cases aiford no authority in the present case.
The case relied upon as in point in 4 Washington C. C. Rép 725, the court said, “ at the first or second session of this court, which succeeded the passage of the act of 1824, which added this and other counties to the western judicial district, we were called upon to decide, whether the present action, together with some others, then on our docket for trial, together With the papers belonging to them, should be sent to the Western District or retained here. After hearing counsel on the question, the opinion of the court was, that those cases were not embraced either by the word or by the obvious intention and policy of the act.”
This does not appear to be a well-considered case. The counties were annexed to another jurisdiction, and yet the court speak of “ the obvious intention and policy of the act,” and on that ground entertain jurisdiction over cases pending in the former district. This was right in regard te transitory actions, but not where t^e actions were of a local character.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the Eastern District of Arkansas, and on the points or questions, on Which the judges of the said Circuit Court were opposed in opinion, and Which were certified to this court for its opinion, agreeably to the act of Congress, in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the act of Congress entitled “An aet-to divide the District of Arkansas into two judicial districts,” approved the third day of March, in the year of our Lord one thousand eight hundred and fifty-one, whereby the Western District of Arkansas was created and defined, did not take away the power and jurisdiction of the Circuit Court of the United States for the Eastern District of Arkansas, so that it can proceed to. hear, try, and determine a prosecution for murder, pending against the prisoner, James L. Dawson, a white man and not an Indian, upon an indictment, found, presented, and re
turned into the Circuit Court of the United States, for the district of Arkansas, by the grand jury impanelled for that district, upon the 16th day of Apnl, in the year of our Lord one thousand eight hundred and forty-five, against said James L. Dawson, a white.man, for the felonious killing of Seaborn Hill, another white man and not an Indian, on the eighth day of July, A. D. 1844, in that county, belonging to the Creek nation of Indians, west of Arkansas, and which formed a part of the Indian country annexed to the judicial district of Arkansas by the act of Congress, approved the seventeenth day of June, A. D. 1844, entitled “An act supplementary to the act entitled ‘An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers, passed thirtieth June, one thousand eight hundred and thirty-four,’ ” in which cause, so pending, no trial has yet been had. And that this answer to the first question supersedes the necessity of. any answer to the second question.
Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court,