This action is brought on a recognizance to the commonwealth of Pennsylvania, for good behaviour, entered into before me, by the defendant. The defendant has appeared to the ac*360tion, and exhibited his petition to the court, praying that the jurisdiction thereof, be transferred to the Circuit Court of the United States, as he is an alien and a subject of the king of Great Britain. His claim to this change of jurisdiction, is said to be founded on the 12th section of the judiciary act of Congress, passed 24th September, 1789.
Previous to the delivery of my opinion in a cause of such importance, as to the consequences of the decision, I will make a few preliminary observations, on the constitution and laws of the United States.
Our system of government seems to me, to differ in form and spirit, from all other governments that have heretofore existed in the world. It is as to some particulars national, in others federal, and in all the residue territorial, or in districts, called states.
The divisions of power between the national, federal and state governments, (all derived from the same source, the authority of the people,) must be collected from the constitution of the United States. Before it was adopted, the several states had absolute and unlimited sovereignty within their respective boundaries, all the powers, legislative, executive and judicial, excepting those granted to congress, un-' der the old confederation. They now enjoy them all, except such as are granted to the United States by the present instrument, and the adopted amendments which are for particular purposes only. The government of the United States, forms a part of the government of each state. Its jurisdiction extends to the providing for the common defense against exterior violence, the regulation of commerce, and other matters specifically enumerated in the constitution. All other powers remain in the individual states, comprehending their interior and other concerns.
Should there be any defect in this mode of government, or any collision occur, it cannot be remedied by the sole act of congress, or of the state. The people must be resorted to for enlargement or modification. If a state should differ from the United States, about the construction of them, there is no common umpire, but the people, who are to adjust the affair by making amendments in the constitutional way, or suffer from the defect. In such a case, the constitution of the United States is federal; it is a league or treaty made by the individual states as one party, and all the states as another party. When two nations differ about the meaning of any clause, sentence or word in a treaty, neither has an exclusive right to decide it. They endeavor to adjust the matter by negotiations; but if it cannot be thus accomplished, each has a right to retain its own interpre*361tation, the mediation of othernations, an arbitration,or the state of war.
There is no provision in the constitution, that in such case the judgment of the Supreme Court shall control and be conclusive; neither can the congress by a law, confer that power. There appears to be a defeat in this matter ; it is a casus omissus, which ought in some way to be remedied. Perhaps the vice president and senate of the United States, or commissioners appointed by each state, (say one,) would be more proper tribunal, than the Supreme Court. Be that as it may, I rather think the remedy must be found in an amendment of the constitution.
I shall now consider the case before us. It is an action brought in the name of the commonwealth of Pennsylvania, against an alien, a British subject. By the express words of the second sentence _of the second section of the third article of the constitution of the United States, in such an action, the Supreme Court shall have original jurisdiction, whereas it is now prayed by the defendant, that original jurisdiction be given to the Circuit Court. From this, it would reasonably be concluded, that congress in the 12th section of the judicial law, did not corn-template an action wherein a state was plaintiff, 'though an alien was defendant. For it is there said, that “ if a suit be commenced in any state “ court against an alien,” &e. as it does not mention by a siate, the presumption and construction must be, that it meant, by a citizen. This will appear pretty plain from a perusal of the 11th section of the act, where it is enacted, that the Circuit Courts shall have original cognizance concurrent with the courts of the several states, of all suits of a civil nature, of a certain value, where the United States are plaintiffs, or where an alien is a party, &c. This confines the original cognizance of the Circuit Courts, concurrent with the courts of the several states, to civil actions commenced by the United States, or by citizens against aliens, or where an alien is a party, &c. and does not extend to actions brought against aliens by a state ; for of such suits, the Supreme Court had by the constitution, original jurisdiction. I would further remark, that the jurisdiction of the Circuit Courts is confined to actions of a civil nature against aliens, and does not extend to those of a criminal nature. For though the word “ suit” is used generally in the 12th section, without expressing the words “ of a civil nature,” yet the slightest consideration of what follows, manifestly shows, that no other suit was meant. The matter in dispute, must exceed 500 dollars in value; special bail must be given, &c. Terms applied to actions of a civil nature only.
Let us now consider, whether the suit against William Cobbet *362is of a civil, or of a criminal nature. It is grounded on a recognizance for the good behavior, entered into before the Chief Justice of this state. This recognizance, it must be ceded, was taken to prevent criminal actions by the defendant, his violation' of the peace, order and dignity of society, to prevent crimes or public wrongs and misdemeanors, and for no other purpose. It is evidently of a criminal nature, and cannot be supported unless he shall be convicted of having committed some crime, which would incur its breach, since its date and before the day on which the process issued against him. Besides, a recognizance is a matter of record; it is in the nature of a judgment, and the process upon it, whether scire facias or summons, is for the purpose of carrying it into execution, and is rather judicial than original. It is no further to be reckoned an original suit, than that the defendant has a right to plead to it. It is founded upon the recognizance, and partaking of its nature, must be considered as flowing from it; and when final judgment shall be given, the whole is to be taken as one record.
It has been well observed by the Attorney General, that by the last amendment, or legislative declaration of the meaning of the constitution, respecting the jurisdiction of the courts of the United States over the causes of states, it is strongly implied, that states shall not be drawn in, against their will, directly or indirectly, before them ; and that if the prseent application should prevail, this would be the case. When the judicial law passed, the opinion prevailed, that states might be sued; which by this amendment, is now settled otherwise.
The argument ab inconvenienti is also applicable to the construction of this section of the act of congress. Can the legislature of the United States be supposed to have intended (granting it was within their constitutional powers) that an alien residing three or four hundred miles from where the Circuit Court is held, who has from his tur. bulent and infamous conduct in his neighborhood, been bound to the good behavior by a magistrate of the state,[should after a breach of his recognizance and a prosecution for it commenced, be enabled to remove the prosecution before the court, at such a distance, and held but twice a year, to be tried by a jury, who neither know the persons nor character of the witnesses, and consequently unqualified to try their credit, and to oblige the prosecutor and witnesses to incur such expense of time and money, in order to prove that he had committed an assault or any other offence, which would amount to a violation of it ? If so, such a recognizance, though it would operate as a security to the public against a citizen would be of little avail against an alien. It cannot *363be conceived, that they intended to put an alien in a more favorable situation than a citizen in such a case, and by difficulties thrown in the way, discourage and weaken, if not defeat, the use of a restraint, found often to be very salutary in preserving the peace and quiet of the people. Many other inconveniences have been mentioned by the counsel, which I shall not repeat. If therefore any other construction can be made, it ought to prevail.
Upon the whole, my opinion is, that where a state has a controversy with an alien about a contract, or other matter of a civil nature, the Supreme Court of the United States has original jurisdiction of it, and the Circuit or District Courts have nothing to do with such a case. The reason seems to be founded in a respect for the dignity of a state, that their action may be brought in the first instance, before the highest tribunal; and also that this tribunal would be most likely to guard against the power and influence of a state over a foreigner. That neither the constitution nor the congress ever contemplated, that any court under the United States, should take cognizance of any thing, savoring of criminality against a state. That the action before the court is of a criminal nature, and for the punishment of a crime against the state. That yielding to the prayer of the petitioner would be highly inconvenient of itsolf, and injurious in the precedent. And that cognizance of it would not be accepted by the Circuit Court if sent to them; for even consent cannot give jurisdiction. For these reasons and others omitted for the sake of brevity, I conclude that the prayer of William Cobbet cannot be granted.
Shippen, Yeates and Smith, Justices, were clearly of opinion, that the present suit was not within the true meaning of the judiciary act of congress, and that the late amendment to the constitution put it beyond all doubt.
Petition denied una voce.