dissenting.
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 24th section of the act of the 30th June. 1834, after making various provisions defining the limits of the Indian country, 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, nortü 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 case 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 of 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, *792the case before us is not technically within it. The prime 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 murder 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 trial of all crimes, except in eases 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 congress may by law have directed.” The latter clause of this provision covers the case 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, shall 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 are prescribed.
On what ground can jurisdiction be exercised in the 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 when the indictment was found. This gave jurisdiction; but every step taker 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 finally determine the matter. There seems to me to be no reason for such a rule in a criminal case, especially when it is opposed to the policy of the constitution and to the principles of the common law.
A case lately decided in this court may have some bearing on this question. Under the fugitive slave law of 1793 [1 Stat. 302], 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 [9 Stat. 402], on the same subject, and this 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 Western 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 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 jurisdiction could not be sustained in a civil action, much less can 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 commenced. 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 tnose 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 citizenship of the parties, a change of residence does not affect the jurisdiction. The case of Tyrell v. Roundtree, 7 Pet. [32 U. S.] 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 a division of the county could not divert this vested interest, or deprive the officer of power to *793finish 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 afford no authority in the present case.
J. W. McConaughey, Dist. Atty., and M. Quail, for the United States. Albert Pike and S. W. Williams, for the prisoner.In the case relied upon as in point, Rhoades v. Selin [Case No. 11,740], 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 word or 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 to transitory actions; but not where the actions were of a local character.
Ordered to be certified that the circuit court of the United States for the Eastern district of Arkansas‘had jurisdiction to hear, try, and determine the indictment. [15 How. (56 U. S.) 467.]
At the April term, 1855, the case was tried before the Hon: DANTEE RINGO, district judge, holding the circuit court; absent the Hon. PETER V. DANIEL, associate justice of the supreme court of the United States.
The jury returned a verdict of guilty of manslaughter, and recommended Dawson to the mercy of the court. And the court subsequently pronounced sentence, which was, that the said Dawson should be imprisoned- for the space of two years in the common jail of Pulaski county in the state of Arkansas. The case as to John R. Baylor was continued. Upon a petition very numerously signed, Dawson was pardoned by President Pierce, in the summer of 1855.