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the state governments act within their several limits in administering the ordinary rights of person and property. That is an exceptional and a wholly different field of action from what is embraced in ordinary federal legislation; and it was evidently wholly foreign to the scope of the judiciary act. Offenses against the local law of the District of Columbia are, in a sense, offenses against the United States, because the United States is the local governing authority. Metropolitan R. Co. v. District of Columbia, 132 U. S. 9, 10 Sup. Ct. 19. But the judiciary act was not dealing with, or contemplating this exceptional and local relation. The District of Columbia had then no existence. The scope and aim of the judiciary act were manifestly purely federal and national. It created the federal courts authorized by the constitution for the country at large; it defined their jurisdiction, civil and criminal; and it established the districts in which each might acti As an ircident to that distribution of federal jurisdiction, and to enable federal offenses to be tried in the proper district, it provided by section 33 that for offenses against the United States, offenders found in other districts might be committed and removed to the proper district for trial. What offenses are referred to? Manifestly those federal offenses only of which the courts thereby created had jurisdiction; offenses which those courts were designed to try, and could try; since the only subject of consideration was the national, federal courts, and trials in those courts alone. Those offenses were federal offenses arising under federal statutes applicable throughout the country.
The first of these statutes, known as the "Crimes Act” (1 Stat. p. 112, c. 9), was passed soon after the judiciary act. It defined as “crimes against the United States." (when committed within its exclusive jurisdiction), treason, murder, manslaughter, forgery, larceny, perjury, bribery, etc. Later statutes have added many other offenses. These statutes cover the whole field of the federal criminal law, and all the offenses triable by the federal courts in the different federal judicial districts of the country; and these alone are the offenses contemplated and referred to in the thirty-third section of the judiciary act.
At that time a territorial government and territorial courts had been organized under the ordinance of 1787 in the Northwest Territory. But no one would contend that mere local offenses committed in that territory, and not embraced in any general legislation of congress, were removable "offenses" under the judiciary act, any more than that its territorial courts were "courts of the United States” in the sense of the judiciary act, or of ordinary legislation. When the District of Columbia was afterwards acquired, its courts and local offenses under the local law alone, were in the same category as those of the territories. That none of those courts were "courts of the United States,” in the sense of ordinary legislation, has been long adjudicated, because they do not belong to the federal system, and are not courts of the constitution, nor created under the judicial power, but under a separate authority in the constitution to make all needful rules and regulations for the territories" (article 4, §
3), and to "exercise exclusive legislation over the seat of government” (article 1, § 8). Insurance Co. v. Canter, 1 Pet. 511, 546; Clinton v. Englebrecht, 13 Wall. 447; Hornbuckle v. Toombs, 18 Wall. 648, 655; McAllister v. U. S., 141 U. S. 182–184, 11 Sup. Ct. 949. There is the same distinction between local and federal offenses.
That offenses under the local law of the District of Columbia are not embraced in section 33, also results necessarily from its particular provisions. The commitment and removal are by that section required to be (1) to the proper “district,” i. e., to one of the federal judicial districts; and the District of Columbia is not such a district (U. S. v. Guiteau, 1 Mackay, 564); (2) for trial in a "court of the United States," which (3) has cognizance of the offense by virtue of “that act”; and the courts of the District of Columbia, as above stated, are neither "courts of the United States” in the sense of the judiciary act, nor do they derive their authority from the judiciary act.
While each of these three conditions would exclude mere local offenses in the District of Columbia from the removable class, it is important to note still further, that the same conditions, and particularly the provision that the trial must be had by one of the courts established "by that act,” show by irresistible inference that the offenses contemplated and intended by section 33 are such offenses only as could be tried in the federal courts established by that act. But libel, either against the government or against private persons, is not and never has been a criminal offense anywhere triable in the federal courts of the country. U. S. v. Hudson, 65 Fed. 68. Section 33 in all its parts is, in fact, wholly inapplicable to offenses under the mere local law of the District of Columbia; and in no contested case reported do I find that any removal to that district has been had for libel, or for any other merely local offense. In the Case of Buell, 3 Dill. 116, Fed. Cas. No. 2,102, the objections here considered were not brought to the attention of the court.
For these reasons, I have no doubt that libel in the District of Columbia was never a removable offense under section 33 of the judiciary act alone.
The only additional acts of congress bearing on the question, are those of 1871 and 1874. The act of 1871 (16 Stat. 426), now section 93 of the Revised Statutes of the District of Columbia, is as follows:
“Sec. 93. The constitution and all the laws of the United States, which are not locally inapplicable, shall have the same force and effect within the District of Columbia as elsewhere within the United States."
The act of June 22, 1874 (1 Supp. Rev. St. p. 38) was passed on the same day the United States Revised Statutes were adopted, and in section 2 declares that “the provisions of the thirty-third section of the judiciary act shall apply to courts created by act of congress in the District of Columbia.'
The statute last cited is so vague that it is difficult to determine its intention or effect. It is more noticeable for what it omits than for what it contains. It does not make the District of Columbia a federal district; nor declare that offenders may be removed
thither in like manner as to other federal districts, nor removed thither for violations of the local law; nor does it purport to en- · large the class of offenses contemplated by section 33. It is, there fore, immaterial here. It does not even make the provisions of section 33 applicable in general to the District; but only to "courts created by congress in the District of Columbia.” No one court is specified. It extends, therefore, to all the courts, from the highest to the lowest. What provisions of section 33 can be made applicable to all the courts of the District of Columbia ? Apparently, those only by which all the judges and magistrates of the courts in the several states are authorized to act as committing magistrates. This, I think, is its only effect, and it has been so held by Treat, J. See In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102.
Such also was the construction given to the act of 1874 by the judiciary committee of the senate, upon a special resolution of inquiry referred to that committee on the 15th of December, 1874, less than six months after the act was passed, and directing the committee to inquire as to the extent and meaning of that act, and particularly, “whether under or by its provisions persons
“ charged with or indicted for libel, or other crime, in said District of Columbia, can be brought from a state or other place within federal jurisdiction, to said District to answer therefor; and also whether said act has any application to prosecution or indictment for the crime of libel in any case, and report thereon.”
On the following 16th of February, 1875, the judiciary committee made its report (No. 658). It considers at some length and analyzes the provision of the thirty-third section of the judiciary act, and concludes as follows:
"The sum of the matter, therefore, is, that the second section of the act of June 22, 1874, confers upon the courts of the District of Columbia the power to arrest offenders found in the District who are charged with crime committed within the District, and hold them for trial, (which was the law before,) and to arrest offenders found in the District who have committed crimes against the United States in some judicial district of the United States, and to send them to such district for trial. And that is all. No person can be brought into the District of Columbia under it, either for libel, or any other crime. The committee are of opinion that both the sections of the act are necessary and proper, and in perfect accordance with the principles of justice and the course of civilized jurisprudence. Without provisions of this character the District of Columbia would be an asylum for offenders committing crimes against the laws of the United States and escaping hither.
"It also remains to report, as directed by the resolution of the senate, 'whether said act has any application to prosecution or indictment for the crime of libel in any case.'
“We are of opinion that, as before stated, no person charged with the crime of libel can be brought into the District of Columbia under it, for no person can be brought here under it, for any crime whatever.
“The result is that the act of June 22, 1874, is not, in our opinion, obnoxious to any criticism; and, in respect of the crime of libel, it confers no power either to bring a person charged with it into the District of Columbia or to send him out of it."
The report was signed by Senators Edmunds, Conkling, Freelinghuysen, Wright, Thurman, and Stevenson.
Upon this report no further action was taken, nor any further legislation proposed. So high is the character of that committee,
that nothing short of express legislation or adjudication by the courts, could be weightier as contemporaneous construction. Though not literally, yet substantially, their report covers the whole ground of removability to the District of Columbia for mere local offenses; and as the legal status reported by that committee was acquiesced in, the necessary inference, considering the specific nature of the inquiry is, that the existing status as reported by the committee was satisfactory, and in accord with the legislative intent.
Another inference warranted by the passage of the act of 1874 on the same day the Revised Statutes was enacted is, that section 1014 of the Revised Statutes was not intended or understood by congress to apply to the District of Columbia, nor any new legislation intended by the slight change of phrase in the revision of that section; because if section 1014, as revised, or the original section 33, already embraced the District of Columbia, or applied to it, the act of 1874 would have been wholly superfluous. And it follows further, that the act of 1874 must be deemed to be intended to express just how far section 33 of the judiciary act was designed by congress to be extended to the District of Columbia; viz., to its "courts” alone, i. e., for the purposes above stated, and no further; thus excluding any construction of section 1014 as new legislation for that district. Had the intent of the act of 1874 been to authorize removals for local offenses in the District of Columbia for trial there by its local courts, the act would naturally have said so; or else would have declared section 1014 to be applicable generally to the District of Columbia, to its courts, and to offenses there committed.
The act of 1871, above quoted, adds nothing to the case of the prosecution, but rather makes against it; for not only is it doubtful to what extent the language of section 33 and of section 1014 may be made “locally applicable” to the District of Columbia, but the general intent of the act of 1871 was evidently to do nothing more than to place the District of Columbia, so far as practicable, on an equality of privilege with the various states and judicial districts of the rest of the country. The "force and effect” of the “laws" referred to are, as the act of 1871 says, to be “the same in the District of Columbia as elsewhere within the United States." This act, if applicable (as to which I would not intimate any opinion) would, therefore, extend section 33 to removals for federal offenses alone, (see Hovey v. Elliott, 145 N. Y. 126, 139, 39 N. E. 841) since that is the limit of its “force and effect elsewhere"; and libel is not a federal offense.
Plainly the act of 1871 was not designed to create peculiar privileges in the District of Columbia, nor to impose exceptional burdens on all the rest of the country. Yet that is the precise aim of this application, and that would be the precise effect of granting it. For as between all the states and all the federal districts in the country, there could be no removal in a case like the present. No federal court has jurisdiction to try the offense here charged; and as between the states there is no extradition, (under other provisions of the constitution and other acts of congress) except of fugitives from justice. This defendant is not a fugitive; he has not fled from the District of Columbia. He was not there; and there is no such thing as constructive flight.
If the acts of 1871 and 1874, above cited, were sufficient to extend section 33 to the District of Columbia (as to which I express no opinion), then removals to that district under section 1014 may now be had for all federal offenses committed there, “the same as elsewhere within the United States”; i. e., for all offenses created under the general legislation of congress, which embraces all the crimes for which removals may be had as between the different federal judicial districts of the country. That is the full scope of section 1014 and section 33. Beyond this, that is to say, in the cases of merely local offenses, which stand on the same level as ordinary offenses in the several states, if the existing laws in regard to interstate extradition passed in pursuance of a separate clause of the constitution, are not "locally applicable” to the District of Columbia under the act of 1871, so as to give a right of removal to that district in accordance with, or in analogy to, the mode of procedure in interstate extradition, the remedy is with congress, if, indeed, congress desires to change the existing conditions; and the report of the senate judiciary committee above cited is sufficient evidence to show that congress has not been under any misapprehension as to what the existing legal status of local offenses in the District of Columbia is, as respects the right of removal. Meantime, it is not for this court to anticipate or presume upon the intent of congress on that subject; or to attempt to supply any supposed defects in the statutes by wrenching them from the true meaning and intent with which they were enacted; least of all when doing so would introduce a new class of removals in favor of the District of Columbia alone, while similar removals are denied, under the constitution and laws, to every other district and state in the country.
Without reference, therefore, to other important points discussed by counsel, the application is denied, on the above grounds, and the defendant discharged.
UNITED STATES v. KENWORTHY.
(Circuit Court of Appeals, Third Circuit. June 3, 1895.)
1. CUSTOMS DUTIES-COMMISSION-Rev. St. $ 2907-Act MARCH 3, 1883–POWERS
OF CUSTOMS OFFICERS.
In determining the dutiable market value of imported merchandise, it is within the authority of the designated customs officers, under Rev. St. $ 2902, and Act March 3, 1883, § 7, to inquire into the origin of disputed items claimed by the importers to be commissions and charges, and to ascertain whether they are truly such, or part of the wholesale price which
the importers paid for the merchandise. 2. SAME-CONCLUSIVENESS OF VALUATION.
It appearing to the customs officers that certain wool purchased from M. & Son, in Glasgow, for importation by K. & Bro., had previously been