THE question, how far the state governments have concurrent powers, either legislative or judicial, over cases within the jurisdiction of the government of the United States, has been much discussed. It will be my endeavor, in the course of the present lecture, to ascertain the just doctrine and settled distinctions applicable to this great and important constitutional subject.

1. Of Concurrent Powers of Legislation. — It was observed in the Federalist, (a) that the state governments would clearly retain all those rights of sovereignty which they had before the adoption of the Constitution of the United States, and which were not by that Constitution exclusively delegated to the Union. The alienation of state power or sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. (x)

(a) No. 32.

(x) The same act or series of acts may be punished under both Federal and State laws. Cross v. North Carolina, 132 U. S. 131. When the offence charged is a crime under both Federal and State laws, the questions at issue may be first raised in the State court, which is under the same obligation as the Federal courts to give effect to the supreme law of the land, and to protect rights thereby secured, as the latter courts, and the jurisdiction of the U. S.

Supreme Court may be invoked to protect any Federal right asserted by the accused and denied by the State judgment. New York v. Eno, 155 U. S. 89.

A sale under the decree of a Federal court may be set aside by a State court, when made in violation of an injunction previously issued by the State court, and necessary to give complete relief in dealing with the entire subject-matter, if the State court has jurisdiction of all the par

In the judicial construction given from time to time to the Constitution, there is no very essential variation from the {388} contemporary exposition which was here laid down by the high authority of the Federalist. Judge Chase, in the case of Calder v. Bull, (a) declared that the state legislatures retained all the powers of legislation which were not expressly taken away by the Constitution of the United States; and he held that no constructive powers could be exercised by the federal government. Subsequent judges have not expressed themselves quite so strongly in favor of state rights, and in restriction of the powers of the national government. In Sturges v. Crowninshield,(b) the Chief Justice of the United States observed, that the powers of the states remained, after the adoption of the Constitution, what they were before, except so far as they had been abridged by that instrument. The mere grant of a power by Congress did not imply a prohibition on the states to exercise the same power. Thus, Congress are authorized to establish uniform laws on the subject of bankruptcy; but the states may pass bankrupt laws, provided there be no acts of Congress in force establishing a uniform law on that subject. (c) The states may legislate in the absence of congressional regula-

(a) 3 Dallas, 386. (b) 4 Wheaton, 193.

(c) In Golden v. Prince, 3 Wash. 313, Judge Washington had previously held, in the Circuit Court of the United States for Pennsylvania, that Congress had the exclusive power to pass bankrupt laws; but this opinion was subsequently corrected, and qualified according to the doctrine in the text.

ties. Stevens v. Central Nat. Bank, 144 N. Y. 50.

The appointment of a receiver for an insolvent bank by a State court does not bar a creditor's suit in the Federal court to set aside a fraudulent conveyance to the bank, and the latter court retains its jurisdiction even when the receiver sells the property so conveyed pending the Federal suit. Bacon v. Harris, 62 Fed. Rep. 99. Conversely, property rightfully in the possession of a Federal receiver is not subject to seizure and levy under State process to enforce the collection of a tax assessed upon its owner under State laws. In re Tyler, 149 U. S. 164. A State court has jurisdiction of an indictment for

a wilful and felonious assault by a pilot in causing a collision and death on the other vessel, as the U. S. Rev. Stats. 5344 is not applicable. In re Welch, 57 Fed. Rep. 576. The Federal courts are bound to proceed to judgment and to afford redress to suitors, before them in every case to which their jurisdiction extends; their jurisdiction over controversies between citizens of different States cannot be impaired by State laws which prescribe the modes of redress in their courts, or which regulate the distribution of judicial power. Chicot County v. Sherwood, 148 U. S. 529. See also, The Willamette Valley, 62 Fed. Rep. 293.

tions. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states. But the concurrent power of legislation in the states did not extend to every case in which the exercise of it by the states had not been expressly prohibited. The correct principle was, that whenever the terms in which the power was granted to Congress, or the nature of the {389} power required that it should be exercised exclusively by Congress, the subject was as completely taken from the state legislatures, as if they had been expressly forbidden to act on it. In Houston v. Moore, (a) the same principles were laid down by Judge Washington, in delivering the opinion of the Court. He observed, that the power of the state governments to legislate on the subject of the state militia, having existed prior to the formation of the Constitution, and not being prohibited by that instrument, it remained with the states, subordinate, nevertheless, to the paramount power of the general government, operating upon the same subject. If Congress, for instance, did not exercise the power of providing for organizing, arming, and disciplining the militia, it was competent for the states to do it; but as Congress had exercised its constitutional powers upon the subject of the militia as fully as was thought proper, the power of legislation over that subject by the states was excluded, except so far as it had been permitted by Congress. The doctrine of the court was, that when Congress exercised their powers upon any given subject, the states could not enter upon the same ground, and provide for the same objects. The will of Congress may be discovered as well by what they have not declared, as by what they have expressed. Two distinct wills cannot at the same time be exercised, in relation to the same subject, effectually, and at the same time be compatible with each other. If they correspond in every respect, then the latter is idle and inoperative. If they differ, they must, in the nature of things, oppose each other so far as they do differ. It was, therefore, not a true and constitutional doctrine, that in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on

(a) 5 Wheaton, 1.

which Congress have acted, provided the two laws are not in their operation contradictory and repugnant to each other. {390} Judge Story, in the opinion which he gave in this case, spoke to the same effect, and defined with precision the boundary line between the concurrent and residuary powers of the states, and the exclusive powers of the Union. A mere grant of power in affirmative terms to Congress did not per se transfer an exclusive sovereignty on such subjects. The powers granted to Congress were never exclusive of similar powers existing in the states, unless where the Constitution has expressly in terms given an exclusive power to Congress, or the exercise of a like power was prohibited to the states, or there was a direct repugnancy or incompatibility in the exercise of it by the states. This is the same description of the nature of the powers as that given by the Federalist. An example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased for forts, arsenals, &c.; and of the second class, in the prohibition of a state to coin money, or emit bills of credit; and of the third class, in the power to establish a uniform rule of naturalization, and in the delegation of admiralty and maritime jurisdiction. In all other cases, the states retain concurrent authority with Congress, except where the laws of the states and of the Union are in direct and manifest collision on the same subject, and then those of the Union, being the supreme law of the land, are of paramount authority, and the state laws, so far, and so far only as such incompatibility exists, must necessarily yield.

In the application of these general principles to the case before the court, it was observed, that the power given to Congress to provide for organizing, arming, and disciplining the militia was not exclusive. It was merely an affirmative power, and, being not incompatible with the existence of a like power in the states, it might well leave a concurrent power in the latter. But when once Congress has acted on the subject, and carried this power into effect, its laws for the organization, arming, and disciplining the militia were supreme, and all interfering regulations of the states suspended. A state may organize, arm, and discipline {391} its own militia, in the absence of, or subordinate to, the regulations of Congress. This power originally existed in the states, and the grant of it to Congress was not

necessarily exclusive, unless a concurrent power in the states would be repugnant to the grant, and there was no such repugnancy in the nature of the power. But the question was, whether a state legislature had any concurrent power remaining after Congress had provided, in its discretion, for the case. The conclusion was, that when once the legislature of the Union has exercised its powers on a given subject, the state power over that same subject, which had before been concurrent, was, by that exercise, prohibited; and this was the opinion of the court.

These expositions of the paramount powers of the general government are to be received as correct and conclusive, for they proceed from the highest authority, and are exceedingly clear and logical in their deductions. The same doctrines had been previously declared in the Court of Errors of New York, in the steamboat case of Livingston v. Van Ingen. (a) "Our safe rule of construction and action," as it was there observed, (b) "was this, that if any given power was originally vested in this state, if it had not been exclusively ceded to Congress, or if the exercise of it had not been prohibited to the states, we might then go on in the exercise of the power until it came practically in collision with the exercise of some congressional power. When that happened to be the case, the state authority would so far be controlled, but it would still be good in those respects in which it did not contravene the provision of the paramount law." A similar exposition of the concurrent jurisdiction of the states was given by the Supreme Court of Pennsylvania, in Moore v. Houston; (c) and by the Chief Justice of Massachusetts, in Blanchard v. Russell. (d)l

(a) 9 Johns. 507. (b) 9 Johns. 576. (c) 3 Serg. & Rawle, 179. (d) 13 Mass. 16.

l Oilman v. Philadelphia, 3 Wall. 713. [Fourteenth and Fifteenth Amendments. —

By the fourteenth amendment to the Constitution, it is provided that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (x)

By the fifteenth amendment, "The right of citizens of the United States to

(x) In the Fourteenth Amendment the word "citizens" is used in the political sense, and the word "persons" includes private corporations. Baldwin v. Franks,

120 U. S. 678; Charlotte &c. R. Co. v. Gibbes, 142 U. S. 386; see State v. Delaware, &c. Co., 7 Houst. (Del.) 269. A tribal Indian, who has not been natural-

When the Constitution of the United States was under the

consideration of the state conventions, there was much

{392} concern expressed on the subject of the general power

vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude."

These amendments have been a number of times before the courts, and in the construction of them the whole subject of the relative powers of the United States and of the states respectively has been largely discussed. There are two systems of government combined in one. The same person may be a citizen of both, entitled to the protection of each, and amenable to the laws of each. The United States has only the power which have been delegated to it, but within the range of these powers is supreme. The same act may be an offence against both state and United States law (e. g. passing forged coin). Each may then punish for the infringement of its own laws. There are certain immunities and privileges belong-

ing to citizens of the United States, as such, or which are guaranteed by the United States Constitution, and these are under the protection of the federal government. Such privileges and immunities as do not fall within this class are exclusively under state protection.

In Slaughter-House Cases, 16 Wall. 36, it was held that there was nothing in the amendments (13th or 14th) to prevent a state from granting to a corporation the exclusive right to erect cattle-yards and slaughtering-houses, and from prohibiting the landing or slaughtering of cattle at any other than specified places which were under the control of said corporation, and for the use of which it was entitled to charge a reasonable compensation.

In Minor v. Happersett, 21 Wall. 162, it was held that no right to vote is given or guaranteed by the thirteenth or fourteenth amendments. Hence, that an ex-

ized, taxed, or recognized as a citizen, either by the United States or a State, is not a citizen within the first section of the Fourteenth Amendment. Elk v. Wilkins, 112 U. S. 94. The Fourteenth Amendment restricts the action of the States, and does not relate to legislation by Congress. In re Sing Lee, 54 Fed. Rep. 334; Walston v. Nevin, 128 U. S. 578; Freeland v. Williams, 131 U. S. 405. It applies to all the departments of State government. Ah Kow v. Nunan, 5 Sawyer, 552. It applies, as to due process of law, to a taking by right of eminent domain, after the amendment, under a State statute previously enacted. Kaukauna Water-power Co. v. Green Bay & M. Canal Co., 142 U. S. 254; Marchant v. Pennsylvania R. Co., 153 U. S. 380, 388. It does not apply in a particular State to corporations foreign to that State. Norfolk & W. R.

Co. v. Pennsylvania, 136 U. S. 114; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181; Singer Manuf. Co. v. Wright, 33 Fed. Rep. 121. The defence of the Statute of Limitations against a debt already barred is not "property" within the Fourteenth Amendment, of which the debtor is deprived by a repeal of the statute. Campbell v. Holt, 115 U. S. 620.

The following are in conflict with the Fourteenth Amendment: Exclusion laws as applied to Chinese children born in the United States: Gee Fook Sing v. United States, 49 Fed. Rep. 146; discriminating State legislation against one class of persons of a particular race or nation: In re Parrott, 6 Sawyer, 349; an Act imposing the full term of the original sentence of a convict after his attempt to escape, without any allowance for the time already served: State v. Lewin, 53 Kansas, 679; discrimi-

of taxation over all objects of taxation, vested in the national government; and it was supposed that it would be in the power of Congress, in its discretion, to destroy in effect the

elusion of females from the suffrage, by a state, was not unconstitutional. See also United States v, Reese, infra.

The right of jury trial is not protected by the fourteenth amendment. Walker v. Sauvinet, 92 U. S. 90.

It is a violation of the fourteenth amendment for a state, through any of its departments or agencies, to discriminate in the selection of jurors between different persons on account of race or color. Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia, ib. 339; Commonwealth v. Johnson, 78 Ky. 509. But a colored person has not any absolute right to have even a single colored juror on the jury that tries him, provided only there be no discrimination in the choice. Virginia v. Rives, 100 U. S. 313.

The fifteenth amendment gives simply the right to exemption from discrimination on account of race, color, or previous condition of servitude, in the exercise of the elective franchise; and Congress has no power to legislate for any purpose

beyond this. United States v. Reese, 92 U. S. 214. As to "due process of law," see Kennard v. Louisiana, 92 U. S. 480; McMillen v. Anderson, 95 U. S. 37; Kelley v. Pittsburgh, 104 U. S. 78.

The history of these amendments, and their purpose as peculiarly applicable to the colored race, is discussed in the foregoing cases. They do, however, it would seem, apply to other races as well; and it has been held that the effect of them is to forbid all class legislation, — such legislation being a denial of the "equal protection of the laws." Ah Kow v. Nunan, 5 Saw. 552; S. C. 18 Am. L. Reg. N. S. 676, and note; Parrott's Chinese Case, 6 Saw. 349; In re Ah Chong, ib. 451; Slaughter-House Cases, 16 Wall. 36, 72. Comp. State v. Ah Chong, 16 Nev. 50.

For further discussion of the respective rights and powers of the United States and of the states, see United States v. Cruikshauk, 92 U. S. 542; Tennessee v, Davis, 100 U. S. 257. — B.]

nating taxes: Jennings v. Coal Ridge I. & C. Co., 147 U. S. 147; Columbus S. Ins. Co. v. Wright, 151 U. S. 470; Northern Pacific R. Co. v. Walker, 47 Fed. Rep. 681; Shirk v. La Fayette, 52 id. 857; special assessments without notice to the owner or opportunity for him to be heard. Murdock v. Cincinnati, 39 Fed. Rep. 891.

The following are not: A State law upheld by the State courts as not providing a cruel and unusual punishment: McElvaine v. Brush, 142 U. S. 155; State punishments, penalties, and fair provisions for trials applying equally to all persons of the same class: Louisville & N. R. Co. v. Woodson, 134 U. S. 614; Marchant v. Penn. R. Co., 153 U. S. 380; In re Boggs, 45 Fed. Rep. 475; San Mateo County v.

Southern Pac. R. Co., 8 Sawyer, 238; a State law making all grain elevators public warehouses: Brass v. North Dakota, 153 U. S. 391; a State law fixing elevator rates, for cities exceeding a certain population: Budd v. New York, 143 U. S. 517; or forbidding laundry business in parts of a city between certain hours at night, but not applying to other kinds of business: Soon Hing v. Crowley, 113 U. S. 703; or the carrying of dangerous weapons: Miller v. Texas, 153 U. S. 535; a State law making it a misdemeanor to issue a policy of fire insurance without express authority therefor by charter, and making the policy void: Com'th v. Vrooman, 164 Penn. St. 306; a State law requiring a certificate or license appropriate to a par-

concurrent power of taxation remaining in the states, and to deprive them of the means of supplying their own wants. All the resources of taxation might, by degrees, become the subjects

ticular profession: Dent v. West Virginia, 129 U. S. 114; admitting or refusing to admit women to practise law in a State: Ex parte Lockwood, 154 U. S. 116; separate railroad cars for white and negro passengers, if the accommodations are equally good: Anderson v. Louisville & N. R. Co., 62 Fed. Rep. 46; or empowering railroad commissioners to abolish grade crossings: New York & N. E. R. Co. v. Bristol, 151 U. S. 556; absence of the accused in a capital case from court when judgment is affirmed by the appellate court: Schwab v. Berggren, 143 U. S. 442; Fielden v. Illinois, id. 452; State statutes prohibiting intermarriage between whites and blacks. Dodson v. State (Ark.), 31 S. W. Rep. 977.

See also Walston v. Nevin, 128 U. S. 578; Kauffinan v. Wootters, 138 U. S. 285; Fielden v. Illinois, 143 U. S. 452; Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; New York & N. E. R. Co. v. Bristol, 151 U. S. 556; Pittsburgh &c., R. Co. v. Backus, 154 U. S. 421; Indianapolis & V. R. Co. v. Backus, id. 438; Gilchrist v. Helena Hot Spring & S. R. Co., 58 Fed. Rep. 708; Ex parte Murray, 35 id. 496; Union Central Life Ins. Co. v. Chowning, 86 Texas, 654; Braceville Coal Co. v. People, 147 Ill. 66; Att.-Gen. v, Jochim, 99 Mich. 358; Wulzen v. Supervisors, 101 Cal. 15; State v. Goodwill (33 W. Va. 179), 25 Am. St. Rep. 863, and note; cases cited supra, 248 n. (y).

The provision as to due process of law in the Fourteenth Amendment applies to the acts of State officers. Pacific Gas Imp. Co. v. Ellert, 64 Fed. Rep. 421. The police power is a right reserved by the States, and was not surrendered to the general government when authority was conferred upon Congress to regulate commerce. Bowman v. Chicago & N. W.

Ry. Co., 125 U. S. 465, 513; Cantini v. Tillman, 54 Fed. Rep. 969. Summary power vested in health officers to quarantine those afflicted with dangerous and infectious disease, or to remove dead animals, is due process of law. In re Smith, 84 Hun, 465; National F. Co. v. Lambert, 48 Fed. Rep. 458. So is the right of eminent domain when duly exercised. Barr v. New Brunswick, 67 Fed. Rep. 402. A State statute authorizing the exactions of tolls, fixed without notice or hearing, for using an improved waterway is not a taking of property without due process of law. Sands v. Manistee River Imp. Co., 123 U. S. 288. Nor is an act fixing a maximum charge for grain elevators. Budd v. New York, 143 U. S. 517. The principle that no person shall be deprived of life, liberty, or property without due process of law, which was in substance embodied also in the constitutions of nearly all the States when the Fourteenth Amendment was adopted, is not incompatible with the equally vital principle that all property is held under the implied obligation that the owner's use of it shall not be injurious to the community. See Mugler v. Kansas, 123 U. S. 623, 665. A constitutional requirement of due process of law will preclude the State Supreme Court from answering a question propounded by the legislature and governor as to the priority of appropriations for private claims, all of which are in excess of the constitutional limitation. In re Priority of Legislative Appropriations (Col.), 34 Pac. Rep. 277. Under the exclusion acts, due process of law places the burden upon the government to show that a Chinaman is unlawfully in this country. United States v. Long Hop, 55 Fed. Rep. 58; Barr v. New Brunswick, 67 Fed. Rep. 402; Sanford v. Poe, 69 id. 546.

of federal monopoly. The states must support themselves, by direct taxes, duties, and excises, and Congress may lay the same burden, at the same time, on the same subject. Suppose the national tax should be as great as the article, whether it be land, or distilled spirits, or pleasure-carriages, for instance, will conveniently and prosperously bear, and the state should be obliged to lay a further tax for its own necessities; the doctrine, as I understand it, is, that the claim of the United States would be preferred, and must be first satisfied, because the laws of the United States, made in pursuance of the Constitution, are the supreme law of the land. The author of the Federalist (a) admits that a state might lay a tax on a particular article, equal to what it would well bear, but the United States would still have a right to lay a further tax on the same article; and that all collisions, in a struggle between the two governments for revenue, must and would be avoided by a sense of mutual forbearance. He nowhere, however, meets and removes the difficulty in the case of a want of this mutual forbearance, where there is a concurrent tax laid on the same subject, which will not bear both taxes. He says only that the United States would have no right to abolish the state tax. This is not contended; but would not the United States have a right to declare that their taxes were liens from the time they were imposed; and would they not, as of course, be entitled to be first paid; and must not the state collector, in all cases, stand by and wait until the national {393} tax is collected, before he proceeds to collect his state tax out of the exhausted subject? Upon the doctrine of the federal courts, and upon the doctrine of the Federalist himself, this must be the case; and though the state legislatures have a concurrent jurisdiction in the case of taxation, except as to imposts, yet, in effect, though not in terms, this concurrent power becomes a subordinate and dependent power. In every other case of legislation, the concurrent power in the states would seem to be a power entirely dependent, and subject to be taken away absolutely, whenever Congress shall choose to exercise their powers of legislation over the same subject. I do not mean to be understood to question the validity, or to excite alarm at the existence, of this doctrine. The national government ought to be supreme within its constitutional limits, for it is intrusted with (a) No. 32. See also Nos. 31, 33, 34.

the paramount interests and general welfare of the whole nation. Our great and effective security consists in the fact, that the constituents of the general and of the state governments are one and the same people; and the powers of the national government must always be exercised with a due regard to the interest and prosperity of every member of the Union; for on the concurrence and good will of the parts, the stability of the whole depends. My object is to discover what this concurrent power of legislation amounts to, and what is its value, and on what constitutional foundation it is supported.

It was observed by Mr. Hamilton, in the convention of New York, in 1788, (a) that if the United States and the state should each lay a tax on a specific article, and the individual should be unable to pay both, the party who first levied would hold the property. But this position must be received with some qualification. The United States have {394} declared, by law, that they were entitled, in respect to their debts, to priority of payment; and when it was said that this claim would interfere with the rights of the state sovereignties, and would defeat the measures they had a right to adopt, to secure themselves against delinquencies, the answer given in United States v. Fisher (a) is, that "the mischief suggested, so far as it can really happen, was the necessary consequence of the supremacy of the laws of the United States, on all subjects to which the legislative power of Congress extends." It would seem, therefore, that the concurrent power of the legislation in the states is not an independent, but a subordinate and dependent power, liable, in many cases, to be extinguished, and in all cases to be postponed, to the paramount or supreme law of the Union, whenever the federal and the state regulations interfere with each other. (b)

(a) Debates in the New York Convention, printed by Francis Childs, 113.

(a) 2 Cranch, 358, 397.

(b) Mr. Hamilton, as Secretary of the Treasury, in his Report in January, 1790, on "a provision for the support of the public credit of the United States," recommended the assumption of the state debts, on the ground, among others, that if the states were left with the duty and burden of providing for the payment of the state debts contracted during the Revolutionary War (and which were then estimated at twenty-five millions of dollars), there might be a competition for resources, producing interfering regulations, collision, and confusion. Particular branches of industry might be oppressed by an accumulation of taxation upon them, in the exercise, at the same time, of the powers of the Union and of the states upon the same objects, and by different modes. The Secretary, though fully and deeply impressed with the embarrass-

In Wayman v. Southard, (c) the question arose, how far the judicial process of the federal courts could be controlled by the laws of the several states. It was decided, that Congress had exclusive authority to regulate proceedings and executions in the federal courts, and that the states had no authority to control such process; and, therefore, executions by fieri facias, in the federal courts, were not subject to the checks created by the Kentucky statute, forbidding sales on execution of land for less than three fourths of its appraised value. It was, in that case, further observed, that the forms of execution, and other process, in the federal courts, in suits at common law, except modes of proceeding, were to be the same as used in September, 1789, in the supreme courts of the states, subject only to alterations and additions by Congress, and by the federal courts, but not to alterations since made in the state laws and practice. It was further observed, that the laws of the several states were, by the Judiciary Act of 1789, sec. 34, to be regarded as {395} rules of decision in trials at common law, in cases where they

ment of the case, does not seem to question the authority of each government to lay taxes in its discretion, but assumes the policy and necessity of moderation and forbearance, when there should happen to be a preoccupancy in the taxation of an article. It has become a settled point, and I think it was a very clear one from the beginning, that in the construction of the power of Congress to lay and collect taxes, duties, imposts, and excises, it is not to be taken as an independent grant of power, without any defined limit or object, but that it is a power to be considered in connection with the words immediately thereafter by which it is made subject to the qualification or limitation of being exercised for the purpose of "paying the debts, and providing for the common defence and general welfare of the United States." The purpose for which the taxes are to be laid is not of itself a distinct, substantial power, but a qualification of the power of taxation, by restricting it to those great and specified purposes, though the application of it to those purposes does undoubtedly admit, and necessarily requires, the exercise of a large and undefined discretion. The progress of this question, and the very weighty opinions upon it, are fully shown and forcibly illustrated in Story, Comm. ii. 367-398; and see particularly Mr. Monroe's Message on the bill respecting the Cumberland road, May 4, 1822, ib. 445-456. That Congress possess the power to appropriate money raised by taxation or otherwise, for other purposes, in their discretion, than those pointed out in the enumerated powers, is a question that has given rise to very able and acute discussions; and the affirmative side of the question has been sustained and successfully vindicated by the practice of the government, and the weighty authority, among others, of Mr. Hamilton and Mr. Monroe, in celebrated documents under their official sanction. See Hamilton's Report on Manufactures, and President Monroe's Message above referred to. Story, Comm. ii. 440-458. This distinguished commentator gives to the affirmative side of the question the sanction also of his decided opinion.

(c) 10 Wheaton, 1; United States Bank v. Halstead, ib. 51, S. P.

apply, unless the Constitution, treaties, or statutes of the United States had otherwise provided. This, however, did not apply to the practice of the federal courts. As to that, the laws of the states were no rule of decision, and the direction was intended only as a legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci, in the trial and decision of causes. The law respecting final process was materially altered by the act of Congress of 1828, (a) and that act adopted into the national courts in each state respectively (Louisiana excepted), the existing laws and usages of the several courts, regulating the effect and operation of judgments and executions, and the proceedings for their enforcement; but where judgments were a lien in the state upon the property of the defendants, and the defendants were entitled to an imparlance thereon of one term or more, the defendants in the United States courts, in such state, are entitled to an imparlance of one term. If, in any state, there were no courts of equity with the ordinary equity jurisdiction, the courts of the United States, in such states, might prescribe the mode of executing their decrees in equity; and the courts of the United States were also invested with power to alter, in their discretion, the final process in their courts, and to conform the same to legislative changes made for the state courts. (x)

(a) Act of Congress of May 19, 1828, c. 68, sec. 2, 3.

(x) The U. S. Rev. Stats. 914, 915, require the practice, pleadings and forms and modes of proceeding in civil causes in the Federal courts to conform to State practice. The statute does not apply to the form of verdicts. Abbott v. Curtis & Co. Manuf. Co., 25 Fed. Rep. 402. And . the Federal courts are not bound by a State statute providing for the submission of special questions to a jury. McElwee v. Met. Lumber Co., 69 Fed. Rep. 302. So the Federal courts are not controlled by State statutes in the allowance or amount of costs. Bradford v. Bradford, 2 Flippin, 280; Huntress v. Epsom, 15 Fed. Rep. 732; O'Neil v. Kansas City, &c. R. Co., 31 id. 663; Ford v. Louisville &c. R. Co., 45 id. 210; see Willard v. Serpell, 62 id.

625. Equitable defences, though pleadable under State practice, cannot be pleaded in the Federal court for that district. Snyder v. Pharo, 25 Fed. Rep. 398; Herklotz v. Chase, 32 id. 433. So the practice in the State courts which allows upon an answer or counter-claim the relief usually obtainable only by a cross-bill, is not followed in the Federal courts. Chapin v. Walker, 6 Fed. Rep. 794; Brande v. Gilchrist, 18 id. 465; White v. Bower, 48 id. 186. The fact that a State statute permits a married woman to sue in equity in her own name does not enable her so to do in a Federal court. Wills v. Pauly, 51 Fed. Rep. 257; see Morning Journal Ass'n v. Smith, 56 id. 141. The same is true of the examination of the adverse

2. Of Concurrent Judicial Power. — In the 82d number of the Federalist, it is laid down as a rule, that the state courts retained

party, as if under cross-examination, allowed by a State statute. Penn. R. Co. v. Allegheny R. Co., 25 Fed. Rep. 115; Dravo v. Favel, id. 116. A provision in a State statute which gives the same right of action for negligence causing death as the deceased would have if living, that the action is to be brought in the State court only, has been held invalid as a limitation upon the Federal courts of admiralty. Bigelow v. Nickerson, 70 Fed. Rep. 113 (Showalter, C. J., dissenting). But interpleader of adverse claimants in equity, as allowed by a State statute, may be enforced in the Federal courts. Wells v. Miner, 25 Fed. Rep. 533. So of a partition suit based on equitable titles. Aspen Mining & S. Co. v. Rucker, 28 Fed. Rep. 220. The fact that a suit may be brought in a State upon its penal statutes after the offender's death does not affect the Federal courts which follow the common-law rule that qui tam actions on penal statutes do not survive. Schreiber v. Sharpless, 110 U. S. 76. The question whether garnished funds are to be deposited in the court registry is determined by the Federal and not by State practice. Gaines v. New Orleans, 27 Fed. Rep. 411. New remedies created by State statutes enlarging equitable rights may be enforced in the equity courts of the United States. Holland v. Challen, 110 U. S. 15; Goldsmith v. Gilliland, 22 Fed. Rep. 865; Wells, Fargo & Co. v. Miner, 25 id. 533; A. & W. Sprague Manuf. Co. v. Hoyt, 29 id. 421; Rosenbaum v. Council Bluff Ins. Co., 37 id. 7; Fechheimer v. Baum. id. 167; Borland P. Haven, id. 394; Sage v. Winona &c. R. Co., 58 id. 297; Prentice v. Duluth S. & F. Co., id. 437. A remedy provided by a State statute for a right thereby newly created, must be adopted, either at law or in equity, in the Federal courts. First Nat. Bank v. Pea-

vey, 69 Fed. Rep. 455. But rights enforceable in the State courts will not be there followed when confusion or conflict of interests may result. Hence the same receivers appointed in the former courts will not necessarily be re-appointed in the latter. Young v, Aronson, 27 Fed. Rep. 241. And the right to set off a judgment or decree of one of these Courts in the other is restricted. Lauderdale Co. v. Foster, 23 Fed. Rep. 516. A provision in a State Code which permits a defendant to demand from the plaintiff more certain and definite statements in his complaint does not apply to the Federal Circuit Court sitting in equity. Phelps v. Elliott, 26 Fed. Rep. 881. But supplementary proceedings allowed by State law for discovery of the debtor's property at law or in equity, may be enforced in the Federal courts. Senter v. Mitchell, 16 Fed. Rep. 206. Chancery practice is uniform in all the Federal courts, and is the same whether the local State has courts of equity or not. In the Federal courts legal and equitable claims cannot be joined in one suit, and the existence of an adequate remedy at law is fatal to the jurisdiction at any stage of the case. Northern Pacific R. Co. v. Paine, 119 U. S. 561; Quincy v. Steel, 120 U. S. 241; Ridings v. Johnson, 128 U. S. 212; Mississippi Mills v. Cohn, 150 U. S. 202; Leighton v. Young, 52 Fed. Rep. 439; Tyler v. Savage, 143 U. S. 79, 97; Franklin Tel. Co v. Harrison, 145 U. S. 459, 474; Lindsay v. First Nat. Bank, 156 U. S. 485. This uniformity of equity practice prevails also in cases removed from the State to the Federal courts, and in such cases a recast of the pleadings is often necessary upon the removal. Benedict v. Williams, 10 Fed. Rep. 208; Phelps v. Elliott, 26 id. 881; Hunton v. Equitable Life Ass. Society, 45 id. 661. But Equity

all pre-existing authorities or the jurisdiction they had before the adoption of the Constitution, except where it was taken away, either by an exclusive authority granted in express terms to the Union, or in a case where a particular authority was granted to the {396} Union, and the exercise of a like authority was prohibited to the states, or in the case where an authority was granted to the Union, with which a similar authority in the states would be utterly incompatible. A concurrent jurisdiction in the state courts was admitted, in all except those enumerated cases; but this doctrine was only applicable to those descriptions of causes of which the state courts had previous cognizance, and it was not equally evident in relation to cases which grew out of the Constitution. Congress, in the course of legislation, might commit the decision of causes arising upon their laws to the federal courts exclusively; but unless the state courts were expressly excluded by the acts of Congress, they would, of course, take concurrent cognizance of the causes to which those acts might give birth, subject to the exceptions which have been stated. In all cases of concurrent jurisdiction, an appeal would lie from the state courts to the Supreme Court of the United States; and without such right of appeal, the concurrent jurisdiction of the state courts, in matters of national concern, would be inadmissible; because, in that case, it would be inconsistent with the authority and efficiency of the general government.

Such were the early and speculative views of the ablest commentators on the Constitution, in relation to the judicial powers of the state courts. We will now examine a series of decisions in the federal courts, defining and settling the boundaries of the judicial authorities of the states.

In the case of Martin v. Hunter, (a) Judge Story, in delivering the opinion of the court, seemed to think that it was the duty of Congress to vest the whole judicial power of the United States in courts ordained and established by itself. But the general observation was subsequently qualified and confined to that judicial

rule 94, requiring in a stockholder's suit certain allegations for the enforcement of his corporation's rights, has no technical

force in removed cases. Evans v. Union Pac. By. Co., 58 Fed. Rep. 497.

(a) 1 Wheaton, 304. See supra, 377.

power which was exclusively vested in the United States. The whole judicial power of the {397} United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority. It was considered that there was vast weight in the argument, that the Constitution is imperative upon Congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the supreme and inferior courts created under its own authority. At all events, it was manifest that the judicial power of the United States is, unavoidably, in some cases, exclusive of all state authority, and, in all cases, may be made so, at the election of Congress.1 (x) No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases where, previous to the Constitution, state tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction. Congress, throughout the Judiciary Act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts.

1 The Moses Taylor, 4 Wall. 411, 429; post, 402, n. 1. [In Claflin v. Houseman, 93 U. S. 130, it was held that an assignee in bankruptcy, under the law of March 2, 1867, might sue in a state court. It was held that the laws of the United States were to be regarded as laws of the states also; and hence state courts were competent to adjudge rights under them, except where exclusive jurisdiction was given by

Congress to the United States court, in all cases where their jurisdiction, as fixed by state laws, made them competent. The right to take cognizance of such cases was said not to be a new jurisdiction conferred by Congress, but a right, under their state jurisdiction, to take cognizance of all cases of a given character, whether arising under state or United States laws. — B.]

(x) Although a suit against a bankrupt might be suspended by order of the bankrupt court until he obtained or was refused a discharge, yet the jurisdiction of the State courts over controversies between parties, one of whom was proceeded against under the national bankrupt law, was not taken away by the bankruptcy proceedings; and the rule that a receiver

cannot be sued without the permission of the court which appointed him, does not deprive a State court of jurisdiction to determine an application for a mandamus, of which the Federal receiver of a corporation has notice, directing a State recorder of mortgages to cancel a writing in favor of the corporation. Calhoun v. Lanaux, 127 U. S. 634.

State courts may, in the exercise of their ordinary, original, and rightful jurisdiction, incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States; yet to all these cases the judicial power of the United States extends, by means of its appellate jurisdiction. (a)

In Houston v. Moore, (b) the same question came again under the consideration of the Supreme Court; and Judge Washington, in delivering the opinion of the court, observed, that he saw nothing unreasonable or inconvenient in the doctrine of the Federalist, on the subject of the concurrent {398} jurisdiction of the state courts, so long as the power of Congress to withdraw the whole or any part of those cases from the jurisdiction of the state courts be, as he thought it must be, admitted. The practice of the general government has been conformable to this doctrine; and, in the Judiciary Act of 1789, the exclusive and concurrent jurisdiction conferred on the courts by that act were clearly distinguished and marked. The act shows that, in the opinion of Congress, a grant of jurisdiction generally was not

(a) In Wadleigh v. Veazie, 3 Sumner, 165, in the Circuit Court of the United States, in a writ of entry for land, the defendant pleaded in abatement an action in the state court between the same parties for the same land. It was held not to be a good plea, because the parties were reversed; but it was stated by the court, that, in cases of concurrent jurisdiction in the state and federal courts, the latter court had no discretion to control the suit, in order to prevent a collision between the courts. It was suggested that one or other of the courts, on a reconstruction of the Constitution, ought to have exclusive jurisdiction; and in Wallace v. M'Connell, 13 Peters, 136, it was held that an attachment commenced and conducted to a conclusion, before the institution of a suit against the debtor in a federal court, is a defence to the suit. So an attachment pending in a state court, prior to the commencement of a suit in the court of the United States, may be pleaded in abatement. The attaching creditor acquires a lien on the debt, good against the world. In Mabry v. Herndon, Ala. Sup. Court (Law Reporter for October, 1846, ix. 254,) it was adjudged, in an able and clear argument by Collier, Ch. J., that the state courts had cognizance, concurrently with the federal courts, of cases of fraud in a bankrupt's discharge, under the act of Congress of 1841, as no act of Congress had expressly excluded such a cognizance. The power of impeaching a bankrupt's discharge for fraud rested upon the principles of the common law, as well as on the provisions of the act of 1841. So, in the case of Ward v. Mann, in the Supreme Judicial Court of Massachusetts (the Law Reporter for March, 1847), it was adjudged, after an able consideration of the case, that if a case be within the ordinary jurisdiction of a state court, the court may take cognizance of it, though the cause of action arises under rights acquired by a statute of the United States, provided there be no restriction under the Constitution or the statute of the United States, confining the jurisdiction to the federal courts.

(b) 5 Wheaton, 1.

of itself sufficient to vest an exclusive jurisdiction. The Judiciary Act grants exclusive jurisdiction to the circuit courts of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this accounts for the proviso in the act of 24th of February, 1807, c. 75, and in the act of 10th of April, 1816, c. 44, concerning the forgery of the notes of the Bank of the United States, declaring that nothing in that act contained should be construed to deprive the courts of the individual states of jurisdiction under the laws of the several states, over offences made punishable by that act. There is a similar proviso in the act of 21st of April, 1806, c. 49, concerning the counterfeiters of the current coin of the United States. Without these provisos, the state courts could not have exercised concurrent jurisdiction over those offences, consistently with the Judiciary Act of 1789. But these saving clauses restored the concurrent jurisdiction of the state courts, so far as, under the state's authority, it could be exercised by them. (a)1 There are many other acts of Congress which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts. This was necessary; because the concurrent jurisdiction of the state courts over all offences was taken away, and that jurisdiction was vested exclusively in the national courts by the Judiciary Act, and it required another act to restore it. The state courts could exercise no jurisdiction whatever over crimes and offences against {399} the United States, unless where, in particular cases, the laws had otherwise provided; and whenever such provision was made, the claim of exclusive jurisdiction in the particular cases was withdrawn, and the concurrent jurisdiction of the state courts, eo instanti, restored, not by way of grant from

(a) In the case of The State v. Tutt, 2 Bailey (S. C.), 44, the state courts are considered as having jurisdiction, independent of the acts of Congress, to punish the uttering and passing counterfeit bank bills and coin of the United States, and on the principle that such a power is essential to the protection of the citizens. In the case of The Commonwealth v. Fuller, 8 Metcalf, 313, it was adjudged that the state courts had jurisdiction of the offence of possessing, with intent to pass, scienter, counterfeit gold or silver coin, current by law or usage within the state. The proviso in the acts of Congress of 1789, 1806, 1825, recognizes the concurrent jurisdiction of the states over such crimes.

1Post, 402, n. 1.

the national government, but by the removal of a disability before imposed upon the state tribunals.

In the case last referred to, the Supreme Court disclaimed the idea that Congress could authoritatively bestow judicial powers on state courts and magistrates. "It was held to be perfectly clear, that Congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, although the state courts may exercise jurisdiction in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts."

The Supreme Court, having thus declared the true foundation and extent of the concurrent jurisdiction of the state courts in criminal cases, proceeded to meet and solve a difficulty occurring on this subject of concurrent jurisdiction, whether the sentence of one jurisdiction would oust the jurisdiction of the other. The decision on this point was, that the sentence of either court, whether of conviction or acquittal, might be pleaded in bar of the prosecution before the other; as much so as the judgment of a state court, in a civil case of concurrent jurisdiction, might be pleaded in bar of an action for the same cause instituted in a circuit court of the United States.

There was another difficulty, not so easily surmounted, and that was, whether, if a conviction of a crime against the United States be had in a state court admitted to have concurrent jurisdiction, the governor of the state would have the power to pardon, and in that way control the law and policy of the United States. Judge Washington, in speaking for the court, did not answer this question, but contented himself with merely observing, that he was by no means satisfied that the governor could pardon, but that if {400} he could, it would furnish a reason for vesting the jurisdiction of criminal matters exclusively in the federal courts.

The conclusion then is that in judicial matters the concurrent jurisdiction of the state tribunals depends altogether upon the pleasure of Congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject matter can constitutionally be made cognizable in the federal courts; and that, without an express provision to the contrary, the state courts will retain a concurrent jurisdiction in all cases

where they had jurisdiction originally over the subject-matter. (a) We will next see whether this state jurisdiction does not equally depend upon the volition of the state courts.

There are various acts of Congress in which duties have been imposed on state magistrates and courts, and by which they have been invested with jurisdiction in civil suits, and over complaints and prosecutions in penal and criminal cases, for fines, penalties, and forfeitures, arising under laws of the United States. We have seen a very clear intimation given by the judges of the Supreme Court, that the state courts were not bound, in consequence of any act of Congress, to assume and exercise jurisdiction in such cases. It was merely permitted to them to do so, as far as was compatible with their state obligations; and in some instances the state courts have acted in those cases, and in other instances they have declined jurisdiction, though expressly vested with it by the act of Congress.

In the case of Ferguson, (b) an application was made to the Supreme Court of New York, for the allowance of a habeas corpus to bring up the party alleged to be detained in custody by an officer of the army of the United States, on the ground of being an enlisted soldier; and the allegation was, that he was an infant, and so not duly enlisted. It was much discussed, whether the state courts had concurrent {401} jurisdiction, by habeas corpus, over the question of unlawful imprisonment, when that imprisonment was by an officer of the United States, by color, or under pretext of the authority of the United States. The Supreme Court did not decide the question, and the motion was denied on other grounds; but subsequently, In the matter of Stacy, (a) the same court exercised a jurisdiction in a similar case, by allowing and enforcing obedience to the writ of habeas corpus. The question was therefore settled in favor of a concurrent jurisdiction in that case, and there has

(a) In the case of Delafield v. The State of Illinois, it was decided in the Court of Errors of New York, in December, 1841, upon appeal from a decree in chancery, that the state courts have a concurrent jurisdiction with the Supreme Court of the United States in suits between a state and citizens of another state, and the decree in chancery was affirmed. 2 Hill (N. Y.), 159; S. C. 26 Wendell, 192. The federal courts have exclusive jurisdiction when a state is defendant at the suit of another state, and when crimes are committed against the United States, and when Congress have declared the jurisdiction of the federal courts exclusive. Ib.

(b) 9 Johns. 239. (a) 10 Johns. 328.

been a similar decision and practice by the courts of other states. (b)l (x)

(b) Case of Lockington, before Tilghman, Chief Justice of Pennsylvania, November, 1813, 5 Hall's L. J. 92; same case, 5 Hall's L. J. 301-330. A similar case in Maryland, 5 Hall's L. J. 486; and in South Carolina, 5 Hall's L. J. 497. Commonwealth v. Harrison, 11 Mass. 63; Case of Joseph Almeida, in Maryland, and the case of Pool and others, in Virginia, cited in Sergeant's Constitutional Law, 279, 280. By the New York Revised Statutes, ii. 563, sec. 22, a habeas corpus may be awarded, unless the party be detained by process from a court or judge of the United States, having exclusive jurisdiction in the case.

1 But see Ableman v. Booth, 21 How. 506. In that case the defendant Booth had been charged with having aided and abetted in the escape of a fugitive slave from the custody of the United States marshal, which was a penal offence under the Fugitive Slave Law of Sept. 18, 1850. His bail having given him up, a warrant for Booth's commitment was made by a United States commissioner. On the next day, however, Booth was released by a state judge on habeas corpus, and the judge's decision was affirmed by the Supreme Court of Wisconsin, on the ground that the Fugitive Slave Law was unconstitutional. The marshal took a writ of error returnable to the Supreme Court of the United States. After Booth's release, he was indicted in the District Court, tried, and sentenced to a month's imprisonment, and again released on habeas corpus by the state court, who also directed their clerk to make no return to the writ of error brought thereupon. The Supreme Court reversed the judgment of the state court in both cases, on the broad ground that no state judge or court, after they are judicially informed that a party

is imprisoned under the authority of the United States, has any right to interfere with him (p. 524); S. C. 3 Wis. 1. See also Matter of Spangler, 11 Mich. 298; State v. Zulick, 5 Dutcher, 409; Ex parte Holman, 28 Iowa, 88; Matter of Hopson, 40 Barb. 34; O'Connor, 48 Barb. 258; Jordan, 2 Am. L. Rep. N. S. 749; Farrand, 1 Abb. U. S. 140; 2 Am. L. T. U. S. Cts. R. 4; Neill, 8 Blatchf. 156.

It was considered by some judges that the principle of Ableman v. Booth did not extend beyond imprisonment under judicial process of a federal court. This was the suggestion in an interesting note to the last edition of this work, ii. 32. Note the language of the court in Freeman v. Howe, 24 How. 450, 459, 460; and see Matter of Barrett, 42 Barb. 479; Matter of Martin, 45 Barb. 142; People v. Gaul, 44 Barb. 98, 105; McCarey, Pet., 2 Am. L. Rev. 347; Ex parte Anderson, 16 Iowa, 595; Comm. v. Fox, 7 Penn. St. 336. In Gormley's Case, 12 Op. Att.-Gen. 258, the principle was thought not to apply to an imprisonment by an executive officer. In Tarble's Case, 25 Wis. 390, the Supreme Court of Wisconsin, still denying

(x) See supra, 301, note (x). Subject to the exclusive and paramount authority of the general government to control questions arising from the action of its own tribunals in matters of habeas corpus, the State courts may investigate illegal restraints, even when such illegality arises from a violation of the Constitution and

laws of the United States. Robb v. Connolly, 111 U. S. 624. A Federal circuit court may discharge a person held, in violation of the Federal constitution, under State process for trial on an indictment charging him with an offence against the laws of the State. Ex parte Royall, 117 U. S. 241, 254; Ex parte Fonda, id. 516.

The Supreme Court of New York, in the case of The United States v. Dodge, (c) held that they had jurisdiction, and did sustain a suit on a bond for duties given to a collector of the United States customs. The suit was authorized by the Judiciary Act of 1789, giving concurrent jurisdiction to the state courts in suits at common law, where the United States were plaintiffs. (d) Afterwards, in the case of The United States v. Lathrop, (e) the same court discussed, very much at large, the question whether a state court had jurisdiction of an action in favor of the United States, to recover a penalty or forfeiture for breach of a law of the United States, and when a suit for the penalty was by the {402} act declared to be cognizable in a state court. It was decided that the court had no such jurisdiction, and that it could not even be conferred by an act of Congress. (x) The difference between this case and the one preceding was, that the preceding case was a suit on a bond given to a collector of the customs for duties, and this was an action of debt for a pen-

(c) 14 Johns. 95.

(d) The act of Congress of September 24, 1789, c. 20, sec. 33, declared, that for any crime or offence against the United States, any justice of the peace, or other magistrate of any of the states, might cause the offender to be arrested and imprisoned or bailed under the usual mode of process.

(e) 17 Johns. 4.

the soundness of the reasoning in Ableman v. Booth, and asserting a right, even when a party was imprisoned by order of a court, to inquire collaterally into the single fact of its jurisdiction, thought that there was room for refusing to apply that reasoning where the detention was by a mere military officer, without the judgment of any court. They accordingly affirmed the discharge of a party who was held in the custody of a United States recruiting officer as an enlisted soldier, ordered by a state commissioner on the

alleged ground that he enlisted when less than eighteen years old, and without the consent of his father. This decision was reversed by the Supreme Court of the United States, and it was once more laid down that a state judicial officer has no jurisdiction to issue or continue proceedings under a writ of habeas corpus, for the discharge of a person held under the authority, or claim and color of authority, of the United States, by an officer of that government. 13 Wall. 397; post, 410, n. 1.

(x) See Stearns v. United States, 2 Paine, 310; Brigham v. Claflin, 31 Wis. 607; 11 Am. Rep. 623, 628. In Betz v. Columbia Nat. Bank, 87 Penn. St. 87, 91, it was held that the decision of the State court, as to its jurisdiction to enforce a

penalty under Federal laws, should, when the Federal jurisdiction is not clearly exclusive, be favorable to its own jurisdiction, leaving the doubt to be solved by the Federal Courts.

alty for breach of the excise law. They were both cases of debts due to the United States, but the one was a civil debt, and the other a penalty for breach of a revenue law; and this slight difference in the nature of the demand was considered to create a most momentous difference in its results upon the great question of jurisdiction. It was the opinion of the court that Congress could not invest the state courts with a jurisdiction which they did not enjoy concurrently before the adoption of the Constitution; and a pecuniary penalty for a violation of an act of Congress was a punishment for an offence created under the Constitution, and the state courts had no jurisdiction of the criminal offences or penal laws of the United States. The Judiciary Act of 1789 was the true exposition of the Constitution with respect to the concurrent jurisdiction of the state courts, and the exclusive jurisdiction of those of the United States; and by that act the exclusive cognizance of all crimes and offences cognizable under the authority of the United States, and of all suits for penalties and forfeitures, was given to the federal courts. The Judiciary Act in no instance excluded the previously existing jurisdiction of the state courts, except in a few specified cases of a national nature; but their jurisdiction was excluded in all criminal cases; and with respect to offences arising under the acts of Congress. In such cases the federal jurisdiction was necessarily exclusive;1 but it was not so as to pre-existing matters within the jurisdiction of the state courts. (a)

The doctrine seems to be admitted, that Congress cannot compel a state court to entertain jurisdiction in any case. (b) {403} It only permits state courts which are competent for the purpose, and have an inherent jurisdiction adequate to the case, to entertain suits in the given cases; and they do not become

(a) Ely v. Peck, 7 Conn. 239; Davison v. Champlin, ib. 244, S. P. (b) Dewey, J., in Ward v. Jenkins, [10 Metcalf, 583.]

1 State v. Tuller, 34 Conn. 280, 296; Teall v. Felton, 1 Comst. 537, 546.

But a party may be punished in a state court under a state law for passing counterfeit coin of the United States. Fox v. Ohio, 5 How 410 See Moore v. Illinois, 14 How. 13.

So it has been held that the embezzle-

ment, by an officer of a national bank, of a special deposit in such bank, not being punishable by any statute of the United States, may be punished in a state court, under a state law. State v. Tuller, 34 Conn. 280; Commonwealth v. Tenney, 97 Mass. 50. See Comm. v. Hall, ib. 570.

inferior courts in the sense of the Constitution, because they are not ordained by Congress. The state courts are left to infer their own duty from their own state authority and organization; but if they do voluntarily entertain jurisdiction of causes cognizable under the authority of the United States, they assume it upon the condition that the appellate jurisdiction of the federal courts shall apply. Their jurisdiction of federal causes is, however, confined to civil actions, or to enforce penal statutes; and they cannot hold criminal jurisdiction over offences exclusively existing as offences against the United States. Every criminal prosecution must charge the offence to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose executive may pardon him. (a)

We find a similar doctrine in one of the courts in the State of Ohio, in the case of The United States v. Campbell. (b) That was an information filed by the collector of the revenue, to recover a penalty for breach of the excise law; and the court held it to be a criminal prosecution, and that one sovereign state could not make use of the municipal courts of another government to en-

(a) It has been a question of grave discussion how far treason might be committed against one of the United States separately considered. If the same crime amounted to treason against the United States, the exclusive cognizance of the crime belonged to the courts of the United States. This was the doctrine of the Supreme Court of New York, in the case of The People v. Lynch, 11 Johns. 549. But it was agreed in that case that treason might be committed against a state, as by opposing the laws, or forcibly attempting to usurp the government, and be not at the same time merged in the crime against the United States. But levying war against one state is a levying of war against all in their federal capacity, and is a crime belonging exclusively to the federal government. The limitation of treason against a state in its distinct capacity would seem to be confined to cases in which the open and armed opposition to the laws is not accompanied with the intention of subverting the government. However, the statute laws in many of the states by their language cover the whole enlarged ground of treason, and the line of demarcation is not distinctly defined. See an able essay on this subject in the American Law Magazine, No. 8, for January, 1845. The act of the legislature of New York, 1 N. Y. R. S. 170, 326, 3d ed., assumes that treason, committed within the state, may be cognizable and punishable by its laws. This was also the doctrine of the Supreme Court of Rhode Island in Dorr's Trial, and is the doctrine of such distinguished elementary writers as Mr. Rawle and Mr. Sergeant. See Wharton's American Criminal Law, Phil. 1846, pp. 586-592. [In 1860 John Brown invaded the State of Virginia with a small armed force, for the purpose of liberating the slaves held under the laws of that state, and subverting the state government. He was convicted of treason, in one of the local tribunals, and

executed. — C.]

(b) 6 Hall's Law Journal, 113.

force its penal laws; and it was not in the power of Congress to vest such a jurisdiction in the state courts. Upon the same principle, the Court of Errors in Virginia, in the case of The State v. Feely, decided that it had no jurisdiction to punish by indictment stealing packets from the mail, as that was an offence created by act of Congress. (c) And in Jackson v. Row, the General Court of Virginia made the same decision precisely as that made in New York, in the case of Lathrop; and it held that

the act of Congress authorizing such suits for penalties in {404} the state courts, was not binding. It was decided in

another case in Virginia, (a) that Congress could not give jurisdiction to, or require services of, a state court, or magistrate, as such, nor prosecute in the state courts for a public offence. In Kentucky it was held, as late as 1833, (b) that no state court could take cognizance of a penal case arising under an act of Congress. Such a jurisdiction would require an act of the state, and the consent of Congress.

After these decisions in Virginia, Ohio, Kentucky, and New York, the act of Congress of 3d March, 1815, c. 100, may be considered as essentially nugatory. That act vested in the state courts, concurrently with the federal courts, cognizance of all "complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures, arising and payable under any act of Congress, passed or to be passed, for the collection of any direct tax or internal duties;" and it gave to the state courts and the presiding judge thereof the same power as was vested in the district judges, to mitigate or remit any fine, penalty, or forfeiture. (c) And here the inquiry naturally suggests itself, can the state courts, consistently with those decisions, sustain a criminal prosecution for forging the paper of the Bank of the United States, or for counterfeiting the coin of the United States? These

(c) Sergeant's Const. Law, 272; Virginia Cases, 321, S. C.

(a) Ex parte Pool, Sergeant's Const. Law, 272, 274; [2d ed. 282, 287.]

(b) Haney v. Sharp, 1 Dana (Ky.), 442.

(c) The act of Congress, of February 28, 1839, c. 36, sec. 3, notwithstanding the state decisions, authorized all pecuniary penalties and forfeitures under the laws of the United States to be sued for before any court of competent jurisdiction in the state or district where the cause of action arises, or the offender may be found. It was said, in the case of Prigg v. Comm. of P., 16 Peters, 539, that the state magistrates might, if they chose, exercise powers conferred upon them by act of Congress, unless prohibited by state legislation.

are cases arising under acts of Congress declaring the offence. The state courts have exercised criminal jurisdiction over these offences, as offences against the state; but it is difficult to maintain the jurisdiction upon the doctrine of the Supreme Court of New York, in the case of Lathrop; and if it be entertained, there are difficulties remaining to be definitively cleared. These difficulties relate to the effect of a prosecution in one jurisdiction upon the jurisdiction of the concurrent court, and to the effect of the executive power of pardon of the crime under one government, upon the claim of concurrent jurisdiction. (d)1

(d) In the case of The State v. Randall, 2 Aikens, 89, the Supreme Court of Vermont decided, in 1827, that the state courts had concurrent criminal jurisdiction over the offences of counterfeiting and passing counterfeit bills of the Bank of the United States. And in the ease of The State v. Wells, 2 Hill (S. C.), 687, it was held that the state courts had concurrent cognizance of the indictable offence of opening a letter contrary to the act of Congress, and that Congress might constitutionally confer such a jurisdiction. On the other hand, it was decided in Missouri, in Mattison v. The State, 3 Mo. 421, that their courts had no cognizance of the case of counterfeiting the current coin, and that a statute of the state, providing for the cognizance and punishment of such crimes, was void. The doctrine was, that the states had no concurrent legislation on the subject, and that the power resided exclusively in Congress. So, the Constitution of the United States (art. 4, sec. 2) having declared that persons held to service or labor in one state, under the laws thereof, and escaping into another, should be delivered up, on claim of the party to whom such service or labor might be due; the laws of New York, in furtherance of this duty, have provided for the arrest of such fugitives, on habeas corpus, founded on due proof, and for a certificate in favor of the right of the claimant, and delivery of the fugitive to him to be removed. But the fugitive is entitled to his writ of homine replegiando, notwithstanding the habeas corpus and certificate. N. Y. Revised Statutes, ii. 560, sec. 6-20. See ii. 32, on this point, and see, in American Jurist for April, 1837, xvii. 96-113, the substance of the report of the committee on the judiciary in the legislature of Massachusetts, respecting the validity of the act of Congress of February 12, 1793, providing for the seizure and surrender of fugitive slaves. It urges the right and duty of providing, by the writ of habeas corpus or of replevin, for the trial by jury of the question whether the person seized be a freeman or a slave. The act of Congress authorizes the owner of the fugitive slave, by himself or his agent, to seize at once the fugitive slave, and carry him before a judge of the United States, or any magistrate of the county, city, or town in the state where the slave is seized, and, upon satisfying the magistrate by proof that the person seized is such fugitive slave, he is to give a certificate, which amounts to a warrant to remove the slave. This law is generally found to be insufficient to give the claimant the requisite constitutional protection in his property, or the fugitive due protection of his liberty; and its execution meets with embarrassment in the northern states, and several of them have endeavored, by local statutes,

1Ante, 402, n. 1.

Since the passage of the thirteenth amendment to the Constitution, further

notes on the subject of fugitives from labor, note (d), seem unnecessary. As to fugitives from justice, post, ii. 32, n.

to supply the deficiency. The Constitution of the United States, and the act of Congress, evidently contemplated summary ministerial proceedings, and not the ordinary course of judicial investigation. Story's Comm. on the Const., iii. 677; Wright v. Deacon, 5 Serg. & Rawle, 62. In the last case it was held that the writ of homine replegiando did not lie to try the right of the fugitive to freedom, though on the return of the fugitive to the state from which he fled his right to freedom might be tried. See further, infra, ii. 32, notes (c), (d). It seems to be an unsettled question whether statute provisions relative to the surrender of fugitives from labor, in obedience to the Constitution of the United States, be of exclusive jurisdiction in the United States, or may be aided by auxiliary statute provisions in the states. But the case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539, may be considered as settling the question in favor of the exclusive jurisdiction of the United States. See infra, ii. 32, 248. It was there declared that the national government, in the absence of all positive provisions to the contrary, was bound, through its proper department, legislative, executive, or judiciary, as the case might require, to carry into effect all the rights and duties imposed upon it by the Constitution. Any legislation by Congress, in a case within its jurisdiction, supersedes all state legislation, and impliedly prohibits it. See Houston v. Moore, 5 Wheaton, 21, 22; Sturges v. Crowninshield, 4 Wheaton, 122, 193, S. P.

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