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the United States, unless where, in particular cases, the laws had otherwise provided ; and whenever such provision was made, the claim of exclusive jurisdiction to the particular cases was withdrawn, and the concurrent jurisdiction of the state courts, eo instanti, restored, not by way of grant from the national government, but by the removal of a disability before imposed upon the state tribunals.

In that case, 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 criininal cases, proceeded to meet and solve a difficulty occurring on this subject of concurrent jurisdiction, whether the sentence of one jurisdiction would oust the ju risdiction 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 of 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 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. 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


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, 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 con

a 9 Johns. Rep. 239.

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current jurisdiction, by habeas corpus, over the question of unlawful imprisonment, when that imprisonment was by an officer of the United States, by colour, 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,the same court exercised jurisdiction in a similar case, by allowing and enforcing obedience to the writ of habeas corpus. The question was, therefore, settled in favour of a concurrent jurisdiction, in that case, and there has been a similar decision and practice by the courts of other states."

The Supreme Court of New York, in the case of The United States v. Dodge, 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. Afterwards, in the case of The United States v. Lathrop," the same court discussed, very much at large, the question, whether a state court had jurisdiction of an action in favour 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

a 10 Johns. Rep. 328.

b Case of Lockington, before Tilghman, Chief Justice of Pennsylvania, November, 1813, 5 Hall's Law Journal, 92. Same case, 5 Hall's Law Journal, 301—330. A similar case in Maryland, 5 Hall's Law Journal, 486; and in South Carolina, 5 Hall's Law Journal, 497. Commonwealth v. Harrison, 11 Mass. Rep. 68. Case of Joseph Almeida, in Maryland, and the case of Pool and others, in Virginia , cited in Sergeant's Constitutional Law, p. 279, 280. By the NewYork Revised Statutes, vol. 2. 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.

c 14 Johnson's Rep. 95.
d 17 Johnson's Rep. 4.
Vol. I.


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. The difference between this case and the one preceding was, that that was a suit on a bond given to a collector of the customs for duties, and this was an action of debt for a penalty 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 result 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; 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.

a Ely v. Peck, 7 Conn. Rep. 239. Davison v. Champlin, Ibid. 244. S. P.

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 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.

We find a similar doctrine in one of the courts in the state of Ohio, in the case of the United States v. Campbell. 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 enforce 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, a state court 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. 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

a 6 Hall's Law Journal, 113. b Sergeant's Const. Law, p. 272.

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