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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 govern


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, 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 power which was exclusively vested in the United States. The whole judicial power of the

a i Wheaton, 304.

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. 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


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.

In Houston v. Moore, 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

a 5 Wheaton, 1.

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 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 provisoes, 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 state authority, it could be exercised by them. 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

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 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 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 any act of Congress, to assume and exercise jurisdiction in such cases. 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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