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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, ‚a 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.
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."
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.
and they do not constitution, beThe state courts
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; become inferior courts in the sense of the cause they are not ordained by Congress. 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.
the state courts, was not binding. It was decided, in another case in Virginia, 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 of
After these decisions in the states of Virginia, Ohio, and New-York, the act of Congress of the 3d March, 1815, ch. 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. 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 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.
a Ex parte Pool.
b Sergeant's Const. Law, p. 272. 274.
c In the case of The State v. Randall, 2 Aikens' Rep. 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. So, the constitution of the United States (art. 4. sec. 2.) having declared, that persons held to service, or labour, 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 labour 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 favour 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, vol. 2. 560. sec. 6—20.