tain 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 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 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 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 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

(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.

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 com

pel 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 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)

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

(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

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.

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,

So it has been held that the embezzle. ib. 570.

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 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, 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 * the * 404 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 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. 586-592.1

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

(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.

1 [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.]

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 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

1

(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.

(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 case 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 con

1 Ante, 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.

current 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, 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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