§ 451. Thus far, in considering (in the last two sections) by whom the national municipal law may be applied, the question of concurrent judicial power exercised by State courts has been presented as subordinate to that of concurrent legislative (juridical) State power as manifested by its three functions, including the judicial. But there is another form in which the question of concurrent judicial power arises more distinctly.1

In the exposition given, in the second chapter, of those elementary principles which take effect as private international law, it was shown that the tribunals of one national jurisdiction may recognize the effects (rights and obligations) created by laws which have originated in the juridical will of a foreign possessor of sovereign power, when the persons come within that jurisdiction who have sustained relations caused by anterior subjection to those laws. By applying these principles, it might be held, in many cases, that the State courts would, in the exercise of the judicial power of the several States, have authority to enforce the laws of Congress, (criminal laws, perhaps, being excepted,) when the persons are within the territorial jurisdiction

have no power, under a habeas corpus, to review or sit in error upon the judgment or process of the judicial officers of the United States acting within the jurisdiction committed to them, as has sometimes been done;" and held that the State courts had no concurrent jurisdiction in these cases; applying the rule with an assumption that the law of Congress, of 1850, in making the certificate of a commissioner or a judge of the United States, "conclusive evidence of the right of the person or persons in whose favor it is granted to remove such fugitive," and forbidding "all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever," must be recognized as constitutional by every State court; that is, assumed that the officers were judicial and were "acting within the jurisdiction," which might, under the Constitution, be committed to them. The original warrant for the arrest of a negro as a fugitive from labor, which occasioned the conflict of jurisdiction in this case, had been issued out of the circuit court.

Judge Nelson, in his charge to a grand jury, in the city of New York, April, 1851. Blatchford's C. C. R. p. 641, denies that the State courts may issue the writ to inquire into the legality of the detention under color of this law, either on the ground that such detention is not warranted by the statute, or that the statute is unconstitutional; saying, "it is obvious that the existence of either power on the part of the State tribunals would be fatal to the authority of the Constitution, laws, and treaties of the general government." referring to U. S. v. Peters, (Olmstead's case,) 5 Cranch, 115.

The question whether the State courts have this power of concurrently inquiring into the cause of detention, is distinct from that of the power of the States to determine on the claim of the owner exclusively of any authority exercised under laws of Congress. The State laws and judicial decisions which are based on such a view of the public law of the United States are to be noticed in another place.

Houston v. Moore, 5 Wheaton, p. 24; Curtis' Comm. p. 171-175.

This delicate question has been the subject of much juristical discussion. It is not easy to marshal the authorities. In favor of such concurrent judicial power seem

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of the State, who, under those laws, have acquired rights or incurred obligations.

That exercise of judicial power, by the tribunals of any one nation applying laws in a forum wherein those laws have no proper territorial extent, was derived from the presumption that such laws are jural, and, therefore, presumptively identified with the juridical will of the supreme power in the forum, from whose appointment those tribunals derive their existence. But in laying a foundation for the exercise of judicial power by a State tribunal, in support of rights and obligations arising under the national municipal law, including the legislation of Congress, there is an additional reason for a recognition, on the part of the State tribunals, of the jural character of that legislation. This is, that it is based upon the Constitution, to which the people of each State is a consenting or constituent party, and that the laws or rules of action comprehended in the national muni-, cipal law have territorial and personal extent within the forum of State jurisdiction, independently of the principle of comity, as it has herein before been set forth.

§ 452. This idea appears to be the foundation of the opinion of Judge Platt, dissenting from the other judges of the Supreme Court of New York, in United States v. Lathrop, 17 Johnson, pp. 11-22; in which he refers to a passage in No. 82 of the Federalist, by Hamilton, in which these principles of a universal jurisprudence and private international law are recognized; "I am even of opinion that in every case in which they [the State courts] were not expressly excluded by the future acts of the national legislature, they will, of course, take cognizance of the

to be, the majority of the court in Houston v. Moore, 5 Wheaton, 1; Federalist, No. 82; 1 Kent, 398-400; Rawle on Const. ch. xx, note; Judge Platt, dissenting, in U. S. v. Lathrop, 1 Johns. R. 5; Buckwalter v. U. S., 11 Serg. and Rawle, 196. Against the exercise of such power, Story and Johnson, Justices, dissenting, in Houston v. Moore, 5 Wheaton, 32, 47; Story Comm. § 1751; Story J., in Martin v. Hunter, 1 Wheaton, 337; Commonw. v. Feely, Virginia Cases, 321; Ely v. Peck, 7 Conn. R. 239; U. S. v. Campbell, 6 Hall's Law Journ. 113, U. S. v. Lathrop, 17 Johns. 5, 7, a suit for penalty under act of Congress conferring jurisdiction on State court. In U. S. v. Dodge, 14 Johnson, on the bond of a U. S. collector, where jurisdiction was given by an act of Congress to State courts, the suit was sustained.

See comparison of authorities in Sergeant's Const. Law. ch. 27; Rawle on Const. ch. 20, 24; 1 Kent's Comm. 395-404, Lect. 18; Curtis' Comm. §§ 134-144.

causes to which those acts may give birth. This I infer from the nature of judiciary power and from the general genius of the system, [i. e., American Constitution.] The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases, lays hold of all subjects of litigation between parties within the jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national Government, as they truly are, in the light of kindred systems and as parts of one whole, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited."

§ 453. The general principles from which a concurrent jurisdiction in the State courts, it is here supposed, may be derived, would appear to support that jurisdiction over persons or things within the territorial limits of the State forum, in all cases. But it seems to be generally admitted that the concurrent judicial power is, at least, applicable where the action and relations affected by the national law are such as originally" or "previous to the Constitution" were within the jurisdiction of the State; that is, its legislative or juridical power, including the judicial power of its courts."

§ 454. It has generally been admitted that not every grant

And see Story's Comm. §§ 1751-1753; Duponceau on Jurisd. p. 26.

2 Ante, § 447; 1 Kent's Comm. 397; Curtis' Comm. §§ 119-122; Story's Comm. § 1751, and in Martin v. Hunter, 1 Wheaton, 337; " 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." Federalist, No. 82, "But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority," cited in Story's Comm. § 1752. In another sentence of the same number of the Federalist the expression is used, "the State courts will retain the jurisdiction they now have unless," &c.

Most of the opinions which are against the exercise of the State power in enforcing the penal law of the U. S., (ante, p. 497, note,) may have been based on this distinction. Compare Curtis' Comm. § 137.

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of power to Congress to legislate, in reference to certain objects, requires the inference that such power is either exclusive or may at any time be made so by Congress. In some of the cases, while it was admitted that there might be a legislative power in the States in reference to many subjects which the Constitution places within the reach of the national organ of legislation, it has been further held that the actual legislation of Congress precluded the operation of all legislative action on the part of the States in reference to the same subject matter. The doctrine, pushed to this extent, has always been very generally disputed. If taken literally or strictly, there can be no such thing as concurrent legislation, even if it can be said that there is such a thing as concurrent legislative power.

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But whatever may be the true doctrine as to the concurrent legislative power, the principles which would restrict it would not have equal force in limiting the concurrent exercise of judicial power in applying rules which, having derived their existence from, or having originated in the national branch of powers and not in the State's powers, may still be assumed by the State's tribunals to be identified with the juridical will of the State.

§ 455. If the States, in their possession of sovereign powers, can hold the judicial function, in any degree, with reference to the national municipal law, yet, on the other hand, in considering whether their courts shall exercise it, it must be supposed, (since there is no provision in the Constitution of the United States respecting the exercise of the judicial function of the States,) that the States may confine the jurisdiction of tribunals created by themselves within any limits they may see fit. They

11 Kent, 388; Houston v. Moore, 5 Wheaton, 49.

* 1 Kent's Comm. 391; Story's Comm. §§ 441-447; Sturges v. Crowninshield, 4 Wheaton, 193; Steamboat Co. v. Livingston, 3 Cowen, 714, 716; Jack v. Martin, 12 Wendell, 317, 318, 320; Prigg v. Pennsylvania, 16 Peters, 542, against concurrent legislative power in the States relative to the execution of the constitutional provision for the delivery of fugitive slaves, held by Justices Story, Baldwin, Wayne, and McLean. Taney, C. J., and Justices Thompson and Daniel, dissenting.

The use of juridical, as a more comprehensive term than legislative, must be admitted in explaining how the judicial power of the States may be exercised in reference to action and relations determined by the national branch of powers, and in respect to which the State cannot, or has not exercised its legislative power concurrently.

might then allow their judicial officers to administer only that law which rests upon State authority solely, or restrict them from exercising jurisdiction in applying any part of the national law or some specific parts of that law: though the State courts would still, in any case, as was above said, be obliged to apply the national law so far as it may be public law or the evidence of political powers and obligations.

§ 456. But if the above argument derived from principle is correct, the State courts will, unless expressly prohibited by the State, have jurisdiction to apply the national law when that law affects persons and things, within their forum of jurisdiction, in reference to circumstances (action and relations) which would be within the State's legislative or juridical power, "before the Constitution," or, if the present national or federative organization did not exist; provided the State courts are such as hold, or are invested with, the ordinary or general judicial power of the State, or are tribunals "proceeding according to the course of common law;" or, negatively, are not courts of limited or

Sergeant's Const. Law, 1st ed. p. 274; Story's Comm. § 1755; 1 Kent's Comm. pp. 400-404, p. 402. "The doctrine seems to be admitted that Congress cannot compel a State court to entertain jurisdiction in any case;" noting Dewey, J., Mass. Supreme C., Law Reporter, April, 1846, Ward v. Jenkins; "The doctrine now is, that Congress cannot compel a State court to take any jurisdiction. But where the State court has jurisdiction otherwise, it is no objection to its executing it that the rights arise under a statute of the United States."

Story, J., in Prigg v. Commonw. of Pennsylvania, 16 Peters, 614, "since every State is perfectly competent and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over all cases which its own policy and its own institutions either prohibit or discountenance." Mr. Justice McLean, in the same case, p. 665, assuming that the Governors of the States, in delivering up fugitives from justice, when demanded by other States, in the manner prescribed by the act of Congress relating to such persons, derive their power to do so from the U. S. and not from the State, says, "Now, if Congress may by legislation require this duty to be performed by the highest State officer, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor, by other State officers? Over these subjects the constitutional power is the same." The term, "appropriate duties," is apparently used in the sense of duties appropriate to the functions held by the State officers; and since, on pp. 667, 669, Judge McLean speaks of the State officers to whom he refers as being judicial officers," it would seem to be his opinion either that persons clothed with the judicial function of the State were bound to exercise it, to carry out a law of Congress when required by the national legislature, or else that by some principle of public law such persons were bound to accept the judicial function derived from the United States. Taney, C. J., said in same case, p. 630, "The State officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required by a law of the State; and the State legislature has the power, if it thinks proper, to prohibit them."

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