Congress,

ly exercise a concurrent jurisdiction. throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition, that in all the cases, to which the judicial power of the United States extended, they might rightfully vest exclusive jurisdiction in their own

courts."

§ 1746. The Federalist has spoken upon the same subject in the following terms. "The only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage; • The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish.' This might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes, to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts, as congress should think proper to appoint; in other words, that the United States should exercise the judicial power, with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most defensible construction.

§ 1747. "But this doctrine of concurrent jurisdiction, is only clearly applicable to those descriptions of causes, of which the state courts had previous cognizIt is not equally evident in relation to cases,

ance.

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 abridgement of a pre-existing authority. I mean not, therefore, to contend, that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold, that the state courts will be divested of no part of their primitive jurisdiction further than may relate to an appeal. And I am even of opinion, that in every case, in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the 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. 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 its 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 governments, 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."1

1 See The Federalist, No. 82. Id. 81.

§ 1748. It would be difficult, and perhaps not desirable, to lay down any general rules in relation to the cases, in which the judicial power of the courts of the United States is exclusive of the state courts, or in which it may be made so by congress, until they shall be settled by some positive adjudication of the Supreme Court. That there are some cases, in which that power is exclusive, cannot well be doubted; that there are others, in which it may be made so by congress, admits of as little doubt; and that in other cases it is concurrent in the state courts, at least until congress shall have passed some act excluding the concurrent jurisdiction, will scarcely be denied. 1 It seems to be admitted, that the jurisdiction of the courts of the United States is, or at least may be, made exclusive in all cases arising under the constitution, laws, and treaties of the United States; 2 in all cases affecting ambassadors, other public ministers and consuls; in all cases (in their character exclusive) of admiralty and maritime jurisdiction; in controversies, to which the Un.ted States shall be a party; in controversies between two or more states; in

1

'See Cohens v. Virginia, 6 Wheat. R. 396, 397; 2 Elliot's Deb. 380, 381. See 11 Wheat. R. 472, note; Rawle on Const. ch. 21; 1 Kent's Comm. Lect. 18, p. 370, &c. (2 edition, 595, &c.); 1 Tucker's Black. Comm. App. 181, 182, 183; Governor of Georgia v. Madrazo, 1 Peters's Sup. R. 128, 129, Per Johnson J.

2 Cohens v. Virginia, 6 Wheat. R. 396, 397; Houston v. Moore, 5 Wheat. R. 25 to 28; Id. 69, 71; Slocum v. Maybury; 2 Wheat. R. 1; Hoyt v. Gelston, 3 Wheat. R. 246, 311.

3 The Federalist, No. 82; Martin v. Hunter, 1 Wheat. R. 336, 337. 4 See 2 Elliot's Deb. 380; Cohens v. Virginia, 6 Wheat. R. 396, 397; Martin v. Hunter, 1 Wheat. R. 337,373; Houston v. Moore. 5 Wheat. R. 49; United States v. Bevans, 3 Wheat. R. 387; Ante, Vol. III., § 1665; Ogden v. Saunders, 12 Wheat. R. 278, Johnson J.; Janney v. Columbian Ins. Co., 10 Wheat. R. 418.

controversies between a state and citizens of another state; and in controversies between a state and foreign states, citizens, or subjects. And it is only 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, indeed,

in the Judiciary Act of 1789, (ch. 20, § 9, 11, 13,) have manifestly legislated upon the supposition, that, in all cases, to which the judicial power of the United States extends, they might rightfully vest exclusive jurisdiction in their own courts.3

§1749. It is a far more difficult point, to affirm the right of congress to vest in any state court any part of the judicial power confided by the constitution to the national government. Congress may, indeed, permit the state courts to exercise a concurrent jurisdiction in many cases; but those courts then derive no authority from congress over the subject-matter, but are simply left to the exercise of such jurisdiction, as is conferred on them by the state constitu

1 See 1 Tucker's Black. Comm. App. 181, 182, 183; 1 Kent's Comm. Lect. 18, p. 370, &c. (2 edit. p. 395 to 404.)

2 Marlin v. Hunter, 1 Wheat. R. 336, 337; The Federalist, No. 27, No. 82; Houston v. Moore, 5 Wheat. R. 49.

3 Ibid. See 1 Peters's Sup. Ct. R. 128, 129, 130, per Johnson J.; Ex parte Cabrera, 1 Wash. Cir. R. 232. — It would seem, upon the common principles of the laws of nations, as ships of war of a government are deemed to be under the exclusive dominion and sovereignty of their own government, wherever they may be, and thus enjoy an extra territorial immunity, that crimes committed on board of ships of war of the United States, in port, as well as at sea, are exclusively cognizable, and punishable by the United States. The very point arose in United States v. Bevans, (3 Wheat. R. 336, 388); but it was not decided. The result of that trial, however, showed the general opinion, that the state courts had no jurisdiction; as the law officers of the state declined to interfere, after the decision in the Supreme Court of the United States.

tion and laws. There are, indeed, many acts of congress, which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts; but this (it has been said by a learned judge,') is not, because such permission was considered to be necessary, under the constitution, to vest a concurrent jurisdiction in those tribunals; but because the jurisdiction was exclusively vested in the national courts by the judiciary act; and consequently could not be otherwise executed by the state courts. But, he has added, " for I hold it 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." This latter doctrine was positively affirmed by the Supreme Court in Martin v. Hunter; and indeed seems, upon general principles, indisputable. In that case, the court said, congress cannot vest any portion of the judicial power of the United States, except in courts, ordained and established by itself.""

66

1 Mr. Justice Washington in Houston v. Moore, 5 Wheat. R. 27, 28 ; The Federalist, No. 27; Id. No. 82.

2 1 Wheaton's R. 330. See 1 Kent's Comm. Lect. 18, p. 375, (2 edit. p. 400.)

3 Ibid. See also Houston v. Moore, 5 Wheat. R. 68, 69. See 1 Kent's Comm. Lect. 18, p. 375, &c. (2 edit. p. 400 to 404.)- The Federalist (No. 81) seems faintly to contend, that congress might vest the jurisdiction in the state courts, "to confer upon the existing courts of the several states the power of determining such causes, would, perhaps, be as much to constitute tribunals,' as to create new courts with the like power." But, how is this reconcileable with the context of the constitution? "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as congress may,