the rule emanating from the State shall never interfere with the operation of that which emanates from the national powers.

Unless, therefore, the powers of the national Government have been, in the Constitution, declared to be exclusive in reference to such action, or the exercise of a like power by a State would be inconsistent with the exercise of the powers vested in the national Government, the law of the State, i. e., a rule resting for its authority on the State's several share of power, might be applied to the same action or relations, and, necessarily, by the exercise of its own judicial power.' But it is to be observed, that no rule could properly be thus attributed to the legislative (juridical) will of the State unless the action or relations affected by it exist in reference to circumstances which would have been within the actual power or sovereignty of the State, if it had never formed one of the United States, or had become, at the Revolution, and continued to be a State holding the sum of sovereign power; or, (to use language appropriate to a particular view of the national history) circumstances in which the State possessed jurisdiction "originally" or previous to the Constitution."2

In order that the powers held by the national Government in reference to any action or relations may be supreme in their nature, it must have the power of making the national judiciary the supreme, at least, if not the exclusive judicial criterion of the legal nature of such action or relations. But if Congress has not thus made the national judicial power the exclusive criterion, the State courts will, in the case supposed, have a con

3

Houston v. Moore, 5 Wheaton, 26, 31; Fox v. State of Ohio, 5 Howard, 410, McLean, J., dissenting, as in Moore v. State of Illinois, 14 How. 21, involving constitutionality of State law punishing the secreting of fugitive slaves, (in State court, Eells v. The People, 4 Scammon's R. 498,) where the decision of the Supr. Court in Prigg's case, 16 Peters', 539, against the validity of State legislation regarding fugitive slaves was urged as authority. 1 Kent's Comm. 389--396; Curtis' Comm. §§ 119-122, 132– 142; Teal v. Felton, 12 Howard, 284, 292.

2 Federalist, No. 82; Story's Comm. §§ 1751-1754; Martin v. Hunter, 1 Wheaton, 337.

The same authorities. In theory, the rule may be that Congress can always make the national jurisdiction exclusive in cases where there would otherwise be a concurrent jurisdiction. But since the limits of concurrent jurisdiction are hardly determinable, except as cases arise in practice, the limits of a possibly exclusive national jurisdiction will always be undetermined. Compare Rawle, p. 205, note.

current jurisdiction with the national judiciary, though applying a rule resting on its own sovereignty and identified with its own. local law. And it might be said that they will exercise concurrent judicial power. But, strictly speaking, it is here the legislative (juridical) will of the State (exercised by its three functions) which is manifested concurrently with the national legislative (juridical) power, (also exercised by its three functions.)

1

§ 448. Thus, in reference to ordinary civil relations, the State courts may have concurrent jurisdiction to enforce certain obligations or maintain certain rights. And, even in reference to action which is the subject of judicial cognizance as being criminal against a certain political sovereign, it has been held that the State court may have concurrent jurisdiction to punish the act when made criminal by State law, even though a definitive punitory law may have been enacted by Congress. For, though it is truly said that criminal jurisdiction can be exercised only by a court instituted by the civil power which has declared the act to be a crime, and one whose executive may pardon the offence," the act may be against the declared will of each possessor of power. In these instances, however, the compatibility of the State law with the exercise of power vested in the national Government must be determinable by the judicial power of the United States invested in their properly consti-' tuted courts; that is to say, the national judiciary will not have a superior jurisdiction to the State courts in reference to the application of the rule (private law) resting on the will of the several State, but will have jurisdiction (applying the Constitution as public law) to decide whether the application of the State law is consistent with the independent exercise of the national authority in reference to the same action or relations."

1

Houston v. Moore, 5 Wheaton, p. 26, 24, 34; Teal v. Felton, 12 Howard, 284, 292: Curtis' Comm. §§ 119-122. State laws punishing the offence of circulating counterfeit coin of the U. S. may be enforced on the ground that counterfeiting the coin of the U. S. and circulating such coin are distinct offences. Fox v. State of Ohio, 5 Howard, 410; State v. Tuff, 2 Bailey S. C. Rep. 44; Commonw. v. Fuller, 8 Metcalf, 313; State v. Randall, 2 Aikin's Rep. 89; 1 Kent's Comm. 398, and 404, note. 21 Kent's Comm. 403.

Federalist, No. 82; Martin v. Hunter, 1 Wheaton, 340-351; Cohens v. Virginia, 6 Wheaton, 413; Sturges v. Crowninshield, 4 Wheaton, 192; Story's Comm. §§ 17311747; Curtis' Comm. §§ 115-119; Duponceau on Jur. 30.

§ 449. It is evident that the possession or enjoyment of individual (absolute') rights, as incident to some relations between natural persons, must be determinable by the powers of civil or criminal jurisdiction delegated to the national Government for the execution of specified objects, and that, therefore, in such cases the judicial power of the United States must be supreme in determining the possession of these rights. But since the possession of these rights must have been within the "original," ordinary or general jurisdiction of the States, independently of the formation of the present national Constitution, and since no general power to determine the possession of these rights has been delegated to the national Government, there is a presumption that their possession or non-possession is now dependent upon the juridical will of the State in which the persons claiming them may be found.

2

It would appear, therefore, that the judicial power of the States, at least in applying the Constitution as public law, must always be concurrently exercised wherever these rights are claimed or denied; the decision made in the exercise of that power being subordinate to the national judiciary, applying the private law derived from the national branch of powers where the question is made under such law, and also applying the Constitution as public law to determine whether the rights in question are dependent on the powers held by the national Gov

ernment.

§ 450. Although the earlier cases show a difference of opinion on this topic, these principles seem to have been recognized, by a great weight of authority, in reference to the right of personal liberty. Thus, in cases of enlistment into the army of the United States, it seems now to be settled that the State courts will, under habeas corpus, or by the writ de homine replegiando, try the question of unlawful imprisonment, when it is "by an officer of the United States, by color or under pretext of the authority of the United States." Kent says, that the question in favor of a concurrent jurisdiction in such cases is settled in the

State of New York, and that "there has been a similar decision and practice by the courts of other States."

2

3

So in other cases of the deprivation of that right under color or pretext of the authority of the United States, as where persons have been detained under suspicion of treason against the United States, or as alien enemies, or for violations of the laws of Congress, and on other causes of imprisonment.5 So the State courts have issued the writ of habeas corpus, in cases of persons detained for extradition under treaties between the United States and foreign governments. And the same concurrent jurisdiction has always been claimed by the State courts in cases of persons detained or committed as fugitives from jus+ tice or from labor under the authority of the United States."

1 1 Kent's Comm. 401, and in the matter of Stacy, 10 Johnson's R. 328. In the previous case of Ferguson, 9 Johns. 239, Kent, C. J., was of opinion that the State courts had no jurisdiction by habeas corpus where the detention was under color of authority of the U. S.; Thompson, J., dissenting; other judges reserving the question as the case was decided on another ground. Commonw. v. Harrison, 11 Mass. Rep. 63; Commonw. v. Cushing, ibid. 67; Commonw. v. Murray, 4 Binney, 487; Commonw. v. Fox, 7 Barr's R. Pennsyl. 336; Carlton's case, 7 Cowen, 47; Roberts' case, in 1809, was against issuing the writ; Sergeant's Const. Law, 283;2 Hall's Law Journal, 195. 2 Commonw. v. Holloway, 5 Binney, 512, the power to discharge or hold to bail claimed, except where death would be the punishment under the statute.

3 Case of Lockington, 5 Hall's Law Journ. 92, 313; 5 of same, 301-330. Case of Joseph Almeida, in Maryland, 12 Niles' Weekly Reg. 115, 231. Cases

of Booth and Rycraft, (1854; 3 Wisconsin R. 1.

Ex parte Sergeant, by Tilghman, C. J., 8 Hall's Law Journ. 206; Ex parte Pool and others, Nat. Intell. Nov. 10, Dec. 11, 1821.

The earlier cases are noted here from Sergeant's Const. Law, p. 282-287: where also the opinion of Judge Cheves of South Carolina, in Ex parte Andrew Rhodes, 12 Niles' W. R. 264, (1819,) as against the concurrent jurisdiction is noted.

Whether the State courts can inquire into imprisonments ordered by the Houses of Congress, is a question of the extent of the judicial power as compared with privileges necessary to the independent exercise of the co-ordinate legislative function. Ante, p. 487, note.

6

Metzger's case, where the prisoner had been committed by a U. S. district judge, (Supreme court, N. Y., 1847, Edmonds, J,) 1 Barbour, 248; Heilbonn's case, where the commitment was by a U. S. commissioner, (same court, 1853, Mitchell, J.,) 1 Parker's Criminal Reports, 429. But compare 6 Opinions of U. S. Att'y General, p. 239.

7 Commw. v. Holloway, (1816,) 2 Serg. and Rawle, 305; case of George Kirk, Oct. 1846, 4 N. Y. Legal Observer, 456; case of Joseph Belt, Dec. 1848, 7 of same, 8, before Judge Edmonds, N. Y. Supreme Court; Sims' case, 7 Cushing, 285.

The decisions, in this class of cases, which maintain the claimant's possession under the acts of Congress do not, necessarily, also deny this concurrent jurisdiction of State courts to inquire into the lawfulness of the restraint exercised under color of those acts. Such power in the State courts seems to have been admitted in Wright . Deacon, 5 Serg, and Rawle, 62, and Jack v. Martin, 12 Wendell, 311 and 14 Wendell, 507, where the detention was justified.

In Jenkins' case, (otherwise known as the Wilkesbarre slave case,) in 1853, 2 Wallace, jr., 526, Judge Grier thus stated the general rule: "But State courts and judges

§ 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.'

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,2) 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