CONCURRENT JURIDICAL POWER. 491 § 446. The application of the national law must, on the above argument, be ultimately determinable by the national judiciary; yet it has been shown that of necessity every judicial officer in the United States applies the Constitution, operating as public law, in recognizing the validity of any rule which he may apply as private law; and State courts are, therefore, bound to apply the national municipal law, at least, so far as it is public law; but of this application the national judiciary must be regarded as the supreme or final arbiter, at least, in reference to the action of private persons, and with those limitations which arise from the manner in which sovereign power is distributed among the United and several States.1 § 447. But though certain action or the relations of private persons in certain circumstances of natural and civil condition, and therefore certain classes of rights and obligations, are determined by the Constitution, or are determinable by the legislation of Congress, and thus are dependent on the national municipal law and subject to the judicial power of the United States, yet, if the legislative (juridical) will of a several State may sustain a rule in reference to the same action or relations of private persons, such a rule would necessarily be applicable by tribunals holding the judicial power of the State. And it would appear that such a judicial enforcement of the juridical will of the State will not derogate from any of the functions of the national Government in exercising the national powers, the powers belonging to the United States; if it is admitted that 602, 603,) that the doctrine of the State court should not be taken as the law of the State nor be applied as part of the private international law of the United States. Where a question arises under that quasi-international law which is in authority identified with the national will, (ante, § 402, 1.) it is evident that the national judiciary is not to follow an international rule identified with the will of some one of the States only. For this reason, apparently, it has been held that the local law of a State is not to be adopted in the construction of contracts and questions of commercial law. Swift v. Tyson, 16 Peters, 1, 19; Carpenter v. Providence Ins. Co., Ib. 495, 511; Rowan v. Runnels, 5 Howard, 134; Watson v. Tarpley, 18 How. 520; Gloucester Ins. Co. v. Younger, 2 Curtis C. C. 322. In Dred Scott's case, 19 How. 603, Mr. Justice Curtis held, that there were questions of status involved which, arising exclusively "under the Constitution and laws of the United States, this court, under the Constitution and laws of the United States, has the rightful authority finally to decide." 1 Ante, §§ 365-367. Martin v. Hunter, 1 Wheaton, 340–351. 1 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.1 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, 34; 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. 337. Federalist, No. 82; Story's Comm. §§ 1751-1754; Martin v. Hunter, 1 Wheaton, 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. CONCURRENT JURIDICAL POWER. 493 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.) 2 § 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 constituted 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.3 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. 3 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. 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 CONCURRENT JURIDICAL POWER. 495 State of New York, and that "there has been a similar decision and practice by the courts of other States."1 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. 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 justice or from labor under the authority of the United States." 11 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. 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. Case of Lockington, 5 Hall's Law Journ. 92, 313; 5 of same, 301-330. 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. 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 e. 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 |