500

DISTINCTION OF COURTS.

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

1 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."

COURTS OF ORDINARY JURISDICTION.

501

special jurisdiction, not proceeding according to the course of common law.1

§ 457. In such case it may not only be within the power, but also be within the duty of the State courts to apply the national law, whether found in the Constitution taking effect as private law, or derived from the legislative powers of Congress.2

1 Jurisdiction is here called general or ordinary in reference to the possession of the judical function for the enforcement of the entire body of rules whose authority rests on the juridical will of the sovereign power, -the law of the land, the municipal law. Some courts having such general or ordinary jurisdiction may still be limited or inferior courts, in reference to the fact of their holding this function in and for a limited forum or geographical jurisdiction, a subdivision of the entire territorial dominion of the sovereignty, whose law they apply, and in reference to the existence of higher courts to which an appeal may be made from their judgments. For a distinction of such courts, see Kempe's lessee v. Kennedy, 5 Cranch, 185; Murray v. Fitzpatrick, 17 Wendell, 483, and cases there cited. That, in relying on a judicial decision, the jurisdiction of this class of courts is presumed, while that of courts of special jurisdiction must be traced back to some enabling act of the sovereign, see Jones v. Reed, 1 Johns. Cases, 20, and 1 Caines' R. 594, note. Wells v. Newkirk, 1 Johns. Cases, 228; Bloom v. Burdick, 1 Hill, 139. And compare Clinton, Senator, in Yates v. Lansing, 9 Johnson R. 431-437.

1 Kent's Comm. 397-400; Ward v. Mann, Supr. Court of Mass.; Law Reporter, March, 1847.

66

By the act of Congress, of 12 Feb. 1793, § 3, the judges of the U. S. Circuit and District Courts and certain persons therein described as any magistrate of a county, city, or town corporate," are authorized to perform certain acts in reference to persons claimed as fugitives from labor. In Prigg's case, 16 Peters', 539, the question decided was of the validity of a statute of Pennsylvania affecting persons to whom that law of Congress applied; and, as preliminary to the question of the force of the State law, the question of the power of Congress and the constitutionality of the law of 1793 was examined. To this extent, of recognizing the power of Congress and its having been exercised in such a manner as to exclude the operation of State legislation, (ante, § 452,) the constitutionality of the law of 1793 was affirmed. Under the circumstances of that case, no right, power, or authority derived from any such "State magistrate" was claimed for or relied upon by any of the parties. The only members of the court who, in their several opinions, refer to the action of "State magistrates" under the act were Mr. Justice Story, delivering the Opinion of the Court, p. 622, and saying, that the constitutionality of the act, in its leading provisions, was free from reasonable doubt or difficulty "with the exception of the part which confers authority on State magistrates," but that no doubt was entertained that they might, if they chose, exercise that authority, unless prohibited by State legislation; Chief Justice Taney, p. 630, saying, "The State officers mentioned are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required to do so by the law of the State; and the State legislature has the power, if it thinks proper, to prohibit them;" and Mr. Justice McLean, p. 664, 665, who, alone, held that the duty might be imposed on the State officers by Congress.

But it would appear, from every thing said by the Justices on this point, that they held that, whatever power should be exercised by the State officers in the supposed cases, would be the concurrent judicial power of the State.

The author may reasonably hesitate in making this assertion, in view of the opinion of the Supreme Court of Massachusetts, pronounced by Chief Justice Shaw, in Sims' case, 7 Cushing, 285, who, after noticing, p. 302, that it had in that case been "insisted that the Commissioner, before whom the petitioner [the fugitive] had been brought, is in the exercise of judicial powers not warranted by the Constitution because not commis

502

POWER ONLY WITHIN THE STATE.

§ 458. This concurrent judicial power in the State courts would, it will be noticed, be limited, even while applying a rule of the national municipal law, by the same political conditions which limit their judicial function in the application of local law. It will be operative only within the limits of the State, whether the law applied is derived from the juridical authority of the United States or from that of the State. It is the judicial function of the United States only, which is equally authoritative in all parts of the dominion of the people of the United States,' and that this function cannot be exercised by the State court is a proposition directly deducible from the Constitution, and there is no judicial decision which attempts to support a contrary doctrine.2

From these necessary limitations of the extent of State judicial power, the rule of action which they thus concurrently apply will, although the same, in its origin and in its purpose

sioned as a judge, nor holding his office during good behavior," argued that Congress, in the act of 1793, manifestly did not deem that the action of the State magistrates would be judicial in the premises; and, in referring to the cases arising under that law as sustaining this doctrine, cited the above opinion of the Supreme Court of the U. S. as most conclusive, adding, p. 308, "In the only particular in which the constitutionality of the law of Congress, of Sept. 1850, is now called in question, that of 1793 was obnoxious to the same objections, that of authorizing a summary proceeding before officers and magistrates not qualified under the Constitution to exercise the judicial power of the general Government."

The same view of the point decided in Prigg's case seems to have been adopted by Judge Nelson, in his charge to the grand jury, Blatchford's Cir. C. R. 643; alluding to the objected unconstitutionality of the law of 1850 in its grant of powers to the U. S. Commissioners; "It is sufficient answer to this suggestion that the same power was conferred upon State magistrates by the act of 1793, and which, in the case of Prigg, was held to be constitutional by the only tribunal competent under the Constitution to decide that question. No doubt was entertained by any of the judges in that case that these magistrates had power to act, if not forbidden by the State authorities."

It seems to have been assumed, by these authorities, that the court in Prigg's case intended to sanction the application of the law of 1793, by some persons who could neither hold the judicial power of the U. S., (post, § 460,) nor exercise the concurrent judicial power of a State, (ante, § 456.) It will, in a later portion of this work, be urged that this assumption is unwarrantable: 1st, because it is, at least, doubtful whether the action of any such person under that law was involved in any of the earlier cases which were approved by the court in Prigg's case, (16 Peters', 621,) and the court does not otherwise define the "State magistrates," whose action it sanctions; and, 2d, because the court in that case speaks of such action only as an exercise of judicial power. 1 Ante, 375, 379.

2 But Judge Crawford, of the Supreme Court of Wisconsin, in the matter of Booth, 3 Wisconsin R. p. 81, 82, dissenting from the majority of the court in respect to the constitutionality of the law of 1850, seems to have held that, in maintaining the action of State magistrates under the law of 1793, and of U. S. Commissioners under that of 1850, the doctrine is involved, that they may constitutionally exercise judicial power derived from the United States.

SUBJECT TO NATIONAL JUDICIARY.

503

or direct effect on private persons, as that applied by the national judiciary, be essentially local in its authority and territorial jurisdiction, and equivalent to a law derived from a different political source, that is, to a local municipal law. This will certainly be so if, on the authorities, this concurrent application of a national law by the State's judicial power is to be limited to cases where the action and relations affected are such as were "originally" within the juridical power of the State, or such as may be within the concurrent legislative (juridical) power of the State, according to the standard already stated in considering the extent of that power.

§ 459. Though it should be admitted that a rule in reference to certain action and relations is supported both by the juridical authority of a State and that of the United States, and, therefore, as above held, may be applied by the judicial power emanating from either; yet, since it is supposed that the Constitution assigns the power over such action and relations to the national Government, the judicial power of the State in this case of its concurrent exercise must be subject to that of the United States.

The judgment of the State court, applying the national law in reference to such action, must always be subject to the national judiciary,' and if the law involved criminal punishment, the sentence of the State court might properly, it would seem, be annulled by the pardoning power of the national executive.2 In this instance the national judiciary would control the State judiciary in the application of private law: not, as in the instance before mentioned, (§ 448,) control the juridical action of the State by applying the Constitution as public law.

§ 460. With the consent of the State, from which they derive their existence and legal personality, and subject to the control of the judicial power vested in the national Government, the State

Martin v. Hunter, 1 Wheaton, 337, 352; Federalist, No. 82; 1 Kent's Comm. 320, 396, 397; Const. Art. III. sec. 2, 1. "The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority."

See the difficulties suggested as to concurrent criminal jurisdiction, 1 Kent's Comm. 404; Mattison v. the State, 3 Missouri R. 301.

504

1

APPOINTMENT OF JUDICIARY.

courts might, it would appear, be invested with the judicial power of the United States in reference to persons and things within the limits of their State jurisdictions and be considered inferior courts, such as are mentioned in the first section of the third Article of the Constitution; if the tenure of office by the judges of all courts holding the judicial power of the United States were not so prescribed as to be inconsistent with its investiture in persons known or described as representatives of State powers. A person holding the judicial power of a State might, apparently, be also appointed, in the manner prescribed in the Constitution, a judge of one of those courts in which the judicial power of the United States is to be invested; in which case there would be two separate tribunals represented in his person. But if the judicial power of the United States should be conferred on a person only in virtue of his official character derived from the State, or as being a State officer, his tenure of that judicial power would be dependent on the will of the State. Therefore, State judicial officers or magistrates cannot, as such, or in their public capacity, hold the judicial power of the United States to apply the national municipal law.*

§ 461. According to the first section of the third Article, the judicial power of the United States, whatever that may be, is to be invested "in one Supreme Court and in such inferior courts as Congress may ordain and establish." Judges of the Supreme Court must, according to the second section of the second Article, be appointed by the President and Senate. By

1 Art. III. sect. 1. "The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Art. II. sect. 2, (of the powers of the President) parag. 2. "He shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment, of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments."

Martin v. Hunter, 1 Wheaton, 330. Story J. "Congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself." Story's Comm. § 1755; 1 Kent's Comm. 399; case of Almeida, from 12 Niles' W. R. 115, 213; Pool and others, from Nat. Intelligencer, Nov. 10, and Dec. 11, 1821, cited in Sergeant's Constitutional Law, 1st ed. 274.