Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Concurrent Jurisdiction of the State Governments
THE question how far the state governments have concurrent posers, either legislative or judicial, over cases within the jurisdiction of the government of the United States, has been much discussed. It will be my endeavor, in the course of the present lecture, to ascertain the just doctrine and settled distinctions applicable to this great and most important constitutional subject.
(1.) As to the concurrent powers of legislation in the states.
It was observed in the Federalist,1 that the state governments would clearly retain all those rights of sovereignty which they had before the adoption of the constitution of the United States, and which were not by that constitution exclusively delegated to the union. The alienation of state power or sovereignty would only exist in three cases Where the constitution in express terms granted an exclusive authority to the union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.
In the judicial construction, given from time to time to the constitution, there is no very essential variation from the contemporary exposition which was here laid down by the high authority of the Federalist. Judge Chase, in the case of Calder v. Bull,2 declared that the state legislatures retained all the powers of legislation which were not expressly taken away by the constitution of the United States; and he held, that no constructive powers could be exercised by the federal government. Subsequent judges have not expressed themselves quite so strongly in favor of state rights, and in restriction of the powers of the national government. In Sturges v. Crowninshield,3 the chief justice of the United States observed, that the powers of the states remained, after the adoption of the constitution, what they were before, except so far as they bad been abridged by that instrument. The mere grant of a power to congress did not imply a prohibition on the states to exercise the same poser. Thus, congress are authorized to establish uniform lass on the subject of bankruptcy, but the states may pass bankrupt laws, provided there be no act of congress in force establishing a uniform law on that subject. The states may legislate in the absence of congressional regulations. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states. But the concurrent power of legislation in the states did not extend to every case in which the exercise by the states had not been expressly prohibited. The correct principle was, that whenever the terms in which the power was granted to congress, or the nature of the power, required that it should be exercised exclusively by congress, the subject was as completely taken from the state legislatures, as if they had been expressly forbidden to act on it. In Houston v. Moore,4 the same principles were laid down by Judge Washington in delivering the opinion of the court. He observed, that the power of the state governments to legislate on the subject of the state militia having existed prior to the formation of the constitution, and riot being prohibited by that instrument, it remained with the states, subordinate, nevertheless, to the paramount power
of the general government, operating upon the same subject. If congress, for instance, did not exercise the power of providing for organizing, awning and disciplining the militia, it was competent for the states to do it; but as congress had exercised its constitutional powers upon the subject of the militia as fully as was thought proper, the power of legislation over that subject by the states was excluded, except so far as it had been permitted by congress. The doctrine of the court was, that when congress exercised their powers upon any given subject, the states could not enter upon the same ground, and provide for the same objects. The will of congress may be discovered, as well by what they have not declared, as by what they have expressed. Two distinct wills cannot at the same time be exercised, in relation to the same subject, effectually, and at the same time be compatible with each other. If they correspond in every respect, then the latter is idle and inoperative. If they differ, they must, in the nature of things, oppose each other so far as they do differ. It was, therefore, not true and constitutional doctrine, that in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which congress have acted, provided the two laws are not in their operation contradictory and repugnant to each other.
Judge Story, in the opinion which he gave in this case, spoke to the same effect, and defined with precision the boundary line between the concurrent and residuary powers of the states, and the exclusive powers of the union. As mere grant of power in affirmative terms to congress, did not, per se, transfer an exclusive sovereignty on such subjects. The powers granted to congress were never exclusive of similar powers existing in the states, unless where the constitution has expressly in terms given an exclusive power to congress, or the exercise of a like power was prohibited to the states; or there war, a direct repugnancy or incompatibility in the exercise of it by the states. This is the same description of the nature of the powers as that given by the Federalist. An example of the first class is to be found in the exclusive legislation delegated to congress over places purchased for forts, arsenals, etc.; and of the second class, in the prohibition of a state to coin money, or emit bills of credit; and of the third class, in the power to establish a uniform rule of naturalization, and in the delegation of admiralty and maritime jurisdiction. In all other cases, the states retain concurrent authority with congress, except where the laws of the states and of the union are in direct and manifest collision on the same subject, and then those of the union being the supreme law of the land, are of paramount authority, and the state laws, so far, and so far only as such incompatibility exists, must necessarily yield.
In the application of these general principles to the case before the court, it was observed, that the power given to congress to provide for organizing, arming, and disciplining the militia, was not exclusive. It was merely an affirmative power, and being not incompatible with the existence of a like power in the states, it might well leave a concurrent power in the latter. But when once congress have acted on the subject, and carried this power into effect, its laws for the organization, arming, and disciplining the militia, were supreme, and all interfering regulations of the states suspended. A state may organize, arm, and discipline its own militia, in the absence of, or subordinate to, the regulations of congress. This power originally existed, in the states, and the grant of it to congress was not necessarily exclusive, unless a concurrent power in the states would be repugnant to the grant, and there was no such repugnancy in the nature of the power. But the question was, whether a state legislature had any concurrent power remaining after congress had provided in its discretion for the case. The conclusion was, that when once the legislature of the union has exercised its powers on a given subject, the state power over that same subject, which had before been concurrent, was by that exercise prohibited, and this, was the opinion of the court.
These are sound expositions of the paramount powers of the general government, and the same doctrines had been previously declared in the Court of Errors of this state, n the steam boat case of Livingston v. Van Ingen.5 “Our safe rule of construction and of action,” as it was there observed,6 “was this, that if any given power was originally vested in this state, if it had not been exclusively ceded to congress, or if the exercise of it has not been prohibited to the states, we might then go on in the exercise of power, until it came practically in collision with the exercise of some congressional power. When that happened to be the case, the state authority would so far be controlled, but it would still be good in all those respects in which it did not contravene the provision of the paramount law.” A similar exposition of the concurrent jurisdiction of the states, was given by the Supreme Court of Pennsylvania, in Moore v. Houston.7
When the constitution of the United States was under the consideration of the state conventions, there was much concern expressed on the subject of the general power of taxation over all objects of taxation, vested in the national government; and it was supposed that it would be in the power of congress, in its discretion, to destroy in effect the concurrent power of taxation remaining in the states, and to deprive them of the means of supplying their own wants. All the resources of taxation might, by degrees, become t he subjects of federal monopoly. The states must support themselves by direct taxes, duties, and excises, and congress may lay the same burden, at the same time, on the same subject. Suppose the national tax should he as great as the article, whether it be land, or distilled spirits, or pleasure carriages, for instance, will conveniently and prosperously bear, and the state should be obliged to lay a further tax for its own necessities; the doctrine, as I understand it, is, that the claim of the United States would be preferred, and must be hast satisfied, because the laws of the United States, made in pursuance of the constitution. are the supreme law of the land. The author of the Federalist8 admits, that a state might lay a tax on a particular article, equal to what it. would well bear, but the United States would still have a right to lay a further tax on the same article; and that all collisions in a struggle between the two governments for revenue, must and would be avoided by a sense of mutual forbearance. He no where, however, meets and removes the difficulty, in the case of a want of this mutual forbearance, where there is a concurrent tax laid on the same subject, and which will not bear both taxes. He says only, that the United States would have no right to abolish the state tax. This is not contended; but would not the United States have a right to declare, that their taxes were liens from the time they were imposed; and would they not, as of course, be entitled to be first paid; and must toot the state collector, in all cases, stand by and wait until the national tax is collected, before he proceeds to collect his state tax out of the exhausted subject? Upon the doctrine of the federal courts, and upon the doctrine of the Federalist himself, this must be the case; and though the state legislatures have a concurrent jurisdiction in the case of taxation, except as to a imposts, yet in effect, though not in terms, this concurrent power becomes a subordinate and dependent power. In every other case of legislation, the concurrent power in the states would seem to be a power entirely dependent, and subject to be taken away absolutely, whenever congress should choose to exercise their Powers of legislation over the same subject. I do not mean to be understood to question the validity or to excite alarm at the existence of this doctrine. The national government ought to be supreme within its constitutional limits, for it is entrusted with the paramount interests and general welfare of the whole nation. Our great and effective security consists in the fact, that the constituents of the general and of the state governments are one and the same people; and the powers of the national government must always be exercised with a due regard to the interest and prosperity of every member. of the union; for on the occurrence and good will of the parts, the stability of the whole depends. My object is, to discover what this concurrent power of legislation amounts to, and what is its value, and on what constitutional foundations it is supported.
It was observed by Mr. Hamilton, in the convention of this state in 1788,9 that if the United States, and the state, should each lay a like tax on a specific article, and the individual should be unable to pay both, the party who first levied would hold the property. But this position must be received with some qualification. The United States have declared by law, that they were entitled, in respect to their debts, to priority of payment; and when it was said that this claim would interfere with the rights of the state sovereignties, and would defeat the measures they had a right to adopt, to secure themselves against delinquencies, the answer given in Fisher v. Blight10 is, that “the mischief suggested, so far as it can really happen, was the necessary consequence of the supremacy of the laws of the United States, on all subjects to which the legislative power of congress extends.” It would seem, therefore, that the concurrent power of legislation in the states is, not an independent, but a subordinate and dependent power, liable, in many cases, to be extinguished, and in all cases to be postponed, to the paramount or supreme law of the union, whenever the federal and the state regulations interfere with each other.
In Weyman v. Southard,11 the question arose, how far the judicial process of the federal courts could be controlled by the laws of the several states. It was decided, that congress had exclusive authority to regulate proceedings and executions in the federal courts, and that the states had no authority to control such process; and, therefore, executions by fieri facias in the federal courts were not subject to the checks created by the new Kentucky statute. It was, in that case, further observed, that the forms of execution, and other process in the federal courts, in suits at common law, except modes of proceeding, were to be the same as used in September, 1789, in the supreme courts of the states, subject only to alterations and additions by congress, and by the federal courts, but not to alterations since made in the state laws and practice. It was further observed, that the laws of the several states were to be regarded as rules of decision in trials at common law, in cases where they apply. This, however, did not mean to apply to the process and practice of the federal courts. As to them, the laws of the states were no rule of decision, and the direction was intended only as a legislative recognition of the principles of universal jurisprudence as to the operation of the lex loci in the trial and decision of causes.
(2.) As to the concurrent power of the states it matters of judicial cognizance.
In the 82d number of the Federalist, it is laid down as a rule, that the state courts retained all preexisting authorities, or the jurisdiction they had before the adoption oft he constitution, except where it was taken away either by an exclusive authority granted, in express terms to the union, or in a, case where a particular authority was granted to the union, and the exercise of a like authority was prohibited to the states, or in the case where an authority was granted to the union, with which a similar authority in the states would be utterly incompatible. A concurrent jurisdiction in the state courts was admitted in all except those enumerated cases; but this doctrine was only applicable to those descriptions of causes of which the state courts had previous cognizance, and it was not equally evident in relation to cases which grew out of the constitution. Congress, in the course of legislation, might commit the decision of causes arising upon their laws, to the federal courts exclusively; but unless the state courts were expressly excluded by the acts of congress, they would, of course, take concurrent cognizance of the causes to which those acts might give birth, subject to the exceptions which have been stated. In all cases of concurrent jurisdiction, an appeal would lie from the state courts to the Supreme Court of the United States; and without such right of appeal, the concurrent jurisdiction of the state courts, in matters of national concern, would be inadmissible; because, in that case, it would be inconsistent with the authority and efficiency of the general government.
Such were the early and speculative views of the ablest commentators on the constitution, in relation to the judicial powers of the state courts. We will now examine a series of decisions in the federal courts, defining and settling the boundaries of the judicial authorities of the states.
In the case of Martin v. Hunter,12 Judge Story, in delivering the opinion of the court, seemed to think, that it was the duty of congress try vest the whole judicial power of the United States in courts ordained and established by itself. But the general observation was subsequently qualified, and confined to that judicial poser which was exclusively vested in the United States. The whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority. It was considered, that there was vast weight in the argument, that the constitution is imperative upon congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the supreme and inferior courts created under its own authority. At all events, it was manifest, that the judicial power of the United States is, unavoidably, in some cases, exclusive of all state authority, and, in all cases, may be made so, at the election of congress. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance; 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. Congress, throughout the judiciary act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition, that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts.
State courts may, in the exercise of their ordinary, original and rightful jurisdiction, incidentally take cognizance of cases arising under the constitution, the laws, and treaties of the United States; yet, to all these cases, the judicial power of the United States extends by means of its appellate jurisdiction.
In Houston v. Moore,13 the same question came again under the consideration of the Supreme Court, and judge Washington; in delivering the opinion of the court, observed, that he saw nothing unreasonable or inconvenient in the doctrine of the Federalist, on the subject of the concurrent jurisdiction of the state courts, so long as the power of congress to withdraw the whole, or any part of those cases, from the jurisdiction of the state courts, be, as he thought it must be, admitted. The practice of the general government has been conformable to this doctrine, and, in the judiciary act of 1789, the exclusive and concurrent jurisdiction conferred upon the courts by that act, were clearly distinguished and marked. The act shows, that, in the opinion of congress, a grant of jurisdiction generally was not, of itself, sufficient to vest an exclusive jurisdiction. The judiciary act grants exclusive jurisdiction to the circuit courts of all crimes and offenses cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this accounts for the proviso in the act of 24th of February, 1807, c. 75. and in the act of 10th of April, 1816, c. 44. concerning the forgery of the notes of the Bank of the United States, declaring, that nothing in that act contained should be construed to deprive the courts of the individual states of jurisdiction, under the laws of the several states, over offenses made punishable by that act. There is a similar proviso in the act of 21st of April, 1806, c. 49. concerning the counterfeiters of the current coin of the United States.
Without these provisoes, the state courts could not have exercised concurrent jurisdiction over those offenses consistently with the judiciary act of 1789. But these saving clauses restored the concurrent jurisdiction of the state courts, so far as, under state authority, it could be exercised by them. There are many other acts of congress which permit jurisdiction, over the offenses therein described, to be exercised by state magistrates and courts.
This was necessary; because the concurrent jurisdiction of the state courts over all offenses was taken away, and that jurisdiction was vested exclusively in the national courts by the judiciary act, and it required another act to restore it. The state courts could exercise no jurisdiction whatever over crimes and offenses against the United States, unless where, in particular cases, other laws had otherwise provided; and whenever such provision was made, the claim of exclusive jurisdiction to the particular cases was withdrawn, and the concurrent jurisdiction of the state courts, eo instanti, restored, not by way of grant from the national government, but by the removal of a disability before imposed upon the state tribunals.
In that case, the Supreme Court disclaimed the idea that congress could authoritatively bestow judicial powers on state courts and magistrates. “It was held 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.”
The Supreme Court, having thus declared the true foundation and extent of the concurrent jurisdiction of the state courts in criminal cases, proceeded to meet and solve a difficulty occurring on this subject of concurrent jurisdiction, whether the sentence of one jurisdiction would oust the jurisdiction of the other. The decision on this point was, that the sentence of either court, whether of conviction or acquittal, might be pleaded in bar of the prosecution before the other; as much so as the judgment of a state court, in a civil case of concurrent jurisdiction, might be pleaded in bar of an action for the same cause instituted in a circuit court of the United States.
There was another difficulty not so easily surmounted, and that was, whether, if a conviction of a crime against the United States be had in a state court admitted to have concurrent jurisdiction, the governor of the state would have the power of pardon, and in that way control the law and policy of the United States. Judge Washington, in speaking for the court, did not answer this question, but contented himself with merely observing, that he was by no means satisfied that the governor could pardon, but that if he could, it would furnish a reason for vesting the jurisdiction of criminal matters exclusively in the federal courts.
The conclusion, then, is, that in judicial matters, the concurrent jurisdiction of the state tribunals depends altogether upon the pleasure of congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject matter can constitutionally be made cognizable in the federal courts; and that, without an express provision to the contrary, the state courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject matter. We will next see whether this state jurisdiction does not equally depend upon the volition of the state courts.
There are various acts of congress, in which duties have been imposed on state magistrates and courts, and by which they have been invested with jurisdiction in civil suits, and over complaints and prosecutions in penal and criminal eases for fines, penalties, and forfeitures arising under laws of the United States. We have seen a very clear intimation given by the judges of the Supreme Court, that the state courts were not bound in consequence of any act of congress, to assume and exercise jurisdiction in such cases. It was merely permitted to them to do so as far, as was compatible with their state obligations, and in some instances the state courts have acted in those cases; and in other instances they have declined jurisdiction, though expressly vested with it by the act of congress.
In the case of Ferguson,14 an application was made to the Supreme Court of this state for the allowance of an habeas corpus to bring up the party alleged to be detained in custody by an officer of the army of the United States, on the ground of being an enlisted soldier, and the allegation was, that he was an infant, and so not duly enlisted. It was much discussed, whether the state courts had concurrent jurisdiction, by habeas corpus, over the question of unlawful imprisonment, when that imprisonment, was by an officer of the United States, by color or under pretext of the authority of the United States. The Supreme Court did not decide the question, and the motion was denied on other grounds; but subsequently, in the matter of Stacy,15 the same court exercised jurisdiction in a similar case, by allowing and enforcing obedience to the writ of habeas corpus. The question was, therefore, settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other states.16
In the case of The United States v. Dodge,17 the Supreme Court of this state held, that they had jurisdiction, and did sustain a suit on a bond for duties given to a collector of the United States customs. The suit was authorized by the judiciary act of 1789, giving concurrent jurisdiction to the state courts in suits at common law, where the United States were plaintiffs. Afterwards, in the case of The United States v. Lathrop,18 the same court discussed, very much at large, the question whether a state court had jurisdiction of an action in favor of the United States to recover a penalty or forfeiture for breach of a law of the United States, and when a suit for the penalty was by the act declared to be cognizable in a state court. It was decided that the court had no such jurisdiction, and that it could not even be conferred by an act of congress. The difference between this case and the one preceding was, that that was a suit on a bond given to a collector of the customs for duties, and this was an action of debt for a penalty for breach of the excise law. They were both cases of debts due to the United States; but the one was a civil debt, and the other a penalty for breach of a revenue law, and this slight difference in the nature of the demand was considered to create a most momentous difference in its result upon the great question of jurisdiction. It was the opinion of the court that congress could not invest the state courts with jurisdiction of causes which they did not enjoy concurrently before the adoption of the constitution; and a pecuniary penalty for a violation of an act of congress was a punishment for an offense created under the constitution, and the state courts had no jurisdiction of the criminal offenses or penal laws of the United States. The judiciary act of 1789 was the true exposition of the constitution with respect to the concurrent jurisdiction of the state courts, and the exclusive jurisdiction of those of the United States; and by that act the exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, and of all suits for penalties and forfeitures, was given to the federal courts, The judiciary act in no instance excluded the previously existing jurisdiction of the state courts, except in a few specified cases of a national nature; but their jurisdiction was excluded in all criminal cases, and with respect to offenses arising under the acts of congress, In such cases, the federal jurisdiction was necessarily exclusive; but it was not so as to preexisting matters within the jurisdiction of the state courts.
The doctrine seems to be admitted, that congress cannot compel a state court to entertain jurisdiction in any case. It only permits state courts which are competent for the purpose, and have an inherent jurisdiction adequate to the case, to entertain suits in the given cases; and they do not become inferior courts in the sense of the constitution, because they are not ordained by congress, The state courts are left to infer their own duty from their own state authority and organization; but if they do voluntarily entertain jurisdiction of causes cognizance tinder the authority of the United States, they do it upon the condition, that the appellate jurisdiction of the federal courts shall apply. Their jurisdiction of federal causes is, however, confined to civil actions for civil demands, or to enforce penal statutes; and they cannot hold criminal jurisdiction over offenses exclusively existing as offenses against the United States. Every criminal prosecution must charge the offense to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose executive may pardon him.
We find a similar decision in one of the courts in the state of Ohio, in the case of the United States v. Campbell.19 That was an information filed by the collector of the revenue, to recover a penalty for breach of the excise law, and the court held it to be a criminal prosecution, and that one sovereign state could not make use of the municipal courts of another government to enforce its penal laws, and it was not in the power of congress to vest such a jurisdiction in the state courts. Upon the same principle, a state court in Virginia, in the case of The State v. Feely, decided, that it had no jurisdiction to punish by indictment stealing packets from the mail, as that was an offense created by act of congress.20 And in Jackson v. Row, the General Court of Virginia made the same decision precisely as that made by this state in the case of Lathrop; and it held, that the act of congress, authorizing such suits for penalties in the state courts, was not binding. It was decided in another case in Virginia,21 that congress could not give jurisdiction to, or require services of, a state court, or magistrate, as such, nor prosecute in the state courts for a public offense.22
After these decisions in the states of Virginia, Ohio, and New York, the act of congress of the 3d March, 1815, ch. 100 may be considered as essentially nugatory. That act vested in the state courts, concurrently with the federal courts, cognizance of all “complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures, arising and payable under any act of congress passed, or to be passed, for the collection of any direct tax or internal duties;” and it gave to the state courts and the presiding judge thereof, the same power as was vested in the district judges, to mitigate or remit any fine, penalty, or forfeiture. And here the inquiry naturally suggests itself, can the state courts, consistently with those decisions, sustain a criminal prosecution for forging the paper of the Bank of the United States, or for counterfeiting the coin of the United States? These are cases arising under acts of congress declaring the offense. The state courts have exercised criminal jurisdiction over these offenses, as offenses against the state; but it is difficult to maintain the jurisdiction upon the doctrine of the Supreme Court of New York in the case of Lathrop; and if it be entertained, there are difficulties remaining to be definitively cleared. These difficulties relate to the effect of a prosecution in one jurisdiction upon the jurisdiction of the concurrent court, and to the effect of the power of pardon of the crime under one government, upon the claim of concurrent jurisdiction.
1. No. 32.
2. 3 Dallas, 386.
3. 4 Wheaton, 193.
4. 5 Wheaton, 1.
5. 9 Johnson’s Rep. 507.
6. 9 Johnson’s Rep. p. 576.
7. 3 Serg. & Rawl. 179.
8. No. 32. See also No. 31, 33, 34.
9. Debates in the New York Convention, printed by Francis Childs, p. 113.
10. 2 Cranch, 397.
11. 10 Wheaton, l.
12. 1 Wheatun, 304.
13. 5 Wheaton, 1.
14. 9 Johns. Rep. 239.
15. 10 Johns. Rep. 328.
16. Case of Lockington, before Tilghman. Chief Justice of Pennsylvania, November, 1813, 5 Hall’s Law Journal, 92. Same case, 5 Hall’s Law Journal, 301-330. A similar case in Maryland, 5 Hall’s Law Journal, 486, and in South Carolina, 5 Hall’s Law Journal, 497. Commonwealth v. Harrison, 11 Mass Rep. 68. Case of Joseph Almeida in Maryland, and the case of Pool and others in Virginia, cited in Sergeant’s Constitutional Law, p. 279, 280.
17. 14 Johnson’s Rep. 95.
18. 17 Johnson, 4.
19. 6 Hall’s Law Journal, 113.
20. Sergeant’s Const. Law, p. 272.
21. Ex parte Pool.
22. Sergeant’s Const. Law, p. 272. 274.