LECTURE XVIII.

OF THE CONCURRENT JURISDICTION OF THE STATE GOVERNMENTS.

THE question, how far the state governments have concurrent powers, 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 important constitutional subject.

1. Of Concurrent Powers of Legislation. It was observed in the Federalist, (a) 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. (x)

(a) No. 32.

(x) The same act or series of acts may be punished under both Federal and State laws. Cross v. North Carolina, 132 U. S. 131. When the offence charged is a crime under both Federal and State laws, the questions at issue may be first raised in the State court, which is under the same obligation as the Federal courts to give effect to the supreme law of the land, and to protect rights thereby secured, as the latter courts, and the jurisdiction of the U. S.

Supreme Court may be invoked to protect any Federal right asserted by the accused and denied by the State judgment. New York v. Eno, 155 U. S. 89.

A sale under the decree of a Federal court may be set aside by a State court, when made in violation of an injunction previously issued by the State court, and necessary to give complete relief in dealing with the entire subject-matter, if the State court has jurisdiction of all the par

In the judicial construction given from time to time to the Constitution, there is no very essential variation from the *388* contemporary exposition which was here laid down by

the high authority of the Federalist. Judge Chase, in the case of Calder v. Bull, (a) 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, (b) the Chief Justice of the United States observed, that the powers of the states remained, after the adop tion of the Constitution, what they were before, except so far as they had been abridged by that instrument. The mere grant of a power by Congress did not imply a prohibition on the states to exercise the same power. Thus, Congress are authorized to establish uniform laws on the subject of bankruptcy; but the states may pass bankrupt laws, provided there be no acts of Congress in force establishing a uniform law on that subject. (e) The states may legislate in the absence of congressional regula(a) 3 Dallas, 386.

(b) 4 Wheaton, 193.

(c) In Golden v. Prince, 3 Wash. 313, Judge Washington had previously held, in the Circuit Court of the United States for Pennsylvania, that Congress had the exclu sive power to pass bankrupt laws; but this opinion was subsequently corrected, and qualified according to the doctrine in the text.

ties. Stevens v. Central Nat. Bank, 144 N. Y. 50.

The appointment of a receiver for an insolvent bank by a State court does not bar a creditor's suit in the Federal court to set aside a fraudulent conveyance to the bank, and the latter court retains its jurisdiction even when the receiver sells the property so conveyed pending the Federal suit. Bacon v. Harris, 62 Fed. Rep. 99. Conversely, property rightfully in the possession of a Federal receiver is not subject to seizure and levy under State process to enforce the collection of a tax assessed upon its owner under State laws. In re Tyler, 149 U. S. 164. A State

court has jurisdiction of an indictment for

a wilful and felonious assault by a pilot in causing a collision and death on the other vessel, as the U. S. Rev. Stats. § 5344 is not applicable. In re Welch, 57 Fed. Rep. 576. The Federal courts are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends; their jurisdiction over controversies between citizens of different States cannot be im paired by State laws which prescribe the modes of redress in their courts, or which regulate the distribution of judicial power. Chicot County v. Sherwood, 148 U. S. 529. See also, The Willamette Valley, 62 Fed Rep. 293.

tions. 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 of it 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 * 389 required that it should be exercised exclusively by Congress, the subject was as completely taken from the state legisla tures, as if they had been expressly forbidden to act on it. In Houston v. Moore, (a) 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 not 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, arming, 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 a 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

(a) 5 Wheaton, 1.

which Congress have acted, provided the two laws are not in their operation contradictory and repugnant to each other.

*390

* 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. A 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 was 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, &c.; 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 has 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 disci* 391 pline * 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 expositions of the paramount powers of the general government are to be received as correct and conclusive, for they proceed from the highest authority, and are exceedingly clear and logical in their deductions. The same doctrines had been previously declared in the Court of Errors of New York, in the steamboat case of Livingston v. Van Ingen. (a) "Our safe rule of construction and action," as it was there observed, (b) "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 had not been prohibited to the states, we might then go on in the exercise of the 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 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; (c) and by the Chief Justice of Massachusetts, in Blanchard v. Russell. (d)1

(a) 9 Johns. 507.

(c) 3 Serg. & Rawle, 179.

(b) 9 Johns. 576. (d) 13 Mass. 16.

erty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (x)

1 Gilman v. Philadelphia, 3 Wall. 713. any state deprive any person of life, lib[Fourteenth and Fifteenth Amendments. By the fourteenth amendment to the Constitution, it is provided that " 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall

(x) In the Fourteenth Amendment the word "citizens" is used in the political sense, and the word "persons" includes private corporations. Baldwin v. Franks,

By the fifteenth amendment, "The right of citizens of the United States to

120 U. S. 678; Charlotte &c. R. Co. v. Gibbes, 142 U. S. 386; see State v. Delaware, &c. Co., 7 Houst. (Del.) 269. A tribal Indian, who has not been natural