NO form of government is complete unless it be accompanied with a judicial power.

To make laws and to execute them are the two great operations of government; but they cannot be fully and correctly executed unless there is somewhere resident a power to expound and apply them. This power is auxiliary to the executive authority, and in some degree partakes of its nature. But it is also required at times to control the executive, and what it decides to be unlawful, the executive cannot perform. It may also in some degree be said to participate in the legislative power. Its construction of the acts of the legislature is received as binding and conclusive, although it does not prevent the legislature from repairing its own defects, or clearing up its own ambiguities by subsequent laws, operating on subsequent cases. A high function also appertains to the judiciary in the exclusive right to expound the Constitution, and thereby to test the validity of all the acts of the legislature.

To the people at large, therefore, this institution is peculiarly valuable, and ought to be eminently cherished by them. On its firm and independent structure they repose with safety, while they perceive in it a faculty which is only set in motion when applied to, but which when thus brought into action, proceeds with competent power if required, to correct the error or subdue the oppression of both or either of the two other branches. A Constitution in which there was an omission to provide an adequate judiciary could not be successfully carried into effect; and if instead of being separate and independent, this power were either blended with the other two, or those who administer it were dependent on the will and pleasure of others, its lustre would be tarnished and its utility destroyed.

The Constitution of the United States, therefore, required a judicial power, not as an adjunct, but as a necessary component part. The extraordinary complications of the authority of the United States with that of the several states, which seem at first view to throw so many difficulties in the way, fully prove its necessity. The state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great as to leave out an executive power entirely, and to call on the states alone to enforce the laws of the Union. But it is not inconsistent with this principle that the United States may, whenever it is found expedient, elect to make use of a state tribunal to the same extent as any foreign power may, if it thinks proper to institute suits in the courts of other countries, which is in civil cases only.

The judicial power is general or limited, according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the legislature. It cannot by any terms of language, be made to exceed the legislative power, for such excess would be inconsistent with its nature. If by express words it should, on the other band, be restrained so as to embrace only a part of the subjects of legislation, it would impair the integrity of the whole system. The protection which it was intended to afford, in regard to the other branches of government, being confined to parts of their conduct, instead of embracing the whole, would produce the incongruous mixture of a theoretic, general power with partial debility and impotence. If general terms are used in describing it, there is no difficulty in defining its proper extent.

In the Constitution of the United States we perceive, not the express creation of a judicial power, but the recognition of it as a necessary part of the government, in which light it was justly considered and has been universally accepted. Its power extends to the great selected objects already noticed, and it is the duty of those who have to administer it, to carry it to that full extent, but never to exceed it. Experience has already shown that from a wise and temperate administration, the apprehension of inconvenience from serious collisions between the state judicatures and those of the United States was unfounded. It must be confessed that the merits of our Constitution have received ample support from the prudence and judgment with which it has been administered, and in no respect has a sounder discretion been exhibited than in the judicatory. If any objection could be sustained to the procedures of the judges of the supreme and circuit courts, it would be that of excessive caution, arising from a systematic anxiety not to exceed their jurisdiction. And it is a strong argument in favour of an elective government, that those men in whom the power of appointment is vested by the choice of the people, have, in regard to these judicial officers, exercised it with so much caution, judgment, and success.

But it is said that there is generally a propensity in public functionaries to extend their power beyond its proper limits, and that this may at some future time be the case with the courts of the United States. The instances may be those in which the case is plain, and the encroachment upon state authority too obvious to be denied; as if a court of the United States should entertain a civil plea between two citizens of the same state in a case not authorized by the Constitution, or criminal proceedings on account of an offence merely against a state. In such an extreme, and therefore improbable case, as there would be no colour of jurisdiction, the whole proceedings would be void. If, however, under the existing circumstances, it were doubtful and ambiguous, or if it were blended with matters in which they had jurisdiction, the rule commonly adopted among different courts, sitting precisely under the same authority, would probably be resorted to, -and that which first obtained possession of the cause would be exclusively entitled to proceed.

Where the jurisdiction of the United States court and of a state court is concurrent, the sentence of either, whether of conviction or acquittal, may be pleaded in bar to a prosecution in the other, with the same effect as a judgment of a state court in a civil case may be pleaded in bar to an action for the same cause in a circuit court. ¹

A jurisdiction exclusive of the state courts, is not expressly given by the Constitution to any of the courts of the United States, but it is in several instances clearly implied. Cases of admiralty and maritime jurisdiction and controversies between two or more states, must, by necessary construction, exclusively appertain to the courts of the United States: the first, because the whole system of maritime affairs with its connexions and dependencies is withdrawn from the several states by their own consent, and vested in the general government; the second, because there can exist no other than the common tribunal, the supreme court of the United States, to entertain such suits. Indeed the jurisdiction itself is created by the Constitution, and vested in the supreme court of the United States alone, thus rendering the dignity of the tribunal correspondent to the dignity of the parties.

Cases affecting ambassadors, other public ministers and consuls, are also enumerated as falling within the jurisdiction of the courts of the United States; reasons have been given for not considering this jurisdiction as entirely exclusive. It is true that an act of congress has declared that the jurisdiction is exclusive, and the practice is understood to have been in conformity to it, but the main question has never been brought to a judicial test. The same sentence extends the judicial power to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to controversies to which the United States shall be a party; to controversies between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens there of and foreign states, citizens or subjects. In some of these cases, it may be doubted whether it was intended, and whether it would be beneficial to the United States, that the jurisdiction should, be exclusive; it may conduce to its best interests at times to have recourse, not to the legislative or executive powers of a state, of which it should ever be independent, but to a state judicature, which if rightly constituted, can be influenced by no local partialities or political jealousies, and which can no more withhold justice from the United States than from the meanest individual.

Circumstances may render it expedient for the United States to institute civil suits for the recovery of debts, or damages for the breach of contracts due to themselves in the state courts. There is nothing in the Constitution to restrain them from so doing, nor to justify a refusal on the part of the state court to take cognizance of them. Such suits, indeed, are occasionally brought, and the United States, received as a plaintiff in the ordinary form, pursues them in the ordinary course to judgment and execution. But although the word "party" indicates a defendant as well as a plaintiff, it is not to be understood that suits can be brought in any court against the United States. Supreme head of the Union; centre of the general power; it cannot be amenable to a judicial tribunal, unless by its own express consent, and the power to give this consent must appear in the Constitution itself to have been granted by the people. An ultimate and complete sovereignty for the practical purposes of a government, extending over all, protecting all, and binding all, is vested in them, by the confidence of the people, for the highest and most salutary purposes.

In some constitutions a power is given to the legislature to direct modes by which suits may be brought against the commonwealth. No power is given to congress to authorize suits against the United States in any case.

A citizen of one state is not precluded from suing a citizen of another state in the courts of the latter, nor a foreigner from a suit in the state court against a citizen of the United States, nor is there any thing to prevent one alien from suing another in a state court, or a citizen of one state from suing the citizen of another in the courts of a third state. A state may maintain a suit against an individual in its own courts or in those of another state. If two citizens of the same state claim land under grants of different states, the state courts are not precluded from jurisdiction in the first instance; nor are they precluded from holding cognizance of a right claimed under a treaty or statute of the United States, or an authority exercised under the United States, or a suit in which is drawn in question the construction of any clause of the Constitution. In all these cases a concurrent jurisdiction exists so far as relates to the language of the Constitution itself.

The Constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of these being of vital importance to state authority and state legislatures, a mere grant of such powers, in affirmative terms to congress, does not per se transfer an exclusive sovereignty on such subjects to the latter.

On the contrary, the powers so granted would not be exclusive of similar powers existing in the states, unless the Constitution had expressly given an exclusive power to congress, or the exercise of a like power were prohibited to the states, or there was a direct repugnancy or incompatibility in the exercise of it by the states.

In all other cases not falling within these classes the states retain concurrent authority.

There is this reserve, however, that in cases of concurrent authority where the laws of the states and of the United States are in direct and manifest collision on the same subject, those of the United States 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. ²

The correct general position seems to be, that in civil cases the judicial power is, in some instances, unavoidably exclusive of state authority, and in many others it may be rendered so at the election of congress. ³

In regard to criminal cases, there is more difficulty. The same act may amount to an offence both against the state and the United States. Resistance to the laws of the United States, may be accompanied with personal injuries to the officers. Robbing the mail, which by act of April 13th, 1810, is made highly penal, and in case of a second offence, punishable with death, might be cognizable as highway robbery under the state laws. Would the offender be amenable to both jurisdictions, or to only one, and which of them? One established rule may be resorted to as partly affording an answer. The greater crime includes and absorbs the less. ⁴ But this rule does not afford a complete solution of the difficulty. A prosecution may be commenced in the state court, before one is instituted in the United States court. If, for instance, the officer who was beaten, commenced and persisted in a prosecution for the battery, it would seem that the offender would not be acquitted, because it appeared in evidence that his general object was to resist the laws of the United States. If he were prosecuted at the same time for robbing the carrier of the mail, and for a common highway robbery, both of which are offences of the same grade, and the latter, according to the laws of the state in which it was committed, might be as, severely punished as the former; neither court would be bound to give way to the other, at least by the application of the rule before mentioned. A person convicted or acquitted in a court of competent jurisdiction, may plead such judgment in bar of a second indictment for the same offence, but he cannot plead an acquittal or a conviction of an inferior offence, in bar of an indictment for a higher offence, although each was part of the same act. ⁵ Where, however, the offences differ only in name, the acquittal may be pleaded, as a man indicted of murder and acquitted, is not liable on an indictment of petit treason for the same act, because both offences are in substance the same; ⁶ but when they are substantially different, though of equal degree, the acquittal in one does not constitute a bar to an indictment for the other.

It remains then to discover some other rule or principle to relieve us from this embarrassment. It has been laid down that the state courts retain their jurisdiction in all cases, which in their nature existed before the adoption of the Constitution, unless expressly excluded, or unless the exercise of it would be utterly incompatible with the authority granted to the Union. ⁷ In the case of offences which only arise by reason of the Union, as, for instance, treason against the United States, the state courts would have no jurisdiction. If in the state courts an indictment were preferred for murder or other capital crime, committed in the perpetration of treason, it must give way to the jurisdiction of the United States court, as well in respect to the superiority of jurisdiction, and the greater extent of public concernment, as the interior nature of the crime. But if the act committed, amounting at the same time to offences against both bodies, were still in regard to each of them, of the same degree, there seems no reason why each should not sustain its jurisdiction. It would not contravene the maxim that no one shall be twice punished for the same offence, for the offences are different in the eye of the law, although the result of the same act on the part of the culprit.

We must, indeed, avoid too broad a construction of this maxim, for a double punishment for the same act, is not wholly unknown to the law, if the forms of proceeding and the objects are different; thus, he who has committed an assault, battery, wounding, or mayhem, on the person of another, is liable both to an indictment, and to a civil action for damages. The satisfaction received by the public does not prevent the injured party from obtaining his peculiar redress. If the infliction of punishment by the state could impede the prosecution of the United States in such a case, a pardon granted by the state would have the same effect, yet it would be absurd to suppose that a pardon granted by the state for murder committed in the perpetration of treason, would bar the prosecution of the United States for such treason. On the whole, this difficult question may be fairly resolved on the principle, that immunity for one crime cannot be obtained by proving that in doing the act, the party committed another; and further, that each community is entitled, and its public officers are required, to prosecute offences committed against it. ⁸

1. Houston v. Moore, 5 Wheaton, 31. See also Osborne v. Bank of the United States, 9 Wheaton, 733.

2. Houston v. Moore, 5 Wheat. 48. Per Story, J.

3. 1 Wheaton, 337. But the author presumes to dissent from the opinion that it is competent for congress in all other cases to render it exclusive. Surely congress cannot exclude a state from holding plea of a suit by a citizen of another state against the citizen of a state in which the suit was brought, nor by or against an alien. Many other cases might be put in which the state courts could not be deprived of jurisdiction by any act of congress.

4. Opinion of Judge Chase, in Hall's Journal of Jurisprudence, 162.

5. Hawkins, b. 2. c. 39. § 5.

6. Ibid.

7. Federalist, No. 82. 4 Dallas, Appendix, xxx.

8. See the discrepant opinions of the judges of the Supreme Court of the United States in Houston v. Moore. The author of course adopts, and takes the liberty to say that in his own judgment he prefers, those of the majority.

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