
    The State v. W. T. Wells.
    
      Chesterfield, Spring Term, 1835.
    The defendant ®“|nÍ"dicate,^t[” contrary ato° tS hetof Congress Post'ornee ¿ó-payment, and jurisdiction in provisions of the such cases on the State Courts: on - plea to the ju-held, that tho overruled. risdiction, it was held, that tho Stntcfhuvo am current juriadio-ses'withtiwseof the u. states; might const™-«tonally. confer tile stato’cour'ts wore bound to the plea was
    
      The presiding judge made the following report:
    Earle, J. Indictment for opening a letter. The offence charged in the indictment is created by an act of Congress, and the question arises on a plea to the jurisdiction of this Court.,
    
      Tho 2:2d section of the act regulating the Post Office Department (1825) provides that “ if any person shall take any letter or packet, not containing any article of value, nor evidence thereof, out of a post office, or shall open any letter or packet, which shall have been in a post office, or in custody of a mail carrier, before it shall have been delivered to the person to whom it is directed, with a design to obstruct the correspondence, to pry into another’s business or secrets; or shall secrete, embezzle, or destroy any such mail, letter or packet, such offender, upon conviction, shall pay for every such dollars, and bo section OIience> ¿ sum not exceeding five hundred imprisoned not exceeding twelve months.” The 37th enacts that “ all causes of action arising under this act, may be _ suec^> at)d ab offenders under this act may be prosecuted before the justices of the peace, magistrates, and other judicial Courts l*le severa^ States, and of the several T erritories of the United States, they having competent jurisdiction by the laws of such States or Territories to the trial of claims and demands of as-great value, and of prosecutions where the punishments are of as great extent: and such justices, magistrates or judiciary, shall tako cognizance thereof, and proceed to judgement and oxecution, as in other cases. 1 he 38th section enacts, that “ m all suits or causes arising under this act, the Court shall proceed to trial, and render judgement the first T erm after such suit shall be commenced.”
    Without taking exception to the imperative phraseology in which it is declared that “ the said Courts shall take cognizance and proceed to judgement,” I shall inquire whether, under the Constitution of the United States, Congress can by act, confer jurisdiction on the State Courts, in cases where they had it not before, of offences against the laws of the United States which are not known as violations of the laws of the States; and whether it be compatible with the .relation subsisting between the States and the general government, that the Courts of the former should entertain jurisdiction cither from courtesy or otherwise, over subjects and causes, arising under the laws of the United States, especially of of-fences punishable only by those laws, and thus become a subordinate portion of the federal judiciary. Clauses containing enactments similar to that under consideration having been incorporated in many other acts, as for instance in all the acts imposing internal duties, and the-assertion of the power to confer jurisdiction on the State Courts having been made so lately as 1825, in the action in question, it becomes an important subject of inquiry, whether such power can be constitutionally exercised by CongresSj and whether such acts or clauses of acts are binding on the State Courts. And in deciding this cause, I desire to avoid any unnecessary discussion of those questions of State Sovereignty, and federal supremacy, which have so much engaged the public mind, and led to such various conclusions. The third Article of the Constitution of the United States is in these words: “ 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 beha-viour ; and shall at stated terms receive for their services a compensation which shall not be diminished during their continuance in office.” The 2d. section of the same article prescribes the jurisdiction. “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 ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall bé a party; to controversies between two or more States; between a State and a citizen of another State ; between citizens of different States ; between citizens of the samo State, claiming lands under grants of different States ; and between a State, and the citizens thereof, and foreign States, citizens, or subjects.”
    In order to sustain the jurisdiction of the State Courts, in the class of cases under consideration, the argumentas, that the jurisdiction prescribed in the second section of the third Article, is not necessarily exclusive in the Courts of the United States : but may be concurrent with that of the State Courts; and this may readily be conceded without affecting the question at issue. The Judicial power of a State, in its original constitution, is co-extonsive with the Legislative ; extends to all subjects of controversy which can arise under the laws. That of the United States is different in its structure. The Constitution itself having for its object the establishment of a government with limited powers, and having confined the legislative power within certain defined boundaries, to certain specified and enumerated classes of subjects, the Judicial power would also have been thus limited, from the very nature of its office and duty, without enumeration of the cases to which it should extend. It would have been competent for it to take cognizauce of all cases arising under the Constitution, Laws, and Treaties of the United States, in the same manner as it now does — 'and perhaps would have been limited to cases of that description. The powers, however, of the federal Judiciary, have been enumerated and prescribed; and without adopting or repudiating the philological construction of some judges, arising out of and depending on the use of the word ‘ all,’ in some instances in the second section, and its omission in others, it is clear enough that the jurisdiction of the federal and State Courts have been made concurrent over several classes of cases. Perhaps it would be more accurate to say that the Constitution of the United States has extended the jurisdiction of the federal Courts over several classes of cases, of which the State Courts already had jurisdiction, and of which the federal Courts would not have taken cognizance without such provision ; they are cases where the State Courts, by reason of their original and inherent structure, would have had jurisdiction independent of the Constitution of the United States ; cases at common law, or arising under the laws of the State, on subjects over which that instrument has not granted exclusive legislative power to Congréss, nor prohibited it to the States, and where legislation by the latter is not in. compatible with that of the former. In this class of cases, the Constitution, from motives of policy, or public convenience, has conferred jurisdiction on the Courts of the United States. But the State Courts, as well since as before the Constitution, entertain jurisdiction of such cases ; for instance, controversies between citizens of different States, or a citizen of the State and a foreigner, in relation to any subject of controversy, they being found here and seeking that forum; or between citizens of the State claiming land under grants from different States; and so of all the second class of cases enumerated in the second section of the third Article, after maritime jurisdic-diction ; and in which the word ‘ all’ is omitted. In like manner has the State Judiciary always assumed jurisdiction of offences against the laws of the State, although the same act of the accused may constitute a separate and distinct offence against the laws of the federal government. In the State v. De La Forest, 2 N. & M’C. 217, a foreign Consul indicted for assault and battery, in this State, the jurisdiction of the State Court was asserted and maintained. In The State v. Tutt, 2 Bail. 44, indicted for forging a note on the United States Bank, under a statute of South Carolina, the exception was taken, and urged in bar of the jurisdiction, that it was an offence against the United States, whose legislation and jurisdiction were exclusive. The Court, in its general reasoning, seems to come to a different conclusion ; and although that case is made to depend on the provision of the act of Congress, saving the jurisdiction of the State, yet the proposition is advanced, “ that the general government cannot confer a jurisdiction on the States where it was not possessed before ; and in the case then under consideration, there .was unquestionably a jurisdiction in the first instance.” I hold that to be the true principle : that the jurisdiction in all such cases arises from the original and inherent structure of the State governments, having cognizance, necessarily, of cases under their own laws, anterior to the Constitution of the United States, and independent of it, where those laws are not incompatible with those of the general government. Where such original jurisdiction exists, a saving in an act of Congress is superfluous ; where it does not exist, a grant by Congress, cannot confer it. But this case does not depend on the question of concurrent jurisdiction over the same classes of subjects under the laws of both governments, or over the several oases in the latter clauses of the second section of the third Article already referred to, where the legislation of Congress is not exclusive, nor the jurisdiction of the Federal Court is exclusive. The offence charged in the indictment is created by an act of Congress alone : and is not recognized as an offence against the laws of the State, It is a case at law, arising under the Constitution and Laws of' the United States, on a subject confided by the Constitution to the exclusive legislation of Congress ; one of those classes of cases to all of which the judicial power of the United States is made to extend, It is an offence created by the general government, and against the authority of the federal govern, ment. The judicial power of the State, in its legitimate operation, and by virtue of its original constitution as a department of the government of South Carolina, could not reach such a case. The proposition at the bar is, that Congress, in vesting the State Courts with authority to try and punish offenders, have ordained and established the State Courts pro hac vice, as a portion of its own judicial authority ; and the question is, can such jurisdiction be conferred. “ The Judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as the Congress may, from time to time, ordain and establish: the judges, both of the superior and inferior Courts, shall hold their offices during good behaviour, and shall receive, at stated terms, a compensation, &c. The Judicial power thus provided for is that of the United States ; a power to administer, to expound, to enforce the laws of the federal government; to hear and determine causes arising under those laws, and to punish offenders against their authority. The judges to exercise this power-are to be appointed by the general government, from which they are to derive their authority ; to hold their- offices during good behaviour, and to be paid by'those from whom they derive their appointment. If the Circuit Court here can take cognizance of this case, the same Courts, in all the States have the like jurisdiction.' In very many of the Stales, the judges of the Circuit Courts of general jurisdiction hold their offices for a term of years only, as Georgia, Alabama, and others. In all the States, they are paid, of course, by the State. Such Courts, composed of judges so appointed, and so paid, aro clearly not within the description of those inferior Courts in the Constitution, whose judicial power shall extend “ to all cases in Law and Equity arising under the Constitution and Laws of the United States.”
    And this view is not at all incompatible with the 6th Article, second section, which declares that “ the Constitution and laws of the United States shall be the supreme law of the land, and the judges in every State shall be bound thereby.” This means no more than that such laws shall be paramount to all conflicting acts of legislation by the Slates ; that they shall constitute the rule of decision whenever the question involves a right affected by the provisions of such law. It cannot be construed to mean that the judicial authorities of the States may be or shall be employed as agents in enforcing such laws when the various departments of the general government are organized by the Constitution, so as to enable it to accomplish its own lawful and constitutional purposes. The Government is partly federal, partly national. In the structure and operation of its judiciary it is wholly national, in relation to all the classes of cases coming within its jurisdiction. Its tribunals are not only provided with their own judges, with juries selected from the mass of citizens, but with other ministerial agents peculiar to themselves, and their decisions are enforced without the agency of State authorities. The entire separation of the judicial power of the federal government from that of the States, is a marked feature of the system; and from considerations of policy they not only ought to be kept distinct, but I think cannot consistently be blended so as to make the State Courts a part of the judicial power of the United States. Such would be the effect of entertaining jurisdiction of this causo. I cannot understand the argument that Congress may confer the jurisdiction, and yet the State Courts may refuse to exercise if. If the act of Congress may constitutionally and lawfully confer the jurisdiction, the State Courts may be compelled to entertain and exercise it. Such seems to have been the view of the framers of the act, and of the Congress that enacted it; for it provides that the State Courts “ shall take cognizance thereof,” and this would lead to several embarrassing consequences. The presiding judge of the State Court, in refusing to try the causo, or by some other improper conduct in the progress of the trial, may be charged with a misdemeanor against the general government. Shall he bo deemed liable to impeachment before the Senate of the United States? This would seem to be a very absurd proposition in relation to an officer holding his office by the appointment of a State, from which he derives his compensation, and to whom he is certainly amenable for his conduct in all cases, in the mode pointed out by the Constitution; yet such a consequence would seem to follow from the position assumed. And in relation to the offender himself, in case of conviction, where shall he carry his appeal? By our Constitution and laws, an appeal irom the Circuit is carried to Columbia. In cases arising under the laws of the United States, where the jurisdiction is conferred upon the federal judges, the Supreme Court hears the appeal — to which tribunal shall the presiding judge certify the cause ? Or if he refuse to certify to the-Supreme Court of the United States, shall he be liable to impeachment or process of contempt for such refusal? After the Court of Appeals here shall have heard the appeal and decided the cause, shall it be required again to certify the cause to the Supreme Court 1 or be subjected to the degradation of having its decision reviewed and reversed on the ex parte application of an individual, in pursuance of a late act ? This would hardly be tolerated, and might lead at least to frequent conflicts of authority and juris, diction ; other embarrassments, apparently trivial, but worthy of consideration, would ensue.
    By our laws, in cases of misdemeanor, the defendant is entitled to an imparlance. By the act in question, the Court is required to hear and determine the cause at the first Court. By our laws, fines and forfeitures are appropriated to a special purpose. Could this penalty, incurred by a violation of an act of Congress, be so appropriated ? or be diverted at all from the channel provided by the laws of the United States ? By the Constitution of the State, the Executive has the power of pardon in all cases of conviction in our own courts. Could the defendant plead the Governor’s pardon in bar of the sentence ? or should he appeal to the clemency of the President ? All these difficulties and embarrassments would grow out of the exercise of the jurisdiction now sought to be conferred on this Court, which would invest it with a mongrel character wholly irreconcileable with its dignity and that of the State from which it derives its appointment. Such a course would present a succession of conflicting powers and authority, easier to be imagined than to be described or obviated.
    The second section of the 3d Article of the Constitution of South Carolina provides as follows: “The style of all process shall be ‘The State of South Carolina;’ all prosecutions shall be carried on in the name and by the authority of the State of South Carolina, and conclude against the peace and dignity of the same.” The Constitution of the State has conferred on the presiding officer of this Court no authority to carry on, or to try this prosecution ; no offence has been committed against the laws of this State, and it seems a solecism to say that the act alledged as an offence, has been perpetrated against its peace and dignity. But independent of this provision of the Constitution, I should hold, that not only is Congress incompetent to confer this jurisdiction on the State Courts, but the legislature of the State is equally incompetent to extend the jurisdiction of its own Courts to cases or subjects within the exclusive legislation of Congress under the Constitution of the United States, or within the exclusive jurisdiction of the Courts of the United States. The judicial power of a State, as I have already remarked, is co-extensive with the legislative ; but it cannot extend beyond. The judicial power of South Carolina cannot be extended by the legislature beyond the jurisdiction and authority of the State. It cannot be made to embrace offences against another power, and thus be made to entertain jurisdiction for the trial of an offender, whom after conviction the other State authorities might refuse to punish, whose sentence they might refuse to execute.
    I am of opinion, therefore, that so much of the act under consideration as confers jurisdiction of the offences created by the same act, and requires this Court to take cognizance thereof, is inconsistent with the Constitution of the United States, and of this State. From considerations of public policy, I deem it unwise, and on the ground of the constitutional obligation, I must refuse to entertain jurisdiction of this cause. The plea to the jurisdiction is sustained.”
    The Solicitor, on behalf of the prosecution, gave notice that he would move the Court of Appeals to reverse the judgement of the Circuit Court, on the plea of the jurisdiction.
   O’Neall, J.

The decision of the judge below presents to us for examination, the question whether the criminal Courts of this State may entertain jurisdiction of an offence created by act of Congress, and which is directed by the same to be prosecuted in the said Courts.

The judge below has stated some very strong views why the Courts of the State may not entertain jurisdiction of such cases; but it seems to me that the mistaken view which he has taken of the government of the United States, destroys the force of his very ingenious argument. If that government was indeed a government wholly foreign to us, then his argument would be irresistible. But, as it is stated by Mr. Hamilton, in the 82d No. of the Federalist, 3 Ham. Works, 267, u the national and State systems are to be regarded as one whole.” The government of the United States, in all its constitutional powers, is the government of 'each and all the States, and by the Constitution, 2d Section, 6th Article, they have made “ the Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, the supreme law of the land.” This makes the constitutional action of the United States of general paramount authority in each State. The constitutional legislation of the United States is the command of South Carolina as well as of the United States; the officers and people of the former are bound by it, and more ’especially the judges, for the Constitution declares that they “ shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” If these views be correct, there can be no objection to the jurisdiction of the case, arising out of the peculiar and different structure of our “ national and State systems.” An offence against the laws of the United States is an offence against the laws of South Carolina; and she has the right to punish it, upon the confessed and acknowledged principle of the common law, that she has the right to punish all violations of her law ; unless the exclusive power of punishing it has been delegated by the Constitution of the United States to the judiciary created by it. For if the exclusive power has not been conferred on that branch of the government, the State judiciary has at least the power of punishing violations of the law, until the offender shall be proceeded against in the former. A conviction or acquittal, in either, would perhaps bar a prosecution in the other. This is certainly the case if the jurisdictions be concurrent. It is necessary to look to the power conferred in this respect by the Constitution of the United States on their judiciary. The .1st Section of the 3d Article declares that the judicial power of the United States shall be vested in one supreme Court, and such inferior Courts, as the Congress may from time to time ordain and establish.” This does not mean that the supremo and subordinate Courts of the Union should alone have the power of deciding those causes to which their authority is to extend, but that the United States should exercise the judicial power, with which they are to be invested, through one supreme tribunal and a certain number of inferior ones, to be instituted by them.” 82d. No. of the Federalist, 3 Ham. Works, 265. To decide the question of jurisdiction, it is hence necessary to inquire whether the power conferred on the United States’ Courts, of heáring and determining the class of cases of which this is one, be exclusive or not. The 2d Section of the 3d Article provides that “ 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 he made, under their authority.” Do the terms “the judicial• power shall extend to all cases,” neces-sanly imply exclusion f i think they do not. 1 hey are equivalent to a provision that “ the judiciary of the United States shall have power to hear all cases.” Would such a provision as the last be regarded as conferring exclusive jurisdic-lion ? It could not, for it means nothing more than where such cases are presented to the Judiciary of the United States, it shall hear, try and adjudge them. It may in this respect be likened to matters occurring constantly in our own legislation. By acts of the legislature, power is given to the Courts of law to foreclose mortgages in a certain specified case, to partition the estate, real and personal, of an intestate, under the value of #1,000 ; and yet it has never been doubted that none of these acts conferred exclusive jurisdiction. They only authorized another tribunal to exercise a power which had before been exercised by some other alone. So here, the United States Judiciary is additional to (hat existing in the States ; and where the latter had a common law jurisdiction of subject matter, which either had, or might arise, it was not taken from them, but the Courts of the United States were clothed with the same power ; and Congress might direct proceedings, civilly or criminally, to be in either one or the other. For both having jurisdiction, Congress might, in legislating upon a subject constitutionally within its power, select the agent which should enforce its sanction, and the State authority must obey it, both as the declared will of the United States, and also of the State. If this was not so, the government of the United States and that of the Stale, would be regarded as separate and wholly distinct; and the people would be subjected to the rules of action to be prescribed by two powers. This view is explained by that cotemporaneous commentary and exposition of the Constitution, which has received the respect and attention of every portion of the Union, as furnishing true views of its provisions. In the 82d number of the Federalist, Mr. Hamilton says, “ I mean not, therefore, to contend that the United States, in the course of legislation upon the objects entrusted to their direction, may not commit the decision of causes arising upon a particular regulation, to the federal Courts solely, if such a measure should be deemed expedient; but I hold that the State Courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature, they will, of course, tahe cognizance of the causes to which those acts may give birth.” 3 Ham. Works, 265-6. I concur fully in this view, ancl particularly in the latter part; for it seems to me undeniable that every violation of a law of the United States, is, when committed in South Carolina, by a person subject to her jurisdiction, a violation of the law of South Carolina, for which she has the common law power of punishing the offender; unless she, through Congress, has made the Federal Judiciary her agent for that purpose. A violation of statute law which is made criminal, but for the punishment of which no particular forum is selected, may be punished by any Court where the law is obligatory, which has a general criminal jurisdiction-,' and which also has local jurisdiction of the act done, and of the person of the offender. The act here was a violation of an act of Congress, which directs it to be punish-ed by the State Judiciary ; it was done within the jurisdiction of the Court of Sessions for Chesterfield, and by a citizen of the United States residing in South Carolina. This, according to my view, would make it plainly within the power of South Carolina to punish it, through her judiciary, as an offence against her “peace and dignity.” The case of The State v. De La Forest, 2 N. & M’C. 217, is an authority in support of my views. In the opinion of the Court, delivered by a great constitutional lawyer, Mr. Justice Huger, speaking of that part of the 2d section of the 3d Article which provides that the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers, and consuls, he said, after coming to the conclusion that this provision did not confer exclusive jurisdiction on the Courts of the United States to punish consuls for offences committed by them, “ had the Constitution, then, given to the national government exclusive jurisdiction over consuls, inasmuch as they had not exercised this power, it is retained by the States.” The same observation may be made in this case, and will well apply to it. For if the United States might have claimed the jurisdiction, they have not only failed to do so, .but have expressly consented that it should remain in the State. The case of the United States v. Dodge and others, 14 Johns. Rep. 95, was an action on a bond for the payment of duties to the United States Collector for Champlain district, in the State of New York : the action was brought in the State Court, and a plea to the jurisdiction was filed; it was held by the whole Court that they had jurisdiction of the case. They say: “The action is upon a bond given by the defendants to the United States, conditioned for the payment of certain duties, and is in the form prescribed by the act of Congress, (Sess. 3, 5th Cong. ch. 128, §62) : on failure of payment of the duties, bonds thus taken are directed to be prosecuted (sec. 65) in the proper Courts having cognizance thereof. Bv the act to establish the judicial Courts of the United States, (Sess. 1, 1st Cong. chap. 20, sections 9 and 11,) it is declared that “ the Courts of the several States shall have cognizance, concurrent with the Courts of the United States, of all suits at common law, where the Uni. ted States are plaintiffs in the suit.” That case, it seems to me, is a direct authority in favor of the jurisdiction of the State Court in this case. For there, as well as here, it was a case “arising under the laws of the United States and it cannot malte any difference, that one was on the civil, and the other is on the criminal, side of a State Court.

Wethers, Sol. for the motion.

Clinton, contra.

The motion to reverse the decision of the judge below, and to overrule the plea to the jurisdiction of the Court below, is granted.

Johnson and Harper, Js. concurred.  