
    *The United States of America against Lathrop.
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    THIS was an action of debt brought in this court, to recover a penalty of 150 dollars, under the act of Consn s«, passed the 2d of August, 1813, (13 Cong. sess. 1. ch. 3a.) entitled, “An act for laying duties on licenses to retailor - of wines, spirituous liquors, and foreign merchandise,” for sellina, by retail, spirituous liquors, without license, contrary to the provisions of the said act.
    The defendant pleaded to the jurisdiction of this court, alleging, that, under the constitution and laws of the f ,ñt< I Stales, the action ought to have been brought in the Di-tact Court of the United States, for the southern district of Site-York, and not in this court,
    *The plea was as follows: “ That this court here ought not to take, nor will take, cognizance of the plea aforesaid, be< au-w he, the said J). Lathrop, says, that the said state of JSew-\otk is one part, or member, of the said United States, in the said declaration mentioned, and within and under the constituí ion, laws, and government of the same: And that the said Unhid States are divided into districts, and the state of New- Y/nk composes two of the said districts, for the more convenient transaction of business in the courts of the United States, one 0£ vviiieh said two districts is called the Southern District of New- York, and within which said last mentioned district, the said county of Albany is contained: And the said D. L. fur-saySj t|ia| within the said Southern District of New-York, there is, and at the time of the exhibition of the bill of the said United States in this behalf, and long before that time, was, a Circuit Court of the United States, called a District Court, holden for the Southern District of New-York. before the judges assigned to hold the said court, in the said Southern District of New- York: And that all and singular, pleas, suits, or actions, for penalties and forfeitures incurred under the laws of the United States, to which the United States are parties, arising within the said Southern District of New-York, are, and at the time of the exhibition of the said bill were, and of right ought to be, pleaded and pleadable within the said District Court of the United States, holden in and for the said Southern District, before the judges thereof, for the time being; and not in the court before the justices of the people of the state of New-York, of the Supreme Court of Judicature of the same people; and that he, the said !>. L., at the time of exhibiting the said bill, and before, was, and from thence hitherto has been, resident and commorant within the same Southern District of New-York, that is to say, at the city of Albany, in the county of Albany aforesaid, where the said offence, charged in the said declaration, is alleged to have been committed; and this he is ready to verify to the said court here; and wherefore, since the cause of action aforesaid arose within the said Southern District of New-York, within and under the government, constitution, and laws of the said United States, and for penalties and forfeitures incurred under the law's of the 'United States, and to which the said United States are a party, and of which the said District Court, for the said Southern District of New- York, *has exclusive original cognizance, the said defendant prays judgment, if the saidJSupreme Court of Judicature of the people of the state of New- York, before the justices of the said people, holden under and in virtue of the laws and constitution of the state of New- York, here, will, or ought, to have further cognizance of the plea aforesaid.” To this plea there was a demurrer and joinder.
    Fisk, in support of the demurrer to this plea,
    contended, that this court had jurisdiction of the cause. By the act of Congress, (13 Cong. sess. 1. ch. 38. sect. 5.) passed August 2, 1813, and the act, (13 Cong. sess. 3. ch. 100.) passed March 3, 1815, (Vid. Colvin’s ed. of Laws of U. S. vol. 4. p. 611. and 854.) jurisdiction is given to the state courts, who are authorized to take cognizance of all complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures. arising and payable under the act of August 2, 1813, or any act of Congress, to be passed for the collection of any direct tax or internal duties of the United States. By the judiciary act of the United States, (1 Cong. sess. 1. ch. 20. sect. 9. 11.) the district courts of the United States have cognizance concurrent with the state courts, of all suits at common law, when the United States sue, and the matter in dispute amounts to the sum or value of 100 dollars; and the circuit courts of the United States have original cognizance concurrent with the courts of the several states, oí all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds the sum or value of 500 dollars, and the United States are plaintiffs or petitioners. What was the true understanding of the second section of the third article of the constitution of the United, States, relative to the judicial power, may be seen by the exposition given, at the time, by one of the members of the convention who framed the constitution, and who was, also, a learned and able jurist. (Here the counsel read from the Federalist, No. 82. of the Letters of Publius, written by General Hamilton.) And, in conformity to this construction, it had been the uniform practice, since the adoption of the constitution of the United States, for suits to be brought by the United States in the courts of the several states. In the case of the United States v. Dodge, (14 Johns. Hep. 95.) which was an action of debt, on a bond given by the defendant, for the payment of duties to the collector of the district of Champlain, pursuant to the act of Congress of March 2, 1799, this court said, that they could not see how any doubt could exist on the question of jurisdiction, and, accordingly, gave judgment for the plaintiffs. Where there has been a contemporary exposition of the constitution practised and acquiesced under for a period of years, and from the very commencement of the judicial system, it fixes the construction, which ought not, afterwards, to be questioned or disturbed. (Stuart v. Laird, 1 Crunch, 299.)
    
      I. Hamilton, contra.
    Rv the constitution of the United States, (Art. 3. s. 1.) it L declared, that the judicial power of the United States shall '!)<■ vested in a Supreme Court, and in such inferior courts as Comc'ess shall, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, are to hold their offices during good behavior; and they are to receive, at stated times, a compensation for their services, which is not to be diminished during their continuance in office. The second section prescribes and defines the extent of the judicial power. The sixth article declares, that the constitution and laws of the United States, made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land, by which the judges in every state are to be bound : and the 8th section of the first article declares, that Congress shall have power to constitute tribunals inferior to the Supreme Court. By the 9th and 10th articles of the amen<jments to the constitution, it is declared that the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people ; and that the powers not delegated to the United States, by the constitution, nor prohibited by it, are reserved to the states respectively, or to the people.
    By the constitution of this state, (Art. 24, 25.) the judges are to hold their offices during good behavior, or until they shall have respectively attained the age of sixty years; and they cannot, at the same time, hold any other office, except as delegates to Congress on special occasions.
    Have not the people of the United- States, by the constitution, made an express grant of the whole judicial power ? Is not that grant exclusive ? Can Congress vest it elsewhere ?
    In the case of Mar bury v. Madison, (1 Crunch, 137—174.) Chief Justice Marshall, in delivering the opinion of the court, says, it was not the intention of the constitution to leave it to the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body. “ If Congress/’ says lie, “ remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original where the constitution has declared it shall be appellate ; the distribution of jurisdiction, made in the constitution, is form without substance.” This language may be applied with great force to the present case. If Congress remains at liberty to vest the judicial power of the United States in the state courts, which power the constitution has declared shall be vested in the courts of the United- States: if Congress is at liberty to declare that the state courts shall have jurisdiction of causes where the United States is a party, when the constitution has declared that the jurisdiction of the United States courts shall extend to controversies to which the United States is a party,—then, in the language of Chief Justice Marshall, the distribution of jurisdiction made by the constitution is form without substance. And further, to use the language of that learned judge, “ affirmative words are often, in their operation, negative of other objects than those affirmed; and, in this *case, a negative or exclusive sense must be given to them, or they have no operation at all.”
    In the case of Martin v. Hunter’s Lessee, (1 Wheat. Rep. 305—328.) Story, J., who delivered the opinion of the court, says, “ that the language of the article (Art. 3. Const, of U. S.) throughout, is manifestly designed to be mandatory on the legislature.” “ If then,” he says, “ it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power.” “ Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself; and if, in any of the cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the Supreme Court (admitting that it could act on state courts) could not reach those cases, and, consequently, the injunction of the constitution, that the judicial power shall be vested, would be disobeyed. It would seem, therefore, to follow, that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance.” “ As to cases arising under the constitution, laws, and treaties, of the United States, the states could not, ordinarily, possess a direct jurisdiction. The jurisdiction over such cases could not exist in the state courts, previous to the adoption of the constitution, and it could not, afterwards, be directly conferred upon them ; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States(p. 35.) We have, in this case, the judgment of the Supreme Court of the United States on this very question.
    Wherever the cases upon which the jurisdiction attaches, grow out of the constitution of the United States, the federal courts have exclusive jurisdiction ; and the reason assigned is, that, in such cases, there was no previous authority in the state courts, for the cases did not exist; and, of course, that amendment which reserves to the states, or to the people, the powers not granted by the constitution, has no application. (1 Bin-net/s Rep. 143.) “ It seems scarcely to admit of controversy,” says Mr. Hamilton, in the Federalist, (No. 80.) “ that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st. To all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation: 2d. To all those which concern the execution of the provisions expressly contained in the articles of union: 3d. To all those in which the United States are a party,” &c.
    
    A corporation aggregate cannot litigate in the courts of the United States, unless in consequence of the character of the individuals who compose the body politic, and which character must appear, by proper averments, on the record. (5 Crunch, 57.) Why should not this court apply the same rule to the United States; and refuse permission to them to litigate here, unless bound by the constitution of the United * States to hear them ? The courts of the United States consider their powers limited by the constitution, and the right of the plaintiff to sue must appear on the record. (1 Crunch, 343. 2 Cranch, 9. 126. 5 Crunch, 303.) Marshall, Ch. J., (case of Holman and Swartwout, 4 Crunch, 97.) says, “ the state courts are not, in any sense of the word, inferior courts, except in the particular cases in which an appeal lies from their judgment to this court; they are not inferior courts, because they emanate from a different authority, and are the creatures of a distinct government,” Mr. Hamilton says (Federalist, No. 81.) that the power of constituting tribunals inferior to the Supreme Court, was intended to enable the national government to institute or authorize, in each state, or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits and he states the reasons why the state courts should not be made use of for this purpose. In this case, the right arose under a law of Congress. It did not, and could not, have existed previous to the constitution of the United States.
    
    Again ; if the court should have any doubts on the question, they ought to decide in favor of the defendant, who would, otherwise, be without remedy : for if the decision should be in favor of the plaintiffs, no writ of error would lie. The Su preme Court of the United, States have no jurisdiction upon a writ of error to a state court, if the decision of the state court is in favor of a privilege claimed under an act of Congress. (Gordon v. Caldcleugh, 3 Crunch, 268.) Even the legislature of a state cannot determine the jurisdiction of the courts of the United States. (The United States v. Peters, 5 Crunch, 115—136.)
    This same question has been brought before the courts of several of the states, and, after solemn argument, and the most mature deliberation, they have decided, that the state courts have no jurisdiction. (The counsel here referred to the following cases: The State of Maryland v, Thomas Rutter, and the opinion of Judge Bland, 12 Niles’s 'Weekly Register, April 19, 1817, p. 115. 377. Ex parte Rhodes, opinion of Judge Cheeves, South Carolina, 12 Niles’s Weekly Register, 265. Commonwealth of Pennsylvania v. Rosloff, 12 Niles’s Weekly Register, 139, April 26, 1817. Almeida’s case, Judge Hanson’s opinion, 12 Niles’s Weekly Register, 231, June 1, 1817. United States v. Campbell, opinion of Judge Tapp an, of Ohio, 10 Niles’s Weekly Register, 405, August 17, 1816, Commonwealth of Virginia v. Feely, MS. Jackson v. Rose, decided before the nine judges of the General Court of Virginia, November 11, 1313, MS.) These cases conclusively show, that Congress has no power to give to a state court jurisdiction over cases of a penal or criminal nature, arising under the laws of the United States. The case of the United States v. Dodge, in this court, is very different from the present. It was an action of debt, on a bond for the payment of duties. In Scoville v. Canfield, the court said, that the penal acts of one state have no operation in another state, nor would they enforce the criminal laws of another state. In the * Trustees of Randall v. Rensselaer, (1 Johns. Rep. 94.) this court decided, that they would take no notice of the revenue laws of another country.
    The observations in the Federalist, (No. 82.) which have been read, amount to no more than this: that where the state courts had pre-existing power to take cognizance of the case, before the constitution, they might still exercise that power ; but that where the case arises out of the constitution or laws of the United States, the state courts have no jurisdiction. ' J
    
      Fisk, in reply,
    reiterated the arguments before stated, and said, that he relied much on the practical construction given to the constitution. In the case of Martin v. Hunteds Lessee, Judge Johnson, though he acquiesced in the judgment of the court, did not concur in the reasoning of the judge who delivered it. He said that the plain and obvious meaning of the word “ shall” is, that it is in the future tense, and has nothing imperative in it.
   Spencer, Ch. J.,

delivered the opinion of the court. The plea demurred to can only be supported on the ground, that, by the constitution of the United States, no state court can take cognizance of any suit in behalf of the United States, for penalties or forfeitures. The whole case, then, depends on the provisions of' the constitution of the United States.

By the first section of the third article, it is provided, that •‘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 second section of the same article declares, 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 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 between two or more states; between a state and citizens of another state ; between citizens of different states ; between citizens of the same Asíate claiming lands under grants of different states ; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.”

The act of Congress under which this suit is brought, was passed at the first session of the 13th Congress, (ch. 38.) After declaring the forfeiture for noncompliance with its provisions, it proceeds to enact, that for the recovery of all fines, penalties, and forfeitures, incurred under it, suits may be prosecuted and maintained, in the name of the United States, before any court of the state having jurisdiction in like cases, where tfie cause of action shall arise or accrue more than fifty miles distant f orn the nearest place by law established for the holding a district court, within the district in which the same shall arise or accrue.

The question which we are called upon to decide involves considerations of great delicacy and magnitude, and on which several very enlightened tribunals have held different opinions. Í cannot doubt, that in some of the enumerated cases, to which the constitution declares the judicial power of the United Stafes shall extend, the courts of the United States, Strictly speaking, have exclusive jurisdiction; and that in others of these enumerated cases, the courts of the several states have a concurrent jurisdiction. I entirely concur in the opinion delivered by Mr. Justice Story, in the case of Martin v. Hunter’s Lessee, (1 Wheat. Rep. 323.) that the language of the constitution is imperative, “ that the judicial power of the United States shall be vested,” “ and that it shall extend,” for the reasons offered by that learned judge ; but this does not necessarily divest the state courts of jurisdiction in all those cases to which their jurisdiction extended, before the adoption of the constitution. The vesting of jurisdiction in newly-constituted courts, without any words of exclusion of the jurisdiction possessed by other courts before, does not, ex vi termini, oust those courts of jurisdiction; unless, indeed, there should be an incompatibility in the exercise of the same powers, by distinct and independent tribunals; in such case a negative might be implied from the very nature of the case.

*It is not eulogy to say, that, perhaps, there never was a human production more profoundly considered, by an assemblage of the most distinguished men, than this great national pact, which has secured to the people of the United States such innumerable blessings. Many members of that illustrious convention were eminent lawyers, conversant with the practice, organization, and proceedings of the courts of the several states; and we are, therefore, authorized to conclude, that in vesting the judicial power of the United States, they would avoid every thing leading to confusion or derangement in the proceedings of the state courts; and, if I am not greatly mistaken, it will appear, that a denial to the state courts of a concurrent jurisdiction with the courts of the United States, in some of the specified cases, and an imposition upon them of jurisdiction in others, would, in the one case, lead to the most absurd and extraordinary results, and, in the other, to a violation of fundamental principles.

There were several great objects in the view of the convention in adjusting the judiciary system. The government was invested with the powers of peace and war; they assumed the national debt, and became liable for future national engagements ; they were charged with the common defence of every portion of the empire ; the power of fulfilling these obligations required the collection of a revenue, in the shape of taxes, duties, imposts, and excises; and to preserve the public peace, and fulfil the public faith, it was all important that the power to do both should be enjoyed and exercised by the government itself. It would have been unwise and unsafe to depend on the judiciary of the several states, over whom the United States had no control, for the exposition or execution of the laws of the United States, It would have been incompatible with the stability or permanency of the government itself.

It was necessary to guard against the probable partialities ana prejudices incident to the state courts, in legal controversies between citizens of different states. Indeed, the declaration of the extent of the judicial power of the United States, in all the specified cases, was justified by the great interests of the nation. It is not, however, necessary that *the courts of the United. States should have exclusive primary jurisdiction in all the enumerated eases. A subsequent part of the third article of the constitution declares, “ that in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases, before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations, as the Congress shall make.”

The requisitions of the constitution are satisfied, if the judicial power of the United States is ultimately vested in a court constituted by them, without excluding the state courts from a concurrent jurisdiction; and from whose decisions a right of appeal, both as to law and fact, is secured. I cannot but conclude, on this branch of the subject, that inasmuch as there is no express negation of jurisdiction to the state courts, in the specified cases, their jurisdiction is not taken away, except as to such of the cases as they did not before hold cognizance of, and such as, from the nature of the jurisdiction, they could not hold cognizance of, from the incompatibility between the powers granted to the courts of the United States, and a reservation of any portion of the same powers to the state courts.

This conclusion derives support from another part of the constitution. The sixth article provides, “ that this 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, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding; ” and the constitution further requires, that judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support the constitution.

If. is evident that the framers of the constitution contemplated, that the state courts might entertain questions involving the consideration and construction of the constitution and laws of the United States, and treaties made under their authority, and yet the judicial power of the United States #extends “ to all cases in I mi or equity arising under the constitution, the laws o f the United States, and treaties made under their authorityIt seems to me, that if we regard the whole instrument, as we are bound to do by every sound rule of construction, it cannot be doubted that the constitution ue\er intended to negate the pre-existing jurisdiction» of the state courts.

Perhaps it was unnecessary to discuss a proposition, which I do not learn has ever been doubted in any of the courts ; but it came within the range of observations called for by the case.

How far Congress can confer power or jurisdiction upon the state courts, and whether those courts, if the act was silent upon the subject of jurisdiction, could take cognizance of actions for penalties and forfeitures incurred under the laws of the United States, remains to be considered. We hare seen, that the judicial power of the United, States is to be rested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.

On this clause of the constitution, we have the direct opinion of the Supreme Court of the United States in the case already cited, of Martin v. Hunter’s Lessees. (] fi'licut. Rep. 330.) that “ Congress cannot vest any portion of the judicial power of the United States, except in courts ordaimd and established by itself.” Indeed, it appears to me too plain for discussion, that the expression in the constitution, “ and in such inferior courts as the Congress may, from time to time, ordain and establish,” can have no reference to the courts established by the respective state legislatures: the conferring of jurisdiction on such courts, is not to ordain and establish them; and in no sense can the state courts become the inferior courts intended in the constitution. Where, then, it may be asked, is the authority in the constitution to invest the state courts with jurisdiction of causes, which they did not enjoy concurrently before the adoption of the constitution ? On this point, also, we have the opinion of the Supreme Court of the United States. They say, (1 Wheaton, 337.) “ 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 ⅜ 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.”

It cannot be doubted, that a pecuniary penalty for a violation of, or nonconformity to, an act of Congress, is as much a punishment for an offence against the laws, as if a corporal penalty had been inflicted; and, as regards crimes and offences, made so by legislative enactment, the government of the United States stands in the same relation to the state governments, as any foreign government; and it is a fundamental maxim, that the courts of one sovereignty will not take cognizance of, nor enforce the penal code of, another. Thus, in the case of Scoville v. Canfield, (14 Johns. Rep. 339.) we held, that we would not enforce a penal statute of Connecticut, on the broad principle, that the courts of this state will not carry into effect the penal laws of another state. The act of Congress, in this case, undoubtedly reaches the offender, but this court cannot touch him.

The act of Congress establishing the judicial courts of the United States, passed the 24th of September, 1789, I consider as a true exposition of the constitutional provision, with respect to the concurrent jurisdiction of the state courts, and the exclusive jurisdiction of those of the United States. When we call to mind, that it is among the first acts of the first Congress, held under the constitution, and that many of the leading members of the convention were, also, members of that Congress, we cannot but regard it as entitled to the most profound respect, in settling the question of concurrent, and exclusive, jurisdiction.

The 9th section of this act gives the District Courts of the United States cognizance, exclusively of the courts of the several states, of all crimes and offences that shall be cognizable under the authority of the United States, and exclusive original cognizance of all civil causes of admiralty, and maritime jurisdiction, and of all suits for penalties and forfeitures incurred under the laws of the United States, and cognizance, concurrent with the courts of the several states, of all causes where an alien sues for a tort only, in ^violation of the laws of nations, or of a treaty of the United States, and of all suits at common law, where the United States sue, and the matter in dispute amounts to 100 dollars, and jurisdiction, exclusively of the state courts, of all suits against consuls and vice-consuls. The 1.1th section vests the Circuit Court of the United States with original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law, or in equity, where the matter in dispute exceeds 500 dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen where the suit is brought and a citizen of another state; and exclusive cognizance of crimes and offences.

It will be perceived, that this act, throughout, makes the distinction between those cases of a civil nature, and of which the state courts had, or would have had, cognizance, independently of the constitution, and such as originate under the laws of Congress. The jurisdiction of the state courts is in no instance excluded where they had a pre-existing jurisdiction, except in those cases of a national character, such as admiralty and maritime cases, and suits against ambassadors and other public ministers, consuls, and vice-consuls ; but the jurisdiction of the state courts is excluded in cases of crimes and offences cognizable under the authority of the United States; and in cases of suits for penalties and forfeitures incurred under the laws of the United States.

It cannot be supposed that there existed any distrust of the state courts when the act of 1789 was passed. On the contrary, if, as is contended by some distinguished jurists, it is in the power of Congress to vest the cognizance of all the cases enumerated in the constitution, exclusively in courts established by Congress, (a proposition on which I give no opinion,) it will at once be seen, that the act of 1789 left a great mass of jurisdiction in the state courts untouched.

In whatever light, then, this question is considered, I am fully of the opinion, that this court has no jurisdiction of the criminal offences, or penal laws of the United States; and that it is not competent to Congress to confer jurisdiction ; *and that, therefore, the defendant must have judgment on the demurrer.

Platt, J.,

dissented. The question of jurisdiction in this cause involves the construction of the constitution of the United States, the validity of an act of Congress, and the inherent rights of state sovereignty. I approach the subject with unfeigned diffidence ; but, in performing the unpleasant duty of dissenting from all my brethren on this occasion, I feel some consolation in the reflection, that if my opinion be erroneous, it will be harmless also.

By the act of Congress, entitled, “ An act laying duties on licenses to retailers of wines, spirituous liquors, and foreign merchandises,” passed the 2d day of August, 1813, it is enacted, that “ all fines, penalties, and forfeitures which shall be incurred by force of this act, shall and may be sued for and recovered in the name of the United States” &c. : “ and where the cause of action, or complaint, shall arise, or accrue, more than fifty miles distant from the nearest place by law established for the holding of a district court, within the district in which the same shall accrue, such suit and recovery may he had before any court of the state, holden within the said district, having jurisdiction in like cases.”

The attorney for the United States has brought an action of debt in this court, for a penalty accrued under this act of Congress; and the question is, whether we can rightfully hold jurisdiction of the cause ?

The constitution of the United States (art. 3. sec. 1.) declares, that “ 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.”

Much criticism has, on various occasions, been bestowed on the words “ shall be vested,” as used in this article. I admit that these words are imperative; but, in my judgment, they arc used here, generally, to mark out, and define one oí the three great co-ordinate departments of *the government; and without any view to the questions of exclusive or concurrent jurisdiction between the several states, and the United States, The constitution ordains, that “ all legislative powers herein granted shall he vested in a Congress of the United States,” &e. ; that “ the executive power shall be vested in a president,” &c.; and that “ the judicial power shall be vested in one Supreme Court, and such inferior courts as the Congress may, from time to time, ordain and establish.” The Congress, the president, and the Supreme and inferior courts of the United States, are thus appointed as the organs for exercising all the functions of national sovereignty. The constitution then assigns, and limits the powers intended to be conferred on each of these departments. There is no doubt, that the judicial power of the federal government, whatever it may be, is vested in, and can only be exercised by, the federal courts, whose tenure is fixed, whose compensation is regulated, and whose responsibility is secured, in the constitution of the United States.

By the 2d section of the 3d article it is declared, 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 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 be a party ; to controversies between two or more states ; between a state and citizens of different states; between citizens of the same state, claiming lands under grants of different states ; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.”

“ In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” The words, “ the judicial power shall extend to, <fcc. mean, that the federal organs of judicial power shall *h ave jurisdiction of, &c. Here it is important to note a distinction between legislative and judicial power: Jurisdiction, or jus dicere, in our courts, implies nothing exclusive; but legislation, or jus facen, often implies exclusive power. To make law is an exercise of the will, in establishing a rule of action ; to expound, and administer the law, is the exercise of judgment, and legal science in the application of that rule.

The powers of Congress “ to regulate commerce with foreign nations,” and :: to make war,” are, in their nature, exclusive ; because they are utterly repugnant to, and irreconcilable with, the exercise of á concurrent power of willing, or legislating, on the same subjects. But whether the exercise of judicial power, in any of the specified cases, be exclusive, or concurrent, the terms of that article of the constitution are equally satisfied. In either case, the judicial power of the United States “ extends to those cases ; and, looking at that section alone, there is no necessary repugnance, or inconsistency, in the idea of a concurrent jurisdiction in the state courts. But, in examining the whole instrument, and considering the objects and design of the federal government, and its genius and structure, in relation to the state governments, and allowing, also, to the federal government the inherent and implied power of self-preservation, I think the constitution has vested in Congress a large discretion ; not only in the organization of the courts of the Union, but in the modification of the judicial power of the United States, in the specified cases to which it is to extend.

This legislative discretion I find in that clause of the constitution which empowers Congress “ to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

It is here worthy of remark, that the constitution has so completely framed and reared the legislative and executive departments, that nothing remained but to elect and appoint the representatives, senators, president, and vice president; and those functionaries were ready to move in *their appointed spheres. But the primary duty of creating the judiciary department, is referred to Congress. The constitution, in regard to that branch of the government, has done no more than to enjoin upon Congress the duty of organizing the Courts of the Union; and of distributing and regulating the judicial power in the specified cases.

The legislative discretion on that subject has, indeed, important constitutional limits. There must be a Supreme Court; there may, and I think there must be, at all times, courts of the United States inferior to the Supreme Court. The judicial organs of the Union shall have jurisdiction in all the specified cases. Congress, therefore, cannot divest them of such jurisdiction. In certain of those specified cases, !! the Supreme Court shall have origin al jurisdiction and in all the other specified cases, it “ shall have appellate jurisdiction, with such exceptions, and under such regulations, as Congress shall make.”

These are all the provisions in the constitution, in regard to the judicial power; and we find, that in the “ act to establish the judicial courts of the United States,” (24th September, 1789.) Congress not only organized the courts, and gave a legislative exposition of the constitution in many particulars, but also exercised a broad discretion in enacting, that in certain cases the jurisdiction of the various courts shall be original or appellate, exclusive or concurrent, as they deemed expedient, in reference to the state courts. ⅜

The question now is, whether Congress have transcended the limits of the constitution in enacting, that for the pecuniary penalty in this case, a “ suit and recovery may be had in any state court,” Sfc. ‘■having like jurisdiction ?” I admit that Congress cannot rest judicial power in a state court, nor transfer such power from the federal courts, so as to divest them of it; but there is a class of cases, in which I think Congress has a discretion to make the jurisdiction of the federal courts either exclusive or concurrent, as they shall judge expedient, from time to time. Iri all the specified cases, the judicial power of the Union, either original or appellate, must exist, and be maintained in the federal courts, except where Congress may see fit to limit *the right of appeal. But the constitution is as completely satisfied, and the design of the federal judica-tures is as well answered, in many of the specified cases, by the exercise of appellate, as of original, jurisdiction. Nor does it make anv essential difference, whether the jurisdiction of the federal courts be exclusive of, or concurrent, with, that of the state courts ; because the appellate power of the federal courts is made co-extensive with the concurrent jurisdiction of the state courts in the specified cases, unless Congress choose to limit the right of appeal. For instance, “ in 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,” it is not very important, as it regards public policy, whether the state courts have concurrent jurisdiction or not, because the appellate power of the federal courts attaches in all those cases, and it is ordinarily an ample remedy for correcting state influence or partialities, and producing uniformity of decision.

In the particular case now before us, I cannot bring my mind to the conclusion, that Congress has violated the constitution in enacting that this “ suit may be brought, and a recovery had,” in a state court. That statute has, in effect, only waived the exclusiveness of federal jurisdiction, quoad hoc; and our entertaining this suit is perfectly consistent with the concurrent, as well as the appellate, jurisdiction of the federal courts. Whether we hold cognizance or not, the judicial power of the United Stales, in this case, is “ vested in” the federal courts; it does “ extend to” the case now before us; and if we decide wrong, it is a case for an appeal from the court of dernier resort of this state, to the Supreme Court of the United States.

The decision of the Supreme Court of the United States in the case of Martin v. Hunter’s Lessee, (1 Wheaton, 304.) has my entire approbation ; and I gladly avail myself of this occasion, to render my tribute of respect for the profound, perspicuous. and dispassionate reasoning of the two learned judges who delivered opinions in that case. I am unable to discern how that decision can be applied as an authority in favor of the defendant in this case. The principal #question there was, whether the appellate jurisdiction of the Supreme Court of the United States extended to a judgment of the highest court- in Virginia, which involved the construction of a treaty; and whether the act of Congress, allowing and regulating such ap peal, was constitutional ? The court decided in favor of such appellate jurisdiction, and affirmed the validity of the statute of the United States, on the ground, that as the cause involved the construction of a treaty, it was one of the specified case? in which the judicial power of the United States “ shall be vest ed” in the federal court, and to which the judicial power “ shall extend,and that, although the state court had rightful original jurisdiction of the cause, yet, if in any stage of it the construction of a treaty became material, then the casus foederis occurred, and the appellate jurisdiction was “ vested in” the federal court, and “ extended to” the case. Far from wishing to impeach that decision, Tclaim to derive authority from it in support of my opinion in tins cause.

That case shows, that I am correct in assuming the position, that in this case, one of those specified the Federal Court is “ vested” with jurisdiction, although the state court also ha? original arid concurrent jurisdiction over the same subject; or in other words, that to be vested with, does not imply exclusive jurisdiction.

The questions in this case, according to my apprehension, are these: 1st. Whether, independent of any provision in the constitution of the United States, the general common law jurisdiction of this court, attaches in such a case ? and 2dly, If such a right exists on general principles, as an inherent power in this court, whether there be any thing in the constitution of the United States which deprives us of such jurisdiction ? These questions depend upon the positive enactments of the constitution, and our peculiar municipal regulations; and, therefore, we cannot expect to derive much light; from any adjudged cases in England, or from any foreign jurists. But, with patriotic pride, I refer to the opinions of a profound jurist, and illustrious statesman of our own country, whose mind illumined every object to which it ivas directed. The intellect of Hamilton has beamed upon this subject; and his cotempo-rary exposition #of the constitution, deserves the most respectful deference.

In the number 82 of Publius, (see Federalist, 2d vol. page 243.) he says, “ the states will retain all pre-existing authorities, which may not be exclusively delegated to the federal head ; and this exclusive delegation can only exist in one of three cases; where an exclusive authority is, in express terms, granted to the Union ; or where a particular authority is granted to the Union, and the exercise . of a like authority is prohibited to the states; or where an authority is granted tt> the Union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary, as to the legislative, power; yet I am inclined to think, that they are, in the main, just, with respect to the former as well as the latter. Under this impression, I shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.” “ The only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance, to the federal courts, is contained in this passage, ‘ the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress shall, from time to time, ordain fend establish.’ This might either be construed to signify, that the supreme and subordinate courts of the Union, should alone have the power of deciding those causes to which their authority is to extend ; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint: in other words, 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. The first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most defensible construction.”

But this doctrine of concurrent jurisdiction, is only clearly applicable to those descriptions of causes, of which *the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established ; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not, therefore, to contend, that the United States, in the course of legislation upon the objects entrusted to their discretion, 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, lam even o f opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature, they will, of course, take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws; and in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New-York, may furnish the objects of legal discussion to our courts. When, in addition to this, we consider the state governments, and the national government. as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to he conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.”

Here another question occurs ; what relation would subsist between the national and state courts, in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The constitution, in direct terms, gives an appellate jurisdiction to the Supreme Court, in all the enumerated cases of federal cognizance, in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The ^objects of appeal, not the tribunals from which it is to be made, are alone contemplated.” “ Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The courts of the latter will, of course, be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal, which is destined to unite and assimilate the principles of national justice, and the rule of national decision. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union.”

If I do not deceive myself, the whole scope of this commentary corresponds with the view which I have taken of this subject, and fully authorizes the inference, that if the act of Congress, imposing these pecuniary penalties, had not appointed the forum, the original jurisdiction would have been concurrent. Congress have said, that the federal courts shall ha\e exclusive jurisdiction in regard to these penalties, except where the cause of action arises more than fifty miles from the place of holding the District Court; and in this peculiar class of cases they allow a concurrent jurisdiction.

The “act to establish the judicial courts of the l mted States,” (September 24, 1789,) and all the successive acts of Congress on that subject, accord with this interpretation of the constitution ; for it will be seen, that Congress have exercised a discretion, which has been varied from time to time, so as, at one time, to give exclusive, and at other times only concurrent, original jurisdiction to the federal courts over the same subject.

The decision in the case of Martin v. Hunter’s Lessee (before cited,) has settled the point, that wherever a state court holds cognizance in any of the specified cases to which “ the judicial powers of the United States extends,” the Supreme Court of the United States has appellate jurisdiction, subject only to such exceptions as Congress shall make, so that the system is rendered harmonious, and the design of the constitution is effectuated, by securing to the courts of the Union, either original or final jurisdiction, cases which our government should national policy required that the federal exercise supreme judicial authority.

have read and examined, with respectful attention, the opinion of the General Court of Virginia, in the case of Jackson v. lioiv, (delivered by White, presiding judge, and published in the National Intelligencer, on the 23d of December, 1815.) on the very point now before us ; and, with great respect for that high tribunal, I think it erred in pronouncing, that £i the act of Congress was unconstitutional;” and “ that to assume jurisdiction over the case, would be to exercise a portion of the judicial power of the United StatesI am of opinion, that this court has jurisdiction to give a civil remedy for a debt due to the United States, whether that debt accrued upon contract, or by way of penalty for a violation of a statute. We do not acquire such jurisdiction by virtue of the act of Congress ; it is inherent in this court, as a court of general common law jurisdiction. Congress cannot compel a state court to entertain such a suit. If they had said, imperatively, that state courts shall hold cognizance in such cases, then, indeed, the question would have arisen, whether they had aright to constitute us the organ of judicial power for the United States1 In the present case, I do not understand them as intending such an absurdity. In enacting that “ such suit and recovery may be had before any state court, &c., having jurisdiction in like cases,” I understand nothing more than that the United States voluntarily submit, themselves as suitors in our courts, and the attorney for the United States is authorized for that purpose. In doing so, Congress have not attempted to ordain and establish the state courts, as inferior courts of the United States, in the sense of the constitution; but have, in effect, merely qualified, or repealed in part, the original statute of the United States, (passed the 24th of September, 1789,) which gave exclusive jurisdiction to the federal courts for such penalties. If a state has no organs of judicial power adapted to such a case; or if a state court refuse to hold cognizance in such a suit, then the provision in the act of Congress becomes nugatory, and the remedy must be had in the federal court. If a state court exercises jurisdiction in such case, it is subject to the appellate jurisdiction of the federal court.

Whether the courts of one sovereign would hold jurisdiction of civil suits, wherein another sovereign appears as plaintiff, depended originally on the pleasure of the sovereign to whom the suitor applied for justice; but by the usage and 'comity of nations, it has ripened into a right, in all cases of contract, so as to impose a duty on the courts of every sovereign to afford such remedies to any other sovereign, or his subjects, ’«# peace with the nation where the remedy is sought. It seems to me that the General Court of Virginia erred in assuming, which they appear to do in the case of Jackson v. Row, (before cited,) that their right to entertain such a suit was to be derived, if at all, from the act of Congress merely, as constituting them a court for that purpose.

Suppose Congress should enact, that custom-house bonds shall be sued in the state courts; such a law would not establish new courts for the United States; it would not enlarge the jurisdiction of state courts ; but must be considered as directory to their attorney to ask a remedy in our courts. Suppose our national government should direct the attorney for the United States to sue for like penalties in the courts- of Florida, or of Canada, it might be justly said, that such an act would be inexpedient and unwise, as improperly asking a favor of a foreign government, which it might lawfully grant or refuse; but I see no ground to say, that such an act would be unconstitutional.

In regard to the distinction between civil actions founded on penal statutes, and actions on contracts, the law and usage of nations impose no obligation on one sovereign to afford a remedy to enforce a penal law of another sovereign ; and it is optional for the former to do it or not, according to his own convenience.

It is said to be a fundamental maxim, that the courts of one sovereign will not take cognizance of, or enforce, the pena! laws of another sovereign ; but I think it more correct to say, that one sovereign ought not to entrust the execution of his penal laws to the courts of another sovereign ; and as applicable to sovereigns of distinct and separate territorial ^jurisdictions, there is obvious reason and wisdom in the policy of such usage. But when we consider the complex and peculiar structure and relations of our federal government and our state governments, moving, indeed, in different spheres, but occupying the same territorial space, and operating upon, and for the benefit of the same people, the practice of other independent nations affords no analogy sufficiently strong to guide us in the present case.

That a state court can in no case hold jurisdiction to punish, criminaliter, for an offence against the United States, is clear, for this plain reason, that every criminal prosecution must charge the offence to have been committed against the state or sovereign, whose courts sit in judgment on the offender. In the administration of criminal justice, every sovereign acts as judge in his own case, as the offended party ; and a state court cannot act as an organ of judicial power representing the United States, because, in its appointment, tenure, and accountability, it is independent of the federal government.

This court, in its judicial functions, now represents the sovereignty of the state of JS'eiv- York, as to the question before us ; and, considering the intimate relation between the state, and the United States, and the common interest which all the states have, in maintaining and giving complete effect to the laws of the Union ; and considering, also, that the provision in the act of Congress in this class of cases, is for the benefit and accommodation of our own citizens, in rendering it more cheap and easy to defend themselves when sued for such penalties; I think it fit and expedient to afford the remedy of a civil action, to enforce this penal statute of the United States.

In coming to this conclusion, I perceive no great danger of introducing those evils, so eloquently described, and so feelingly deprecated by the General Court of Virginia, as a system of a strange kind of Mosaic war, in the judiciary of nations. Here a Cadi sitting in judgment upon an Italian, denying the pope’s infallibility; there the stern fathers of the holy inquisition, putting a poor Turk to the rack, because he denies that Mahomet is the prophet of God; the judges of republican Virginia, pillorying an Englishman *for libeling royal-1y; and the court of King’s Bench, inflicting the same punishment upon an American, for libeling the government of the l hiited States, for the late declaration of war.” (Jackson v. Row, before cited.)

Whenever either of the cases supposed by the General Court of Virginia shall occur, I will examine it without, prejudice ; but in this case, I am of opinion, that there ought to be judgment for the plaintiffs.

Judgment for the defendant. 
      
      
        Vide ante, p. 4
     