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CLAFLIN U. HOUSEMAN.
becomes invested with all the bankrupt's rights of action for property, and actions arising from contract, or the unlawful taking or detention of or injury to property, and a right to sue for the same. The actions which lie in such cases are common law actions, — ejectment, trespass, trover, assumpsit, debt, &c., or suits in equity. Of these actions and suits the state courts have cognizance. Why should not an assignee have power to bring them in those courts as well as other persons ? Aliens and foreign corporations may bring them. The assignee simply derives his title through a law of the United States. Should not that title be respected by the state courts ?
The case is exactly the same as that of the Bank of the United States. The first bank, chartered in 1791, had capacity given it " to sue and be sued ..., in courts of record, or any other place whatsoever.” It was held in The Bank v. Deveaux, 5 Cranch, 61, that this did not authorize the bank to sue in the courts of the United States without showing proper citizenship of the parties in different states. The bank was obliged to sue in the state courts. And yet here was a right arising under a law of the United States as much so as can be affirmed of a case of an assignee in bankruptcy. The second bank of the United States had express capacity " to sue and be sued in all state courts having competent jurisdiction, and in any circuit court of the United States." In the case of Osborn v.
The Bank, 9 Wheaton, 738, 815, it was objected that Congress had not authority to enable the bank to sue in the federal courts merely because of its being created by an act of Congress. But the court held otherwise, and sustained its right to sue therein. No question was made of its right to sue in the state courts.
Under the Bankrupt Law of 1841, with substantially the same provisions on this subject as the present law, it was held that the assignee could sue in the state courts. Ex parte Christie, 3 How. 318, 319; Nugent v. Boyd, Ib. 426; Wood v. Jenkins, 10 Metc. 583.
Other analogous cases have occurred, and the same result has been reached; the general principle being that where jurisdiction may be conferred on the United States courts, it may be made exclusive where not so by the Constitution itself ; but if exclusive jurisdiction be neither express nor implied, the state courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it. Thus, the United States itself may sue in the state courts, and often does so. If this may be done, surely, on the principle that the greater includes the less, an officer or corporation created by United States authority may be enabled to sue in such courts. Nothing in the Constitution, fairly considered, forbids it.
The general question, whether state courts can exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises, — sometimes with a leaning in one direction, and sometimes in the other ; but the result of these discussions has, in our judgment, been, as seen in the above cases, to affirm the jurisdiction where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case.
When we consider the structure and true relations of the federal and Claflin v. HousemaN.
state governments, there is really no just foundation for excluding the state courts from all such jurisdiction
The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states; but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a state is a subject of two distinct sovereignties having concurrent jurisdiction in the state — concurrent as to place and persons, though distinct as to subject matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty, competent to hear and determine such kind of rights, and not restrained by its constitution in the exercise of such jurisdiction. Thus a legal or equitable right, acquired under state laws, may be prosecuted in the state courts, and also, if the parties reside in different states, in the federal courts. So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the state courts competent to decide rights of the like character and class; subject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the federal courts exclusive jurisdiction. See remarks of Mr. Justice Field, in The Moses Taylor, 4 Wall. 249, and Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 334; and of Mr. Justice Swayne, in Ex parte McNeil, 13 Wall. 236. This jurisdiction is sometimes exclusive by express enactment and sometimes by implication.
If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws, is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence which constitutes the law of the land for the state ; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanating from a foreign jurisdiction is founded on erroneous views of the nature and relations of the state and federal governments. It is often the cause, or the consequence, of an unjustifiable jealousy of the United States government, which has been the occasion of disastrous evils to the country.
It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was clearly shown by Chief Justice Taney in the case of Ableman v. Booth, 21 How. 506 ; and hence the state courts have no power to revise the action of the federal courts ; nor the federal, the state, except where the federal Constitution or laws are involved. But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied.
A reference to some of the discussions, to which the subject under discussion has given rise, may not be out of place on this occasion.
CLAFLIN 0. HOUSEMAN.
It was fully examined in the 82d number of the “ Federalist,” by Alexander Hamilton, with his usual analytical power and far seeing genius; and hardly an argument or a suggestion has been made since which he did not anticipate. After showing that exclusive delegation of authority to the federal government can arise only in one of three ways: either by express grant of exclusive authority over a particular subject; or by a simple grant of authority with a subsequent prohibition thereof to the states ; or, lastly, where an authority granted to the Union would be utterly incompatible with a similar authority in the states; he says that these principles may also apply to the judiciary as well as the legislative power. Hence he infers that the state courts will retain the jurisdiction they then had, unless taken away in one of the enumerated modes. But as their previous jurisdiction could not by possibility extend to cases which might grow out of, and be peculiar to the new Constitution, he considered that, as to such cases, Congress might give the federal courts sole jurisdiction. “I hold," says he, “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 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 judicial 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. .... When, in addition to, this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive that the state courts would have concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.”
These views seem to have been shared by the first Congress in drawing up the Judiciary Act of September 24th, 1789; for, in distributing jurisdiction among the various courts created by that act, there is a constant exercise of the authority to include or exclude the state courts therefrom ; and where no direction is given on the subject, it was assumed, in our early judicial history, that the state courts retained their usual jurisdiction concurrently with the federal courts invested with jurisdiction in like cases.
Thus, by the judiciary act, exclusive cognizance was given to the circuit and district courts of the United States of all crimes and offences cognizable under the authority of the United States, and the same to the district courts, of all civil causes of admiralty and maritime jurisdiction; of all seizures on water under the laws of impost, navigation, or trade of the United States, and of all seizures on land for penalties and forfeitures incurred under said laws. Ibid. Concurrent jurisdiction with the state courts was given to the district and circuit courts of all causes where an alien sues for a tort only in violation of the law of nations, or a treaty of the United States; and of all writs at common law where the United States are plaintiffs ; the same to the circuit courts, where the suit is Vol. IV.]
CLAFLIN v. HOUSEMAN.
between a citizen of the state where the suit is brought and a citizen of another state, where an alien is a party, &c., &c. Here no distinction is made between those branches of jurisdiction in respect to which the Constitution uses the expression “ all cases ” and those in respect to which the term “all” is omitted. Some have supposed that wherever the Constitution declares that the judicial power shall extend to “ all cases,” — as all cases in law and equity arising under the Constitution, laws, and treaties of the United States; all cases affecting ambassadors, &c., — the jurisdiction of the federal courts is necessarily exclusive; but that where the power is simply extended to controversies” of a certain class, – as “ controversies to which the United States is a party,” &c., — the jurisdiction of the federal courts is not necessarily exclusive.
But no such distinction seems to have been recognized by Congress, as already seen, in the judiciary act. And subsequent acts show the same thing. Thus, the first patent law for securing to inventors their discoveries and inventions, which was passed in 1793, gave treble damages for an infringement, to be recovered in an action on the case founded on the statute in the circuit court of the United States, “ or any other court having competent jurisdiction,” — meaning, of course, the state courts. The subsequent acts on the same subject were couched in such terms, with regard to the jurisdiction of the circuit courts, as to imply that it was exclusive of the state courts; and now it is expressly made so. See Patent Acts of 1800, 1819, 1836, 1870, and Rev. Stat. U. S. sect. 711; Parsons v. Barnard, 7 Johns. 144 ; Dudley v. Mayhew, 3 Comst. 14; Elmer v. Pennel, 40 Maine, 434.
So with regard to naturalization, à subject necessarily within the exclusive regulation of Congress, the first act on the subject passed in 1790, and all the subsequent acts, give plenary jurisdiction to the state courts. The language of the Act of 1790 is, “ any common law court of record in any one of the states," &c. 1 Stat. 103. The Act of 1802 designates "the supreme, superior, district, or circuit court of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States.” 2 Stat. 153.
So by acts passed in 1806 and 1808, jurisdiction was given to the county courts along the northern frontier, of suits for fines, penalties, and forfeitures under the revenue laws of the United States. 2 Stat. 354, 489. And by Act of March, 3, 1815, cognizance was given to state and county courts, generally of suits for taxes, duties, fines, penalties, and forfeitures arising under the laws imposing direct taxes and internal duties. 3 Stat. 244.
These instances show the prevalent opinion which existed, that the state courts were competent to have jurisdiction in cases arising wholly under the laws of the United States; and whether they possessed it or not, in a particular case, was a matter of construction of the acts relating thereto. It is true that the state courts have, in certain instances, declined to exercise the jurisdiction conferred upon them ; but this does not militate against the weight of the general argument. See U. S. v. Lathrop, 17 Johns. 4. See especially the able dissenting opinion of Mr. Justice Platt, Ib. p. 11.
It was indeed intimated by Mr. Justice Story, obiter dictum, in deliverVol IV.]
CLAFLIN v. HOUSEMAN.
ing the opinion of the court in Martin v. Hunter's Lessee, 1 Wheat. 334337, that the state courts could not take direct cognizance of cases arising under the Constitution, laws, and treaties of the United States, as no such jurisdiction existed before the Constitution was adopted. This is true as to jurisdiction depending on United States authority ; but the same jurisdiction existed (at least to a certain extent) under the authority of the states. Inventors had grants of exclusive right to their inventions before the Constitution was adopted, and the state courts had jurisdiction thereof. The change of authority creating the right did not change the nature of the right itself. The assertion, therefore, that no such jurisdiction previously existed, must be taken with important limitations, and did not have much influence with the court when a proper case arose for its adjudication. Houston v. Moore, decided in 1820, 5 Wheat. 1, was such a case. Congress, in 1795, had passed an act for organizing and calling forth the militia, which prescribed the punishment to be inflicted on delinquents, making them liable to pay a certain fine, to be determined and adjudged by a court-martial, without specifying what court-martial. The legislature of Pennsylvania also passed a militia law providing for the organization, training, and calling out of the militia, and establishing courts-martial for the trial of delinquents. The law in many respects exactly corresponded with that of the United States, and, as far as it covered the same ground, was for that reason held to be inoperative and void.
Houston, a delinquent under the United States law, was tried by a state court-martial, and it was decided that the court had jurisdiction of the offence, having been constituted, in fact, to enforce the laws of the United States which the state legislature had reënacted. But the decision (which was delivered by Mr. Justice Washington) was based upon the general principle that the state court had jurisdiction of the offence, irrespective of the authority, state or federal, which created it. Not that Congress could confer jurisdiction upon the state courts, but that these courts might exercise jurisdiction on cases authorized by the laws of the state and not prohibited by the exclusive jurisdiction of the federal courts. Justices Story and Johnson dissented; and, perhaps, the court went further in the case than it would now. The act of Congress having instituted courts-martial, as well as provided a complete code for the organization and calling forth of the militia, the entire law of Pennsylvania on the same subject might well have been regarded as void. Be this as it may, it was only a question of construction, and the court conceded that Congress had the power to make the jurisdiction of its own courts exclusive.
In Cohens v. Virginia, 6 Wheaton, 415, Chief Justice Marshall demonstrates the necessity of an appellate power in the federal judiciary, to revise the decisions of state courts in cases arising under the Constitution and laws of the United States, in order that the constitutional grant of judicial power, extending it to all such cases, may have full effect. He says: “ The propriety of intrusting the construction of the Constitution and laws made in pursuance thereof to the judiciary of the Union, has not, we believe, as yet been drawn in question. It seems to be a corollary from this political axiom, that the federal courts should either pos