the state courts for a public offence. In Kentucky it was held, as late as 1833, (b) that no state court could take cognizance of a penal case arising under an act of Congress. Such a jurisdiction would require an act of the state, and the consent of Congress.

After these decisions in Virginia, Ohio, Kentucky, and New York, the act of Congress of 3d March, 1815, c. 100, may be considered as essentially nugatory. That act vested in the state courts, concurrently with the federal courts, cognizance of all "complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures, arising and payable under any act of Congress, passed or to be passed, for the collection of any direct tax or internal duties"; and it gave to the state courts and the presiding judge thereof the same power as was vested in the district judges, to mitigate or remit any fine, penalty, or forfeiture. (c) And here the inquiry naturally suggests itself, can the state courts, consistently with those decisions, sustain a criminal prosecution for forging the paper of the Bank of the United States, or for counterfeiting the coin of the United States? These are cases arising under acts of Congress declaring the offence. The state courts have exercised criminal jurisdiction over these offences, as offences against the state; but it is difficult to maintain the jurisdiction upon the doctrine of the Supreme Court of New York, in the case of Lathrop; and if it be entertained, there are difficulties remaining to be definitively cleared. These difficulties relate to the effect of a prosecution in one jurisdiction upon the jurisdiction of the concurrent court, and to the effect of the executive power of pardon of the crime under one government, upon the claim of concurrent jurisdiction. (d)1

(b) Haney v. Sharp, 1 Dana, 442.

(c) The act of Congress of February 28th, 1839, c. 36, sec. 3, notwithstanding the state decisions, authorized all pecuniary penalties and forfeitures under the laws of the United States, to be sued for before any court of competent jurisdiction in the state or district where the cause of action arises, or the offender may be found. It was said, in the case of Prigg v. Comm. of P. 16 Peters U. S. 539, that the state magistrates might, if they chose, exercise powers conferred upon them by act of Congress, unless prohibited by state legislation.

(d) In the case of The State v. Randall, 2 Aiken, 89, the Supreme Court of Vermont decided, in 1827, that the state courts had concurrent criminal jurisdiction over the offences of counterfeiting and passing counterfeit bills of the Bank of the United States. And in the case of The State v. Wells, 2 Hill (S. C.) 687, it was held, that the

1 See ante, p. [390,] note (1.)

state courts had concurrent cognizance of the indictable offence of opening a letter contrary to the act of Congress, and that Congress might constitutionally confer such a jurisdiction. On the other hand, it was decided in Missouri, in Mattison v. The State, 3 Missou. 421, that their courts had no cognizance of the case of counterfeiting the current coin, and that a statute of the state, providing for the cognizance and punishment of such crimes, was void. The doctrine was, that the states had no concurrent legislation on the subject, and that the power resided exclusively in Congress. So, the constitution of the United States (art. 4, sec. 2) having declared that persons held to service or labor in one state, under the laws thereof, and escaping into another, should be delivered up, on claim of the party to whom such service or labor might be due; the laws of New York, in furtherance of this duty, have provided for the arrest of such fugitives, on habeas corpus, founded on due proof, and for a certifi cate in favor of the right of the claimant, and delivery of the fugitive to him to be removed. But the fugitive is entitled to his writ of homine replegiando, notwithstanding the habeas corpus and certificate. N. Y. Revised Statutes, vol. ii. p. 560, sec. 6-20. See vol. 2d, p. 32, on this point, and see, in American Jurist for April, 1837, vol. xvii. pp. 96-113, the substance of the report of the committee on the judiciary in the legislature of Massachusetts, respecting the validity of the act of Congress of February 12th, 1793, providing for the seizure and surrender of fugitive slaves. It urges the right and duty of providing, by the writ of habeas corpus or of replevin, for the trial by jury of the question whether the person seized be a freeman or a slave. The act of Congress authorizes the owner of the fugitive slave, by himself or his agent, to seize at once the fugitive slave, and carry him before a judge of the United States, or any magistrate of the county, city, or town, in the state where the slave is seized, and upon satisfying the magistrate by proof that the person seized is such fugitive slave, he is to give a certificate, which amounts to a warrant to remove the slave. This law is generally found to be insufficient to give the claimant the requisite constitutional protection in his property, or the fugitive due protection of his liberty; and its execution meets with embarrassment in the northern states, and several of them have endeavored, by local statutes, to supply the deficiency. The constitution of the United States, and the act of Congress, evidently contemplated summary miffisterial proceedings, and not the ordinary course of judicial investigation. Story's Comm. on the Constitution of the United States, vol. iii. 677. Wright . Deacon, 5 Serg. & Rawle, 62. In the last case it was held, that the writ of homine replegiando did not lie to try the right of the fugitive to freedom, though on the return of the fugitive to the state from which he fled, his right to freedom might be tried. See, further, infra, vol. ii. 32, notes, c, d. Ibid. 257, note 6. It seems to be an unsettled question whether statute provisions relative to the surrender of fugitives from labor, in obedience to the constitution of the United States, be of exclusive jurisdiction in the United States, or may be aided by auxiliary statute provisions in the states. But the case of Prig v. The Commonwealth of Pennsylvania, 16 Peters U. S. 539, may be considered as settling the question in favor of the exclusive jurisdiction of the United States. See, infra, vol. ii. 32, 248.2 It was there declared, that the national government, in the absence of all positive pro

2 Thornton's case, 11 Ill. 332. In the matter of Kirk, 1 Parker C. R. 67. In the matter of Perkins, 2 Cal. 424, an act which gave remedies in the state courts to the claimants of fugitives was held to be not unconstitutional, but a competent legisla tive act under the police power of the state. It is held in the Supreme Court, that a state enactment, imposing a penalty on any one who should harbor or secrete a fugitive slave, did not conflict with the law of the United States. Moore v. Illinois, 14 How. U. S. 13. McLean J., dissenting.

visions to the contrary, was bound, through its proper department, legislative, executive, or judiciary, as the case might require, to carry into effect all the rights and duties imposed upon it by the constitution. Any legislation by Congress, in a case within its jurisdiction, supersedes all state legislation, and impliedly prohibits it. See Houston v. Moore, 5 Wheaton, 21, 22. Sturges v. Crowninshield, 4 Wheaton, 122, 193, S. P.1

1 The act of 1793, providing for the reclamation of fugitives from justice and from service, has, so far as it relates to the latter, been amended, and to a considerable extent superseded by the act of September 18, 1850. The act of 1850 has repealed, so far as concerns the penalty, the fourth section of the act of 1793. Norris v. Crocker, 13 How. U. S. 429.

The judicial duties imposed by this act are to be performed by any United States commissioners who may have the power of arresting or imprisoning for offences against the United States, (United States v. Stowell, 2 Curtis C. C. 153,) by the judges of the Circuit and District Courts of the United States, and of the Superior Courts of territories, and by such special commissioners as the respective courts may appoint.

It is made the duty of all United States marshals to obey and execute all warrants and process of such judges and commissioners; and, after the arrest of any fugitives, such officers are liable for an escape with or without their assent. The commissioners are authorized to appoint suitable persons to execute process and

warrants.

When any fugitive has escaped, or shall escape, into another state or territory, the owner, or his duly authorized agent, may pursue and personally arrest said fugitive, or may demand a warrant and arrest from the officer having due authority; when the fugitive must be taken before a commissioner or judge, whose duty it is to hear and determine the complaint in a summary manner. And upon satisfactory proof to be taken before him, or by other satisfactory testimony taken in the state from which the fugitive fled, and also affidavits of the identity of the fugitive, and that he owes service to the claimant, and that he escaped, it is the duty of such judge or commissioner to deliver to the claimant a certificate of the proceeding had, with authority to remove the fugitive to the place from which he fled. The testimony of the fugitive is not admissible. Any assistance rendered to a fugitive to enable him to escape from the claimant, or any obstruction offered to his arrest, is made penal, and also subjects the party to damages at the suit of the owner. Weimer v. Sloane, 6 McLean, 259.

All citizens are required, when called upon, to render the officers personal assistance when they may be resisted in the performance of their duties. No authority, in the execution of this act, is conferred upon any person but the officers of the United States, and persons authorized by them. See Moore v. Illinois, 14 How. U. S. 13. Graves v. The State, 1 Smith (Ind.) R. 258. Held, in this case, that the state has no authority to prescribe the mode in which the claimant shall proceed to arrest the fugitive.

The act of 1850 is more stringent and penal in its provisions than the one of 1793; but no serious difference, in point of constitutionality, has ever been suggested. The statute of 1850 has been repeatedly examined, and its conformity to the constitution established beyond controversy. Sims case, 7 Cush. 285. Miller v. McQuerry, 5 McLean, 469. Charge of Judge Nelson, 1 Blatch. C. C. 635. Ex parte 9 Ohio State, 77. Henry v. Lowell, 16 Barb. (N. Y.) 268. United States v. Booth, 21 How. U. S. 506. And see opinions of Judges, 46 Maine, 561.

37*

OF CONSTITUTIONAL RESTRICTIONS ON THE POWERS OF THE SEVERAL STATES.

WE proceed to consider the extent and effect of certain constitutional restrictions on the authority of the separate states. As the constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual states, the powers conferred, and the limitations on power contained in that instrument, are applicable to the government of the United States, and the limitations do not apply to the state governments unless expressed in terms. Thus, for instance, the provision in the constitution that private property shall not be taken for public use without just compensation, was intended solely as a limitation on the exercise of power by the government of the United States, and does not apply to the state governments. (a) The people of the respective states are left to create such restrictions on the exercise of the power of their particular governments as they may think proper; and restrictions by the constitution of the United States, on the exercise of power by the individual states, in cases not consistent with the objects and policy of the powers vested in the Union, are expressly enumerated.1

"No state," says the constitution, (b) "shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attain

(a) Barron v. The Mayor and City Council of Baltimore, 7 Peters U. S. 243. See, also, in the matter of Smith, 10 Wendell, 449.

(b) Art. 1, sec. 10.

1 Although no state can be permitted to establish a permanent military government, yet a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. Luther v. Borden, 7 How. U. S. 1. The interests involved in this case are of unusual importance, extending to the fundamental principles of the government, and they received a thorough and profound discussion.

der, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, nor lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Most of these prohibitions would seem to speak for themselves, and not to stand in need of exposition. I shall confine myself to those cases in which the interpretation and extent of some of these restrictions have been made the subject of judicial investigation.

(1.) Bills of credit.

Bills of credit.

Bills of credit, within the purview of the constitution of the United States, prohibiting the emission of them, are declared to mean promissory notes, or bills issued by a *408 state government, exclusively on the credit of the state, and intended to circulate through the community for its ordinary purposes as money redeemable at a future day, and for the payment of which the faith of the state is pledged. (a) The prohibition

(a) Craig v. The State of Missouri, 4 Peters U. S. 410. In the case of Briscoe v. The Bank of Kentucky, 11 Peters U. S. 257, the question what were bills of credit of which the emission was prohibited to the states, was extensively discussed. They were defined to be paper issued by the authority of a state on the faith of the state, and designed to circulate as money; and under this definition it was adjudged, that a bank of the State of Kentucky, established in the name and on behalf of the state, under the direction of a president and twelve directors chosen by the legislature, and the bank exclusively the property of the state, and with a capital of two millions, and with authority to issue notes payable to bearer on demand, and receive deposits and make loans; and the notes of which bank, by a subsequent act, were to be received on executions by plaintiff, and if refused, further proceedings to be delayed on the judgment for two years, was not within the prohibition of the Constitution of the United States against the emission of bills of credit. Mr. Justice Story dissented from this decision, and said that the late Chief Justice Marshall was of opinion with him, when the same case was before the court, and argued at a preceding term; and he further said, that he would not distinguish the case in principle from that of Craig v. The State of Missouri. It appears to me, with great submission to the Supreme Court, that this decision essentially overrules the case of Craig, and greatly impairs the force and value of the constitutional prohibition. In the case of Linn v. State Bank of Illinois, 1 Scam. 87, decided by the Supreme Court of that state in 1833, it ap peared that the State Bank of Illinois was owned by the state, and authorized to issue notes or bills in small sums from twenty dollars to one dollar, drawing interest, and receivable in payment of debts due to the state; and that the legislature were