current tax laid on the same subject, which will not bear both taxes. He says only that the United States would have no right to abolish the state tax. This is not contended; but would not the United States have a right to declare that their taxes were liens from the time they were imposed; and would they not, as of course, be entitled to be first paid; and must not the state collector, in all cases, stand by and wait until the national * tax is collected, before he proceeds to collect his state tax 393 out of the exhausted subject? Upon the doctrine of the federal courts, and upon the doctrine of the Federalist himself, this must be the case; and though the state legislatures have a concurrent jurisdiction in the case of taxation, except as to imposts, yet, in effect, though not in terms, this concurrent power becomes a subordinate and dependent power. In every other case of legislation, the concurrent power in the states would seem to be a power entirely dependent, and subject to be taken away absolutely, whenever Congress shall choose to exercise their powers of legislation over the same subject. I do not mean to be understood to question the validity, or to excite alarm at the existence, of this doctrine. The national government ought to be supreme within its constitutional limits, for it is intrusted with the paramount interests and general welfare of the whole nation. Our great and effective security consists in the fact, that the constituents of the general and of the state governments are one and the same people; and the powers of the national government must always be exercised with a due regard to the interest and prosperity of every member of the Union; for on the concurrence and good will of the parts, the stability of the whole depends. My object is to discover what this concurrent power of legislation amounts to, and what is its value, and on what constitutional foundation it is supported.

It was observed by Mr. Hamilton, in the convention of New York, in 1788, (a) that if the United States and the state should each lay a tax on a specific article, and the individual should be unable to pay both, the party who first levied would hold the property. But this position must be received with some qualification. The United States have * declared, by law, * 394 that they were entitled, in respect to their debts, to priority

(a) Debates in the New York Convention, printed by Francis Childs, 113.

of payment; and when it was said that this claim would interfere with the rights of the state sovereignties, and would defeat the measures they had a right to adopt, to secure themselves against delinquencies, the answer given in Fisher v. Blight (a) is, that "the mischief suggested, so far as it can really happen, was the necessary consequence of the supremacy of the laws of the United States, on all subjects to which the legislative power of Congress extends." It would seem, therefore, that the concurrent power of the legislation in the states is not an independent, but a subordinate and dependent power, liable, in many cases, to be extinguished, and in all cases to be postponed, to the paramount or supreme law of the Union, whenever the federal and the state regulations interfere with each other. (b)

(a) 2 Cranch, 397.

(b) Mr. Hamilton, as Secretary of the Treasury, in his Report in January, 1790, on "a provision for the support of the public credit of the United States," recommended the assumption of the state debts, on the ground, among others, that if the states were left with the duty and burden of providing for the payment of the state debts contracted during the Revolutionary. War (and which were then estimated at twenty-five millions of dollars), there might be a competition for resources, producing interfering regulations, collision, and confusion. Particular branches of industry might be oppressed by an accumulation of taxation upon them, in the exercise, at the same time, of the powers of the Union and of the states upon the same objects, and by different modes. The Secretary, though fully and deeply impressed with the embarrassment of the case, does not seem to question the authority of each government to lay taxes in its discretion, but assumes the policy and necessity of moderation and forbearance, when there should happen to be a preoccupancy in the taxation of an article. It has become a settled point, and I think it was a very clear one from the beginning, that in the construction of the power of Congress to lay and collect taxes, duties, imposts, and excises, it is not to be taken as an independent grant of power, without any defined limit or object, but that it is a power to be considered in connection with the words immediately thereafter by which it is made subject to the qualification or limitation of being exercised for the purpose of "paying the debts, and providing for the common defence and general welfare of the United States." The purpose for which the taxes are to be laid is not of itself a distinct, substantial power, but a qualification of the power of taxation, by restricting it to those great and specified purposes, though the application of it to those purposes does undoubtedly admit, and necessarily requires, the exercise of a large and undefined discretion. The progress of this question, and the very weighty opinions upon it, are fully shown and forcibly illustrated in Story, Comm. ii. 367–398; and see particularly Mr. Monroe's Message on the bill respecting the Cumberland road, May 4, 1822, ib. 445-456. That Congress possess the power to appropriate money raised by taxation or otherwise, for other purposes, in their discretion, than those pointed out in the enumerated powers, is a question that has given rise to very able and acute discussions; and the affirmative side of the question has been sustained and successfully vindicated by the practice of the government, and the weighty authority, among others, of Mr. Hamilton and Mr. Monroe, in celebrated documents under their

*

rules

In Wayman v. Southard, (c) the question arose, how far the judicial process of the federal courts could be controlled by the laws of the several states. It was decided, that Congress had exclusive authority to regulate proceedings and executions in the federal courts, and that the states had no authority to control such process; and, therefore, executions by fieri facias, in the federal courts, were not subject to the checks created by the Kentucky statute, forbidding sales on execution of land for less than three fourths of its appraised value. It was, in that case, further observed, that the forms of execution, and other process, in the federal courts, in suits at common law, except modes of proceeding, were to be the same as used in September, 1789, in the supreme courts of the states, subject only to alterations and additions by Congress, and by the federal courts, but not to alterations since made in the state laws and practice. It was further observed, that the laws of the several states were, by the Judiciary Act of 1789, sec. 34, to be regarded as * 395 of decision in trials at common law, in cases where they apply, unless the Constitution, treaties, or statutes of the United States had otherwise provided. This, however, did not apply to the practice of the federal courts. As to that, the laws of the states were no rule of decision, and the direction was intended only as a legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci, in the trial and decision of causes. The law respecting final process was materially altered by the act of Congress of 1828, (a) and that act adopted into the national courts in each state respectively (Louisiana excepted), the existing laws and usages of the several courts, regulating the effect and operation of judgments and executions, and the proceedings for their enforcement; but where judgments were a lien in the state upon the property of the defendants, and the defendants were entitled to an imparlance thereon of one term or more, the defendants in the United States courts, in such state, are entitled to an imparlance of one term. If, in any state, there were no courts of equity with the official sanction. See Hamilton's Report on Manufactures, and President Monroe's Message above referred to. Story, Comm. ii. 440-458. This distinguished commentator gives to the affirmative side of the question the sanction also of his decided opinion.

(c) 10 Wheaton, 1; United States Bank r. Halstead, ib. 51, s. P. (a) Act of Congress of May 19, 1828, c. 68, sec. 2, 3.

ordinary equity jurisdiction, the courts of the United States, in such states, might prescribe the mode of executing their decrees in equity; and the courts of the United States were also invested with power to alter, in their discretion, the final process in their courts, and to conform the same to legislative changes made for the state courts.

2. Of Concurrent Judicial Power. - In the 82d number of the Federalist, it is laid down as a rule, that the state courts retained all preëxisting authorities, or the jurisdiction they had before the adoption of the Constitution, except where it was taken away, either by an exclusive authority granted in express terms

to the Union, or in a case where a particular authority * 396 was granted to the * Union, and the exercise of a like

authority was prohibited to the states, or in the case where an authority was granted to the Union, with which a similar authority in the states would be utterly incompatible. A concurrent jurisdiction in the state courts was admitted, in all except those enumerated cases; but this doctrine was only applicable to those descriptions of causes of which the state courts had previous cognizance, and it was not equally evident in relation to cases which grew out of the Constitution. Congress, in the course of legislation, might commit the decision of causes arising upon their laws to the federal courts exclusively; but unless the state courts were expressly excluded by the acts of Congress, they would, of course, take concurrent cognizance of the causes to which those acts might give birth, subject to the exceptions which have been stated. In all cases of concurrent jurisdiction, an appeal would lie from the state courts to the Supreme Court of the United States; and without such right of appeal, the concurrent jurisdiction of the state courts, in matters of national concern, would be inadmissible; because, in that case, it would be inconsistent with the authority and efficiency of the general government.

Such were the early and speculative views of the ablest commentators on the Constitution, in relation to the judicial powers of the state courts. We will now examine a series of decisions in the federal courts, defining and settling the boundaries of the judicial authorities of the states.

In the case of Martin v. Hunter, (a) Judge Story, in delivering (a) 1 Wheaton, 304. See supra, 377.

the opinion of the court, seemed to think that it was the duty of Congress to vest the whole judicial power of the United States in courts ordained and established by itself. But the general observation was subsequently qualified and confined to that judicial power which was exclusively vested in the United States.

The whole judicial power of the * United States should be, 397 at all times, vested either in an original or appellate form, in some courts created under its authority. It was considered that there was vast weight in the argument, that the Constitution is imperative upon Congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the supreme and inferior courts created under its own authority. At all events, it was manifest that the judicial power of the United States is, unavoidably, in some cases, exclusive of all state authority, and, in all cases, may be made so, at the election of Congress.1 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 is 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. Congress, throughout the Judiciary Act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts. y1

State courts may, in the exercise of their ordinary, original, and rightful jurisdiction, incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the

1 The Moses Taylor, 4 Wall. 411, 429; post, 402, n. 1.

yl In Claflin v. Houseman, 93 U. S. 130, it was held that an assignee in bankruptcy, under the law of March 2, 1867, might sue in a state court. It was held that the laws of the United States were to be regarded as laws of the states also; and hence state courts were competent to adjudge rights under them, except where exclusive jurisdiction was given by Congress to the United States court, -30

VOL. I.

in all cases where their jurisdiction, as fixed by state laws, made them competent. The right to take cognizance of such cases was said not to be a new jurisdiction conferred by Congress, but a right, under their state jurisdiction, to take cognizance of all cases of a given character, whether arising under state or United States laws.

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