In Wayman v. Southard, (e) 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 * rules of decision *395 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 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

(c) 10 Wheaton, 1; U. S. Bank v. Halstead, 10 Id. 51, S. P.

(a) Act of Congress of May 19th, 1828, c. 68, sec. 2, 3.

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.

Concurrent (2.) As to the concurrent power of the states in matters judicial juris- of judicial cognizance.

diction of the states.

In the 82d number of The Federalist, it is laid down as a rule, that the state courts retained all pre-existing 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 *396 a particular authority 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 govern

ment.

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 the opinion of the court, seemed to think that it was the duty of

(a) 1 Wheaton, 304. See supra, p. 377.

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. 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.1

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 United States; yet to all these cases the judicial power of the United States extends, by means of its appellate jurisdiction. (a)

(a) In Wadleigh v. Veazie, 3 Sumner, 165, in the Circuit Court of the United States, in a writ of entry for land, the defendant pleaded in abatement an action in the state court between the same parties for the same land. It was held not to be a good plea, because the parties were reversed; but it was stated by the court, that in cases of concurrent jurisdiction in the state and federal courts, the latter court had no discretion to control the suit, in order to prevent a collision between the courts. It was

1 In cases where property is seized under conflicting process of the federal and state courts, each process being regular and authorized but for the conflict with the other, priority in time is the test of supremacy in respect to the custody and disposition of the property. Taylor v. Caryl, 20 How. U. S. 583; Freeman v. Howe, 24 How. U. S. 450.

In Houston v. Moore, (b) the same question came again under the consideration of the Supreme Court; and Judge Washington, in delivering the opinion of the court, observed, that he saw

nothing unreasonable or inconvenient in the doctrine of *398 The Federalist, on the subject of the concurrent *jurisdiction of the state courts, so long as the power of Congress to withdraw the whole or any part of those cases from the jurisdiction of the state courts be, as he thought it must be, admitted. The practice of the general government has been conformable to this doctrine; and, in the Judiciary Act of 1789, the exclusive and concurrent jurisdiction conferred on the courts by that act were clearly distinguished and marked. The act shows that, in the opinion of Congress, a grant of jurisdiction generally was not of itself sufficient to vest an exclusive jurisdiction. The Judiciary Act grants exclusive jurisdiction to the circuit courts of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this accounts for the proviso in the act of 24th of February, 1807, c. 75, and in the act of 10th of April, 1816, c. 44, concerning the forgery of the notes of the Bank of the United States, declaring that nothing in that act contained should be construed to deprive the courts of the individual states of jurisdiction under the laws of the several states, over offences made punishable

suggested that one or other of the courts, on a reconstruction of the constitution, ought to have exclusive jurisdiction; and in Wallace v. M'Connell, 13 Peters U. S. 136, it was held, that an attachment commenced and conducted to a conclusion, before the institution of a suit against the debtor in a federal court, is a defence to the suit. So an attachment pending in a state court, prior to the commencement of a suit in the Court of the United States, may be pleaded in abatement. The attaching creditor acquires a lien on the debt, good against the world. In Mabry & Giller v. Herndon, Ala. Sup. Court, (Law Reporter for October, 1846,) it was adjudged, in an able and clear argument by Collier Ch. J., that the state courts had cognizance concurrently with the federal courts, of cases of fraud in a bankrupt's discharge, under the act of Congress of 1841, as no act of Congress had expressly excluded such a cognizance. The power of impeaching a bankrupt's discharge for fraud rested upon the principles of the common law, as well as on the provisions of the act of 1841. So, in the case of Ward v. Mann, in the Supreme Judicial Court of Massachusetts, (the Law Reporter for March, 1847,) it was adjudged, after an able consideration of the case, that if a case be within the ordinary jurisdiction of a state court, the court may take cognizance of it, though the cause of action arises under rights acquired by a statute of the United States, provided there be no restriction under the constitution or the statute of the United States, confining the jurisdiction to the federal courts. (b) 5 Wheaton, 1.

by that act. There is a similar proviso in the act of 21st of April, 1806, c. 49, concerning the counterfeiters of the current coin of the United States. Without these provisos, the state courts could not have exercised concurrent jurisdiction over those offences, consistently with the Judiciary Act of 1789. But these saving clauses restored the concurrent jurisdiction of the state courts, so far as, under the state's authority, it could be exercised by them. (a) There are many other acts of Congress which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts. This was necessary; because the concurrent jurisdiction of the state courts over all offences was taken away, and that jurisdiction was vested exclusively in the national courts by the Judiciary Act, and it required another act to restore it. The state courts could exercise no jurisdiction whatever over crimes and offences against the United *399 States, unless where, in particular cases, the laws had otherwise provided; and whenever such provision was made, the claim of exclusive jurisdiction in the particular cases was withdrawn, and the concurrent jurisdiction of the state courts, eo instanti, restored, not by way of grant from the national government, but by the removal of a disability before imposed upon the state tribunals.

In the case last referred to, the Supreme Court disclaimed the idea that Congress could authoritatively bestow judicial powers on state courts and magistrates. "It was held to be perfectly clear, that Congress cannot confer jurisdiction upon any courts but such as exist under the constitution and laws of the United States, although the state courts may exercise jurisdiction in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts."

The Supreme Court, having thus declared the true foundation and extent of the concurrent jurisdiction of the state courts in

(a) In the case of The State v. Tutt, 2 Bailey (S. C.) 44, the state courts are considered as having jurisdiction, independent of the acts of Congress, to punish the uttering and passing counterfeit bank bills and coin of the United States, and on the principle that such a power is essential to the protection of the citizens. In the case of The Commonwealth v. Fuller, 8 Metcalf, 313, it was adjudged that the state courts had jurisdiction of the offence of possessing, with intent to pass, scienter, counterfeit gold or silver coin, current by law or usage within the state. The proviso in the acts of Congress of 1789, 1806, 1825, recognizes the concurrent jurisdiction of the states over such crimes.