before the adoption of the constitution, and continued some time afterwards, a source of dissension and irritating and angry controversies, threatening at times to end in force and violence, but which were, however, averted by the exercise of the judicial power.5

59

§ 400. Territorial courts not courts of the United States.The territorial courts are not, within the meaning of the constitution, courts of the United States, although they have the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States; but they are legislative courts created in the exercise of the power granted by the clause of the constitution authorizing congress to make all needful rules and regulations respecting the territories belonging to the United States. Congress is vested with both national and municipal sovereignty in the territories, and exercises therein the powers of both the state and federal governments, and the territorial courts administer two distinct jurisdictions, namely (1) the local laws of the territory, and (2) the laws of the United States within the territory.61

60

§ 401. The court of claims a special court.-The court of claims established by the act of February twenty-fourth, eighteen hundred and fifty-five, is a special court for the adjudication of claims against the government, and, while it is a court of great importance, it is not a part of the regular federal judicial system.62

59 Rhode Island V. Massachusetts, 12 Pet. 567, 755 (9:1233); Florida v. Georgia, 17 How. 478 (15:181); Missouri v. Iowa, 7 How. 660 (12:861); Alabama v. Georgia, 23 How. 506 (16:556); Missouri v. Kentucky, 11 Wall. 395 (20:116).

60 Ins. Co. v. Canter, 1 Pet. 511 (7:242); Clinton v. Englebrecht, 13 Wall. 434, 449 (20:659); Reynolds v. United States, 98 U. S.

145, 168 (25:244); Benner v. Porter, 9 How. 235 (13:119); Thied v. Utah, 159 U. S. 510, 523 (40: 237); McAllister v. United States, 141 U. S. 174, 201 (35:693).

61 Ex parte Kang-Gi-Shun Co., 109 U. S. 556, 572 (27:1030); Ex parte Gon-Shay-Ee, 130 U. S. 343, 353 (32:973).

62 U. S. Rev. Stat. secs. 10491093; 1 U. S. Comp. Stat. pp. 729764; 2 Fed. Stat. Anno. 53-100.

CHAPTER VIII.

THE RELATION OF THE FEDERAL JUDICIARY AND THE STATE JUDICIARY TO EACH OTHER.

§ 402. Exclusive jurisdiction of § 404. The three-fold character of federal courts over par

ticular subjects.

403. Same-Not affected by gen

eral statutes defining the
concurrent jurisdiction.

federal jurisdiction.

405. The federal courts and

state courts for some pur

poses constitute one judicial system.

2

§ 402. Exclusive jurisdiction of federal courts over particular subjects. It resulted, inevitably, from the nature of the dual system of government established by the federal constitution, that a large field of jurisdiction should be vested in the federal judiciary, in which the state judiciary could have no participation, as no part of the judicial power of the United States can be vested in the courts of the states; and it also resulted from the constitution that at the election of congress the federal courts may be given exclusive jurisdiction of cases arising under the laws of the United States, but in the absence of exclusive words the state courts would in a large class of such cases exercise concurrent jurisdiction; and, accordingly, federal legislation, commencing with the original judiciary act, has, from time to time, vested in the district and circuit courts a very comprehensive jurisdiction in special cases and over particlar subjects, exclusive of the state courts, which is, in some instances, vested exclusively in the district courts, in

1 Ableman v. Booth, 21 How. 506, 526 (16:169); United States v. Tarble, 13 Wall. 397, 413 (20: 597).

2 Martin v. Hunter's Lessees, 1 Wheat. 304, 335 (4:97, 105); Houston v. Moore, 5 Wheat. 1, 27 (5: 19, 25); Robertson v. Baldwin, 165 U. S. 275 (41:715); United States v. Lathrop, 17 Johns. 4 (6:264); R. Co. v. Whitton, 13 Wall. 288

(20:577); The Moses Taylor, 4 Wall. 429 (18:401); Gaines V. Fuentes, 92 U. S. 10, 26 (23:524). 3 Stearns v. United States, 3 Paine, 300, Fed. Cas. 13,341; Martin v. Hunter's Lessees, 1 Wheat. 304, 335 (4:97, 105); R. Co. v. Whitton, 13 Wall. 288 (20:571); The Moses Taylor, 4 Wall. 429 (18:401).

others exclusively in the circuit courts, and still in others the the district and circuit courts have concurrent jurisdiction,* and, under the second section of what is known as the Tucker Act, the district court and the circuit court, each has, in certain specified classes of cases, concurrent jurisdiction with the court. of claims, according to the amount involved, but the jurisdiction of the district and circuit court is, as between themselves under that act, exclusive."

§ 403. Same-Not affected by general statutes defining the concurrent jurisdiction of the federal and state courts.—It is a fundamental rule of federal jurisprudence that general statutes passed by congress defining the concurrent jurisdiction of the federal and state courts are not intended to interfere with the prior statutes conferring jurisdiction upon the circuit or district courts in special cases, and over particular subjects, nor to alter the distribution of jurisdiction, as between the circuit. court and the district court, of cases which, by reason of their subject-matter, have been committed by congress to the exclusive determination of the federal courts, nor to repeal the special provisions of former laws conferring on the circuit and district courts jurisdiction of such cases without regard to the amount in dispute, or the citizenship of the parties; and it has been accordingly held, uniformly, that the provision of the later general judiciary acts conferring upon the circuit courts of the United States "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, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority," does not take away from the circuit or district courts the jurisdiction conferred upon them by prior statutes in special cases and over particular subjects, nor divest the jurisdiction which had for so long a time been vested exclusively in

41 U. S. Stat. at L. ch. 20, sec. 9, pp. 73-79; U. S. Rev. Stat. art. 711; U. S. Comp. St. 576-578; 24 U. S. Stat. at L. ch. 359, p. 505; 23 U. S. Stat. at L. ch. 164, p. 332; 26 U. S. Stat. at L. ch. 551, p. 1084; 23 U. S. Stat. at L. ch. 149,

p. 321; 26 U. S. Stat. at L. ch. 407, sec. 15, p. 138; 26 U. S. Stat. at L. ch. 647, p. 209; 28 U. S. Stat. at L. ch. 349, secs. 73-77, p. 570, and many others.

5 24 U. S. Stat. at L. ch. 359, p. 505.

the district courts, nor in any manner alter the prior distribution of jurisdiction, as between the circuit and district courts in such special cases and over such particular subjects."

§ 404. The three-fold character of federal jurisdiction.—The jurisdiction of the federal courts is either (1) original and exclusive of the state courts, or (2) original and concurrent with the state courts, or (3) it is appellate.

1. In all suits arising out of any subject-matter of judicial cognizance, over which the exercise of judicial power is necessary in order to enforce the authority of the federal government, or to specifically execute the powers exclusively vested in it by the constitution, or to collect its revenues and carry on its operations, and in all suits arising out of any subject-matter over which the exercise of judicial power may directly affect the relations of this government with foreign governments, the district courts and circuit courts of the United States are vested with original jurisdiction, exclusive of the courts of the states."

2. In two classes of suits of a civil nature, one class dependent upon the character of the parties, their rights arising out of state laws and jurisprudence, and the other class dependent upon the nature of the suit, the rights of the parties arising out of the constitution, laws and treaties of the United States, the circuit courts of the United States are vested with original jurisdiction concurrent with the courts of the several states.

• United States v. Mooney, 11 Fed. R. 476, S. C. 116 U. S 104, 108 (29:550); Price, Receiver, v. Abbott, 17 Fed. R. 506; Hendee v. R. Co., 26 Fed. R. 677; Stephens v. Bernays, 41 Fed. R. 401; Armstrong v. Ettlesohn, 36 Fed. R. 209; Platt v. Beach, 2 Ben. 303, Fed. Cas. 11,215; Stanton v. Wilkeson, 8 Ben. 357, Fed. Cas. 13,297; U. S. v. Mexican National Ry. Co., 40 Fed. R. 769; Frelinghuysen v. Baldwin, 12 Fed. R. 395; Fisher v. Yoder, 53 Fed. R. 565; Thompson v. Pool, 70 Fed. R. 725; Short v. Hepburn, 75 Fed. R. 113; Brown v. Smith, 88 Fed. R. 565; Myers v. Hettinger, 94 Fed. R. 370; Aldrich v. Campbell, 97 Fed. R. 663; McCartney v. Earl (C. C. A.) 115

Fed. R. 462; Stephens v. Bornays,
44 Fed. R. 642; Bank v. Harrison,
3 McCrary, 162, Fed. Cas.
United States v. Whitcomb Bed-
stead Co., 45 Fed. R. 90.

71 U. S. Stat. at L. ch. 20, sec. 9, pp. 73-79; U. S. Rev. Stat. art. 711; U. S. Comp. Stat. 576-578; 24 U. S. Stat. at L. ch. 359, p. 505; 23 U. S. Stat. at L. ch. 164, p. 332; 26 U. S. Stat. at L. ch. 551, p. 1084; 23 U. S. Stat. at L. ch. 149, p. 321; 26 U. S. Stat. at L. ch. 407, sec. 15, p. 138; 26 U. S. Stat. at L, ch. 647, p. 209; 28 U. S. Stat. at L. ch. 349, sec. 73-77, p. 570; 24 U. S. Stat. at L. ch. 359, p. 505.

8 25 U. S. Stat. at L. ch. 866, sec. 1, p. 433.

3. In all cases decided by the district courts and circuit courts, an appeal or writ of error lies from their final decrees and judgments to the United States supreme court, or to the circuit court of appeals, according to the nature of the questions involved,' and in all cases decided by a state court involving a federal question, the final judgment or decree of the highest court of the state in which a decision of the case may be had may be reviewed on writ of error by the United States supreme court.19

§ 405. The federal courts and state courts for some purposes constitute one judicial system.-The circuit courts of the United States, in exercising concurrent jurisdiction with the courts of the states in the class of cases in which their jurisdiction is dependent upon the character of the parties, are, for all practical purposes, courts of the state in which they sit, and their function, under such circumstances, is to enforce the rights of parties according to the laws of the state, taking care, always, as the courts of the states must take care, not to infringe any right secured by the constitution and laws of the United States; 11 and the state courts in exercising jurisdiction concurrent with the circuit courts of the United States in cases arising under the constitution, laws and treaties of the United States, become "auxiliaries to the execution of the laws of the Union," and the support of its authority, and, in this aspect of the dual polity established by the constitution, the state and federal courts reciprocally support the authority of the state and federal governments, and for this purpose the two systems of courts constitute one judicial system.12

926 U. S. Stat. at L. ch. 517, p. 826.

10 U. S. R. S. sec. 709; Murdock v. City of Memphis, 20 Wall. 590636; Dartmouth College v. Woodward, 4 Wheat. 518 (4:629); McCulloch v. Maryland, 4 Wheat. 316 (4:579); Cohens v. Virginia, 6 Wheat. 264 (5:257); Gibbons v. Ogden, 9 Wheat. 1 (6:23); Martin v. Hunter's Lessees, 1 Wheat.

304 (4:97); Brown v. Maryland, 12 Wheat. 419 (6:678); Ableman v. Booth, 21 How. 506, 526 (16: 169).

11 Madisonville Traction Co. v. Mining Co., 196 U. S. 239-261 (49:462).

12 Federalist, No. LXXXII; Cohens v. Virginia, 6 Wheat. 264, 419, 420 (5:257, 294, 295).