which may be added commercial law and general jurisprudence, and in regard to which federal courts exercise their own judgment and are not bound by state decisions.3 These

two systems of laws constitute the bases and sources of the law and jurisprudence administered in the federal courts; and in the following sections of this chapter and in the chapter next succeeding an effort will be made to give a general statement of the application of those laws in judicial controversies in the federal courts, and to point out the principles which must control in cases of conflict between state and federal laws.

§ 65. Federal and state laws form one composite system of jurisprudence for the state. The laws of the United States are laws of the several states, and are just as much binding on the citizens and courts thereof as are the state laws. The United States, in their relation to the states, are not a foreign sovereignty, but are a concurrent sovereignty, and, within their constitutional sphere of action, are a 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 subjectmatter. And although the two sovereignties are distinct, and each is supreme within its own sphere of action, and neither can interfere with the proper jurisdiction of the other, yet the system of laws of the United States and the system of laws of the state together form one composite system of laws and jurisprudence, which constitutes the law of the land for the state. The courts of the two sovereignties are not foreign to each other, nor are they to be treated by each other as such, but as courts of the same country, exercising jurisdiction partly different and partly concurrent. Legal or equitable rights, arising 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. A legal or equitable right arising under the state laws may be enforced in the state courts, and also, if there be diversity of citizenship, in the federal courts. And so, rights, whether legal or equitable, arising under the laws of the United States, may be enforced in the

509); Mercer County v. Hackett, 1 Wall. 83 (17:548); Pine Grove v. Talcott, 19 Wall. 666 (22:227); Oates v. First Nat. Bank of Montgomery, 100 U. S. 239 (25:580);

Neves v. Scott, 13 How. 268 (14: 140); Michigan Cent. R. R. Co. v. Myrick, 107 U. S. 102 (27:325); Puna v. Bowler, 107 U. S. 529 (27: 424).

federal courts, or in the state courts competent to hear and determine rights of 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 sees fit, give to the federal courts exclusive jurisdiction, either expressly or by implication.1

§ 66. The supreme law of the land.-Under the partitioned sovereignty, and the dual system of government established by the constitution, executing and administering two systems of laws within the same territory, although those two systems of laws together form one composite system of jurisprudence and constitute the law of the land for the state, it was, in order to insure domestic tranquility, absolutely essential that in all cases of conflict of authority, one of the governments should be superior to the other, and should be vested with the power and right of control; this exigency was foreseen by the founders of the government, and provided for in the federal constitution, and to which all the states assented, in the following provisions:

"This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges, in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

"The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judical officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." 5

An act of congress in conflict with the constitution is void; in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not laws of the United States generally, but those only which shall be made in pursuance of the constitution have that rank. The govern

4 Claflin v. Houseman, 93 U. S.

130, 143 (23:833).

U. S. Const. art. VI, cl. 2, 3.

6 Marbury v. Madison, 1 Cranch, 137 (2:60).

ment of the United States, though limited in its powers, is supreme within its rightful sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land."

§ 67. Same-Treaties; their nature-New principle introduced by the constitution.-A treaty is in its nature, primarily, a contract between two or more independent nations, and not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infraterritorial, but is carried into execution by the sovereign power of the respective parties to the instrument. But in the United States a new and differnt principle has been introduced and established by the constitution, which places treaties constitutionally made on the same footing, and maks them of like obligation with an act of legislation, and declares them both to be the law of the land, giving neither any superior efficacy over the other; and, consquently, when a treaty is self-executing it is to be regarded by the courts of justice as equivalent to an act of congress. When a treaty and an act of congress relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject under judicial investigation is self-executing.s

§ 68. The United States government is vested with power to execute the federal laws on every foot of Amercian soil.-The government of the United States may, and it is its duty to, execute, by its own agencies, its laws, and exercise its powers and functions on every foot of American soil; and this it may do in a proper case by means of physical force, or by means of the regularly established judicial procedure in its own judicial tribunals, as the exigency of the case may require.

7 McCulloch V. Maryland, 4 Wheat. 316 (4:60).

8 Foster v. Neilson, 2 Pet. 253 (7:415); Whitney v. Robertson, 124 U. S. 190 (31:386); Edge v. Robertson, 112 U. S. 580 (28:798); Botiller v. Dominguez, 130 U. S. 238, 256 (32:926).

No

9 Re Debs, 158 U. S. 564, 600 (39:1092); McCulloch v. Maryland, 4 Wheat. 316, 405 (4:576, 605); Ex parte Seibold, 100 U. S. 371, 395 (25:715); Cohens v. Virginia, 6 Wheat. 264, 413 (5:257, 293); U. S. v. Tarble, 13 Wall. 397 (20;597); Ableman v. Booth, 21 How. 506 (16:169).

trace is to be found in the constitution of an intention to create a dependence of the general government on the governments of the states for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone it was expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.10 While under the dual system which prevails in the United States, the powers of government are distributed between the states and the United States government, and while the latter is properly styled a government of enumerated powers, yet within the limits of such enumeration it has all the attributes of sovereignty, and, in the exercise of those enumerated powers, acts directly upon the citizen, and not through the intermediate agency of the state.11

§ 69. Power of federal judiciary to declare state law void.The constitution and laws of a state, when repugnant to the federal constitution, or to any valid law or treaty of the United States, are absolutely null and void; 12 and the supreme court of the United States is, by the federal constitution, vested with appellate jurisdiction over the highest courts of the states in all cases arising under the constitution, laws and treaties of the United States, and, in the exercise of that appellate jurisdiction, it has the power and authority to declare void any law of a state or any provision of a state constitution, if found to be repugnant to the constitution or any valid law or treaty of the United States, and that appellate jurisdiction may be so exercised although a state be a party to the suit.13 It is a

10 McCulloch V. Maryland, 4 Wheat. 316, 405 (4:576, 605).

11 Re Debs, 158 U. S. 564, 600 (39:1092).

12 U. S. Const. art. VI; Cohens v. Virginia, 6 Wheat. 264, 448 (5: 257); McCulloch v. Maryland, 4 Wheat. 316, 437 (4:579); Gibbons v. Ogden, 9 Wheat. 1, 239 (6:23).

18 U. S. Const. art. III, sec. 2;

original judiciary act, sec. 25, 1 U. S. stat. at L. ch. 20, pp. 73, 79; U. S. Rev. Stat. sec. 709; Cohens v. Virginia, 6 Wheat. 264, 448 (5: 257); McCulloch v. Maryland, 4 Wheat. 316, 437 (4:579); Gibbons v. Ogden, 9 Wheat. 1, 239 (6:23); Martin V. Hunter's Lessee, 1 Wheat. 304, 328 (4:97).