1164

EITHER GOVERNMENT MAY ADOPT

quiring discipline and method, their authority must be exclusive. This reasoning convinced Mr. Justice Story, who delivered a dissenting opinion. But the majority of the court held that, although a State could not legislatively vary or add to the penalty prescribed by Congress, they might, notwithstanding, vest a concurrent jurisdiction in their tribunals to inflict the punishment which Congress had devised. If the State courts could not ordinarily take cognizance of acts punishable under the laws of Congress, it was because those laws gave the circuit courts exclusive jurisdiction of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; which accounted for the proviso in the act of Feb. 24, 1867, ch. 75, concerning the forgery of the notes of the Bank of the United States, that nothing which it contained should be construed to deprive the courts of the individual States of jurisdiction under their laws of offences made punishable by that act. Military offences were not included in the act of Congress conferring jurisdiction on the circuit courts; and although the militia laws provided that disobedience to the President's call should be cognizable by a court-martial convened under the authority of the United States, the jurisdiction so conferred was not declared to be exclusive. The national and State courts-martial might, therefore, well exercise the concurrent jurisdiction which was authorized by the laws of the State and was not prohibited by the laws of the United States. Congress could not confer jurisdiction on a State tribunal, but when jurisdiction existed it might well be exercised for the purpose of enforcing an act of Congress.

In this instance Pennsylvania adopted and enforced an act of Congress; and it has been decided on like grounds that Congress may render it a penal offence against the United States for any officer of election, at an election held for a representative in Congress, to neglect to perform, or to violate any duty in regard to such election, whether required by a law of the State or of the United States, or knowingly to do any act unauthorized by any such law, with intent to

A LAW MADE BY THE OTHER.

1165

affect such election, or to make a fraudulent certificate of the result.1

1 Ex parte Siebold, 100 U. S. 371. See Ex parte Yarbrough, 110 Id. 465. See ante, p. 527.

"The objection that the laws and regulations, the violation of which is made punishable by the acts of Congress, are State laws, and have not been adopted by Congress, is no sufficient answer to the power of Congress to impose punishment. It is true that Congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leave them as prescribed by State laws. It has only created additional sanctions for their performance, and provided means of supervision in order more effectually to secure such performThe imposition of punishment implies a prohibition of the act punished. The State laws which Congress sees no occasion to alter, but which it allows to stand, are in effect adopted by Congress. It simply demands their fulfilment. Content to leave the laws as they are, it is not content with the means provided for their enforcement. It provides additional means for that purpose, and we think it is entirely within its constitutional power to do so. It is simply the exercise of the power to make additional regulations.

ance.

"Another objection made is that if Congress can impose penalties for violation of State laws, the officer will be made liable to double punishment for delinquency, at the suit of the State and at the suit of the United States. But the answer to this is that each government punishes for violation of duty to itself only. When a person owes a duty to two sovereigns, he is amenable to both for its performance, and either may call him to account. Whether punishment inflicted by one can be pleaded in bar to a charge by the other for the same identical act, need not now be decided, although considerable discussion bearing upon the subject has taken place in this court tending to the conclusion that such a plea cannot be sustained. In reference to a conviction under a State law for passing counterfeit coin, which was sought to be reversed on the ground that Congress had jurisdiction over that subject, and might inflict punishment for the same offence, Mr. Justice Daniel, speaking for the court, said: 'It is almost certain that, in the benignant spirit in which the institutions both of the State and federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless, indeed, this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. But were a contrary course of policy or action either probable or usual, this would by no means justify the conclusion that offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which these author

1166

CRIMINAL JURISDICTION.

ities might ordain and affix to their perpetration' (Fox v. The State of Ohio, 5 Howard, 410). The same judge, delivering the opinion of the court in the case of United States v. Marigold, 9 Howard, 569, where a conviction was had under an act of Congress for bringing counterfeit coin into the country, said, in reference to Fox's Case: With the view of avoiding conflict between the State and federal jurisdictions, this court, in the case of Fox v. State of Ohio, have taken care to point out that the same act might, as to its character and tendencies and the consequences it involved, constitute an offence against both the State and federal governments, and might draw to its commission the penalties denounced by either as appropriate to its character in reference to each. We hold this distinction sound;' and the conviction was sustained. The subject came up again for discussion in the case of Moore v. State of Illinois, 14 Id. 13, in which the plaintiff in error had been convicted under a State law for harboring and secreting a negro slave, which was contended to be properly an offence against the United States under the fugitive slave law of 1793, and not an offence against the State. The objection of double punishment was again raised. Mr. Justice Grier, for the court, said: Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.'

66

Substantially the same views are expressed in United States v. Cruikshank (92 U. S. 542), referring to these cases. A variety of instances may be readily suggested in which it would be necessary or proper to apply it. Suppose, for example, a State judge having power under the naturalization laws to admit aliens to citizenship should utter false certificates of naturalization, can it be doubted that he could be indicted under the act of Congress providing penalties for that offence, even though he might also, under the State laws, be indictable for forgery, as well as liable to impeachment?" Ex parte Siebold, 100 U. S. 371.

LECTURE LIV.

Distribution of Jurisdiction among the Federal Courts.

- The Original Jurisdiction of the Supreme Court is confined to Cases affecting Ambassadors, other Public Ministers, and Consuls, and those in which a State will be a Party. The grant of Original Jurisdiction in such Cases does not preclude the Exercise of Appellate Jurisdiction in the same Cases. It is not Exclusive of the Inferior Courts. - The Federal Laws may be administered by the State Courts, and the State Laws by the Federal Courts. Demands arising in one Sovereignty may be Enforced by the Tribunals of another, and an Assignee in Bankruptcy may proceed in a State Court. Aliens may be Naturalized by the State Courts, which may also, if Congress so provide, determine the Compensation due for the Exercise of Eminent Domain by Congress.

AN inquiry as to the nature and extent of the grant of judicial power may appropriately be followed by the question how is it apportioned among the courts of the United States, and when is their jurisdiction exclusive of the State tribunals? Article III., section 1 of the Constitution, provides that "the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish." The subjects on which the power is to be exercised are enumerated in the second section of the same article, first subdivision; and as regards those subjects the first section is broad enough to confer jurisdiction in every form. Were this all, original and appellate jurisdiction might have been distributed among the federal courts as Congress thought proper, except that the "Supreme" court could not well have been denied the

1168

DISTRIBUTION OF JURISDICTION

appellate power which its title implies. The second subdivision of the second section, however, provides that "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before-mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make," the cases before-mentioned being the cases enumerated in the general grant of judicial power, which, as we have seen, includes not only cases where the character of the parties gives jurisdiction, but "all cases arising in law or equity under this Constitution, the laws of the United States, and the treaties made or to be made under their authority."

A question here naturally arises, Is this distribution exclusive, or may the Supreme Court take appellate jurisdiction in cases where, from the character of the parties, it might exercise original jurisdiction? Prima facie the word "shall" is imperative, but not exclusive. It commands, but is not necessarily prohibitory. If, indeed, a particular method is enjoined, every other of a different or inconsistent character will be forbidden relatively to the purpose in view and the agent to whom the order is addressed; but an injunction to use a means for a specific purpose will not preclude the use of the same means for other purposes, nor prevent third persons from using different means to effect the same purpose. This argument might be conclusive were it not that since jurisdiction is conferred in the most general terms by the first section, a declaration that the Supreme Court shall have original jurisdiction in certain instances would have been a useless reiteration had not the framers of the Constitution intended to limit or preclude, and not to enable. So the provision, "in all the other cases before-mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact" should, to render the article consistent as a whole, be read as meaning that its jurisdiction in such cases shall be only appellate,

1 109 U. S. 121.