#### The State *v. W.*T. M'Bride.

A State Court has no jurisdiction over the offence of stealing a letter from the mail in violation of the act of Congress of 1825, regulating the post office department. (The case of *The State*vi *Wells,*2 Hill, 687, *contra*overruled.)

By the constitution of the United States, as well as upon general principles of law, a criminal offence arising under, and created by, an act of Congress, is punishable *only*in the courts of the United States.

An act of Congress conferring jurisdiction in such a case upon the State Courts, is unconstitutional and void.

*Before EARLE,*/., *at Union, Fall Term,*1837.

The defendant was indicted for a misdemeanor, in stealing a letter from the mail, containing money, in violation of the act of Congress, regulating the post office department. The grand jury having found a true bill, the defendant pleaded not guilty, and was ready for trial. The counsel for the prosecution being also ready, *401the court looked into the indictment, and was of opinion that it had no jurisdiction. On the motion to proceed in the trial — ■

Earle, J., said: — I had hoped that some other mode of deciding the question now presented, would have been afforded; and that I should have avoided the necessity of refusing to try this cause. As both parties are ready, and express their wdlingness to proceed, I am driven to the alternative of violating my conscience, and disregarding my obligations to the State, and to the constitution, or of seeming to disregard the decision of the late Court of Appeals, in the case of Wells — (2 Hill’s Rep., 687.) In .such a case I cannot hesitate. 'That decision affords, doubtless, ample justification for the learned counsel who advised this prosecution, and for the learned solicitor who has preferred this indictment. In my judicial station I think I have shown sufficient deference to the decisions of that court, on all questions of mere law, or questions arising out of the State constitution. This is a subject of higher moment; a construction of the constitution of the United States, in relation to the judicial power of the general government, and the power of Congress, in distributing the jurisdiction of offences; a question, whether the State courts shall be made to become a subordinate portion of the judicial power of the United States, and to exercise such parts of the inferior jurisdiction of the general government, as it is not convenient for their own judiciary to assume. On such a question, I do not regard the decision in Wells’ case, as finally settling the rule of construction ; or as absolutely binding on me, making it matter of *duty*to take cognizance of such cases, against the strong, deliberate and conscientious convictions of my own understanding and judgment. If the constitution of the United States, which I have sworn to support, has excluded the State courts from entertaining jurisdiction in eases like this, as I firmly believe, then Congress is incompetent to confer it, and to assume it would be an act of usurpation. I will not be guilty, in this place, of the disrespect of arraigning the decision in Wells’ case. The grounds of my own judgment, on the circuit, as well as the final opinion of the court, are before the public. My confidence in the correctness of my own views, *402has not been shaken. If I may say so, with perfect deference and respect, as I surely mean no offence, I think the final judgment will be found not only unsustained by, but opposed to the decisions of those courts, of several states, most entitled to consideration.

In coming to a correct conclusion on this subject, the acts of Congress, from the judiciary act of 1789, down to the last act regulating the post office department in 1832, are tobe put out of view. They can confer no jurisdiction, where the constitution excludes it. That instrument alone is to be our guide. “ The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made under their authority. To all cases affecting ambassadors, otherpublic ministers and consuls; to all cases of admiralty and maratime jurisdiction.” ‘‘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 case under consideration, is one arising exclusively under a law of the United States. The act now prosecuted is an offence only against that law; the stealing is not indicted *as*a larceny at common law. It is a prosecution carried on under the authority of the •general government, to enforce its own criminal laws, and to inflict a punishment imposed by them. It is one of a class of cases, to *all*of which the jurisdiction of the federal courts extends, as it is made to extend to all cases affecting ambassadors, other public ministers and consuls, and to all cases of admiralty and maratime jurisdiction. If it be urged that the words “ shall extend to all cases,” are not meant to be exclusive, it may well be replied, that if Congress can confer jurisdiction on the State courts, in the former class of cases, they may equally in the latter; and in process of time, even the inferior business of admiralty may be conferred upon us. When an act of Congress enables a State court to try a civil suit, where the United States is a party, it provides no more than might have been done, under the original and inherent structure of the State courts, having, necessarily, before the constitution, and independent of it, jurisdiction at common law of such cases. And without such provision, in an act of Congress, *403the United States, as a party plaintiff would be permitted to sue, and to recover judgment in the State courts. Such was the case of Dodge, 14 John. Rep., 95, cited in Wells’ case. Of all that class of cases, as I 'endeavored to show on a former occasion, the jurisdiction of the federal and State courts is concurrent. But it will be found, that in the several classes first enumerated, arising under the laws of the United States, prosecutions for criminal offences created by them, it has been held by the courts of the highest authority, that the jurisdiction of the federal courts is exclusive, and that an act of Congress can confer no jurisdiction on a State court.

(His honor here cited several cases, and proceeded.)

With this weight of respectable authority, in support of the construction, which I have given to the constitution, sustained too, as I believe, by the bar and the country, I hope I shall not be charged with an immodest boldness, or an overweening confidence, if I persist in refusing to exercise the jurisdiction thus attempted to be forced upon me, notwithstanding the case of Wells. If it be meant by that decision, that the act of Congress conferring jurisdiction, is obligatory on the State courts, that we are obliged to try these causes, then it is time that the legislature and the country should be aware of the additional obligations imposed, and the new duties required. It is time some provision should be made, regulating the course of practice, when we lay aside the office of a South-Carolina judge, and assume the functions of a member of the federal judiciary, and it would not be amiss to establish the order of precedence in the trial of causes. If the decision does not go so far; if it means only that the State courts, *may,*if they choose, take jurisdiction, then I am guilty of no disobedience, as I certainly mean no disrespect, in refusing to try this cause. As a matter of policy, I am opposed to this blending of jurisdictions. Whatever ingenious theories may be broached, in which the government of the United States is made a part of that of South-Carolina, and the government of South-Carolina is made part of that of the United States, to a plain understanding it would appear, that the departments of the two, and their various functions are en*404tirely separate and distinct, having concern with, and relation to, each its particular and separate class of subjects, interests, and duties. I consider it a wise policy, to prevent conflict, and preserve harmony, that each should be kept moving in its own orbit. The consideration of convenience to the citizen does not weigh a feather with me. It would doubtless be very convenient for every man who has business abroad, to be able to do it at home. But I sit here to administer the laws of South-Carolina; and in the discharge of my appropriate duties, find ample occupation for all my time, and ample employment for all my powers. I do not come here to enforce the criminal laws of the United States, whose government in that regard is a foreign government. I am not the agent of that government; I derive no authority from it, and am not amenable *to it.*There is no provision made by our laws, or rules of practice, regulating the trial of this class of cases. An indictment in the name, and by the authority of the State of South-Carolina, for an offence against an act of Congress, is a strange anomaly however ingeniously framed “ against the act of the Congress of the United States, and against the peace and dignity of the State of South-Carolina; ” it sounds oddly, and I apprehend is a rare instance of one government being called on to enforce the criminal laws of another. It is not against the peace and dignity of the State of South-Carolina, to incur a penalty under an act of Congress, which South-Carolina, as a State, had no agency in passing ; nor can an indictment be framed here for such an offence, that would not palpably violate the first principles of criminal jurisprudence, as well as the first rules of criminal pleading. Who prosecutes here *1*Not the State of South-Carolina, but the United States. The punishment is the sanction imposed by that government, by whose authority it is inflicted; and the attempt is to make the State the subordinate instrument in punishing, without the power of remitting. The anomalies would be endless.

In conclusion I will take the liberty to repeat, that this is not a question of private right, depending upon the principles of the common law : on the construction of a will or a deed ; on the application of an old rule of evidence, or the adoption of anew rule *405of pleading. When the case of Wells came up, the question was presented for the first time in this State. I have heard that it was not argued at the bar. If it should be found, that the decision there is unsustained by authority, or incompatible with a sound construction of the constitution, it will not be the first time that courts of the greatest ability have delivered such judgments. It is no uncommon case to find every court reviewing the decisions of their predecessors: and if such course is allowable in regard to decisions, on subjects of private right, acquiesped in for a series of years, surely it cannot be matter of censure or rebuke, that an effort should be made to reconsider a great question of constitutional construction, adjudicated but once, the decision of which (in my judgment) may have the effect of transforming the character of the State tribunals, and of throwing upon them a vast increase of responsibility and labor. I protest it is from no captious spirit of opposition, from no paltry ambition to array myself against the late court, that I adopt this course. On the circuit law court will devolve all the additional duties, which may arise under the former decision. I desire that such an adjudication shall be made, as will be satisfactory to the members of that court, such as will enlighten them in regard to their new duties, or will relieve them of their new burthens.

Whatever practice exists on this subject, should be uniform throughout the United States. If the courts in South-Carolina take cognizance of these causes, the courts of the other States should do so likewise. If the convenienco of the citizens here is so much consulted, as to allow them to be tried in the State courts, the same indulgence should be extended to those of Virginia and New-York, Ohio and Kentucky. If it be the right of the citizen here, to be tried in this court, for an offence against the United States, and if it be the bounden duty of this court, as the judicial power of South-Carolina, to hear such causes, it is fit and proper that such solemn adjudication should be made, as will in future secure the enjoyment of the right here and elsewhere.

To accomplish these ends, if the parties interested have confidence in their views, to prosecute them further, I will take such order as will enable them to do so.

*406His honor then directed the following orders to be entered:

The want of jurisdiction being apparent- on the face of the indictment—

Ordered, That the same be quashed.

Ordered, also, for the same reason, that the cause be stricken from the docket, with leave to either party to *move the*Court of Errors to reverse the judgment of the court, and to reinstate the cause on the docket for trial here.

Accordingly in the Court of Errors, at the ensuing December sitting, a motion was made on behalf of the defendant, claiming the right to be tried in the circuit court of the State, rather than in the federal court, to reverse the judgment of the court below, and to reinstate the cause on the docket for trial.

It was doubted by some of the court, whether the cause should be heard on the motion of the defendant, as the decision in the court below was in his favor. A majority of the court were of opinion, that as the proceedings had been ordered to be transmitted to the attorney of the United States for the district of South-Carolina, the defendant, if the State court had lawful jurisdiction, was deprived of a benefit which he might claim, and that it was rather to be regarded as a case reserved by the circuit judge, for the opinion of the Court of Errors, on an important question, and that it was proper to consider and decide it.

The counsel were directed to proceed in the argument.

Several grounds were taken in the brief:

1. That the case of Wells was a conclusive authority, whatever may have been the'opinion of the presiding judge.

2. That the court having permitted the bill of indictment to *go to*the grand jury, it was not competent afterwards to say there was no jurisdiction.

3. That the court had jurisdiction, of the cause.

The main question argued at the bar, and the only one which seems to have been decided by the court, was the abstract question of jurisdiction. . If the court below could not lawfully take cognizance' of the cause, it seemed immaterial how it was disposed of there. If, on conviction, the verdict must have been set aside, *407for want of jurisdiction, it would have been superfluous to send it back because the presiding judge ought to have tried it, under the authority of Wells’ case.

The question was very fully and ably argued by Thompson and Hill, for the motion, and by Mr. Sol. Player, contra.

At that term the cause was postponed for consideration; and was decided in fact, at May sitting, 1838; but Mr. Justice Earle being absent in the circuit court in Charleston, no opinion was delivered. At the sitting in December, 1838, the chancellors closed their business unusually early, and the Court of Errors, did not formally assemble.

At May term, 1839, Mr. Justice Earle delivered the final judgment of that court, as follows:

Emile, J. If the final judgment of the court, on this important question, shall seem to have been delayed for an unusually long term of time, it may not be amiss to remark, that this has not resulted from any intrinsic difficulties in the question itself; nor from any protracted consideration on the part of the court, whose judgment has long been made up on the subject. The delay has proceeded from accidental causes.

The question is of more importance than difficulty. It is not a new question. It began very early after the formation of the government to attract attention, and to excite discussion; and has continued occasionally, to occupy the different courts of the Union as cases arose, until the argument is exhausted. I cannot but express, what I may be excused for feeling, much satisfaction that the conclusions of my own understanding, and the result of my awn investigations on a former occasion, when I was unaided by authority, had received the sanction of the ablest jurists of the country, and of some who are not surpassed any where.

The principal difficulty, at the late argument of the present case, seemed to arise from the decision in Wells’ case, where the late Court of Appeals held, that the State courts were bound to take cognizance of criminal prosecutions, under the authority of acts of Congress : and this, it was supposed, ought to have been a binding authority on the conscience and judgment of the Circuit *408Court. I consider myself under the necessity of disavowing that principle. On the contrary, I hold the question of jurisdiction, and more especially in criminal matters, to be one for the decision of the judge who is called on to exercise it. I regard this as a fundamental principle; and I conceive that no judge could, without a violation of conscience and duty, and greatly hazarding his own peace of mind, undertake to exercise criminal jurisdiction in matters of high import, when, according to his best, deliberate judgment, the whole matter is foreign to his court. Every judge must determine for himself the preliminary question of jurisdiction.

In refusing to try M’Bride, I decided according to my own sense of what was due to conscience and law: And in making a question for the review of the Court of Errors, formed in express reference to such questions, I performed what I considered a duty to the State; and surely, a review of former decisions is not an event of such rare occurrence. Since the judicial body was placed upon its present footing, such a course has been several times pursued. In the case of Glascow, the Law Court of Appeals gave express permission to counsel, to bring in question the cases of the State v. Sonnerkalb, and the State v. Taylor, with the view of overruling them, if unsound. During this term, in Bennett v. *Sims,*the Court of Errors reviewed Reeves v. Harris and Bailey v. Jennings, and that Court has now under consideration a case involving the question, purposely raised, whether an important decision of the late Court of Appeals shall stand.

The decision of M’Bride’s case, then, involves the correctness of the judgment of the same Court, in the State v. Wells; and the Court of Errors, whose judgment I have now the honor to pronounce, has come to the conclusion that the decision in Wells’ case was erroneous in principle; and that it is opposed to the current of sound authorities on the same point. And here perhaps it might be enough to refer to the views which I took occasion to present, on the circuit, in that 'case, as containing a concise statement of the grounds of our present judgment; but it is desirable to show that the grounds there assumed, have the sanction of several of the highest courts of the union. *409The act of Congress under which the defendant was indicted, is the same upon which the case of Wells arose. The offence charged was that of opening the mail bag and purloining money therefrom, contained in a letter which he abstracted. The punishment is a heavy fine and a long imprisonment. And the first inquiry which one is prompted to make, is, by what authority is this called a prosecution at the suit of the State? The State v. M’Bride? The offence is against the Government of the United States, which enacted the law, which prescribes the penalty, which has ordered the prosecution, and which, after conviction, would claim the right to dispose of the culprit, and remit or execute the sentence at its option. All the anomalies of the proceeding, some of which were enumerated on a former occasion, at once present themselves to the mind of a jurist. The State court is organized under a different government, from which its judge and other officers, receive their appointments. There is no provision in any of their commissions, nor in any act of South Carolina, authorising them to take cognizance of criminal offences' against another government. And if the judge should consent to hear the cause, I know no authority by which he could compel the jury to try it, or the sheriff to carry the sentence into execution. I make bold to say, in such case, if the jury should refuse to try the cause, or the sheriff to aid in carrying the sentence into execution, the court dare not lay a finger on either, by way of contempt.

The whole argument on the other side, is founded on a misconstruction of the article in the constitution on the judicial power, and I think, in a misconception of the true structure of the government. “ The judicial power shall be vested in one Supreme Court and in such Inferior Courts, as the congress may, from time to time, ordain and establish.” “Congress shall have power to constitute tribunals, inferior to the Supreme Court.” And it has been argued, first in the Federalist, “ that to confer upon the existing courts in the several States, the power of determining causes, would perhaps be as much to constitute inferior tribunals, as to create new courts with like powers.” To this proposition I must enter my decided dissent; and here I will remark, that able as were the *410authors of the work referred to, their opinions cannot be received as authority in judicial investigations. The purpose of that work was to reconcile a divided community to the adoption of the constitution ; and in accomplishing this object, it can hardly be denied that they sometimes exaggerated its advantages, and spread over the objectionable features the gloss of plausible *construction./¡On*the contrary, I maintain that the Constitution of the United States has, in express terms, confided to the judicial power of the Union, the jurisdiction and duties arising under the act in question; and that it is inconsistent with the nature and principles of our government, for the United States to impose judicial duties-upon the State Courts. To prove that the first branch of the proposition is true, it is only necessary to advert to the enumeration of the subjects of the judicial power. “ The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, and other ministers and consuls ; to all cases of .admiralty and maratime jurisdiction ; to controversies to which the United States shall be a party; to controversies between two or more. States ; between a State and a citizen of another State; between citizens of the same State, claiming land under grants from different States; and between a State and the citizens thereof, and foreign States, citizens or subjects.” In remarking on this article formerly, I laid down the proposition, that the judicial■ power of a State, in its original constitution, is co-extensive with the legislative, and extends to all subjects of controversy which can arise under the laws. Without any specific enumeration, therefore, of the subjects of the judicial power in the constitution, the courts of the United States, from the very nature of their office and duty, would have, taken cognizance of all those cases which are embraced in the three first clauses; because they are cases arising, or which would arise, under the limited legislation of a government of limited powers. And of all those classes of cases, their jurisdiction is exclusive. In all the other enumerated classes, their jurisdiction is concurrent with the common law courts of the several States. It was competent for *411congress in its legislative capacity to regulate the post office department, and by penal enactments to protect the mail from pillage. Offences thus created against the United States, are cases arising under the laws of the United States, strictly within the meaning of the clause already cited, to all of which the jurisdiction of the federal courts extends; and which, therefore, cannot be delegated by an act of congress to the courts of the several States. - ’I will not here repeat, what I took occasion formerly to urge, as an additional argument why congress cannot confer any jurisdiction on the State courts, that the judges to be appointed, and to whom the judicial power is to be entrusted, are to hold their offices during good behaviour, and to receive a compensation from the government. How then can congress constitute inferior tribunals, by distributing its judicial power among twenty-six judiciaries of the States, appointed by the States, paid by the States, and holding their office by every variety of tenure ? If congress could confer any portion of its jurisdiction, it might confer the whole; and the absurdity might arise of a State judge continuing to exercise the authority of a judge of the United States, after his term of service has expired; or the existence of the federal authority to try certain classes of cases, would depend on the pleasure of the States.

I have said it is inconsistent with the nature and principles of our government, for the United States to impose such duties upon the State court. This arises from its peculiar structure. They are separate and distinct governments, independent of, and foreign to each other, in respect of their several objects, powers and operations — each is complete in itself; and although the action of the State governments is necessary to the formation of the federal government in some of its departments, yet it is not necessary to its ordinary operation, and the action of the federal government is in no wise necessary to the constitution, or operation of the State governments. They are said to be parts of one whole, an expression often used by persons who entertain opinions widely different, both in regard to their structure and operation; while some maintain that the whole is superior to all the parts, others contend that each part is superior to the entire whole. Its structure, and the *412principles which form its basis, demonstrate and establish that the government of the union cannot interfere with the powers' reserved to the States, or exercise authority over them in any way not expressly authorised by the constitution.

To allow congress to confer jurisdiction, and to constitute State courts inferior tribunals, under the provisions of the constitution, would at once transform State judges into federal officers, and make them a portion of the federal judiciary. Some of the consequences of such a proceeding were formerly pointed out; but independently of the objection growing out of that view, there is another which lies deeper and involves a more important principle, which is at the bottom of all judicial administration; it is that which I have before glanced at, that the judicial power, in its extent, depends on the legislative. It is a settled principle of jurisprudence, recognized by all sound commentators, and is well expressed by Mr. Rawle in his treatise on the constitution: “ The judicial power must be general or limited, according to the scope and objects of the government; in a word, it must be fully and exactly commensurate with that of the legislature. It cannot by any terms of language be made to extend beyond the legislative power, for such excess would be inconsistent with its nature.” The clear, well defined separation between the legislative function of the general government and that of the States, at once presents the principle in strong relief. The classes of subjects to which the legislation of congress may extend, are enumerated in the constitution. The jurisdiction of the federal courts extends to all cases arising under laws passed there, and to some others expressly mentioned. The residue of the legislative power, embracing a vast variety of subjects and interests, belongs to the States: these cannot be specified, and have not been attempted *to be specified; and*the judicial power of the States extends to all of them. It has not been attempted to define by an enumeration of subjects, the extent, either of the legislative or judical power of the States; they are commensurate with each other’, and extend to all subjects not confided by the constitution to congress and the federal judiciary. Can the State legislature undertake by law to regulate the post office, provide for the security of the mail, or pass a penal statute, such as *413that which gave rise to this prosecution ? No one will pretend this; and it follows indisputably that, the judicial power' of the States can take no cognizance of such an offence. To congress alone belongs the power to legislate on the subject, and to the courts of the United States belongs the jurisdiction of the offences created.

It is also a settled principle of jurisprudence, sanctioned by the practice of all countries, especially of England and of these States, that the courts of one country will not enforce the penal laws of another, much less will they undertake to prosecute and punish crimes and public offences against another. They are offences only against the authority of that government. As is said by Mr. Justice Platt, of New-York, in the case of the United States and Lathrop, “that a State court can in no case hold jurisdiction to punish criminaliter for an offence against the United States, is clear, for this plain reason, that every criminal prosecution must charge the offence to have been committed against the State or sovereign, whose courts sit in judgment on the offender. In the administration of criminal justice, every sovereign acts as judge in his own case as the offended party; and a State court cannot act as an organ of judicial power, representing the United States, because in its appointment, tenure and accountability, it is independent of the federal government.” Mr. Justice Story, in Houston and Moore, 5 Wh. ¿9, holds the same language: “It is a general principle too, in the policy, if not the customary law of nations, that no nation is bound to enforce the penal laws of another, within its own dominions. The authority naturally belongs, and is confided to the tribunals of the nation creating the offence: In a government formed like ours, where there is a division of sovereignty, and where of course there is danger of collision, from the near approach of powers to a conflict with each other, it would seem a peculiarly safe and salutary rule, that each government should be left to enforce its own penal laws in its own tribunals.” The same principle is asserted in that case, by Mr. Justice Washington, who delivered the judgment of the court, although there was a difference of opinion as to the application of the principle. “ For I hold *414it 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 jsrohibited'by the exclusive jurisdiction,of the federal courts.” But the most explicit recognition of the principle, by one of the ablest courts that ever sat in this country, was in the case of Martin v. Hunter’s lessee, 1 Wheat. 304. That case, during its progress through the various courts where it was entertained, was probably more thoroughly discussed, and more maturely considered, than any cause ever heard in the American courts. The whole structure of the federal government and especially of the judicial department, underwent a searching scrutiny — and the relative powers and jurisdiction of the courts of the United States, and of the several States, were attempted to be ascertained and illustrated, with the most accurate precision. And, although I cannot yield my assent to some of the propositions advanced, in relation to the power of congress to render the jurisdiction of the federal courts exclusive, in all the classes of cases of which they may *take*jurisdiction at all, yet I fully concur in the positions taken, in regard to the power of congress to confer jurisdiction upon the State courts, in those cases which are exclusively confided to the federal courts by the constitution. Says Mr. Justice Story, “no part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to the state tribunals ; the admiralty and maritime jurisdiction are 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.” To this direct authority on the point, I will add the weight of another able jurist and commentator. Ch. Kent, 2 Com. holds the following language: “ The doctrine seems to be admitted, that congress cannot compel a State court to entertain jurisdiction in any case. It only permits State courts which are competent for the purpose, and have an inherent jurisdiction adequate, to entertain suits in the given casesand they do not become infe*415rior courts in the sense of the constitution, because they are not ordained by congress. The State courts are left to infer their own duty from their own State authority and organization. Their jurisdiction of federal causes is, however, confined to civil actions, or to enforce penal statutes; and they cannot hold criminal jurisdiction over offences exclusively existing as such against the United States. Every criminal prosecution must charge the offence to have been committed against the sovereign whose courts sit in judgment against the offender, and whose executive may pardon him.” In regard, therefore, to criminal prosecutions for public,' offences committed against the United States, punishable by indictment, there seems to be no question that the State courts cannot take cognizance of them.

In regard to actions for the recovery of pecuniary penalties, or as Ch. Kent expresses it, “ to enforce penal statutes,” there seems to have been some difference of opinion and practice. While in New-Jersey and in Tennessee such suits have been entertained, and recoveries had, the courts of Virginia, Ohio, New-York and Kentucky have refused to entertain suits, in behalf of the United States, for the recovery of such penalties, considering them as in the nature of criminal prosecutions, rather than of civil actions. In the case of Jackson v. Rowe, decided in 1815, the General Court of Virginia, consisting of eight judges, unanimously refused to take cognizance of a suit for a pecuniary penalty imposed by an act of Congress; and held, that the act conferring jurisdiction on the State court, was unconstitutional and void; and that to assume jurisdiction of such cases would be to exercise a portion of the judicial power of the United States. As early as 1813, the General Court had also decided unanimously, that a prosecution for stealing from the mail, in violation of an act of Congress, could not be maintained in the State courts. Com. v. Feely, Virg. Ca. In 1816, the case of the United States v. Campbell, (Am. Reg.) came on before a State court in Ohio. It was an information by the collector of the revenue, to recover a penalty for distilling without license; and on a plea to the jurisdiction, Tappan, Justice, held that the United States could not prosecute for offences against *416these laws in the State courts; that the State of Ohio was a sovereign and independent State, not controllable by any earthly power, either in the making or the administration of laws, except only in such particulars as it had delegated a portion of that sovereignty to the United States, by the constitution, and had limited itself by that instrument; that Congress could give no jurisdiction to the State courts, and require no judicial duties from them; that one sovereign cannot make use of the municipal courts of another to enforce its penal laws ; and that as to its judicial power and its penal laws, the government of the United States was as much an independent and separate government as Great Britain or France, or either of the United States. In the case of the United States v. Lathrop, in 1819, the Supreme Court of New-York, came to the like conclusion, in regard to the same sort of action. Spencer, Ch. J., delivering the opinion of the court, said, “ the jurisdiction of the State courts is excluded in cases of crimes and offences cognizable under the authority of the United States, and in cases of suits for penalties and forfeitures, incurred under the laws of the United States;” and Mr. Justice Platt dissented only on the ground, that it was to recover money, and not a criminal prosecution. In the case of Haney v. Sharpe, the Supreme Court of Kentucky, in 1833, came to the same resolution in regard to the same kind of action. The weight therefore of authority is decidedly against the proposition, that the State courts can take cognizance of suits, brought by the United States, merely for the recovery of pecuniary penalties. How much stronger and more conclusive are the reasons why they cannot take jurisdiction of crimes and offences, prosecuted at the instance of the United States, by indictment, need not be argued to minds accustomed to judicial investigations.

I have, in another place, attempted to exhibit the true ground of the concurrent jurisdiction of the federal and State courts, over certain classes of cases, enumerated in the constitution, and of which the State courts, by virtue of their original and inherent powers, had jurisdiction, independently of the constitution, and anterior to it. The’ground, on which this was there placed, is admitted both by *417Mr. Justice Story, and Ch. Kent. But they both maintain the proposition, that even of these, Congress may, at its election, make the jurisdiction of the federal courts exclusive. To this I cannot yield my assent. It is alike incompetent in Congress to take away the jurisdiction of the State courts, where they originally had it, and to confer it where they had it not, and where it would be inconsistent with the constitution, and incompatible with first principles that they should exercise it. The position assumed by the writer of the Federalist, “ that the State courts, in every case, in which they are not expressly excluded by future acts of the national legislature, will of course, take cognizance of the causes to which those acts may give birth,” is utterly untenable. The State courts, as tribunals of common law jurisdiction and powers, might at any time have taken cognizance, and do so continually, of many causes, which might also be carried into the United States courts. But this does not depend on the will of Congress, and the jurisdiction cannot be abridged. The State courts likewise take cognizance of- the laws of the United States, when the right to property, or the construction of contracts depends on them, just as they would of the laws of any foreign country. But this is only in civil cases, where on a principle of the common law, the particular enactment becomes, incidentally, part of the cause.

The argument, on the other side, is supposed to be aided by the provisions of the act of 1789, giving 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 shall otherwise provide,” and it is said that this exception accounts for the proviso in the act of 1807, concerning forgery of the notes of the U. S. Bank, and for the provisions of the several acts, conferring jurisdiction on the State courts, over certain inferior offences against the United States. The proviso in the act of 1807, in regard to the notes of the bank is, “ that nothing in that act contained, shall be construed, to deprive the courts of the individual States, of jurisdiction under the laws of the several States, over offences made punishable by that act.” But all the reasoning on this subject, whether by Mr. Justice Washington, *418in Houston v. Moore, Mr. Justice Story, in Martin & Hunter, or Chancellor Kent, in his Commentaries, I think is unsatisfactory. It has even been supposed, that the saving in the act of *1807*alone enables a State court to punish the altering of a forged bank note of the U. S. Bank, although it be a distinct offence, by the law of the State. Nothing shows more conclusively the inaccuracy of the views on this head, than that this is regarded and treated as a case of concurrent jurisdiction over the same offence, authorised by the proviso of 1807. It is not a case of concurrent jurisdiction, for it is not the same offence. The forging or altering is a misdemeanor by the act of Congress. The same act of forging or altering is a felony by the law of this State. And the authority to punish in the State court, under the State law, is wholly independent of the United States, and is derived from the sovereign power of the State. It existed before the constitution, or the proviso, and as it is not derived from either, so it cannot be taken away. The offences are not the same, and it is not a case of concurrent jurisdiction, not only because the laws are different, but the offences are created by different governments, and the courts derive their authority from different sources. How far a conviction or acquittal in one court, would be a bar to a prosecution in the other, is another question, of great delicacy, not necessary to be here considered, and depending on principles of international law, altogether foreign to the provisions of the constitution, or of the acts of Congress. This is a very different case'from that of a remedy for a private injury, in a civil action, within those classes of cases, which may be taken either into the federal or State courts. These are in their nature transitory, depending on contract or tort, arising out of the common law, which is the same in both courts. Of these cases the jurisdiction is concurrent and must remain so.

I have been the more emboldened to present and urge these views, because they have met the approbation of the ablest courts in the other States of the Union, and because the result produces an uniformity, which is of the utmost importance, on a question of great interest. The effect will be *to*preserve unimpaired those *419constitutional barriers between the departments of the federal and of the State governments, which are essential to their harmonious operation. *Let*each be restrained, strictly, within the limits which the constitution has prescribed, and be withheld from encroaching . on the jurisdiction of the other, and both will go forward affording adequate relief, within their proper spheres; and extending and perpetuating the blessings of order and good government, to the whole people and through all time.

It is the opinion of this court, that the act of Congress, conferring jurisdiction of this offence on the State courts, is unconstitutional and void; that the court below did not err in refusing to take cognizance thereof, and that the judgment and orders of the Circuit court be affirmed.

Johnston, Chancellor; Gantt, Rxchaedson and Evans, Justices, concurred.

Btjtmgk, J.

I have felt great difficulty as to my course in this case. Upon one ground I differ entirely with my brother Earle, whose decision on the circuit has been sustained by the very able opinion delivered by himself, as the judgment of the Court of Errors. As a circuit judge, I think he was bound to have taken jurisdiction of the case. A circuit judge is an inferior magistrate to the Supreme Court, of the last resort. When he forms a part of the Supreme Court, he has an equal right to review and reverse a decision that has been made by it. When he is on the circuit he occupies a subordinate position, and has no right to set up his judgment in opposition to the law, as it has been interpreted by a paramount and controlling j urisdiction. It is my every day’s practice to surrender my judgment to a decision of the Court of Appeals, when it adjudges the point expressly involved. A judge is a magistrate whose peculiar duty it is to assert and maintain the dominion of the laws ; and he should be distinguished in setting an example of obedience to them. His duty on circuit is, to preside over the courts of *justice,*and to see that the law is administered faithfully as he finds it interpreted by the superior courts of *420
      *law.*When the judges meet as a Court of Appeals, they become a court of *law,*whose decisions should not be reversed but by an authority equal to their own. If a circuit judge may-disregard and reverse a decision thus made, what is to prevent a justice of the peace, or any other magistrate, from putting his at defiance. He might always take refuge in his own conscience and the convictions of his own judgment. The judiciary depends alone on public opinion to sustain it, and when inferior magistrates and parties can appeal to it in opposition to the judicial decisions of the country, law loses its just dominion, and becomes the creature of popular caprice. The moment that one can disregard it with impunity, communities may, and will, put it at open defiance. Upon the other and the main question of the case, the opinion of the court has my entire approbation and concurrence; and for the satisfactory reasons so well assigned in it.

O’Neaul, J.

I dissent from the judgment in this case, on two grounds : 1st. The court had jurisdiction in this case. My reasons are given in the case of the State v. Wells; and I have not now time to add any thing to *them*which ought to be done. *2d.*The circuit judge had no right to strike *the*case from *the*docket. Until the case of the State v. Wells was reviewed and reversed, it was obligatory on any judge. The decision of the Supreme Court, whether of *three*or *ten*judges, ought to be respected. According to the precedent set in this case, I might, believing as I do, that this case comes to a wrong conclusion on a point of constitutional law, try any and every case of the kind, which might be presented to me on the circuit.

Johnson, Chancellor, gave no opinion.

Harper, Chancellor, absent.

Dunkin, Chancellor, gave no opinion, having been elected since the argument.