Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/631

tion and laws. There are, indeed, many acts of congress, which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts; but this (it has been said by a learned judge,^[1]) is not, because such permission was considered to be necessary, under the constitution, to vest a concurrent jurisdiction in those tribunals; but because the jurisdiction was exclusively vested in the national courts by the judiciary act; and consequently could not be otherwise executed by the state courts. But, he has added,

for I hold it 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.

This latter doctrine was positively affirmed by the Supreme Court in Martin v. Hunter;^[2] and indeed seems, upon general principles, indisputable. In that case, the court said, "congress cannot vest any portion of the judicial power of the United States, except in courts, ordained and established by itself."^[3]

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1. Mr. Justice Washington in Houston v. Moore, 5 Wheat. R. 27, 28; The Federalist, No. 27; id. No. 82.
2. 1 Wheaton's R. 330. See 1 Kent's Comm. Lect. 18, p. 375, (2 edit p. 400.)
3. Id. See also Houston v. Moore, 5 Wheat. R. 68, 09. See 1 Kent's Comm. Lect. 18, p. 375, &c. (2 edit. p. 400 to 404.)—The Federalist (No. 81) seems faintly to contend, that congress might vest the jurisdiction in the state courts, "to confer upon the existing courts of the several states the power of determining such causes, would, perhaps, be as much to 'constitute tribunals,' as to create new courts with the like power." But, how is this reconcilable with the context of the constitution? "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts, as congress may,