SECTION IV.

JURISDICTION OF THE STATE COURTS.

The several states, in their character of sovereign political communities, possess all the judicial power appertaining to independent nations, except what they have committed to the Federal Government.

They establish courts, and create, apportion, regulate and enforce their jurisdiction in such manner as in their judgment the just ends of government require.

The principles of jurisdiction in habeas corpus proceedings being essentially the same in all the states, it does not fall within the plan of this work to inquire in detail to what courts or officers it has been committed in the several states.

This is to be sought in the statutes of the states, for although there are provisions in the constitutions of all the states, except Maryland, North Carolina and South Carolina, against the suspension of the privilege of the writ, there are express grants of jurisdiction over it in only twelve, Virginia, Florida, Alabama, Louisiana, Ohio, Illinois, Missouri, Michigan, Arkansas, Texas, Wisconsin and California.

SECTION V.

CONCURRENT JURISDICTION OF THE FEDERAL AND STATE COURTS.

The constitutional provision that "the judicial power of the United States 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," has never been held to prohibit the exercise of judicial power by the state courts in such cases, though it has been said that Congress have power to make the jurisdiction of the federal courts exclusive in all cases to which the judicial power of the United States is extended by the Constitution. Martin v. Hunter's Lessee, 1 Wheat., 337.

Congress not having undertaken (if indeed it has the power) to make original jurisdiction in such cases exclusive in the federal courts, the state courts have hitherto exercised it concurrently with the federal courts, subject only to the final appellate jurisdiction of the Supreme Court of the United States, as provided by the Judiciary Act of Congress.

Jurisdiction in habeas corpus, as we have seen, is granted to the federal courts and judges only in certain cases; but it is not by the Constitution or the act of Congress declared to be exclusive in them. Accordingly the state tribunals, exercising a judicial power which they possess independent of national authority, and of which they have not been divested by the Constitution, or any law of the United States,

have always exercised in these cases a concurrent jurisdiction with the federal courts. The fact that under the present law of Congress, no appeal lies to the Supreme Court from a decision of a state court in a habeas corpus proceeding, involving questions which affect the Constitution or laws of the United States, does not deprive the state courts of their jurisdiction since it is supposed to be competent for Congress to extend the appellate jurisdiction of the Supreme Court to such a decision. Sug. Com., 287.

Whether the judges of a state court have power to issue a writ of habeas corpus in cases of commitment, or detainer under the authority of the United States, and, if so, under what circumstances, and how far they may decide as to the validity of such commitment or detainer, are questions which have been frequently determined in many of the state and some of the federal courts; but they have not been decided by the Supreme Court.

In Georgia the power was, at first, disclaimed. In Massachusetts its existence was thought too clear to require argument.

In Maryland it was maintained, but not upon most satisfactory grounds.

the

In New-York, in 1812, the question was waived by the Supreme Court. Kent, Ch. J., alone disclaiming the power.

In Pennsylvania and New Jersey, it was asserted and maintained by arguments which have never been refuted.

In South Carolina, in 1819, it was disclaimed.

In Virginia, it was asserted and exercised in 1821.

In some of the inferior courts of the United States, the power has been denied; but in most of them where the question has arisen, the power to issue the writ has been conceded, but the jurisdiction under it has been claimed by them to be more circumscribed than the state courts have held it to be.

It may be considered settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States.

And the weight of authority clearly is that they may decide as to the legality of the imprisonment; and discharge the prisoner if his detention be illegal, though the determination may involve questions of the constitutionality of acts of Congress, or of the jurisdiction of a court of the United States. Their right to proceed to the extent of declaring an act of Congress unconstitutional, or of pronouncing a judicial act of a court of the United States void for want of jurisdiction, has been denied by some of the district and circuit courts of the United States; but the denial does not appear to be supported by satisfactory reasons or authority.

An act of Congress made in pursuance of the Constitution of the United States, is binding alike upon the state and federal judges, as a part of the supreme law of the land. But when its validity is questioned, in a suit or proceeding in a state court, over which it has jurisdiction, it becomes, not a privilege but the unavoidable duty of the court to decide the question. And where in a like suit or proceeding a question arises upon a judgment or act of a court of the United States, in regard, not to its

regularity merely but its validity for want of jurisdiction over the subject matter or the parties, it is as much the duty of the court to decide the question as it would be if it arose upon a judgment or act of

a state court.

These principles have been repeatedly advanced and enforced by the highest courts, state and federal, and ought to be considered settled.

1st. Of void laws. "The right of all courts," says Mr. Justice Story, "state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy." 2 Story's Com., § 1842; 1 Kent's Com., 494, 8th ed.; Serg. Com., ch. 34; Marbury v. Madison, 1 Cranch, 173.

2d. Of void judgments. The law on this point is clearly stated by the Supreme Court of the United States, in the case of Williamson v. Berry, 8 How., 540: "It is a well settled rule in jurisprudence, that the jurisdiction of any court exercising authority over a subject may be inquired into in every other court, where the proceedings in the former are relied upon, and brought before the latter by a party claiming the benefit of such proceedings. The rule prevails, whether the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws. of nations, the practice in chancery, or the municipal laws of states. This court applied it as early as the year 1794, in the case of Glass et al. v. Sloop Betsey, 3 Dall., 7; again, in 1808, in the case of Rose v. Himely, 4 Cranch, 241; afterwards, in 1828,