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bribe;' extortion of any kind; embezzlement by public officers;3 other forms of official misconduct; obstructing any officer of the United States in the service of any legal writ or process whatsoever; demanding and receiving, by reason of his office, any greater fees than those allowed by law, by a public officer, or his deputy; endeavoring to impede, intimidate, or influence any juror, witness, or officer in any court of the United States in the discharge of his duties, or by threats or force obstructing or impeding, or endeavoring to impede the due administration of justice therein; committing perjury, or causing another to do so, in any suit or controversy depending in any of the courts of the United States, or in any deposition taken in pursuance of the laws of the United States; taking other forms of false oaths forbidden by acts of Congress; endeavoring to defeat the course of justice; circulating obscene literature through the mail or custom-house.10

§ 263. By clauses in several of the acts referred to, it is expressly declared that nothing therein shall be construed to deprive the courts of the individual States of jurisdiction under the laws of the several States, over offences made cognizable by these acts. Such is the case, as has been noticed, with the crimes of forging, coining, and counterfeiting." By the act establishing and regulating the Post-office Department, authority is given to the federal officers to prosecute in the State courts offences against the department.12

II. IN WHAT COURTS OFFENCES COGNIZABLE BY THE UNITED STATES ARE TO BE TRIED.

When the State and the Federal Courts have Concurrent
Jurisdiction.

§ 264. Under the Federal Constitution exclusive jurisdiction is vested in the federal courts of all offences cognizable under the

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authority of the United States, unless where the laws of the United States shall otherwise direct. In the language of Judge Washington, in delivering the opinion of the Supreme Court in a leading case, "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." How far the grant of exclusive jurisdiction extends is discussed in another work.3

State courts have not concurrent jurisdiction, unless given by Congress.

Conflict of opinion as

§ 265. Statutes having been enacted by Congress giving, as to several lines of offences, concurrent jurisdiction to the State courts, it has been held in several of the States, not without the sanction of repeated intimations of the Supreme Court of the United States, that although the State Courts may exerto State ju- cise jurisdiction in cases authorized by the laws of the States, and not prohibited by the exclusive jurisdiction of the federal courts, yet it cannot be considered obligatory on the State tribunals to exercise such jurisdiction. On the other hand, as will be seen, we have cases in which State courts of high authority have accepted this jurisdiction.

risdiction.

§ 266. Of the vexed questions here involved we may venture to accept the following solutions:

As to of

1. Congress cannot constitutionally confer on a State court jurisdiction over offences exclusively against the federal fences dis- government. Statutes conferring such jurisdiction do not against the and cannot bind the State courts as such.

tinctively

United

States, the

indepen

dent sovereigns.

2. Offences which are directed against the soverStates are eignty of a State, or which directly affect the State or its population, are punishable in such State, notwithstanding the fact that such offences are also directed against the sovereignty of the federal government, unless the Constitution gives the federal government exclusive jurisdiction over the offence and even where the federal courts have exclusive

1 Houston v. Moore, 5 Wheat. 1, 1820.

2 Ibid. See U. S. v. Ames, Boston Law Rep. vol. 9, p. 295. As to concurrent jurisdiction, see Whart. Cr. Pl. & Pr. 242.

3 Whart. Com. Am. Law, ? 524.

1842.

Prigg v. Com., 16 Peters, 539, 630,

5 "A State court of original jurisdiction having the parties before it may, consistently with federal legislation, determine cases at law or in equity arising under the Constitution

jurisdiction of one aspect of an offence, this does not prevent a State court from prosecuting another aspect of the same offence.' Whether one sovereign, by prosecuting an offence thus indictable both by itself and by another sovereign, bars a prosecution by such other sovereign, is elsewhere discussed.2

3. Offences exclusively against the United States are exclusively cognizable in the federal courts; and offences exclusively against the States are exclusively cognizable in the State Courts.

The or laws of the United States, or in- to itself the time, the duty, and the volving rights dependent on such Con- allegiance of State officials, and thereby stitution or laws." Harlan, J., in put them under its immediate control. Robb v. Connolly, 111 U. S. 624, 1883, As to perjury, see infra, ? 1275. cited infra, 267. U. S. v. Wells, 15 Int. Rev. Rec. 56.

1 E. g., where the uttering a forged treasury note is prosecuted as an uttering in the federal courts, and as a cheat in the State courts. Whart. Com. Am. Law, 524. Infra, & 293.

* Infra, ?? 273, 293. And see particularly Whart. Cr. Pl. & Pr. 441. As to perjury, see infra, ? 1275. As to treason, see infra, 812-18. As to coining, in addition to points above given, see infra, ¿ 749. As to larceny and mail robbery, see State v. Townsend, 1 Houst. C. C. 10, 1863.

Among the rulings bearing on this topic may be cited the following:

In Massachusetts, it is said that the enactment of a federal statute directing the punishment of a crime, as against the United States, excludes all State jurisdiction, unless the concurrent jurisdiction of the States be saved in the statute. "By the terms of the Judiciary Act," said Ames, J., in the Supreme Court of Massachusetts, in reference to this point, "the courts of the United States are vested with the exclusive cognizance of all crimes that are made punishable by 3 The propositions in the text are act of Congress, except where the act of dependent upon principles of consti- Congress makes other provision; and it tutional construction, which it is out would therefore seem that the crime of the range of the present treatise to of embezzlement by a cashier of a discuss. If, however, as is here as- national bank located within our tersumed, each State is sovereign as to ritory is taken out of the jurisdiction all powers not ceded to the federal of our courts. This is at least strongly government, the State has jurisdiction implied in Com. v. Tenney, 97 Mass. of all crimes committed within its 50, 1867, and in fact is conceded by the borders unless the exclusive jurisdic- learned attorney-general in the argution of such crimes is ceded to the ment of this case." Com. v. Felfederal government. And if each ton, 101 Mass. 204, 1869; Com. v. State is sovereign as to its own func- Ketner, 92 Pa. 372, 1880. See Com. tionaries, these functionaries cannot v. Fuller, 8 Metc. 313, 1844; State v. accept any jurisdiction conferred on Tuller, 34 Conn. 280, 1867. Infra, them by the federal government, un- 1041. less the right to impose this juris- Hence even an accessary to an emdiction is ceded by the States to the bezzlement of the funds of a national federal government. Otherwise the bank by one of its officers cannot be federal legislature could appropriate tried in Massachusetts, even though

federal courts, therefore, have no jurisdiction of offences exclusively against the States.1

offences against the federal government are exclusively cognizable in federal courts. State v. Tuller, ut supra; Ely v. Peck, 7 Conn. 240, 1829; infra, & 1041.

In Com. v. Tenney, 97 Mass. 50, 1867, it was held that a State court has jurisdiction of an indictment against an officer of a national bank for fraudulently converting to his own use the property of an individual deposited in the bank, under a State statute making such fraudulent conversion "larceny."

It is no objection to the jurisdiction of State courts that the same acts, constituting forgery under State laws, are also violations of the national

may be subjected to punishment for both. Cross v. State, 10 Sup. Ct. Rep. 47, 1889.

the offence of an accessary is not provided for by the federal statutes. Com. v. Felton, 101 Mass. 204, 1869. See Com. v. Ketner, 92 Pa. 372, 1880. On the other hand, it has been held in the same State in Com. v. Barry, 116 Mass. 1, 1874; that a larceny committed by an officer of a national bank of the property of the bank may be punished in a State court, notwithstanding that he may also be subject to punishment for embezzlement under the United States statute. "The fact," so it is argued in the opinion of the court, "that Hine was teller of the bank subjects him to the punishment imposed for his breach of trust in that capacity, under the statute of the United States; it does not relieve him banking laws, and that the offender from his liability to punishment for the larceny at common law, or under statutes of the State. There is no identity in the character of the two offences, although the same evidence may be relied upon to sustain the proof of each. An acquittal or conviction of either would be no bar to a prosecution for the other." See Com. v. Carpenter, 100 Mass. 204, 1868; Morey v. Com., 108 Mass. 433, 1871. To the same effect is State v. Tuller, 34 Conn. 280, 1867, where it was held that while the State courts cannot exercise jurisdiction of the offence of embezzlement by an officer of a national bank of the property of a bank, they have jurisdiction of the larceny or purloining by such officer of the property of others left with the bank for safe-keeping. At the same time, it is admitted in Connecticut that agree that the State courts have no

Perjury in naturalization proceedings, no matter what may be the court in which the false oath is taken, is held to be an offence against the general government, and not punishable in State courts. People v. Sweetman, 3 Parker C. R. 358, 1855; State v. Adams, 4 Blackf. 146, 1840; People v. Kelly, 38 Cal. 145, 1870; State v. Kirkpatrick, 32 Ark. 117, 1878. See infra, % 1041, 1275, 1870. By other courts, however, for the reason that perjury in such cases strikes at state as well as federal integrity, this view is denied. Infra, 1275; State v. Whittemore, 50 N. H. 245, 1870; Rump v. Com., 30 Pa. 475, 1858 See U. S. v. Bailey, 9 Pet. 238, 1835. Yet we may

1 Bush v. Kentucky, 107 U. S. 110, 1882; U. S. v. Pennsylvania, 4 Hughes, 491, 1880. So perjury committed before a State court legally sitting in a United States government building is triable in State courts. Exum v. State, 90 Tenn. 501, 1892.

III. CONFLICT AS TO HABEAS CORPUS.

§ 267. For many years after the adoption of the Federal Constitution the State courts claimed to have the right to issue writs of

family, it was held that, as no tribunal of the State had an inherent or concurrent jurisdiction in such cases, the jurisdiction of the courts of the federal government must necessarily be exclusive, and that the State courts could take no cognizance.

jurisdiction of perjury before federal land officers (People v. Kelly, 38 Cal. 145, 1870; see, also, State v. Pike, 15 N. H. 83, 1844; State v. Adams, 4 Blackf. 146, 1840); and of perjury in federal judicial investigations. Ex parte Bridges, 2 Woods, 428, 1875; s. c. under name of Brown v. U. S., 14 Am. In Missouri, it has been even said L. Reg. N. S. 566; Shelly v. State, 11 that the power to punish counterfeitLea, 594, 1882; though it may be ing current coin is, notwithstanding otherwise as to special aspects of the statute, vested exclusively in Conperjury under federal statutes; infra, gress; that the States have no concur1275. See, on this topic, Whart. rent legislation on the subject; and Com. Am. Law, 524. See Exum v. that a statute of a State providing for State, 90 Tenn. 501, 1892. the cognizance and punishment of such crimes is void. Mattison v. State, 3 Mo. 421, 1838. See State v. Shoemaker, 7 Ibid. 177, 1841. As to coining, see generally infra, ? 748.

Of coining and counterfeiting, however, the State courts, it is generally agreed, have independent jurisdiction, so far as such offences constitute cheats, either consummated or attempted, the offence being one which, at least in some of its aspects, is directed against the sovereignty of the particular States, and the jurisdiction originally existing in the State courts, and not being formally ceded to the general government. Prigg v. Com., 16 Pet. 630, 1842; Fox v. Ohio, 5 How. (U. S.) 410, 1847; State v. Randall, 2 Aikens, 89, 1826; Com. v. Fuller, 8 Metc. 313, 1844; Manley v. People, 7 N. Y. 295, 1852; U. S. v. Smith, 1

In Ohio, on an information for selling distilled liquors without a license, contrary to the act of Congress, it was held by all the judges that the United States could not prosecute in the State courts. In a previous case, on a similar question, the court had been equally divided. U. S. v. Campbell, 6 Hall's L. J. 113. Larceny of whiskey from bonded warehouses is triable in State courts; federal courts only punish removal without paying tax. State v. Harmon, 104 N. C. 792, 1890. In Virginia, it has been decided that the courts of that State have no jurisdiction of stealing packages from the mail, that being an offence created by act of Congress; Com. v. Feely, 1 Va. Cas. 321, 1815; and the same view was taken in an action brought to recover a penalty for a breach of the revenue laws, notwithstanding Southard, 33, 1818; Rump v. Com., 30 such penalty being expressly made recoverable in the state courts. Serg. Cons. Law, 288.

In Kentucky (Haney v. Sharp, 1 Dana, 442, 1833), in an action to recover a penalty under an act of Congress, for a refusal to make return to the marshal of a list of the defendant's

Pa. 475, 1858; Sutton v. State, 9 Ohio, 132, 1841; Hendrick v. Com., 5 Leigh, 707, 1835; Jett v. Com., 18 Gratt. 933, 1866; State v. Pitman, 1 Brev. 32, 1805; State v. Antonio, 3 Brev. 562, 1816; Waldo v. Wallace, 12 Ind. 569, 1859; Chess v. State, 1 Black f. 198, 1822; Snoddy v. Howard, 51 Ind. 411,

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