Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/627

 CH. XXXVIII.] exercise a concurrent jurisdiction. Congress, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition, that in all the cases, to which the judicial power of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts.

§ 1746. The Federalist has spoken upon the same subject in the following terms. The only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage; "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain, and establish." This might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes, to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts, as congress should think proper to appoint; in other words, that the United States should exercise the judicial powder, with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most defensible construction.

§ 1747. But this doctrine of concurrent jurisdiction, is only clearly applicable to those descriptions of causes, of which the state courts had previous cognizance. It is not equally evident in relation to cases,