§ 336. “Defining the Extent to which the Jurisdiction of any Federal Court shall be Exclusive.”
The Constitution, whilst it confers jurisdiction, or enables jurisdiction to be conferred, on the federal courts in certain cases, does not take away the pre-existing jurisdiction of the State courts in any of those cases. The consequence is that there remains a concurrent jurisdiction in the courts of the States in all those cases of federal jurisdiction which would have been within the competence of the courts of the States if no federal courts had existed. (See Note, § 326, supra.) It is obvious that some federal control over this concurrent jurisdiction is necessary; and in the United States it has been definitely settled that wherever the judicial power of the United States is not in its nature exclusive of State authority, it may at the election of Congress be made so. (See Kent, Comm. i. 397; Cooley, Const. Lim. 18.) This provision is, therefore, merely an explicit enactment of what in the Constitution of the United States is held to be implied.
The power to make the federal jurisdiction exclusive means the power to take jurisdiction away from the courts of the States, in all cases in which jurisdiction is given to the courts of the Commonwealth. But this power of taking away jurisdiction is confined, not only within the limits of “the matters mentioned in the last two sections,”
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but within the narrower limits of the jurisdiction actually conferred on Federal Courts under those sections. That is to say, the Parliament can at once take away the jurisdiction of the State courts in matters enumerated in sec. 75; but it cannot take away the jurisdiction of the State courts in any matter enumerated in sec. 76 until it has first conferred that jurisdiction upon a federal court. The exclusion of the State jurisdiction must be founded on the establishment of the federal jurisdiction.
CONCURRENT JURISDICTION.—If a case be within the ordinary jurisdiction of a State Court, the Court may take cognizance of it notwithstanding that it arises under rights acquired by the Constitution or a law of the Commonwealth, provided of course that the jurisdiction of the State Court has not been excluded under this section. “State Courts may, in the exercise of their ordinary, original, and rightful jurisdiction, incidentally take cognizance of cases arising under the Constitution, the laws and treaties of the United States.” (Kent, Comm. i. 397.) In Claflin v. Houseman, (93 U.S. 130) it was held that an assignee in bankruptcy, under the federal bankrupt law, might sue in a State Court. It was laid down that the laws of the United States are, within the limits of a State, as much the law of the land as are the laws of the State itself; and that therefore the Courts of the State are competent to adjudge rights under them if the matter is otherwise within their jurisdiction and if Congress has not excluded that jurisdiction. The jurisdiction of the State Court in such cases was held not to be a new jurisdiction conferred by Congress, but a jurisdiction derived from the Constitution and laws of the State. (See Calhoun v. Lanaux, 127 U.S. 634.)
This doctrine applies to criminal as well as civil matters. In the case of offences against the laws of the Commonwealth, it appears that the Courts of a State may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the Federal Courts. (Kent, Comm. i. 399.)
Where a Federal and a State Court have concurrent jurisdiction of a criminal matter, it has been held in the United States that a sentence either of acquittal or conviction by either court may be pleaded in bar of a prosecution before the other; and the same principle applies in civil cases. (Houston v. Moore, 5 Wheat. 1; Kent, Comm. i. 399). A doubt arose in the same case whether, in case of a conviction by a State Court for a crime against the United States, the Governor of the State would have power to pardon, and so control the law and policy of the United States. It is submitted that in Australia such right would be undoubted. The prerogative of mercy rests with the Queen's Representative in the States as well as with her Representative in the Commonwealth; and in the case of a sentence of a State Court must belong to the Governor of the State. (See sec. 70.)