The defendant in the Court below applied for' permission to take his' Cfise to the Circuit Court of the United States, .having presented a petition and affidavit stating, that he was then, and at the time of issuing the writ, an alien, and that the' matter in dispute' exceeds in value five hundred dollars, exclusive of costs. There had been prior to this, a judgment by default for want of a plea required to be filed days before the second term, and the defendant at the first term had entered his appearance to the' action. Under such circumstances, it is quite clear that he was not entitled to his motion under the act of Congress of 1Í89, allowing to aliens the privilege of removing cases instituted against them in the State Courts to' the Courts of the United States.
The main reliance of defendant here, is placed upon' the assumption, that the suit was instituted in the Superior Court of the late Territory, which was established by Congress, and at the change of government it belonged to the District court of the United States as its rightful successor. If this be true, it should not have been on the docket of the State Court, and defendant was entitled to'his motion. The first question for our consideration is, has the Court of the United States, organized for this State, the right to the papers of the late Superior Courts, and to try suits commenced and pending before them.
We have felt that the subject should be approached with a due sense of its importance to the individual whose rights are at stake as well as a proper regard to the rights of a co-ordinate branch of the government, not forgetting what is due to our own position as officers of a State of the Union.
This Court and the Circuit Courts of the State, have-alike, with-*207oüt hesitancy, ordered the transfer of all cases where the courts of the United States have exclusive jurisdiction. - But the difficulty lies with cases where it is. concurrent, where each court has the right to try and adjudicate the matter in controversy. The Judges of the Superior courts of the Territory under that clause of the State constitution continuing “ all officers until superceded under the constitution,” took possession of the records and papers after our admission, and exercised jurisdiction over suits pending and instituted in those courts. This they did as State Judges for several months after our admission, and in the very case under consideration. They administered the local laws of the State, deciding suits between citizen and citizen, and trying indictments for assaults and offences of like character. The State Judges succeeded them in the different counties, and thus became possessed of the records and suits. Being so possessed, it was in the opinion of the court, not only competent for them to adjudicate the cases presented for trial, but it was their bounden duty to do so. It1 was clearly not a matter of option with the judge to transfer the case to another tribunal, but it was the right of the party to have hi's case tried, and the court could not properly refuse it.
. A reference to the well established rules of law in cases of concurrent jurisdiction, will show, we think, that we are not mistaken in these views. “In all cases of concurrent jurisdiction, the court which first has possession of the subject must decide it.” Smith vs. McIvor, 9 Wh. 532. But ther£ is another fact not to be overlooked in the consideration of this question; the District Court of the .United States has only been organized during the present month, so that the State Courts, if inclined to transfer, must have waited nearly two years before the removal, whilst the party would have been subjected to unusual delay without a satisfactory excuse for it. And now, that a court is organized, we do not perceive that the difficulty is either lessened or removed. There te no provision in the act of Congress for the transfer of cases to it-from the Superior Courts, and without such provision the jurisdiction'does not attach. The courts of the United States take by express grant, and “ can exercise jurisdiction in those cases only, where it is. conferred upon them by act of Congress.” 1 Wash. C. C. R. 231. 1 Brockenbrough, 203.
Situated then as these cases now are, the courts of the State alone *208have the exclusive right to try and decide them, and there is no other having a right even concurrent with them. If the defendant had been driven to his plea, as was his only course after his motion was overruled, what could he have asserted, how defended himself against the rule well established, that “ in a plea to the jurisdiction, the defendant must show that another court has exclusive jurisdiction over the cause of action ?” Archbold PI. and Ev. 280. 6 East, 583.
Whilst free from doubt as to these "views, we are not content to rest our decision upon the prior organization of the State Courts, or the fact of. possession merely, satisfied that the right of the State Courts is equal, and by no means subordinate to that of the Federal Courts. We attribute no importance to the fact that Congress established the Superior Courts. This did not make them United States Courts. Such an idea was long since rejected by the Supreme court of the United States, who decided that they were “ not constitutional courts in which the judicial power conferred by the constitution on the general government can be deposited — they are incapable of receiving it. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the 3d article of the constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the Territories of the United States. In legislating for them, Congress exercises the combined powers of the general and of a State government.”— Am. Insurance vs. Canter. 1 Peters, 546.
It will not, we apprehend, be seriously contended, that action by the General Government as a State, or whilst in the exercise of State powers, can rightly form the basis of a claim against the State, or that the General Government derived higher or larger jurisdiction or powers from such possession. According to the theory of all our institutions, governments are but trustees for the people, and we hold this to be the true position which the General Government occupied during the existence of. the Territory, trustees for the people until they became competent to take the blessings of self government upon themselves. On our admission into the Union the trust expired, and each party was remitted to the position which, according to the structure of the State and Federal governments, each should respectively occupy, neither superior, nor having greater claims, *209except over particular subjects where exclusive right or jurisdiction may prevail — both equal in cases of concurrent jurisdiction.
This declaration of the Supreme Court as to the character of the Superior Courts, is fatal to the succession which is claimed for the District Court of the United States. Independently of this, it is not perceived how a court of limited jurisdiction as this latter is, “ taking only by grant,” having cognizance, not of cases generally, but only a few specially circumstanced, amounting to a small' portion of the cases which an unlimited jurisdiction would embrace, and in reference to whose action the fair presumption is not as with regard to a court of general jurisdiction that “ a cause is within its jurisdiction, unless the contrary'’appears, and which renders it necessary to set forth upon the record, the facts and circumstances which give jurisdiction.” 1 Cond. Rep. 205, it is not perceived how such a court can be the successor of a court, not only of general jurisdiction, but of powers beyond those possessed by any other court in the Union, either State or Federal, indeed combining the powers of both courts. If “ succession in á body politic be as defined, an inheritance in a body private,” the District Court would seem to be rather the devisee than the heir of the. inheritance. This latter appellation and that of successor would seem to belong rather to the State Courts, being courts of general jurisdiction, and going to the different counties as the Superior courts did, dispensing justice as they did, and succeeding to most, if not all of their cases — “ a successor being defined to be he that followeth or cometb in another’s place.” 6 Jacob Law Diet. 134.
It is further insisted that the act of the State Legislature makes provision, that “causes pending in the Superior Courts shall be transferred to the Circuit Courts of the proper county, except eases cognizable by the Federal Courts, which may be organized in this State, which cases shall be transferred to said courts; and all writs issued by said Superior Courts shall be returned to said Circuit courts, to be tried and decided therein and thereby.” The statute is rather ambiguous — the design of the Legislature was probably directed to cases of exclusive jurisdiction, without noticing the distinction between them and such as are concurrent. The jurisdiction of the Circuit Court, by the constitution of the State, embraces “ all matters, civil and criminal, within the State, not other*210wise excepted in the constitutionand it may well be doubted whether the Legislature can impair or deprive them of it. We are, however, clearly of opinion that the fourth clause of the schedule and ordinance of the same instrument, is so full and explicit as to leave little or no room for legislation on the subject. That declares that “all actions at law, or suits in chancery, or any proceeding pending, or which may be pending in any court of the Territory of Florida, may be commenced or transferred to such court of the State as may have jurisdiction of the subject matter thereof.”— Page 24, State constitution.
We are not insensible of the fact that different sentiments have been announced by the Supreme Court of the United States, in the case of Palao vs. Hunt, decided at its last term, 1846. Whilst we would defer, with great pleasure, on all proper occasions to the great learning and general accuracy of that exalted tribunal, we are constrained for the reasons stated above, to express our dissent to their opinion in this case, not including the decision on the - point presented, the accuracy of which we pretend not to question. This contrariety has made it necessary to extend- our own views further 'than has been our desire or the case itself would warrant. The importance of a correct understanding of the true relations between the two governments, so connected as it is with the harmony which ought to prevail between them, and especially the judicial departments, has also induced a more extended discussion of the subject.
The Chief Justice decided this case in the court below, and his decision being sustained by the unanimous opinion of the court, the judgment of the court below is confirmed.