Ordway v. The Central National Bank of Baltimore. part of the section, "shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or the legal representatives, may recover back, in any action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same, provided that the action is commenced within two years from the time the usurious transaction occurred." The recited provision constitutes section 5198 of the Rev. Stats. U. S., page 1012, which went into operation June 22, 1874. The causes of action set forth in the declaration arose in the year 1873, and the suit was brought as of July 25, 1874. The 57th section of the Banking Act, under which the appellee was organized, and which was in force at the time of the transaction out of which the causes of action arose, provided "that suits, actions and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States, held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases." This provision of the act of 1864 was omitted in the Rev. Stats. ; but in that revision, by section 5597, it is provided that "the repeal of the several acts embraced in said revision shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before said repeal, but all rights and liabilities under said acts shall continue, and may be enforced in the same manner as if said repeal had not been made." And in the next succeeding section (5598) it is further provided that "all offenses committed, and all penalties or forfeitures incurred under any statute embraced in said revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made." This latter section, manifestly, has reference to public prosecutions alone. In this case the cause of action is a forfeiture, a penalty of a civil nature, for the exacting and taking of usurious interest upon moneys loaned, and the remedy given by the statute is by private civil action of debt to the party grieved. The government or the public is not concerned with it. It is, therefore, a private right, pursued by a private civil action. And it has been decided that the section of the statute upon which the action is Ordway v. The Central National Bank of Baltimore founded is remedial as well as penal, and it is to be liberally construed to effect the object which Congress had in view in enacting it. Farmers' National Bank v. Dearing, 91 U. S. 29, 35 (ante, p. 117). This is not unlike in principle the case of debt brought by a landlord against his tenant for double value for not quitting in pursuance of notice given under statute 4 Geo. 2, ch. 28. In such case, because the penalty or forfeiture prescribed by the act is made to accrue to the party grieved and to be recovered by private action of debt, the courts have taken a distinction between such penalty and a penalty prescribed as criminal punishment, and hold the statute to be remedial. Wilkinson v. Colley, 5 Barr, 2694; Lake v. Smith, 4 Bos. & Pul. 174. In the last case referred to, being an action of debt on the statute, HEATH, J., said: "The double value has been called a penalty, and it is so in some degree, but the law is also a remedial law." And ROOKE, J., observed: "The act indeed does give a penalty, but it is to the party grieved, and this is a distinction which has often been taken between remedial and penal laws." The action of debt is an ordinary common law remedy, and it lies in the courts of this State, having general common law jurisdiction, as the court in which this action was instituted, on statutes at the suit of the party grieved, either where it is expressly given to such party, as by the statute under consideration, or where a statute prohibits the doing an act under a penalty or forfeiture to be paid to the party grieved, and there is no specific mode of recovery prescribed. This is the well-established doctrine in England (1 Chitty's Pl. 112, and authorities there cited), and it is the law here. There is, therefore, no question but that the court below has jurisdiction in similar cases to that provided for by the statute under which this action was brought. But it is contended that, notwithstanding the comprehensive and explicit terms employed in section 57 of the act of 1864, ch. 106, giving the right to sue in State courts, inasmuch as the cause of action is a penalty or forfeiture, the remedy can only be brought in the Federal tribunals. It is contended, 1st, that the language of the 57th section should be construed with reference and in subjection to the pre-existing law, and that by the pre-existing law the jurisdiction of the State tribunals in such case as the present was excluded by express provision of the statute; 2d, if such construction be not adopted, then that the savings in the Revised Statutes do Ordway v. The Central National Bank of Baltimore. not embrace the right to sue in a State court in a case like the present; and 3d, that though the statute may confer the right, Congress has no constitutional power to give the State courts cognizance of penal actions, and those courts should refuse to take such cognizance. The argument in reference to the first proposition, that is on the construction of the 57th section of the National Banking Act, is founded upon the 9th section of the Judiciary Act of 1789 (1 Stat. 76), wherein the jurisdiction of the District Courts of the United States is defined. In that section of the Judiciary Act it was declared that the District Courts should have, exclusively of the courts of the several States, cognizance of all crimes and offenses that were cognizable under the laws of the United States, committed within their respective districts, etc., and, among other subjects of jurisdiction, it was declared that such District Courts should "have exclusive original cognizance of all seizures on land or other waters than as aforesaid made, and of all suits for penalties and forfeitures, incurred under the laws of the United States. This latter provision in regard to penalties and forfeitures has been inserted in the Revised Statutes in section 711, in defining the jurisdiction of the United States courts that is exclusive of the courts of the several States. Now, looking at the broad, unqualified language employed in section 57 of the act of 1864, there would seem to be no doubt but that it was the design of Congress that the State courts should take cognizance of actions like the present, as well as all other civil actions against banking associations, and that, if it had been the design to exclude the State courts in such cases, appropriate terms would have been employed to express the intention, as in other acts of Congress when conferring jurisdiction. And though the particular provision has been omitted from the Revised Statutes, yet the saving, by section 5597, is ample to continue the jurisdiction in the State courts as to all transactions occurring before the Revised Statutes were adopted. It is expressly provided that all rights and liabilities under said act shall continue, and may be enforced in the same manner as if said repeal had not been made. But if it were conceded that such construction is erroneous, then the question would arise, what is the proper construction of that provision in the Revised Statutes in reference to the exclusive jurisdiction of the Federal courts of all suits for penalties and forfeitures which Ordway v. The Central National Bank of Baltimore. was taken from the Judiciary Act of 1789? And, in answer to this question, it would seem to require no strained construction to warrant the conclusion that that provision of the statute has no application to this case whatever; that it has reference to and contemplates only those penalties and forfeitures of a public nature. which may be sued for by the government, or some person in its behalf. And this construction is strongly enforced by several provisions to be found in the Revised Statutes, such as that which requires the district attorneys to furnish statements of all suits instituted by them for the recovery of any fines, penalties or forfeitures. § 772. There is great reason for confining suits of that character to the Federal jurisdiction, but none, it would seem, for excluding the State jurisdiction in a case like the present, where the right is private and is being pursued by a private civil action by the party grieved. Having shown that there is nothing in the statute of the United States to exclude the State jurisdiction in a case like the present, the question is: 1st, whether in the absence of express terms conferring jurisdiction on the State courts, those courts have jurisdiction to enforce a right under a statute of the United States in a case of the character now under consideration? and if not, 2d, whether Congress can rightfully, by express terms, confer such jurisdiction? The position and argument of the appellee, if sustained, would result in both these questions being resolved in the negative. If, however, either be resolved in the affirmative, the judgment appealed from must be reversed. The question of the concurrent jurisdiction of the State courts with those of the United States has been the subject of a good deal of discussion both by statesmen and the courts of the country. It was one of the objections urged against the adoption of the Federal Constitution, that it would detract from and materially impair the existing jurisdiction of the State courts. This objection was answered by Mr. Hamilton in the 82d number of the Federalist, in which he maintained. that the Congress of the Union, in the course of legislation upon the objects intrusted to their direction, might or might not commit the decision of causes arising upon the regulation of any particular subject, to the Federal courts solely, but that, in every case in which the State courts are not expressly excluded by the statutes, they would of course take cognizance of the causes to which Ordway v. The Central National Bank of Baltimore. those acts might give origin. This he inferred from the nature of the judiciary power, and from the general genius of the system. And Chancellor KENT, taking the same view of the subject, and after a full review of the course of decisions, State and Federal, down to the time he wrote, concludes that, in judicial matters, the concurrent jurisdiction of the State tribunals depends altogether upon the pleasure of Congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject-matter can constitutionally be made cognizable in the Federal courts; and that, without an express provision to the contrary, the State courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject-matter. 1 Kent's Com. 396-400. The reasoning of the two distinguished writers just mentioned has remained without refutation; and without restatement of their arguments or an attempt to review the decisions upon the subject, it is sufficient to refer to the recent case in the Supreme Court of the United States, which would seem to conclude the very question now under consideration. The case to which we refer is that of Claflin v. Houseman, assignee, 93 U. S. 130; 3 Cent. L. J. 803. In that case the action was brought in a State court by an assignee in bankrupcy to recover against the defendant an amount of money which the latter had collected on a judgment recovered against the bankrupt within four months before the commencement of the proceedings in bankruptcy. The defense taken was, that inasmuch as the assignee was a creature of an act of Congress, and derived all his rights and powers from the Bankrupt Act, and the right to recover was exclusively referable to that statute, the action could not be sustained in a State court, but should have been brought in a court of the United States. This was the only question considered by the court, and the opinion was unanimous that the State court had complete cognizance of the action. It was there held that, inasmuch as the Bankrupt Act gave no exclusive jurisdiction to the courts of the United States, the assignee might well maintain a suit in the State court to recover the assets of the bankrupt; and further, that the statutes of the United States, made in pursuance of the Constitution, are as much the law of the land in the States as the statutes of the States can be, and although exclusive jurisdiction for their enforcement may be given to the Federal courts, yet where it is not given, either expressly or by necessary implica |