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cases whatsoever.

The distinction between such a power, and that of giving appellate jurisdiction in a few special cases, in the decision of which the Nation takes an interest, is too obvious not to be perceived by all."

Since Cohens v. Virginia, the constitutional power of the federal Supreme Court to revise by writ of error decisions of state courts coming within the provisions of the twenty-fifth section of the Judiciary Act has been but once seriously questioned, and then under the strong stimulus of objection to the Fugitive Slave Law of 1850.3

3 Ableman v. Booth (21 How. 506; 16 L. ed. 169). See ante, p. 84.

CHAPTER VII.

THE MAINTENANCE OF FEDERAL SUPREMACY BY THE REMOVAL OF SUITS FROM STATE TO FEDERAL COURTS.

§ 65. Right of Removal.

A corollary which necessarily follows from the doctrine of federal supremacy is that no State can declare criminal and punish as such acts authorized by federal law. Since the Civil War this has not been directly denied by the States, but it has been strenuously asserted by them that when an offense has been committed against their own peace, and the one committing it has been apprehended and brought to trial before their own courts, he is not entitled to have his case removed at once to the federal courts simply by setting up as a defense that his act was done in pursuance of an authority delegated him by the General Government. The right to set up this defense has not been denied by the States, nor have they claimed that, should the decision of their courts be adverse to him upon this point, he may not take an appeal from their highest tribunals to the Supreme Court of the United States. But they have asserted that when an act has been committed which is criminal by their laws, it is, primarily, an offense against their peace, and as such cognizable only in their own courts, and, therefore, that though, as has been just said, a right of appeal from their highest courts to the United States Supreme Court upon the questions of federal authority must be allowed, the trial of the offense may not, as a matter of right, be removed by the accused from the state court in which it is begun to one of the lower federal courts.

These lower federal courts, as is well known, possess only those powers which have been granted to them by act of Congress. By the original Judiciary Act' Congress did not, as it might have, endow these tribunals with a general jurisdiction in proceedings

11 Stat. at L. 73.

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against federal officers based upon their official acts. famous Force Act of 1833, however, an act passed at the time of South Carolina's attempted nullification of the United States tariff law, it was provided that "when any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under, or acting by authority of, any revenue law of the United States, now or hereafter enacted, or against any person acting by or under authority of any such officer, or on account of any act done under color of his office," the case, at the defendant's instance, might be at once removed from the state to the federal courts for trial.

§ 66. Tennessee v. Davis.

This act has been from time to time amended, and now forms 643 of the Revised Statutes. Its constitutionality was first judicially examined by the Supreme Court in Tennessee v. Davis." In this case Davis, a federal revenue officer, killed a man, was arrested therefor, and, when brought to trial, applied for removal to a federal court under this act. The State of Tennessee denied the constitutionality of this grant of right upon the ground that the act for which Davis was being tried was a violation of state and not of federal law. This the federal authorities admitted, but asserted that, inasmuch as the defendant was a federal official, and claimed to have committed the homicide while in pursuance of his duties as such, the federal courts had the right to assume jurisdiction of the case in order that the independence and supremacy of federal authority might be maintained.

Justice Strong, in rendering the opinion of the United States Supreme Court upon this point, prefaced his discussion by saying: "A more important question can hardly be imagined. Upon its answer may depend the possibility of the General Government's preserving its own existence. As was said in Martin v. Hunter's Lessee, the General Government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers.' It can only act through its officers

2100 U. S. 257; 25 L. ed. 648.

31 Wh. 304; 4 L. ed. 97.

and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a state court, for an alleged offense against the law of the State, yet warranted by the federal authority they possess, and if the General Government is powerless to interfere at once for their protection if their protection must be left to the action of the state courts the operations of the General Government may at any time be arrested at the will of one of its members. The legislature of a State may be unfriendly. It may affix penalties to acts done under the immediate direction of the National Government, and in obedience to the laws. It may deny the authority conferred by those laws. The state court may administer not only the laws of the State, but equally the federal law, in such a manner as to paralyze the operations of the government. And even if, after trial and final judgment in the state court, the case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged federal authority arrested. We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its authority extends, it is supreme. No state government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it. The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. If there is power in Congress to direct removal before trial of a civil case arising under the Constitution or laws of the United States, and direct its removal because

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such a case has arisen, it is impossible to see why the same power may not order the removal of a criminal prosecution, when a similar case has arisen under it. The judicial power is declared to extend to all cases of the character described, making no distinction between civil and criminal, and the reasons for conferring upon the courts of the National Government superior jurisdiction over cases involving authority and rights under the laws of the United States, are equally applicable to both. Such a jurisdiction is necessary for the preservation of the acknowledged powers of the government. It is essential, also, to an uniform and consistent administration of national laws. It is true, the [Judiciary] Act of 1789 authorized the removal of civil cases only. It did not attempt to confer upon the federal courts all the judicial power vested in the government. Additional grants have been made from time to time." 4

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4 As to the point raised by the State that the act of 1833 provided no specific mode of procedure, Justice Strong said: "The Circuit Courts of the United States have all the appliances that are needed for the trial of any criminal cases. They adopt and apply the laws of the State in civil cases, and there is no more difficulty in administering the State's criminal law. They are not foreign courts. The Constitution had made them courts within the States to administer the laws of the States in certain cases; and, so long as they keep within the jurisdiction assigned to them, their general powers are adequate to the trial of any case. The supposed anomaly of prosecuting offenders against the peace and dignity of a State, in tribunals of the General Government, grows entirely out of the division of powers between that Government and the government of a State; that is, a division of sovereignty over certain matters. When this is understood, and it is time that it should be, it will not appear strange that even in cases of criminal prosecutions for alleged offenses against a State in which arises a defense under United States law, the General Government should take cognizance of the case and try it in its own courts, according to its own form of proceeding."

In this case Justices Clifford and Field dissented, their dissent being based upon the argument that, granting (which they did not admit), that Congress may pass such laws as it deems necessary for the protection of its agents, and may for that purpose define the acts that shall be considered crimes, and give to the inferior federal courts jurisdiction to try those charged with committing them, it had not in fact done so. The act of 1833 had, indeed, provided for the removal from state to federal courts of criminal suits against officers acting under authority of any federal revenue law growing out of acts committed by them under such authority, but, said the dissentient Justices,

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