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It is seen that Section 643 gives the power of removal only with reference to suits against revenue officers of the Federal Government. Section 641 provides that "when any civil suit or criminal prosecution is commenced in any State Court for any cause whatsoever against any person who is denied or cannot enforce in the judicial tribunals of the State or in the part of the State where such suit or prosecution is pending any right securel by him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of there was upon the federal statute books no laws specifically defining as a crime the act with which Davis was charged and aflixing an appropriate penalty therefor. Therefore, they held, no federal law having been violated, the federal circuit court could not take or be given jurisdiction of the case. "Criminal jurisdiction is not by the Constitution conferred upon any court," they declared, "and it is settled law that Congress must in all cases, make any act criminal and define the offense before either the District or Circuit Courts can take cognizance of an individual charging the act as an offense against the authority of the United States. . . . Courts of the United States derive no jurisdiction in criminal cases from the common law, nor can such tribunals take cognizance of any act of an individual as a public offense, or declare it punishable as such, until it has been defined as an offense by an Act of Congress passed in pursuance of the Constitution." But, continued the Justices, not only has Congress not legislated so as to give the necessary jurisdiction in the case in question, but it could not constitutionally do so. "Acts of Congress," they said, "cannot properly supersede the police powers of the State. If the police law of the States does not deprive anyone of that which is justly and properly his own, it is obvious that its possession by the State and its exercise for the regulation of the actions of the citizens can never constitute an invasion of the national sovereignty or afford a basis for an appeal to the protection of the national authorities. In other words no case either in law or equity, under the federal Constitution or laws or treaties of the United States, over which the federal judicial power is constitutionally extended (Art. 111, § 2) thereby arises." "Offices may be created," they continue, "by a law of Congress, and officers to execute the same may be appointed in the manner specified in the Constitution; and it is not doubted that Congress may pass laws for their protection, and for that purpose may define the offense of killing such an officer when in discharge of his duties. ... But the principal question in this case is of a very different character, as the indictment is against the officer of the revenue for murdering a citizen of the State having in no way any official connection with the collection of the public revenue. Neither the Constitution nor the Acts of Congress give a revenue officer or any other officer of the United States an immunity to commit murder in a State, or prohibit the State from executing its laws for the punishment of the offender."

the United States or against any officer, civil or military, or other person for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of, or under color of, authority derived from any law providing for equal rights, as aforesaid, or refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may upon the petition of such defendant filed in said State Court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district where it is pending." The constitutionality of this section has been affirmed. As to all federal officials other than revenue officers, federal protection against state action, when necessary, must be sought in cases not covered by Section 641, either by way of writ of error from the highest state court to the Supreme Court of the United States, or, if that be inadequate, by writ of habeas corpus.

§ 67. Right of Removal in Civil Cases.

The right to remove civil cases begun in state courts into the federal courts will receive treatment in a later chapter. In these cases the right is given not so much that federal supremacy may be maintained as that impartial tribunals may be secured to the litigants.

This argument of the minority as to the constitutional incapacity of Congress to provide for the summary removal from the state to federal courts of cases of the class of the one at issue overlooks, or at least puts aside as not controlling, the possibility, should its view be accepted, of a State, should it so desire, so administering its criminal law as seriously and even vitally to interfere with the exercise by the Federal Government of its acknowledged constitutional powers. This the majority pointed out, the State could do by so delaying the trial in its own courts of federal officials charged with crime, as to render in large measure nugatory the right of the accused to appeal to the United States Supreme Court from the highest state court.

The majority doctrine in the Davis case has never been overruled.

Strauder v. West Virginia, 100 U. S. 303.

• Chapter VIII.

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CHAPTER VIII.

MAINTENANCE OF FEDERAL SUPREMACY BY HABEAS CORPUS TO STATE AUTHORITIES.

§ 68. State Courts may not Interfere with Federal Authorities.

During the ante bellum period the Federal Government often made use of state tribunals and officers for the execution of its laws. Thus state justices of the peace acted as examining magistrates in criminal cases for the federal courts, state judges officiated in the execution of extradition treaties with foreign countries, aliens were naturalized in state courts, and state jails and penitentiaries were used for the incarceration of federal criminals. Both because of this admixture of federal and state judicial agencies, and because the principle of the absolute independence of the Federal Government from state control was not clearly recognized and admitted, the state courts early assumed the right, by the issuance of writs of habeas corpus, to determine whether a fugitive from the justice of a foreign country and fugitive slaves should be surrendered; whether persons in the federal army were properly held to military service; and even whether persons in the military service of a foreign State should be tried for acts done as belligerents and under the authority of their sovereigns in conformity with the laws of nations.1

It was not until 1859 that it was authoritatively established by the United States Supreme Court in the case of Ableman v. Booth that the state courts were without the constitutional power to interfere in any way with the process of federal courts, or, in fact, with any agencies of the National Government.3 Notwithstanding this decision, however, a number of the state courts still claimed and exercised the right to discharge enlisted soldiers and sailors of the United States from the custody of their

1 People v. McLeod (1 Hill, 377). See especially the paper of Seymour D. Thompson before the American Bar Association at its annual meeting in 1884, entitled Abuses of the Writ of Habeas Corpus.

221 How. 506; 16 L. ed. 169.

3 See ante, p. 84.

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officers, and this practice was not stopped until 1872 when, in Tarble's case, the federal Supreme Court held this to be beyond their power. In the opinion which he rendered in this case, Justice Field, after pointing out the distinct and independent character of the government of the United States, proceeds: "Such being the distinct and independent character of the two governments within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried. into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, in the regulation of which neither can interfere with the other. Now among the powers assigned to the National Government is the power to raise and support armies, and the power to provide for the government and regulation of the land and naval forces. No interference with the execution of this power of the National Government in the formation, organization and government of the armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. State judges and state courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused."

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4U. S. v. Tarble (13 Wall. 397; 20 L. ed. 597).

5 Chief Justice Chase dissented in this case. In the course of his opinion he said: "I have no doubt of the right of a State to inquire into the jurisdiction of a federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a

Here again, as in the Davis case, the point at issue narrowed itself down to the question whether or not state agencies should be recognized to have a power which might, should the States see fit, be so exercised as seriously to embarrass the National Government in the performance of its constitutional duties. The strict application of the doctrine of a divided sovereignty would have led in both cases to a constitutional impasse. But in these as in other cases the federal Supreme Court compelled the States in the exercise of their powers to subordinate themselves to the requirements of national convenience and necessity.

This case settled once for all the principle that it is a sufficient return to a writ of habeas corpus issued by a state court that the party is in custody under claim or color of federal authority derived from either a statute or judicial process.

§ 69. Issuance of the Writ by Federal Courts.

Instead of submitting to interference by the States with the exercise of their powers, the federal courts have, especially of recent years, again and again, on writs of habeas corpus, removed from state custody persons charged with offenses against the peace of the States.

The Judiciary Act of 1789 gave to the federal court authority to issue the writ of habeas corpus only as to persons in jail under or by color of authority of the United States. No provision was thus made for the release by federal courts of persons in custody by order of the authorities of a State.

court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry. I have still less doubt, if possible, that a writ of habeas corpus may issue from a state court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the United States. . . . To deny the right of state courts to issue the writ, or what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases, and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed or the people who adopted the Constitution. That instrument expressly declares that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

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