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thority. The power conferred upon me will be used to hold, occupy and possess the property and places belonging to the Government and to collect the duty and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere.”

In taking this position Lincoln had to treat the war when it began as merely an insurrection in which the coercion and punishments were to be applied to individuals. Thus he began his Proclamation of April 15, 1861, in which he called for seventyfive thousand of the militia of the States, by saying: "Whereas the laws of the United States have been for some time past and now are opposed and the execution thereof obstructed in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings:" and closed by commanding "the persons composing the combinations aforesaid to disperse and retire peaceably to their respective abodes within twenty days from this date."

As further showing the theory as to the nature of the contest that was held by the National Government is the fact that Congress did not "declare war" against the South, or, when the struggle was over, enter into a treaty of peace with the Southern Confederacy. The United States did not recognize that the Confederacy had or could have a standing as a political power with which it might deal as with a foreign State. One after another, the surrender of his forces by each Confederate general was accepted as an act of war and thus the Confederacy left to collapse and disappear without any formal, official act to mark its demise.

The possession by the Federal Government of full power to protect any right and to enforce any law of its own at any time, and at any place within its territorial limits, any resistance of private individuals, or state officials, acting with or without the authority of state law to the contrary notwithstanding, has been uniformly asserted by the Supreme Court whenever such an assertion has been necessary. Thus in 1824, in the case of Osborn v. Bank of the United States,30 Chief Justice Mar30 9 Wh. 738; 6 L. ed. 204.

shall met the argument that the suit, being against one of its officials and based upon acts committed by him in his official capacity, was in fact a suit against the State of Ohio, one, therefore, which, under the Eleventh Amendment, the court was without authority to try, by declaring: "A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to all cases perfectly clear in themselves; to cases where the [National] Government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts that the agents of a State, alleging the authority of a law, void in itself, because repugnant to the Constitution, may arrest the execution of any law of the United States. It maintains that if a State shall impose a fine or penalty on any person employed in the execution of any law in the United States, it may levy that fine or penalty by a ministerial officer, without the sanction of even its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the [National] GovernThe question, then, is whether the Constitution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union from the attempts of a particular State to resist the execution of those laws." That Marshall answered this question in the affirmative needs not be said.

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The attitude of the federal Supreme Court in the case of Ableman v. Booth, decided in 1859, has already been mentioned. Again, after the Civil War, the court said, when confronted by the proposition that because the United States was without any general criminal jurisdiction it might not punish criminally individuals who had violated certain of its laws relating to congressional elections: "It is argued that the preservation of peace and good order in society is not within the powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and terri

tory of the country. We think that this theory is founded on an entire misconception of the nature and power of that government. We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." 31

Finally in the Debs case,32 a case growing out of the great railway strike of 1894, the plenitude of the federal power was emphatically stated. Speaking of the right of the National Government to protect, by armed force if necessary, interstate commerce and the transportation of the mails, the court said: "If the inhabitants of a single State or a great body of them should combine to obstruct interstate commerce or the transportation of the mails, prosecution of such offenses had in such a community would be doomed in advance to failure. And if the certainty of such failure was known and the National Government had no other way to enforce the freedom of interstate commerce and the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the Nation in these respects would be at the absolute mercy of a portion of the inhabitants of a single State. But there is no such impotency in the National Government. The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its care. The strong arm of the National

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31 Ex parte Siebold (100 U. S. 371; 25 L. ed. 717). In United States v. Reese (92 U. S. 214; 23 L. ed. 563), 1875, the court said: Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected." And in Strauder v. West Virginia (100 U. S. 303; 25 L. ed. 664), the court said: "A right or an immunity, whether created by the Constitution, or only guaranteed by it, even without any express delegation of power, may be protected by Congress."

22 In re Debs (158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092).

Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation and all its militia are at the service of the Nation to compel obedience to its laws."

§ 44. Conclusion.

The foregoing cases sufficiently illustrate the general principle of the supremacy of the federal law. The maintenance of this principle, by the exemption of federal agencies from state interference by taxation, by means of federal writs of habeas corpus and of injunction to state authorities, and by the removal of suits from state to federal courts, will be discussed in the next succeeding chapters.

CHAPTER V.

THE MAINTENANCE OF FEDERAL SUPREMACY - THE FREEDOM OF FEDERAL AGENCIES FROM INTERFERENCE OR CONTROL BY THE STATES.

§ 45. State Taxation of Federal Governmental Agencies.

The successful maintenance of a federal government, under any circumstances a most difficult task, is an especially difficult one in the United States where federal functions are exclusively performed by federal agents and organs, and state functions by state agents and organs. This has necessitated the maintenance of a complete machinery of government for the United States, and, similarly, a complete political organization for each of the member States of the Union. This arrangement carries with it the general doctrine that the States may not in any wise interfere with the operation of a federal organ or with the exercise by a federal agent of his official functions; and that, conversely, the Federal Government may not interfere with the operation of a state agency or the official actions of state officials when acting within the constitutional limits reserved to the States. Illustrations of these general principles will appear throughout this treatise. Their scope and significance may, however, be best exhibited in their application to the federal and state taxing power, and to a discussion of this especial phase of the subject this and the next succeeding paragraphs will be devoted.

That a State may not, in the exercise of its reserved powers, interfere with a federal governmental agency was settled once for all by the decision of the Supreme Court in McCulloch v.

1 It has indeed been held that the United States may permit or even request a state official to perform a federal service, but there is no constitutional means by which such state official may, without the consent of his State, be compelled to do so. The same is true as to the performance by a federal official of a state duty. The reason for this rule is the obvious one that otherwise it would be possible for one government to so burden with its own duties the officials of the other government as seriously to interfere with the performance by those officials of the duties laid upon them by their own governments.

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