against federal officers based upon their official acts. By the 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 8643 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

2 100 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

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

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,

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 secured 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 suci 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. III, § 2) thereby arises." "Offices may be created," they con tinue, "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.

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

Chapter VIII.

7 Chapter L.

9