CHAPTER V

THE SUPREMACY OF FEDERAL LAW

THE foregoing pages have sufficiently shown that the Federal Government has no power to coerce a State, as a State. They have also shown that the National State, because of its absolute sovereignty over all the land and people of the United States, and because of its paramountcy over all its political subdivisions, has 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. Having the authority, the United States has the right to declare illegal, to fix and enforce by its own tribunals a penalty upon any resistance opposed to its agents when acting within their official spheres, and, if necessary, to prevent by its own armed forces such interference when threatened or overcome it when actually attempted.

The possession by the National Government of this general right has been uniformly asserted by the Supreme Court, throughout the whole period of its existence, whenever such an assertion has been necessary. Thus in 1824, in the case of Osborn v. Bank of U. S. (9 Wh., 738)—a case to which we have already

referred in another connection-Chief Justice Marshall 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 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 in 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 of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the [National] Government. . . . The 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 need not be said.

Again, after the Civil War, the Court said, when

confronted by the proposition that because the United States was without any general criminal law 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 territory of the country. We think that this theory is founded on an entire misconception of the nature and powers 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 (Ex parte Siebold, 100 U. S., 371).

Finally in the Debs case (In re Debs, 158 U. S., 564), 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 all the inhabitants of a single State or even 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 Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportations 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."

A corollary, that necessarily follows from the general principle we have been discussing, is that no State can declare and punish as criminal, acts authorized by federal law. This has not been directly denied by the States, since the Civil War at least, but it has been most strenuously asserted by them that when an offense has been committed against one of their laws, and the one committing it has been apprehended and brought to trial before their 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 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 point of federal authority must be allowed, the trial of the offense may not as a matter of right be removed by the accused one from the state court in which it is begun to one of the lower federal courts. V

A leading case upon this point is that of Tennessee v. Davis (100 U. S., 257), decided in 1879. The famous Force Act of 1833, passed at the time of South Carolina's attempted nullification of the United States tariff law, 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. 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, however, denied the constitutionality of this grant of right. Jus