privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority. But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intendment, that some one of the enumerated questions did arise in the State court, and was there passed upon. It is not sufficient that it might have arisen or been applicable. And if the decision of the State court is in favor of the right, title, privilege, or exemption so claimed, the Judiciary Act does not authorize such removal, neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity."

The rule seems intricate, but the motive for it and the working of it are plain. Where in any legal proceeding a Federal enactment has to be construed or applied by a State court, if the latter supports the Federal enactment, i.e., considers it to govern the case, and applies it accordingly, the supremacy of Federal law is thereby recognized and admitted. There is therefore no reason for removing the case to a Federal tribunal. Such a tribunal could do no more to vindicate Federal authority than the State court has already done. But if the decision of the State court has been against the applicability of the Federal law, it is only fair that the party who suffers by the decision should be entitled to Federal determination of the point, and he has accordingly an absolute right to carry it before the Supreme Court.

The principle of this rule is applied even to executive acts of the Federal authorities. If, for instance, a person has been arrested by a Federal officer, a State court has no jurisdiction to release him on a writ of habeas corpus, or otherwise to inquire into the lawfulness of his detention by Federal authority, because, as was said by Chief Justice Taney, "The powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State court

as if the line of division was traced by landmarks and monuments visible to the eye."

2. "Cases affecting ambassadors, other public ministers, and consuls."

As these persons have an international character, it would be improper to allow them to be dealt with by a State court which has nothing to do with the national government, and for whose learning and respectability there may exist no such securities as those that surround the Federal courts.

3. "Cases of admiralty and maritime jurisdiction." These are deemed to include not only prize cases but all maritime contracts, and all transactions relating to navigation, as well on the navigable lakes and rivers of the United States. as on the high seas.

4. "Controversies to which the United States shall be a party."

This provision is obviously needed to protect the United States from being obliged to sue or be sued in a State court, to whose decision the national government could not be expected to submit. When a pecuniary claim is sought to be established against the Federal government, the proper tribunal is the Court of Claims.

5. "Controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects."

In all these cases a State court is likely to be, or at any rate to seem, a partial tribunal, and it is therefore desirable to vest the jurisdiction in judges equally unconnected with the plaintiff and the defendant. By securing recourse to an unbiased and competent tribunal, the citizens of every State obtain better commercial facilities than they could otherwise count upon, for their credit will stand higher with persons belonging to other States if the latter know that their legal rights are under the protection, not of local and possibly prejudiced judges, but of magistrates named by the national government, and unamenable to local influences.

One important part of the jurisdiction here conveyed has been subsequently withdrawn from the Federal judicature. When the Constitution was submitted to the people, a principal objection urged against it was that it exposed a State, although a sovereign commonwealth, to be sued by the individual citizens of some other State. That one State should sue another was perhaps necessary, for what other way could be discovered of terminating disputes? But the power as well as the dignity of a State would be gone if it could be dragged into court by a private plaintiff. An amendment (the eleventh) to the Constitution was passed through Congress and duly accepted by the requisite majority of the States, which declares that "the judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State." Under the protection of this amendment, not a few States have with impunity repudiated their debts.

The jurisdiction of the Supreme Court is original in cases affecting ambassadors, and wherever a State is a party; in other cases it is appellate; that is, cases may be brought to it from the inferior Federal courts and (under the circumstances before mentioned) from State courts. The jurisdiction is in some matters exclusive, in others concurrent with that of the State courts. The State courts cannot be invested by Congress with any jurisdiction, for Congress has no authority over them, and is not permitted by the Constitution to delegate any judicial powers to them. Hence the jurisdiction of a State court, wherever it is concurrent with that of Federal judges, is a jurisdiction which the court possesses of its own right, independent of the Constitution.

The criminal jurisdiction of the Federal courts, which extends to all offenses against Federal law, is purely statutory. "The United States, as such, can have no common law. It derives its powers from the grant of the people made by the Constitution, and they are all to be found in the written law, and not elsewhere." The procedure of the Federal courts is prescribed by Congress, subject to some few rules contained in the Con

stitution, such as those which preserve the right of trial by jury in criminal cases and suits at common law.

The law applied in the Federal courts is of course, first and foremost, that enacted by the Federal legislature, which, when it is applicable, prevails against any State law. In administering the law of any State the Federal courts ought to follow the decisions of the State courts, treating those decisions as the highest authority on the law of the particular State. This doctrine is so fully applied that the Supreme Court has even overruled its own previous determinations on a point of State law in order to bring itself into agreement with the view of the highest court of the particular State. Needless to say, the State courts follow the decisions of the Federal courts upon questions of Federal law.

For the execution of its powers each Federal court has attached to it an officer called the United States Marshal, corresponding to the sheriff in the State governments, whose duty it is to carry out its writs, judgments, and orders by arresting prisoners, levying execution, putting persons in possession, and so forth. He is entitled, if resisted, to call on all good citizens for help; if they will not or cannot render it, he must refer to Washington and obtain the aid of Federal troops. There exists also in every judiciary district a Federal public prosecutor, called the United States District Attorney, who institutes proceedings against persons transgressing Federal laws or evading the discharge of obligations to the Federal treasury. Both sets of officials are under the direction of the AttorneyGeneral, as head of the department of justice. They constitute a network of Federal authorities covering the whole territory of the Union, and independent of the officers of the State courts and of the public prosecutors who represent the State governments. Where a State maintains a jail for the reception of Federal prisoners, the United States Marshal delivers his prisoners to the State jailer; where this provision is wanting, he must himself arrange for their custody.

The system is extremely complex. Under it every yard of ground in the Union is covered by two jurisdictions, with two sets of judges and two sets of officers, responsible to differ

ent superiors, their spheres of action divided only by an ideal line, and their action liable in practice to clash. But the system works, and now, after a hundred years of experience, works smoothly, and it leads to few conflicts or heart-burnings, because the key to all difficulties is found in the principle that wherever Federal law is applicable Federal law must prevail, and that every suitor who contends that Federal law is applicable is entitled to have the point determined by a Federal court. The enforcement of the law, especially the criminal law, in some parts of America leaves much to be desired; but the difficulties which arise are now due not to conflicts between State and Federal pretensions but to other tendencies equally hostile to both authorities.

CHAPTER II

COMPARISON OF THE AMERICAN AND EUROPEAN SYSTEMS

From their colonial experience, coupled with their notions of the British Constitution, the men of 1787 drew three conclusions: First, that the vesting of the executive and the legislative powers in different hands was the normal and natural feature of a free government. Second, that the power of the Executive was dangerous to liberty, and must be kept within well-defined boundaries. Third, that in order to check the head of the State it was necessary not only to define his powers, and appoint him for a limited period, but also to destroy his opportunities of influencing the legislature. They deemed that in this way they had rendered their legislature pure, independent, vigilant, the servant of the people, the foe of arbitrary power. Thus it was believed in 1787 that a due balance had been arrived at, the independence of Congress being secured on the one side and the independence of the President on the other. Each power holding the other in check, the people, jealous of their hardly-won liberties, would be courted by each, and safe from the encroachments of either.

There was of course the risk that controversies as to their