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APPEAL from

sinuations;" then got the charges and the denuncia- to what ought to be the form of government; we mean tory refutation published in the papers, and then or- to declare only what we believe to be the proper condered an “investigation” before the Boa — the Secre- struction of what is written. tary, I mean — with open doors and plenty of report- In order to see what is the precise question involved, ers. Had this course been pursued, who can doubt we must state the facts: the nature and value of the “letters, telegrams aud The Congress, under its power to “lay and collect other documentary evidence" that would bave been taxes," passed the revenue law now in operation, the secured? How certainly would oral testimony utterly validity of which no one questions, although its prorefuting every insinuation and explaining every dark- priety is very much assailed. The defendant was aplooking circumstance been forthcoming in abund- pointed by the United States authorities to collect ance! And those three wronged and long-suffering United States taxes in North Carolina. While eninnocents would have come forth from the investiga-gaged in that business, and in the execution of his tion purified and refined, with brand-new certificates office, and by color thereof, he did what but for his of character from their gratified employers, to “punch office would have been an assault and battery, and a the head" of the miscreant who had maligned them, breach of the law of North Carolina. For that act and swindle the State or its prisoners as might be he was indicted in the State Superior Court and held found most desirable, until they were rich enough to for bail in that court. The defendant thereupon filed go into other business.

his petition in the Circuit Court of the United States to have the case removed from the State court to the

United States court, upon the ground that he was an PROCEEDINGS AGAINST FEDERAL OFFICERS

officer of the United States, and that what he did was IN STATE COURTS.

by virtue of his office.

The Circuit Court of the United States made an SUPREME COURT OF NORTH CAROLINA, JULY, 1877.

order for the removal of the case, and his Honor,

Judge Cox, of the State court, obeyed the order, unSTATE V. HOSKINS.

der that clause of the constitution of the United The act of Congress of 1866 (U. S. Rev. Stat., $ 643), provid- States quoted above, which provides that “the judges

ing for the removal of criminal proceedings against a United States revenue officer where the offense com

in every State shall be bound " by “the supreme law plained of is alleged to have been committed under of the land," and from that order of Judge Cox the color of his office, is constitutional.

State appealed to this court. an order removing proceedings The comprehensive question arising out of these against a Federal officer for an act done in the facts is, was the order of Judge Cox a proper one? discharge of his duty from the State to the United Let us first consider it as a question of comity. The States Circuit Court. The facts appear in the opin- | State, a sovereign, claims that the defendant has tresion.

passed upon its rights. The United States, a soverREADE, J. The preparation of the opinion in this eign, claims that the defendant was its officer and actcase was assigned to my learned brother, the Chief ing under its orders, and for the purposes of the deJustice, but on account of his protracted indisposi- mand, assumes the responsibility of the act comtion he was unable to undergo the labor, and he there- plained of, and demands its officer in order that it fore turned the case over to me.

may investigate his conduct and punish him as he may We quote such parts of the constitution of the United deserve. Now, what ought the State to do? Ought it States and of the constitution of North Carolina as to hold the officer and punish him, although he was bear upon the questions involved in the case, in order acting under orders and is justified by his governthat they may all be under the same view at the same ment? That would be pusillanimous. Sovereigns do time.

not quarrel with servants, but with sovereigns, when “The Congress shall have power to lay and collect they are angry; and when they are friendly they defer taxes," etc. Const. U. 8., art. 1, $ 1.

to each other the control of their own servants. “To make all laws which may be necessary and

Wheaton's International Law, 209, 224, 225. proper for carrying into execution the foregoing So it is with neighbors. A and B are neighbors, powers.” Const. U. S., art. 1, $ 18.

and their children play on common ground, and the “The constitution and the laws of the United child of A trespasses upon the child of B; B does States, which shall be made in pursuance thereof * * not try to punish the child, but turus it over to A shall be the supreme law of the land, and the judges with the cause of complaint. If A will redress the in every State shall be bound thereby; any thing in wrong, well; if not, then the quarrel is with A, and the constitution or laws of any State to the contrary no longer with the child. Concede, then, that the notwithstanding.” Const. U. 8., art. 6, & 2.

State had a good cause of complaint against the de“That every citizen of this State owes paramount fendant, yet, the moment that the United States asallegiance to the constitution and government of the sumed the responsibility and demanded him as her United States, and that no law or ordinance of the servant, if in friendship, comity required his surrenState in contravention thereof can have any bivding der to his master; if in anger, then the quarrel is with force." Coust. N. C., art. 1, $ 5.

the master. That this State shall ever remain a member of the But the case does not turn upon comity alone. We American Union; that the people thereof are part of have seen that Congress has power" to make all laws the American nation," etc. Const. N. C., art. 1, $ 4. necessary and proper," to execute its powers, and a

There was much in the discussion before us upon law has been passed and an officer appointed to exethe trite subject of “State Rights," "Federal Pow- cute it, and that officer says he has been resisted ers,'' which used to divide the politicians and states- must not the United States protect its officer? What men, but we have no purpose to ally the court with is the use of the power to lay the tax and to appoint the either school, or to express our individual opinions as officer if he may not be protected ? It is no answer to

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this to say he may be protected when he does right, removal was repeatedly re-enacted until 1833, when the but not when he does wrong, for how can the United matter was brought most prominently forward, in States know whether he has done right or wrong un- order to meet the pretensions of nullification. It was less she can try him, and how can she try him unless brought before Congress by President Jackson. It he be delivered up on demand. It would seem to be was elaborately discussed and fully considered by the too plain for discussion, that the right to protect the ablest men which this country has ever produced, the officer is indispensable to the service, and inseparable judiciary committee of the Uuited States Senate, from the power of the government which appoints Wilkins and Webster, Frelinghuysen, Grundy and him.

Mangum. It was fully discussed and passed almost Nor is it an answer to say that the State will protect unanimously in the Senate and by a large majority him if he deserves protection, for no one ever heard in the House. That bill was not precisely, but subthat one government could intrust the execution of stantially, the same as the act of 1815, and the act now its laws, or the control of its officers, to another gov- under consideration of 1866. The act of 1815 allowed ernment. They could not remain friendly upon such the removal of all cases civil and criminal not involvrelations.

ing corporal punishment. The act of 1833 left out the But the case does not stand upon this implied right exception, and substituted “any suit or prosecution." alone of the United States to protect its officers; but And the act of 1866 substituted “Any civil suit or upon an express act of Congress which is as follows: criminal prosecution." “When any civil suit or criminal prosecution is com- It is not now denied that civil actions may be remenced in any court of a State, against any officer moved, but it is denied that criminal actions can be. appointed under any revenue law of the United Why not? They are both expressly named in the act. States,

on account of any act done under The objection is put principally upon two grounds: color of his office or of any such law,

the first, that although the act says criminal actions may said suit, or prosecution, may, at any time before the be removed, yet it provides how civil actions may be trial or final hearing thereof, be removed for trial into removed, and does not provide how criminal actions the Circuit Court next to be holden in the district may be removed. This is a mistake; and it is a little where the same is pending upon the petition of such surprising that the learned counsel did not discover defendant to said Circuit Court, and in the following the fallacy of the argument which led them to that conmanner," eto. U. S. Rev. Stats., $ 643.

clusion. They say that the act provides that if the It is not denied, but is admitted by all that that act suit was commenced by summons then it may be reof Congress in express terms authorizes the removal moved simply by certiorari, but if by capias, it cannot and justifies the order of Judge Cox in this case. But be removed, and that this aot only applies to civil acthen it is said that that act is unconstitutional and tions. But the truth is that it applies to both civil and void. And we now have to consider that question. criminal cases.

As preliminary we would remark, that if we were It means that if the action, whatever it is, was by satisfied that his honor was in error in holding the summons, so that the defendant is at large, a certiorari act to be constitutional, we would still commend his will bring the record, and the defendant can come himprudence. For it is settled by all the authorities that self. But if the action, whatever it is, was by capias, no court, not even the highest, upon full consideration, so that the defendant is in custody and cannot come, ought to declare an act either of Congress or of then there must be a certiorari to bring the record and the General Assembly unconstitutional unless it is a habeas corpus to bring the defendant. plainlyso. And the act in question, substantially The second objection is that it is a violation of the in the same form as now, having been upou our stat- right of the State, that the State has the right to try ute book for a half century, and repeatedly consid- offenders against her criminal law, and that she cannot ered, and never having been declared void by any be deprived of it; and that the United States has no court or text-writer, it would have been a judicial ad- right to try offenders against State laws. venture to make a conflict of jurisdiction between Here lies the fallacy and the danger: every mind the State and the United States courts. But we think assents to the proposition that the United States has his bonor was not only prudent but wise, and that his no jurisdiction to try offenses against the State by her decision was right.

citizens, or in any manner to interfere in the police We invite attention to a short history of the act in regulations of the State. In these matters the State question, which we are able to give from the act itself is sovereign aud supreme. The fallacy consists in Bupas enacted and re-enacted at different times, and for posing that the matter in hand has any thing to do different purposes. They will be found most oonve- with the State, or the State with it; and the danger niently by reference to 1 Abbott's United States Prac- consists in the ease with which the people may be detice, and the United States Revised Statutes. And we ceived by the fallacy and irritated against the United are also aided by an opinion of the Solicitor-General of States for the supposed aggression. the United States indorsed by the Attorney-General Let it be true, as often charged, that the United of the United States, filed in the case.

States revenue law is a bad one, and that its execuAs early as the judiciary act of 1789, it was provided tions are still worse, aud that it is oppression altofor the removal of causes from the State to the Federal gether; yet North Carolina is not responsible for it. ('ourt before trial in certain civil suits, and for the “re- She did not pass it, she cannot repeal it, nor can she examination" of certain cases after judgment in the or her citizens resist it. Any attempt to do so has highest State court. And in 1815 removals were pro- always involved, and will always involve, the most vided for before trial in revenue cases, both in civil and hurtful troubles. Yet the remedy is plain. The law criminal cases ; except in such criminal cases as in- was passed and is executed by the United States. The flioted corporal punishment: note, that here was the United States is not a foreign government. It is our removal of criminal cases which is now so stoutly de- government, as much so as North Carolina is, and we nied. For one purpose and another this provision for are represented in it, and we are its citizens. It can

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protect its citizens, it can punish its officers, and it passed to remove the case from the State to the Fedcan repeal its laws. How puerile, then, it is to regard eral court before trial, and it is this act which is rethe United States as a “foreign " government, and to sisted. Admitting that the case may be moved after look to North Carolina or any other government to trial, they deny that it can be removed before trial. protect us against its oppression! As well might we Now, in the discussion in the United States Senate, appeal to Virginia to protect us against the aggressions upon the passage of the removal act of 1833, it was said of North Carolina.

that while it might be supposed to be some reflection In certain particulars North Carolina is our govern- upon the State courts to allow them to try the case ment, supreme. In all matters in which there is no and convict, and then remove it from them, yet there “Federal ingredient” she is supreme. An instance of could be no such supposition where the removal was this is the laying and collecting of her own taxes by before trial. But now, conceding the propriety of reher own officers from her own citizens. She acts pre- moval after trial, the sensitiveness is about the removal cisely as if the United States was not in existence. before trial. The truth is, there ought to be no sensi

So there are particulars in which the United States tiveness about either. It ought to be a matter of satis our government, supreme. In all matters in which

isfaction that the United States is ready at any time, there is a “Federal ingredient” it is supreme, a and especially at the earliest time, to take judicial familiar instance of which is the post-office system, control of its officers for trial, and for protection of and so is the revenue system. In such matters it acts its citizens and tax-payers; for just as two neighbors, as if there were no State in existence. The United

although they may be the best friends, or States lays and collects its own taxes by its own of- brothers, cannot live in peace if either will punish the ficers out of its own citizens. It does not lay a dollar children or servants of the other, so two sovereigns of tax upon North Carolina, nor upon any citizen of cannot preserve friendly relations, or even their own North Carolina, as such. No citizen of North Caro

existence, if either seeks to control and punish the lina, as such, ever paid a dollar of taxes to the United servants of the other. Hence, “the moment a public States. Its taxes are laid upon citizens of the United minister or agent enters the territory of the State to States by a uniform rule all over the nation. If it op- which he is sent, during the time of his residence, and presses any one, it is not a citizen of any State, as

until he leaves the country, he is entitled to an entire such, but its own citizen. What, then, has North

exemption from the local jurisdiction, civil and crimCarolina to do with it?

inal.” Wheat. Int. Law, 224, 209, n. “In all cases Can it be supposed that when the United States lays

of offenses committed by public ministers, affecting a tax upon its citizens, uniform over the whole nation,

the existence and safety of the State where they reand sends out its officers to collect it, its officers are sub

side, if the danger is urgent, their persons and papers ject to arrest and trial in each of its thirty-eight States

may be seized and they may be sent out of the counof the Union, with as many different views and consti

try. In all other cases it appears to be the established tutions? If so, then the collection of the United States

usage of nations to request their recall by their own taxes is at the mercy of the States; and as taxes are sovereigns, which, if unreasonably refused by him, necessary to the existence of every government, the

would unquestionably authorize the offended State to very existence of the United States would be at the

send away the offender." Ib. 225. mercy of the States, or of any one of them. It is These are the views which have occurred to us, withclaimed for the State that she must try every offense out reference to the decisions of other tribunals; and against her "peace and dignity," and that an assault now, in deference to the importance of the subject and battery and a trespass upon property are such of- and the ability with which it has been discussed, and fenses. This, as a general proposition, is undoubtedly in respect to other tribunals, and in justice to ourtrue. But suppose a United States revenue officer selves, we will consider the matter in the light of the arrests a delinquent United States tax payer, or seizes decisions of other courts. his property, and a question arises as to whether the The act of Congress having in express terms authorarrest or seizure was regular, is that a matter for the ized the defendant to apply for removal of the case State, or is it for the United States to try? It is from the State to the Federal court, and the Federal claimed for the State that she must try the officer in court having ordered the removal, and the State court the State Superior Court, and then there may be an having obeyed the order, the question is: Is the act appeal to the State Supreme Court, and then it may be of Congress constitutional ? removed to the United States Supreme Court.

We have already stated what has been the legislaNow, upon the supposition that it was a matter of tion upon the subject of the removal of cases from the State sovereignty, how is it preserved by allowing the State to the Federal courts, from the passage of the United States to take it out of its bands at all? Is it Federal Judiciary Act in 1789 down to the act now una luxury which a sovereign State should court to tryder consideration, 1866. We will now notice a few of and convict a man whom she cannot punish? It is an the more celebrated deoisions under them. insult to her dignity, they say, to refuse to let her try In 1816, in Martin v. Hunter, in the Supreme Court and convict, but it is quite a compliment not to let her of the United States, 1 Wheat. 335, and in 1821, in punish!

Cohens v. Virginia, in the same court, the whole matIt is true that if the State does try and convict, the ter was most elaborately discussed by the ablest counofficer may be protected in the manner above stated, sel, and exhaustive lions delivered by the court, by removing the case to the United States Supreme in the first case by Justice Story, and in the second by Court by writ of error. But it is vexatious and dila- Chief Justice Marshall; and the questions were subtory to the officer, and destructive of the United States sequently fully treated of in the light of those decisions service; for although another and another officer by Justice Story, in his work upon the Constitution. might be appointed in the place of the one arrested, 3 Story, $ 1695 et seq. yet they all might be arrested in like manner.

It would be superfluous to say that every question To prevent these evils, an act of Congress has been then involved, was settled for all time.

In the first-uamed case, the precise point was, undefined. Of course, as the judicial power is to be whether a civil suit, which involved " a Federal ingred- vested in the Supreme and inferior courts of the Union, ient," could be removed from a State to a Federal both are under the entire control and regulation of court; and it was decided that the removal could be Congress." Story's Con. Law, $ 1698, citing Martin v. made. In the second case, the precise point was, Luther, Osborn v. The Bank, and Cohens v. Virginia. whether a criminal prosecution, involving a “Federal And again he says: “There is no doubt that Congress ingredient" and where a State was a party, could be re- may enact a succession of inferior tribunals, in each of moved from a State to a Federal court? Aud it was de- wbich it may invest appellate as well as original juriscided that the removal could be made.

own.

diction." Section 1701. Why, then, do not those cases settle this case, which The Federalist, No. 82, is put as a note to that secis the removal of a criminal action from the State to a tion, as follows: Federal court? It is objected that they do not, for the "The Federalist, No. 82, has spoken of the right of reason that those cases were tried in the State courts, Congress to vest appellate jurisdiction in the inferior and judgment rendered by the State courts, and were courts of the United States from State courts (for it then removed to the Federal Supreme Court for revis- had before expressly affirmed that of the Supreme ion; whereas this is an attempt to remove the case Court in such cases) in the following terms: ‘But could from an inferior State court. For which it is said, for an appeal be made to lie from the State courts to the the State, that there is no authority in the United subordinate Federal jurisdictions? This is another of States constitution or laws. Let us examine that posi- the questions which have been raised and of greater tion, and in doing so we prefer to rely upon what bas difficulty than the former. The following considerabeen said by those luminaries of the law, Story and tions countenance the affirmative,' and then enumerMarshall, rather than upon any line of argument of our ating the considerations proceeds, 'whether their au

thority shall be original, or appellate, or both, is not deIt may be stated as a fact, not disputed by any, that clared. All this seems to be left to the discretion of the Federal Judiciary has, in one form or another, su- the Legislature, and this being so I see no impediment preme jurisdiction over every conceivable case which to the establishment of an appeal from the State courts can arise, which has in it a “ Federal ingredient," as it to the Subordinate National Tribunals, and many adis admitted this case has. The Supreme Court of the vantages attending the power of doing it may be imagUnited States has original jurisdiction; that is, suits ined. It would diminish the motives to the multiplimay be commenced in that court in two cases, (1) cation of Federal courts, and would admit of arrangewhere ambassadors, etc., are concerned; (2) where a ments calculated to contract the appellate jurisdiction state shall be a party. In all other cases, the Supreme of the Supreme Court. The State tribunals may then Court shall have appellate jurisdiction, with such ex- be left with a more entire charge of Federal causes; ceptions, and under such regulations as the Congress and appeals in most cases in which they may be deemed shall make. Art. 2, § 2. It follows, that if the United proper, instead of being carried to the Supreme Court, States Judiciary has jurisdiction of all cases, with a may be made to lie from the State courts to District Federal ingredient, and the United States Supreme Courts of the Union.'' In Cohen v. Virginia, Chief Court has original jurisdiction in only two cases, then Justice Marshall says: "There can be no doubt that the inferior United States court must have original Congress may create a succession of inferior courts, in jurisdiction in all other cases except the two, as they each of which it may vest appellate as well as original also have in those two cases under certain circum- jurisdiction.” Again he says: “If then the right of stances. But it does not follow, that because the removal be included in the appellate jurisdiction, it is United States inferior courts have original jurisdiction only because it is one mode of exercising that power; in all cases except the two, that they may not have and as Congress is not limited by the Constitution to also appellate jurisdiction from one to another, and any particular mode, or time of exercising it, it may from a State court. It is said expressly by Justice authorize a removal either before or after judgment. Story, and by the Federalist, contemporary with the The time, the process, and the manner must be subject adoption of the United States Constitution, that in

to its absolute legislative control. * And if the ferior courts may have such jurisdiction.

right of removal from State courts exist before judgJustice Story says: “But although the Supreme ment because it is included in the appellate power, it Court cannot exercise original jurisdiction in any cases must for the same reason exist after judgment. And except those specially enumerated, it is certainly com- if the appellate power by the Constitution does not petent for Congress to vest in any inferior court of the include cases pending in State courts, the right of reUnited States original jurisdiction of all other cases moval, which is but a mode of exercising the power, not thus specially assigned to the Supreme Court; for cannot be applied to them. Precisely the same objecthere is nothing in the constitution which excludes tions, therefore, exist as to the right of removal before such inferior courts from the exercise of such original judgment, as after. And both must stand or fall tojurisdiction. Original jurisdiction, so far as the con- gether." stitution gives a rule, is co-extensive with the judicial And again he says: “The remedy, too, of removal power; and except so far as the constitution has made of suits would be utterly inadequate to the purposes any distribution of it among the courts of the United of the Constitution if it acted only on the parties, and States, it remains to be exercised in an original or ap- not on the State courts. In respect to criminal prosepellate form, or both, as Congress may in their wisdom cutions, the difficulty seems admitted to be insurdeem fit. Now, the constitution has made no distinc- mountable; and in many civil suits there would in tion, except of the original and appellate jurisdiction many cases be rights without corresponding remedies. of the Supreme Court. It has nowhere insinuated that If State courts should deny the constitutionality of the inferior tribunals shall have no original jurisdic- the authority to remove suits from their cognizance, tion. It was nowhere affirmed that they shall have ap- in what manner could they be compelled to relinquish pellate jurisdiction. Both are left unrestricted and the jurisdiction. In respeot to criminal cases there

would at once be an end to all control; and the State stitutionality of the jurisdiction given by the acts decisions would be paramount to the Constitution." under which this case has arisen."

The expression above " that in respect to criminal These authorities are too plain to be misunderstood, prosecutions, it seems to be admitted to be insur- and of too high authority to be disregarded. mountable," has had a strange construction in the ar- But we repeat and desire it to be distinctly undergument in this case. It is construed to mean that there stood, that neither these authorities nor any thing that is an insurmountable difficulty against their removal, we have said go to the extent of saying that the United whereas it means precisely the contrary. It means that States courts have any power to try offenses " against if they cannot be removed, the difficulties would be in- the peace and dignity of the State," or to control the surmountable, because it would make the State courts State courts therein. But where a United States offisuperior to the Constitution of the United States. And cer is charged with a duty, and does an act under color Chief Justice Marshall says "the publio mischief which of his duty, which, but for his office, would be a crime would attend such a state of things would be truly de- against the State, then, and in that case, the United plorable."

States courts have jurisdiction, and under the act of We will refer now to a late case in the Supreme Congress can remove the case from the; State courts Court of the United States, The Mayor v. Cooper, 6 into the Federal courts. This power is indispensable Wallace, 247.

to the United States and is in no way derogatory to It was a civil suit commenced in the State courts for the State. trespass on property. The defendants' defense was How the Federal courts will dispose of the case and that they were acting under orders of the President of of the officer is for them to determine. All that the the United States, and under the acts of Congress of State has to do is to send the case, when demanded, to 1863 and 1866, same as in this case. They filed their pe- the Federal court. As has been already said, the detition in the Federal Circuit Court for the removal of fendant is an officer of the United States; the tax the cause from the State to the Federal court. The

payers whom he has offeuded are citizens of the United State court sent the case to the Federal court, and the States; the United States is able and, we are to supFederal court dismissed the case and sent it back to the pose, willing to protect its citizens from the oppression State court for trial; holding that the acts of Congress of its officers, if he has oppressed them, and to protect were void. And from that ruling the case went up to its officers, if they have resisted him. Just as North the Supreme Court of the United States.

Carolina is bound to protect its citizens in "life, liberty We call attention to the fact that here was a case and property," so the United States is bound to protect which went from a subordinate State court to a subor- its citizens in “life, liberty and property." When the dinate Federal court, and thence to the Supreme Court United States is dealing with its citizens, collecting its of the United States without having goue to the State taxes for instance, the State must stand off; and when Supreme Court at all.

the State is dealing with its citizens the United States The opinion of the United States Supreme Court in must stand off. that case, speaking of the jurisdiction of the courts, Nor is it to be understood from any thing we have says: “Jurisdiction original or appellate alike com- said, that when a man commits a crime agaiust the prehensive in either case may be given. The consti- laws of the State in his individual capacity, whether tutional boundary line of both is the same. Every va- the crime is small or great, that he can defeud himself riety and form of appellate jurisdiction within the by the fact that he is a United States officer. Not at sphere of the power, extending as well to the courts of all. He is just as guilty, and may be convicted and the States as to those of the nation, is permitted. There punished – hung it may be — just as if he was not an is no distinction in this respect between civil and crim- officer. inal cases. Both are within its scope.

It is only where the act complained of is an official It is the right and duty of the National government act, or done by virtue or under color of his office, that to have its constitution aud laws interpreted by its he is entitled to have his case passed upon by the power own judicial tribunals.

which appointed him. To his owu master he must This is esseutial to the peace of the nation and the stand or fall. For illustration, if the defendant vigor and efficiency of the Government. A different arrested a man, that is a crime against the State for principle would lead to the most mischievous conse- which the State court may try him. But if he says, quences. The courts of the several States might de- "true, I arrested him, but I, as a United States officer, termine the same question in different ways. There arrested him as a delinquent tax payer," then that would be no uniformity of decisions. For every act of which seemed at first to be a crime against the State, an officer, civil or military, of the United States, in- seems now to be official duty to the United States. cluding alike the highest and lowest done under their And whether it is or not, the United States has a right authority, would he be liable to harassing litigation to determine. in the State courts? However regular his conduct, It would seem that the proper way to have disposed neither the laws nor the Constitution of the United of this case was that which was pursued in the case States could avail him, if the views of those tribunals already cited of The Mayor v. Cooper. In that case as and of the juries which sit in them should be adverse. in this, the State court sent the case to the suborThe authority which he had served and obeyed would dinate Federal court. Aud the plaintiff followed the be impotent to protect him. Such a government would case into the Federal court, and moved to dismiss it be one of pitiable weakness, and would wholly fail to and send it back to the State court for trial, which the meet the ends which the framers of the Constitution Federal court did; and then the defendant appealed had in view. They designed to make a government to the Supreme Court of the United States by writ of not only independent and self-sustained, but supremo error; so here, when Judge Cox ordered the case to in every function within the scope of its authority. be sent to the Federal Circuit Court, the State ought The judgments of this court have uniformly held that to have followed the case to the Federal court and it is so.

* We entertain no doubt of the con- moved to dismiss it, upon the grouud that the aot

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