cases arising under the Constitution, and the absolute necessity of making the national judiciary the final and supreme, if not the sole, arbiter of all such questions. In respect to cases falling within the third and fourth of the preceding classes those growing out of a state legislative or executive act, it is evident that the original jurisdiction of the state courts should not be interfered with, should not be in the least lessened or impaired. Whatever authority is given to the United States judiciary should be entirely by way of review. Congress has acted upon this view, and has made provision by which the final determination of the state tribunal may be examined in the Supreme Court of the United States in cases where the validity of a state law or authority was drawn in question, and the decision was in favor of its validity.1 Congress has evidently failed to exercise its power in this respect to the full extent.

Those cases which fall within the first and second of the preceding classes, which grow out of a national legislative or executive act, might be withdrawn completely from the state jurisdiction. Congress has not chosen to do so in all instances. But where the local courts are left to the exercise of the power to hear and decide, some provision should be made by which the national judiciary may exert its authority. The following cases have been provided for. The final determination of the state tribunal may be examined in the Supreme Court of the United States, where the validity of a treaty or statute of, or of an authority exercised under the United States, was drawn in question, and the decision of the state court was against the validity. In 1833 a statute was passed providing that when a suit is commenced in a state court against an officer of the United States or other person, for any act done under the revenue laws, or for or on account of any right, authority or title, set up or claimed by such officer or person under any such law, the suit may be removed from the state court into a circuit court of the United States.2 A similar power of removal has been since extended to acts done under other statutes or under other species of authority of the

1 See "Judiciary Act" of 1789, § 25. 2 4 Statutes at Large, 632.

United States. Congress has thus partially legislated, whereas its ability to legislate completely is certain. If it may allow the suitors at their option to withdraw a case which arises under the Constitution or laws of the United States, from the state jurisdiction, it may by one blow, prohibit that jurisdiction altogether.

§ 750 a. This subject was elaborately considered in the late case of Tennessee v. Davis,2 involving the constitutional power of Congress to legislate for the removal from the state courts to the federal courts of a criminal case as well as a civil one. Davis was indicted in a state court of Tennessee for murder. He filed a petition to the Circuit Court of the United States for removal of the case to that court, setting forth that he was a deputy revenue collector of the United States, and that the killing was in self-defence after he had been assaulted by illicit distillers. The judges below were divided in opinion, and certified the case to the United States court on three questions:-1. Whether such a case was removable under § 643, Rev. Stats. 2. Whether, if removable, any mode of procedure in the trial of it is prescribed by Congress. 3. Whether a trial of the accused could be had in the United States Circuit Court.

It was held that the section did authorize the removal of the cause; and the second question was stated to be,

"Has the Constitution conferred upon Congress the power to authorize the removal from a state court to a federal court of an indictment against a revenue officer for an alleged crime against the state, and to order its removal before trial, when it appears that a federal question or a claim to a federal right is raised in the case, and must be decided therein? A more important question can hardly be imagined. The United States is a goverment with authority extending over the whole territory of the Union, acting upon the states and upon the people of the states. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No state government can exclude it from the exercise of any authority conferred upon it by the 1 Statute of March 3, 1863.

2 100 U. S. 257. ED.

630 CASES UNDER THE LAWS OF THE UNITED STATES.

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."

Const. Art. 1, Sec. 8, last clause, gives Congress power to execute all powers vested in the federal government. One of these powers is the judicial, which extends, Art. 3, Sec. 2, "to all cases," etc., and embraces alike civil and criminal cases under the laws. Cohens v. Virginia, 6 Wheat. 264; Osborne v. Bank of U. S. 9 Wheat. 738.

The removal of a civil case arising under the laws of the United States is constitutional beyond doubt. Railway Co. v. Whitton, 13 Wall. 270.

"But if there is power in Congress to direct a removal before trial of a civil case arising under the Constitution or laws of the United States, and direct such removal because such a case has arisen, it is impossible to sec why the same power may not order the removal of a criminal prosecution when a similar case has arisen in it. The argument contra is that to authorize removal invades state sovereignty."

Then follows some remarks on that subject and a review of the acts of Congress authorizing removal to federal

courts.

"It ought, therefore, to be considered as settled that the constitutional powers of Congress to authorize the removal of criminal cases for alleged offences against state laws, from state courts to the Circuit Courts of the United States, when there arises a federal question in them, is as ample as its power to authorize the removal of a civil case. Many of the cases referred to, and others, set out with great force the indispensability of such a power to the enforcement of federal law."

A very able dissenting opinion, however, was pronounced by Mr. Justice Clifford, in which Justice Field concurred, covering over thirty pages of the printed reports, which is too long to be inserted here, and to which the learned reader is referred.

§ 751. Cases arising under the Laws of the United States.— Many cases arising under the laws of the United States will

also arise under the Constitution. This is true of all those which draw in question the validity of the law. But there are others which assume the law to be valid, and put a construction thereon; which ascertain the rights of persons affected by it; which examine the acts of ministerial officers done in virtue thereof, and determine whether these acts are warranted by the statute. The national judiciary should certainly possess a jurisdiction in all such cases, and in the exercise thereof should be supreme. Unless this were established, the positive legislation of Congress would become a chaos. Indeed, it is difficult to see, in reference to many classes of statutes, that the state courts should have any authority at all; the subject-matter of the legislation is such that it seems to fall exclusively under the national control. A single example will illustrate this proposition. Congress establishes a system of duties to be paid upon imported goods. Revenue laws are always complicated, and require judicial interpretation. The rate of duty payable upon a particular article may have been left uncertain, and must be established. This rate must be uniform for all parts of the country. If the state courts may entertain cases of this description, and put a construction upon a revenue law, there would be no actual uniformity throughout the United States, and the practical evils which existed under the old Confederation would be revived. Congress has been partially influenced by these considerations, and in some instances has conferred an exclusive jurisdiction upon the national courts, while in others it has provided for a removal of suits to those courts. In all those cases where the state courts are permitted to have a concurrent jurisdiction, it is provided that their final judgment may be reviewed by the Supreme Court of the United States when a statute or treaty of the United States was drawn in question, and the decision was against the right claimed by either party under the statute treaty.1

or

$752. Cases arising under Treaties. The general government has exclusive control over foreign relations; it alone has power to enter into treaties; these treaties are made by the

1 Judiciary Act of 1789, § 25.

Constitution the supreme law of the land. The states are expressly forbidden to make any treaties or alliances; they are not officially known in dealings with foreign communities. The general government is therefore charged with the most important duty of preserving its own rights and those of its citizens against other peoples and states, and of observing its own liabilities and those of its citizens towards such peoples. It is responsible for any and all infractions of treaties done either in its own name and by its own direction, or by any other authority, or by any private citizen. Where the responsibility rests, the power should also reside. It is therefore the province of the national government to give construction to treaties, and to judge of rights and liabilities arising therefrom. This function does not belong to the states, at least finally and supremely. For these reasons it is evident that the judicial department of the United States must have jurisdiction over all cases arising under treaties, and that this jurisdiction should be either exclusive, or, if shared by the state courts, should be supreme over those local tribunals. As private rights of property are often based upon the stipulations of treaties, and as the state courts have a very general power to adjudicate upon this class of rights, it has not been deemed expedient to withdraw from them all jurisdiction over cases arising under treaties; the control of the nation has been preserved by the provisions made for a review stated in preceding paragraphs.

§753. Cases affecting Ambassadors, other public Ministers, and Consuls. The considerations which were adverted to under the preceding head, apply with equal force to this. The exclusive control over foreign relations extends to the cases of public ministers as well as to treaties. But there is another consideration especially applicable to these foreign representatives. Ambassadors and other public ministers are, by the International Law, exempt to a very great extent from the

1 See Hauenstein v. Lynham, 100 U. S. 483. And no state has power to interfere with or in any way limit the operation of a treaty of the United States. Baker . City of Portland, 8 Rep. 392. But Congress may, by subsequent legislation, abrogate or repeal a treaty. ED.