1. Sec. 643 of the Revised Statutes of the United States, which
declares 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 under or by authority of any
such officer, on account of any act done under color of his office
or of any such law or on account of any right, title, or authority
claimed by such officer or other person under any such law, . . .
the said suit or prosecution may, at any time before the trial or
final hearing thereof, be removed for trial into the circuit court
next to be holden in the district where the same is pending, upon
the petition of such defendant to said circuit court,"
&c., is not in conflict with the Constitution of the United
States.
2. A. was, in a state court of Tennessee, indicted for murder.
In his petition, duly verified, for removal of the prosecution to
the circuit court of the United States, he stated that although
indicted for murder, no murder was committed; that the killing was
done in necessary self-defense, to save his own life; that at the
time the alleged act for which he was indicted was committed he was
and still is an officer of the United States, to-wit, a deputy
collector of internal revenue; that the act for which he was
indicted was performed in his own necessary self-defense while
engaged in the discharge of his duties as deputy collector and
while acting by and under the authority of the internal revenue
laws of the United States; that what he did was done under and by
right of his said office; that it was his duty to seize illicit
distilleries and the apparatus used for the illicit and unlawful
distillation of spirits; and that while so attempting to enforce
said laws as deputy collector as aforesaid, he was assaulted and
fired upon by a number of armed men, and that in defense of his
life he returned the fire, which is the killing mentioned in the
indictment.
Held that the petition was in conformity with
the statute, and, upon being filed, the prosecution was removed to
the circuit court of the United States for that district.
3. 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 limited in the number of its
powers, it is, so far as its sovereignty
Page 100 U. S. 258
extends, supreme. No state can exclude it from exercising them,
obstruct its authorized officers against its will, or withhold from
it for a moment the cognizance of any subject which the
Constitution has committed to it.
4. The general government must cease to exist whenever it cannot
enforce the exercise of its constitutional powers within the states
by the instrumentality of its officers and agents. If, when thus
acting, within the scope of their authority, they 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 court -- the operations of
the general government may at any time be arrested at the will of
one of the states. No such element of weakness is to be found in
the Constitution.
5. The provision of the Constitution declaring that the judicial
power of the United States extends "to all cases in law and equity
arising under the Constitution, the laws of the United States, and
treaties made or which shall be made under their authority,"
embraces alike civil and criminal uses. Both are equally within
that power.
6. A case arises under that Constitution not merely where a
party comes into court to demand something conferred upon him by
the Constitution, a law of the United States, or a treaty, but
wherever its correct decision as to the right, privilege, claim,
protection, or defense of a party in whole or in part depends upon
the construction of either. It is in the power of Congress to give
the circuit courts of the United States jurisdiction of such a
case, although it may involve other questions of fact or of
law.
7. If the case, whether civil or criminal, be one to which the
judicial power of the United States extends, its removal to the
federal court does not invade state jurisdiction. On the contrary,
a denial of the right of the general government to remove, take
charge of, and try any case arising under the Constitution and laws
of the United States is a denial of its conceded sovereignty over a
subject expressly committed to it. It is a denial of a doctrine
necessary for the preservation of the acknowledged powers of the
government. The exercise of the power to remove criminal
prosecutions is seen in the Act of Feb. 4, 1815, 3 Stat. 198, again
in the third section of the Act of March 2, 1833, 4
id.
633, and more recently in the Act of July 13, 1866. 14
id.
171.
James M. Davis, was, in the Circuit Court for Grundy County, in
the State of Tennessee, indicted for murder. On the twenty-ninth
day of August, 1878, before the trial of the indictment, he
presented to the circuit court of the United States for the proper
district the following petition, praying for a removal of the case
into that court, and for a certiorari:
Page 100 U. S. 259
"Your petitioner, James M. Davis, would most respectfully show
to the court that on the twenty-first day of May, 1878, at the May
Term of the Circuit Court of Grundy County, Tennessee, the grand
jurors for the State of Tennessee, at the instance of E. M. Haynes,
as prosecutor, indicted your petitioner for willfully,
premeditatedly, deliberately, and of his malice aforethought
killing one J. B. Haynes, which indictment and criminal prosecution
so instituted is still pending against your petitioner in the
Circuit Court of Grundy County, within the Middle District of
Tennessee."
"And he further shows that no murder was committed; but, on the
other hand, the killing was committed in his own necessary
self-defense, to save his own life; that at the time the alleged
act for which he was indicted was committed, he was and still is an
officer of the United States, to-wit, a deputy collector of
internal revenue, and the act for which he was indicted was
performed in his own necessary self-defense, while engaged in the
discharge of the duties of his office as deputy collector of
internal revenue; and he was acting by and under the authority of
the internal revenue laws of the United States, and was done under
and by right of his office, to-wit, as deputy collector of internal
revenue. It is his duty to seize illicit distilleries and the
apparatus that is being used for the illicit and unlawful
distillation of spirits, and while so attempting to enforce the
revenue laws of the United States, as deputy collector aforesaid,
he was assaulted and fired upon by a number of armed men, and in
defense of his life returned the fire."
"In view of these facts, your petitioner prays that said cause
may be removed from the Circuit Court of Grundy County to the
Circuit Court of the United States for the Middle District of
Tennessee for trial, and that a certiorari issue. And as in duty
bound he will ever pray."
"JAMES A. WARDER,
Attorney"
"DISTRICT OF MIDDLE TENNESSEE,"
"
County of Davidson:"
"James M. Davis, being duly sworn, deposes and says that he is
the petitioner named in said petition; that he has heard the same
read, and knows the contents thereof, and that the same is true of
his own knowledge."
"JAMES M. DAVIS"
"Subscribed and sworn to before me this Aug. 13, 1878."
"J. W. CAMPBELL"
"
U. S. Com'r for Middle Tenn."
Page 100 U. S. 260
The record having been returned, in compliance with the writ, a
motion was made to remand the case to the state court, and, on the
hearing of the motion, the judges were divided in opinion upon the
following questions, which are certified here:
First, whether an indictment of a revenue officer (of
the United States) for murder, found in a state court, under the
facts alleged in the petition for removal in this case, is
removable to the circuit court of the United States under sec. 643
of the Revised Statutes.
Second, whether, if removable from the state court,
there is any mode and manner of procedure in the trial prescribed
by the act of Congress.
Third, whether, if not, a trial of the guilt or
innocence of the defendant can be had in the United States circuit
court.
MR. JUSTICE STRONG delivered the opinion of the Court.
The first of the questions certified is one of great importance,
bringing as it does into consideration the relation of the general
government to the government of the states, and bringing also into
view not merely the construction of an act of Congress, but its
constitutionality. That in this case the defendant's petition for
removal of the cause was in the form prescribed by the act of
Congress admits of no doubt. It represented that he had been
indicted for murder in the Circuit Court of Grundy County and that
the indictment and criminal prosecution were still pending. It
represented further that no murder was committed, but that, on the
other hand, the killing was committed in the petitioner's own
necessary self-defense, to save his own life; that at the time when
the alleged act for which he was indicted was committed, he was and
still is an officer of the United States, to-wit, a deputy
collector of internal revenue, and that the act for which he was
indicted was performed in his own necessary self-defense while
engaged in the discharge of his duties as deputy collector; that he
was
Page 100 U. S. 261
acting by and under the authority of the internal revenue laws
of the United States; that what he did was done under and by right
of his office, to-wit, as deputy collector of internal revenue;
that it was his duty to seize illicit distilleries and the
apparatus that is used for the illicit and unlawful distillation of
spirits; and that while so attempting to enforce the revenue laws
of the United States as deputy collector as aforesaid, he was
assaulted and fired upon by a number of armed men, and that in
defense of his life he returned the fire. The petition was verified
by oath, and the certificate required by the act of Congress to be
given by the petitioner's legal counsel was appended thereto. There
is therefore no room for reasonable doubt that a case was made for
the removal of the indictment into the circuit court of the United
States if sec. 643 of the Revised Statutes embraces criminal
prosecutions in a state court and makes them removable, and if that
act of Congress was not unauthorized by the Constitution. The
language of the statute (so far as it is necessary at present to
refer to it) is as follows:
"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, on account of any act done under color of his office
or of any such law, or on account of any right, title, or authority
claimed by such officer or other person under any such law,"
the case may be removed into the federal court. Now certainly
the petition for the removal represented that the act for which the
defendant was indicted was done not merely under color of his
office as a revenue collector, or under color of the revenue laws,
not merely while he was engaged in performing his duties as a
revenue officer, but that it was done under and by right of his
office, and while he was resisted by an armed force in his attempts
to discharge his official duty. This is more than a claim of right
and authority under the law of the United States for the act for
which he has been indicted. It is a positive assertion of the
existence of such authority. But the act of Congress authorizes the
removal of any cause when the acts of the defendant complained of
were done, or claimed to have
Page 100 U. S. 262
been done, in the discharge of his duty as a federal officer. It
makes such a claim a basis for the assumption of federal
jurisdiction of the case, and for retaining it at least until the
claim proves unfounded.
That the act of Congress does provide for the removal of
criminal prosecutions for offenses against the state laws when
there arises in them the claim of the federal right or authority is
too plain to admit of denial. Such is its positive language, and it
is not to be argued away by presenting the supposed incongruity of
administering state criminal laws by other courts than those
established by the state. It has been strenuously urged that murder
within a state is not made a crime by any act of Congress, and that
it is an offense against the peace and dignity of the state alone.
Hence it is inferred that its trial and punishment can be conducted
only in state tribunals, and it is argued that the act of Congress
cannot mean what it says, but that it must intend only such
prosecutions in state courts as are for offenses against the United
States -- offenses against the revenue laws. But there can be no
criminal prosecution initiated in any state court for that which is
merely an offense against the general government. If, therefore,
the statute is to be allowed any meaning when it speaks of criminal
prosecutions in state courts, it must intend those that are
instituted for alleged violations of state laws in which defenses
are set up or claimed under United States laws or authority.
We come, then, to the inquiry, most discussed during the
argument, whether sec. 643 is a constitutional exercise of the
power vested in Congress. 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. Upon its answer may
depend the possibility of the general government's preserving its
own existence. As was said in
Martin v.
Hunter, 1 Wheat. 363, "The general government must
cease to exist whenever it loses the
Page 100 U. S. 263
power of protecting itself in the exercise of its constitutional
powers." It can act only through its officers 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 court -- the operations of the general
government may at any time be arrested at the will of one of its
members. The legislation 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 its laws. It may deny the
authority conferred by those laws. The state court may administer
not only the laws of the state, but equally 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 power
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 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 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.
By the last clause of the eighth section of the first article of
the Constitution, Congress is invested with power to make all laws
necessary and proper for carrying into execution not only all the
powers previously specified, but also all other powers vested by
the Constitution in the government of the United States or in any
department or officer thereof. Among these is the judicial power of
the government. That is declared by
Page 100 U. S. 264
the second section of the third article to
"extend to all cases in law and equity arising under the
Constitution, the laws of the United States, and treaties made or
which shall be made under their authority,"
&c. This provision embraces alike civil and criminal cases
arising under the Constitution and laws.
Cohens v.
Virginia, 6 Wheat. 264. Both are equally within the
domain of the judicial powers of the United States, and there is
nothing in the grant to justify an assertion that whatever power
may be exerted over a civil case may not be exerted as fully over a
criminal one. And a case arising under the Constitution and laws of
the United States may as well arise in a criminal prosecution as in
a civil suit. What constitutes a case thus arising was early
defined in the case cited from 6 Wheaton. It is not merely one
where a party comes into court to demand something conferred upon
him by the Constitution or by a law or treaty. A case consists of
the right of one party as well as the other, and may truly be said
to arise under the Constitution or a law or a treaty of the United
States whenever its correct decision depends upon the construction
of either. Cases arising under the laws of the United States are
such as grow out of the legislation of Congress, whether they
constitute the right or privilege or claim or protection or defense
of the party, in whole or in part, by whom they are asserted. Story
on the Constitution, sec. 1647; 6 Wheat.
19 U. S. 379.
It was said in
Osborn v. The Bank of the
United States, 9 Wheat. 738,
"When a question to which the judicial power of the Union is
extended by the Constitution forms an ingredient of the original
cause, it is in the power of Congress to give the circuit courts
jurisdiction of that cause, although other questions of fact or of
law may be involved in it."
And a case arises under the laws of the United States when it
arises out of the implication of the law. Mr. Chief Justice
Marshall said, in the case last cited:
"It is not unusual for a legislative act to involve consequences
which are not expressed. An officer, for example, is ordered to
arrest an individual. It is not necessary nor is it usual to say
that he shall not be punished for obeying this order. His security
is implied in the order itself. It is no unusual thing for an act
of Congress to imply, without expressing, this very exemption
Page 100 U. S. 265
from state control. . . . The collectors of the revenue, the
carriers of the mail, the mint establishment, and all those
institutions which are public in their nature are examples in
point. It has never been doubted that all who are employed in them
are protected while in the line of their duty, and yet this
protection is not expressed in any act of Congress. It is
incidental to and is implied in the several acts by which those
institutions are created, and is secured to the individuals
employed in them by the judicial power alone -- that is, the
judicial power is the instrument employed by the government in
administering this security."
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. The Judiciary Act of
Sept. 24, 1789, was passed by the first Congress, many members of
which had assisted in framing the Constitution, and though some
doubts were soon after suggested whether cases could be removed
from state courts before trial, those doubts soon disappeared.
Whether removal from a state to a federal court is an exercise of
appellate jurisdiction, as laid down in Story's Commentaries on the
Constitution, sec. 1745, or an indirect mode of exercising original
jurisdiction, as intimated in
Railway Company v.
Whitton, 13 Wall. 270, we need not now inquire. Be
it one or the other, it was ruled in the case last cited to be
constitutional. 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 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 in 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. As we have already said, such a
jurisdiction is necessary for the preservation
Page 100 U. S. 266
of the acknowledged powers of the government. It is essential
also to a uniform and consistent administration of national laws.
It is required for the preservation of that supremacy which the
Constitution gives to the general government by declaring that the
Constitution and laws of the United States made in pursuance
thereof, and the treaties made or which shall be made under the
authority of the United States, shall be the supreme laws of the
land, and the judges in every state shall be bound thereby,
anything in the constitution or laws of any state to the contrary
notwithstanding. The founders of the Constitution could never have
intended to leave to the possibly varying decisions of the state
courts what the laws of the government it established are, what
rights they confer, and what protection shall be extended to those
who execute them. If they did, where is the supremacy over those
questions vested in the government by the Constitution? If,
whenever and wherever a case arises under the Constitution and laws
or treaties of the United States, the national government cannot
take control of it, whether it be civil or criminal, in any stage
of its progress, its judicial power is at least temporarily
silenced, instead of being at all times supreme. In criminal as
well as in civil proceedings in state courts, cases under the
Constitution and laws of the United States might have been expected
to arise, as in fact, they do. Indeed, the powers of the general
government and the lawfulness of authority exercised or claimed
under it are quite as frequently in question in criminal cases in
state courts as they are in civil cases, in proportion to their
number.
The argument so much pressed upon us that it is an invasion of
the sovereignty of a state to withdraw from its courts into the
courts of the general government the trial of prosecutions for
alleged offenses against the criminal laws of a state, even though
the defense presents a case arising out of an act of Congress,
ignores entirely the dual character of our government. It assumes
that the states are completely and in all respects sovereign. But
when the national government was formed, some of the attributes of
state sovereignty were partially, and others wholly, surrendered
and vested in the United States. Over the subjects thus surrendered
the sovereignty
Page 100 U. S. 267
of the states ceased to extend. Before the adoption of the
Constitution, each state had complete and exclusive authority to
administer by its courts all the law, civil and criminal, which
existed within its borders. Its judicial power extended over every
legal question that could arise. But when the Constitution was
adopted, a portion of that judicial power became vested in the new
government created, and so far as thus vested it was withdrawn from
the sovereignty of the state. Now the execution and enforcement of
the laws of the United States, and the judicial determination of
questions arising under them, are confided to another sovereign,
and to that extent the sovereignty of the state is restricted. The
removal of cases arising under those laws from state into federal
courts is therefore no invasion of state domain. On the contrary, a
denial of the right of the general government to remove them, to
take charge of and try any case arising under the Constitution or
laws of the United States, is a denial of the conceded sovereignty
of that government over a subject expressly committed to it.
It is true, the 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 from time to time been made. Congress has authorized more and
more fully, as occasion has required, the removal of civil cases
from state courts into the circuit courts of the United States, and
the constitutionality of such authorization has met with general
acquiescence. It has been sustained by the decisions of this
Court.
Nor has the removal of civil cases alone been authorized. On the
4th of February, 1815, an act was passed, 3 Stat. 198, providing
that if any suit or prosecution should be commenced in any state
court against any collector, naval officer, surveyor, inspector, or
any other officer, civil or military, or any other person aiding or
assisting, agreeably to the provisions of the act or under color
thereof, for any act done or omitted to be done as an officer of
the customs or for anything done by virtue of the act or under
color thereof, it might be removed before trial into the circuit
court of the United States, provided the act should not apply to
any offenses involving corporal punishment. This act expressly
applied to a criminal
Page 100 U. S. 268
action or prosecution. It was intended to be of short duration,
but it was extended by the Act of March 3, 1815, 3 Stat. p. 233,
sec. 6, and reenacted in 1817 for a period of four years.
So, in 1833, by the Act of March 2, 4
id. c. 57, sec.
3, it was enacted that in any case where suit or prosecution should
be commenced in a state court of any state against any officer of
the United States or other person for or on account of any act done
under the revenue laws of the United States or under color thereof,
or for or on account of any right, authority, or title set up or
claimed by such officer or other person under any such law of the
United States, the suit or prosecution might be removed, before
trial, into the federal circuit court of the proper district. The
history of this act is well known. It was passed in consequence of
an attempt by one of the states of the Union to make penal the
collection by United States officers within the state of duties
under the tariff laws. It was recommended by President Jackson in a
special message, and passed in the Senate by a vote of 32 to 1, and
in the House by a majority of 92. It undoubtedly embraced both
civil and criminal cases. It was so understood and intended when it
was passed. The chairman of the Judiciary Committee which
introduced the bill said:
"It gives the right to remove at any time before trial, but not
after judgment has been given, and thus affects in no way the
dignity of the state tribunals. Whether in criminal or civil cases,
it gives this right of removal. Has Congress power in criminal
cases? He would answer the question in the affirmative. Congress
had the power to give the right in criminal as well as in civil
cases, because the second section of the third article of the
Constitution speaks of all cases in law and equity, and these
comprehensive terms cover all. . . . It was more necessary that
this jurisdiction should be extended over criminal than over civil
cases. If it were not admitted that the federal judiciary had
jurisdiction of criminal cases, then was nullification ratified and
sealed forever, for a state would have nothing more to do than to
declare an act a felony or misdemeanor to nullify all the laws of
the Union."
The provisions of the Act of July 13, 1866, 14 Stat. 171,
Page 100 U. S. 269
sec. 67, relative to the removal of suits or prosecutions in
state courts against internal revenue officers, provisions
reenacted in sec. 643 of the Revised Statutes, are almost identical
with those of the act of 1833, the only noticeable difference being
that in the latter act, the adjective "criminal" is inserted before
the word "prosecution." This made no change in the meaning. The
well understood legal signification of the word "prosecution" is a
criminal proceeding at the suit of the government. Thus it appears
that all along our history, the legislative understanding of the
Constitution has been that it authorizes the removal from state
courts to the circuit courts of the United States alike civil and
criminal cases arising under the laws, the Constitution, or
treaties.
The subject has more than once been before this Court, and it
has been fully considered. In
Martin v.
Hunter, 1 Wheat. 304, it was admitted in argument
by Messrs. Tucker and Dexter that there might be a removal before
judgment, though it was contended there could not be after; but the
contention was overruled, and it was declared that Congress might
authorize a removal either before or after judgment; that the time,
the process, and the manner must be subject to its absolute
legislative control. In that case also it was said that the remedy
of the removal of suits would be utterly inadequate to the purposes
of the Constitution if it could act only upon the parties, and not
upon the state courts, Judge Story, who delivered the opinion,
adding:
"In respect to criminal prosecutions, the difficulty seems
admitted to be insurmountable, and, in respect to civil suits,
there would in many cases be rights without corresponding remedies.
. . . In respect to criminal prosecutions, there would at once be
an end of all control, and the state decisions would be paramount
to the Constitution."
The expression that the difficulty in the way of the removal of
criminal prosecutions seems admitted to be insurmountable has been
laid hold of here, in argument, as a declaration of the court that
criminal prosecutions cannot be removed. It is a very shortsighted
and unwarranted inference. What the court said was that the remedy
in such cases seems to be insurmountable if it could not act upon
state courts as well as parties, and it was ruled that it does thus
act. The expression must be read in its
Page 100 U. S. 270
connection. In
Martin v. Hunter, the removal was by
writ of error after final judgment in the state court, which
certainly seems more an invasion of state jurisdiction than a
removal before trial. The case was followed by
Cohens v.
Virginia, 6 Wheat. 264, a criminal case, in which
the defendant set up against a criminal prosecution an authority
under an act of Congress. There it was decided that cases might be
removed in which a state was a party. This also was a writ of error
after a final judgment, but it as well as the former case
recognized the right of Congress to authorize removals either
before or after trial, and neither case made any distinction
between civil and criminal proceedings.
In
The Mayor v.
Cooper, 6 Wall. 247, the validity of the removal
acts of 1863, March 3, sec. 5 of c. 81, 12 Stat. 756, and its
amendment of May 11, 1866, 14
id. 1866, which embraced not
only civil cases but criminal prosecutions and authorized their
removal before trial, came under consideration, and it was
sustained. This Court then said the constitutional power is given
in general terms.
"No limitation is imposed. The broadest language is used. 'All
cases' so arising are embraced. How jurisdiction shall be acquired
by the inferior court [of the United States], whether it shall be
original or appellate, or original in part and appellate in part,
and the manner of procedure in its exercise after it has been
acquired, is not prescribed. This Constitution is silent upon these
subjects. They are remitted without check or limitation to the
wisdom of the legislature. . . . Jurisdiction, original or
appellate, alike comprehensive in either case, may be given. The
constitutional boundary line of both is the same. Every variety and
form of appellate jurisdiction within the sphere of the power,
extending as well to the courts of the states as to those of the
nation, is permitted. There is no distinction in this respect
between civil and criminal cases. Both are within its scope. Nor is
it any objection that questions are involved which are not at all
of a federal character. If one of the latter exist, if there be a
single such ingredient in the mass, it is sufficient."
The Court added, "We entertain no doubt of the constitutionality
of the jurisdiction given by the act under which this case has
arisen."
See also Com. v. Ashmun,
Page 100 U. S. 271
3 Grant, Cas. 436;
id. 416-418;
State v.
Hoskins, 77 N.C. 530, decided in 1877, where the
constitutionality of sec. 643 of the Revised Statutes was affirmed
after a full and instructive discussion.
It ought therefore to be considered as settled that the
constitutional powers of Congress to authorize the removal of
criminal cases for alleged offenses 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.
It follows that the first question certified to us from the
circuit court of Tennessee must be answered in the affirmative.
The second question is "Whether, if the case be removable from
the state court, there is any mode and manner of procedure in the
trial prescribed by the act of Congress."
Whether there is or not is totally immaterial to the inquiry
whether the case is removable, and this question can hardly have
arisen on the motion to remand the case. The imaginary difficulties
and incongruities supposed to be in the way of trying in the
circuit court an indictment for an alleged offense against the
peace and dignity of a state, if they were real, would be for the
consideration of Congress. But they are unreal. While it is true
there is neither in sec. 643 nor in the act of which it is a
reenactment any mode of procedure in the trial of a removed case
prescribed, except that it is ordered the cause when removed shall
proceed as a cause originally commenced in that court, yet the mode
of trial is sufficiently obvious. The circuit courts of the United
States have all the appliances which are needed for the trial of
any criminal case. 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
has 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
Page 100 U. S. 272
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 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 forms of
proceeding.
The third question certified has been sufficiently answered in
what we have said respecting the second. It must be answered in the
affirmative.
The first question will be answered in the affirmative, and the
second is answered as in the opinion.
MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE FIELD,
dissenting.
Civil suits or criminal prosecutions, commenced in a state court
against a revenue officer of the United States, on account of any
act done under color of his office or on account of any right,
title, or authority claimed by such officer under such law may at
any time before the trial or final hearing thereof be removed for
trial into the circuit court next to be holden in the district
where the same is pending in the manner prescribed in the section
conferring the right. Rev.Stat., sec. 643.
Sufficient appears to show that the prisoner was formally
indicted of murder in the first degree by the grand jury of the
state, that the indictment was duly filed in the proper state court
for trial, and that it was subsequently removed into the circuit
court of the United States for the district on motion of the
accused. Neither the indictment nor the order of removal is
exhibited in the transcript. Instead of that, the statement is that
the Attorney General of the state moved in the circuit court to
remand the cause to the state court in which the indictment was
found. Hearing was had, and it appears that the judges of the
circuit court were divided in
Page 100 U. S. 273
opinion whether the motion of the Attorney General ought or
ought not to be granted.
Appended to the first question certified by the judges of the
court is a paper which purports to be the petition of the prisoner
under which the order of removal was granted. From that it appears
that the homicide charged is admitted, but that the defense is that
the killing by the prisoner was in self-defense, to save his own
life; that he was and still is a deputy collector of internal
revenue; and that the act for which he is indicted, as he alleges,
was performed in self-defense while he was engaged in the
performance of the duties of his office. Speaking more
specifically, he states that it is his duty to seize illicit
distilleries and the apparatus that is being used for the illicit
and unlawful distillation of spirits, and that while attempting to
enforce the revenue laws, he was assaulted and fired upon by a
number of armed men, and that in defense of his life, he returned
the fire.
Three questions are certified, as follows:
1. Is an indictment in a state court for murder, under the facts
set forth in the petition for removal in this case, removable to
the circuit court under sec. 643 of the Revised Statutes?
2. If removable from the state court, is there any mode of
procedure in the trial prescribed by an act of Congress?
3. And if not, can a trial of the guilt or innocence of the
prisoner be had in the circuit court?
Questions of greater importance than those certified here by the
circuit court could hardly be presented for discussion, as they
involve the necessity of an inquiry into the nature, extent, and
limitation of the judicial power both of the United States and of
the circuit courts established by Congress. Judicial power, like
other powers granted to the United States by the Constitution, is
defined by the instrument making the grant. Governed by that rule,
we find that the second section of the third article ordains that
the judicial power shall extend to all cases in law and equity
arising under the Constitution, the laws of the United States, and
treaties made or which shall be made under their authority, which
provision describes the whole extent of the judicial power of the
United States conferred by the Constitution that it is necessary to
examine in
Page 100 U. S. 274
the present case. Other clauses in the same section enumerate
numerous other subject matters falling within the cognizance either
of the Supreme Court or of the inferior courts created by Congress,
but it will not be necessary to examine those clauses, as they have
no bearing upon the questions to be answered.
Pursuant to the first section of the third article, the Congress
passed the Judiciary Act, making provision for the organization of
the Supreme Court and establishing the circuit and district courts.
1 Stat. 73.
Jurisdiction of crimes and offenses committed within their
respective districts and cognizable under the authority of the
United States to a limited extent was by that act conferred upon
the district courts, but the eleventh section of the act provided
that the circuit courts should have exclusive cognizance of all
crimes and offenses cognizable under the authority of the United
States except where the act otherwise provides, and concurrent
jurisdiction with the district courts of the crimes and offenses
cognizable in those courts.
Id., 78.
Neither the district nor circuit courts have jurisdiction of any
crimes or offenses by that act unless the same are cognizable under
the authority of the United States. Criminal jurisdiction is not by
the Constitution conferred upon any court, and it is settled law
that Congress must in all cases make an act criminal and define the
offense before either the district or circuit courts can take
cognizance of an indictment charging the act as an offense against
the authority of the United States. Obvious and undoubted as the
proposition is, it admits of but little illustration, and needs
nothing more.
Powers expressly enumerated are granted to Congress, and such as
shall be necessary and proper for carrying the enumerated powers
into execution, or in other words the powers of Congress are made
up of concessions from the people of the several states, with such
implied powers as are necessary and proper to carry the express
concessions into effect, subject to the limitation that whatever is
not expressly granted or necessarily or properly implied to carry
the granted powers into effect is reserved to the states
respectively or to the people. Like the other powers specified, the
judicial power of the
Page 100 U. S. 275
United States is a constituent part of those concessions from
the several states, and as was held by this Court at a very early
period, it is to be exercised by the Supreme Court or such inferior
courts as the Congress may from time to time ordain and
establish.
Of all the courts which the United States may, under their
general powers, constitute, one only -- the Supreme Court --
possesses jurisdiction derived immediately from the Constitution
and of which the legislative power cannot deprive it. All other
courts organized by the general government possess no jurisdiction
but what is given by the power that created them, and they can be
vested with none except what the power ceded to the United States
will authorize the Congress to confer. Certain implied powers, it
is admitted, must necessarily result to courts of justice -- such
as to fine for contempt or imprison for contumacy -- but the
jurisdiction of crimes against the authority of the United States
is not among such implied powers, the universal rule in the federal
courts being that the legislative authority of the Union must first
make an act a crime, affix a punishment to it, and prescribe what
courts have jurisdiction of such an indictment, before any federal
tribunal can determine the guilt or innocence of the supposed
offender.
United States v. Hudson &
Goodwin, 7 Cranch 32;
United States v.
Coolidge, 1 Wheat. 415; 1 Whart.Crim.Law (7th ed.), sec.
163.
In accordance with that rule, it was held by the whole Court,
Marshall, C.J., delivering the opinion, that the circuit court
could not take cognizance of the crime of murder committed on board
of one of our ships of war lying in a harbor within state
jurisdiction, because the eighth section of the Crimes Act, by
which alone any provision had been made for the punishment of such
a crime on shipboard, only defines offenses perpetrated upon the
high seas or in any river, haven, basin, or bay out of the
jurisdiction of any particular state.
United
States v. Bevans, 3 Wheat. 336,
16 U. S.
387.
It was argued in behalf of the prosecution in that case that the
jurisdiction existed because the homicide was committed on board a
ship of war, but Mr. Webster denied the proposition, and contended
that the jurisdiction of the circuit court
Page 100 U. S. 276
was only such as had been given to it by an act of Congress, and
insisted that it was sufficient to maintain for the prisoner that
no act of Congress authorized the circuit court to take cognizance
of any offenses merely because they were committed on ships of war.
Instead of that, he insisted that it was the nature of the place in
which the ship lies, and not the character of the ship itself, that
decides the question of jurisdiction, and added that if committed
within the territorial jurisdiction of the state, it excluded the
jurisdiction of the circuit court by express exception, the
language of the act only giving authority to try and punish
offenders for offenses committed upon the high seas or in any
river, haven, basin, or bay out of the jurisdiction of any
particular state.
Commenting upon that provision, the Chief Justice said it is not
the offense, but the bay in which it is committed, which must be
out of the jurisdiction of the state, adding that unless the place
itself be out of the jurisdiction of the state, Congress has not
given cognizance of the offense to the circuit courts.
United States v.
Wiltberger, 5 Wheat. 76,
18 U. S. 96.
Apply the conclusion reached in those two cases to the question
under discussion and it is clear that, in order to ascertain the
jurisdiction of the federal courts in criminal cases, resort must
be had to the acts of Congress providing for the punishment of
crimes, for although such courts are unquestionably to look to the
common law, in the absence of statutory provision, for rules of
guidance in the exercise of their functions in criminal as well as
in civil cases, it is to the acts of Congress passed in pursuance
of the Constitution alone that they must have recourse to determine
what constitutes an offense against the authority of the United
States, it being settled law that the United States have no
unwritten code to which resort can be had as a source of
jurisdiction. Conkling's Treatise (5th ed.) 181.
Courts of the United States derive no jurisdiction in criminal
cases from the common law, nor can such 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. Argument
to show that Congress has never
Page 100 U. S. 277
defined the act of murder at a place within the exclusive
jurisdiction of a state as an offense against the authority of the
United States is certainly unnecessary, as no sane man will venture
to advance such a proposition; nor will anyone who ever looked into
the record of this case deny that the place where the homicide
which is the subject of inquiry was committed is in the exclusive
jurisdiction of the state whose laws were violated by the
perpetrator of the felonious act. None of these matters can be
denied consistent with the truth of the facts as judicially known
to every member of the Court.
Offenses against the authority of the United States, defined by
an act of Congress passed in pursuance of the Constitution, are
cognizable in the circuit courts by virtue of the eleventh section
of the Judiciary Act, whether committed upon the high seas or in
any river, haven, basin, or bay out of the jurisdiction of any
particular state or in any fort, dockyard, arsenal, armory, or
magazine or any other place the exclusive jurisdiction of which is
ceded to the United States. Cognizance in criminal cases may also
be given to those courts of offenses against the national
authority, if properly defined by an act of Congress, when they are
committed in violation of such an act passed pursuant to the second
section of the third article of the Constitution, which extends the
judicial power to all cases in law and equity arising under the
Constitution, the laws of Congress, and the treaties therein
specified. 1 Whart.Cr.Law (7th ed.) 174-180, inclusive.
Exceptional cases undoubtedly arise where it may properly be
said that the citizen owes allegiance to two sovereigns, and may be
liable to punishment for an infraction of the laws of either where
the same act is a transgression and defined offense under the laws
of both. Thus, an assault on the marshal or hindering him in the
execution of legal process is a high offense against the United
States for which the perpetrator is liable to punishment, and the
same act may also be a gross breach of the peace of the state if it
results in a riot, assault, or murder, and may subject the same
person to the punishment prescribed by the state laws.
Moore v.
Illinois, 14 How. 13.
Page 100 U. S. 278
Federal sovereignty as well as the sovereignty of the states is
limited and restricted by the Constitution. Certain powers,
legislative, executive, and judicial, are possessed by each,
independent of the other, and in the exercise of such powers, all
agree that they act as separately and independently of each other
as if the line of division was traced by landmarks visible to the
eye.
Ableman v.
Booth, 21 How. 506,
62 U. S.
516.
Both governments, though there be but one act, if the
jurisdiction is dual and the act charged is defined by the laws of
each as an offense, may subject the offender to punishment; nor can
he plead the conviction and sentence in one forum in bar to an
indictment in the other, as the act committed was an offense
against the authority of each.
Fox v. The State of
Ohio, 5 How. 410;
United
States v. Marigold, 9 How. 560.
Passing and uttering counterfeit coin was the charge in the
first case, and it appears that the defendant, having been
convicted in the state court, removed the cause into this Court and
assigned for error that the court below had no jurisdiction of the
offense; but this Court held that the state law was valid, that
offenders falling within the power of different sovereignties may
be triable in each for the same act, and may properly be subjected
to the penalties which each assigns to the perpetration of the act.
When carefully examined, it will be found that the second case
decides the same point in the same way -- that the same act may in
certain cases constitute an offense against both the state and the
United States, and that it may draw to its commission the penalties
denounced by each for the commission of the act.
United States
v. Amy, 14 Md. 135, n., per Taney, C.J.; Cooley, Const.Lim.
(4th ed.) 25.
Viewed in the light of these suggestions, it seems reasonable to
conclude that Congress might define the malicious killing of a
revenue collector with malice aforethought, while in the
performance of his official duties, as murder, and might make
provision for the trial and punishment of the offender even though
the homicide was committed at a place within the exclusive
jurisdiction of the state. Congress may provide for the appointment
of officers to collect the public revenue, and, if so, they may
pass constitutional laws for their protection,
Page 100 U. S. 279
but Congress has not defined the act charged in the state
indictment as an offense against the authority of the United
States, nor does any act of Congress prescribe the punishment to be
inflicted for its commission or declare what court shall have
jurisdiction of the offense.
Ample power, it was conceded, was vested in Congress to provide
for the punishment of murder committed by a person serving on board
a public ship of war, wherever the ship might be; but inasmuch as
Congress had not defined the act of killing at that place as a
crime, nor affixed a punishment to it, nor declared the court that
should have jurisdiction of the offense, this Court unanimously
decided, Marshall, C.J., giving the opinion, that a murder
committed on board a ship of war lying within the harbor of Boston
was not cognizable in the Circuit Court of the District of
Massachusetts, and the case was remanded with a certificate to that
effect.
United States v.
Bevans, 3 Wheat. 336,
16 U. S.
391.
Since that decision, the law has been considered as settled that
the circuit courts have no jurisdiction to try and sentence an
offender unless it appears that the offense charged is defined by
an act of Congress and that the act defining the offense, or some
other act, prescribes the punishment to be imposed and specifies
the court that shall have jurisdiction of the offense.
United States v.
Wiltberger, 5 Wheat. 76.
Homicide resulting from the acts of a party in opposing an
officer, employed in the enrollment of men for the military service
during the late rebellion, was defined by an act of Congress to be
murder and punishable with death, and the same section enacted that
the conviction of the party of that offense in the circuit court
should not relieve him from liability for any crime committed by
him against the laws of the state. 13 Stat., p. 8, sec. 12;
United States v. Gleason, 1 Woolw. 75;
Same v. Same,
id., 128.
Decided cases everywhere hold that unless Congress first defines
the offense, affixes the punishment, and declares in some way the
court that shall have jurisdiction of the accusation, the circuit
court can neither try the accused nor sentence him to punishment.
Even the power of Congress to define offenses and provide for the
punishment of offenders is limited
Page 100 U. S. 280
to such subjects and circumstances as relate and are peculiar to
the federal government. Money may be coined by that government, and
therefore Congress may provide for the punishment of counterfeiting
the national coin. Congress may establish post offices and post
roads, and therefore the Legislative Department may pass laws
providing for the punishment of persons robbing the mails; but the
Congress cannot enact laws for punishing persons for counterfeiting
state bank issues, or for robbing express companies established by
state authority.
United States v. Ward, id., 17, 20.
Offices may be created by a law of Congress, and officers to
execute the duties of 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 the discharge of his
duties. Concede that and it follows that if the punishment for the
offense is affixed, and the jurisdiction is given to the circuit
courts, those courts may try the offender, if legally indicted, and
if duly convicted may sentence him to the punishment which the act
of Congress prescribes. Beyond all question, the jurisdiction of
the circuit court over such an indictment would be complete, but
the difficulty in the way of the prosecutor in this case is that
there is no act of Congress defining the offense charged in the
indictment, nor is there any provision in such law providing for
the punishment of such an offense or which gives the circuit court
or any other federal court jurisdiction to try or sentence the
offender.
Enough appears in these observations to show that even if the
indictment in this case had been found against a citizen of the
state for murdering the revenue officer while engaged in the
discharge of his official duties, the circuit court would not,
under existing laws, have jurisdiction to try and sentence the
offender, for the reason that the offense is not defined by any act
of Congress, nor is there any act of Congress giving such
jurisdiction to the circuit courts.
Judicial authorities to that effect are numerous and decisive,
but the principal question in this case is of a very different
character, as the indictment is against the officer of the
revenue
Page 100 U. S. 281
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.
Unquestionable jurisdiction to try and punish offenders against
the authority of the United States is conferred upon the circuit
and district courts, but the acts of Congress give those courts no
jurisdiction whatever of offenses committed against the authority
of a state. Criminal homicide committed in a state is an offense
against the authority of the state unless it was committed in a
place within the exclusive jurisdiction of the United States.
Congress has never defined such an offense when committed within
the territorial limits of a state under the circumstances described
in the transcript; nor is there any pretense for the suggestion
either that the circuit or district courts have any jurisdiction of
the case or that there is any conflict of jurisdiction between the
judicial authorities of the state and those of the United
States.
Matters of fact are not in dispute, and it appears by the record
that the prisoner, at the time mentioned in the petition, was duly
indicted of the crime of willful murder, with malice aforethought,
by the grand jury of the county where the homicide was committed,
and that the indictment is still pending in the proper court of the
state where it was filed. Adjudged cases are not necessary to show
that no federal court created by Congress had jurisdiction of the
offense, as the homicide was committed on land within the state,
and not within any place over which the United States had exclusive
jurisdiction. None of these matters can be successfully
controverted, and if not then it follows that the exclusive
jurisdiction of the offense was vested in the state court, unless
it can be held that the prisoner, merely because he was a deputy
collector of the revenue, is privileged to remove the state
indictment found by the grand jury of the state into the circuit
court for trial.
Nobody before ever pretended that such an offense ever was or
could be defined by an act of Congress as an offense against
Page 100 U. S. 282
the federal authority, or that the circuit court or any other
federal court has or ever had any jurisdiction of such a case to
try or sentence such an offender for such an offense. federal
courts have no common law jurisdiction in criminal cases, nor can
such courts proceed to try or punish any offender, except when
authorized by an act of Congress, passed in pursuance of the
Constitution.
State of Pennsylvania v.
Wheeling Bridge Co., 13 How. 518,
54 U. S. 563;
United States v.
Worral, 2 Dall. 384,
2 U.S. 393; Cooley, Const.Lim. (4th
ed.) 26;
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 98.
Murder is defined by the law of the state as follows:
"If any person of sound memory and discretion unlawfully kill
any reasonable creature, in being and under the peace of the state,
with malice aforethought, either express or implied, such person
shall be guilty of murder."
3 State Stat. 43. When perpetrated by means of poison, lying in
wait, or by any other kind of willful, deliberate, malicious, and
premeditated killing, or in the perpetration of or attempt to
perpetrate certain other enumerated crimes, it is murder in the
first degree, and the petition of the prisoner, in this case, shows
that the charge against him is murder in the first degree as
defined by the state statute.
Such an offense has never been defined by an act of Congress,
when committed against the authority of the state, nor even when
committed against the national authority, unless when the killing
was perpetrated on navigable waters, out of the jurisdiction of any
particular state, or in some place within the exclusive
jurisdiction of the federal authority.
Crimes defined by an act of Congress and within the jurisdiction
of the federal courts may be divided into two general classes:
1. Such as are committed on the high seas or on navigable waters
out of the jurisdiction of any particular state, or within some
place under the exclusive jurisdiction of the United States.
2. Such as relate to subjects committed to the charge of the
nation, which are comprised within the grant of judicial power over
all cases arising under the Constitution, laws, and treaties of the
United States, and cases affecting ambassadors or other public
ministers and consuls.
Under existing laws, the circuit courts have no jurisdiction
Page 100 U. S. 283
whatever to reexamine the judgments of the state courts in any
case, civil or criminal, the power to exercise such a revision even
in civil cases involving federal questions, being vested
exclusively in the Supreme Court. Neither the Supreme Court nor the
circuit courts can reexamine the conviction, sentence, or judgment
of the district court in a criminal case in any form, either by
writ of error or appeal. Final judgments or decrees of a state
court falling within the condition specified in the twenty-fifth
section of the Judiciary Act, or the second section of the act
passed to amend the prior act upon the subject, may be reexamined
and reversed or affirmed in the Supreme Court upon a writ of error.
14 Stat. 386; Rev.Stat. sec. 709.
Appellate power in criminal cases decided in the district and
circuit courts has not been vested in the Supreme Court by any act
of Congress, and of course the power of the court in respect to
such cases pending in those tribunals is confined to certificates
of division of opinion.
United States v.
More, 3 Cranch 159;
Ex Parte
Kearney, 7 Wheat. 38;
Ex Parte
Watkins, 3 Pet. 193. Grant that, but federal
judicial power extends to all cases in law or equity arising under
the Constitution, the laws of the United States, and treaties made
or which shall be made under their authority, and every such
question may be reexamined by writ of error in the Supreme Court
under the act of Congress passed as a substitute for the
before-mentioned section of the Judiciary Act.
Cases which involve some one or more of those questions are
often presented in the state courts, and where that occurs and the
decision is adverse to the party setting up the title, right, or
exemption, whether the suit be a civil or criminal one, he may,
when the case is determined by the highest court of the state, sue
out a writ of error and remove the cause into the Supreme Court for
reexamination.
Murdock v.
Memphis, 20 Wall. 590,
87 U. S.
636.
Writs of error of the kind are within every day's experience,
but the rule is universal that if the transcript when entered here
does not present a federal question for reexamination, the case
will be dismissed, which shows to a demonstration that it is only
the questions which arise under the Constitution,
Page 100 U. S. 284
the laws of the United States, and treaties made under their
authority which this Court is authorized to reexamine.
Convincing support to that proposition is found in the countless
cases which this Court dismisses at every session for the want of
jurisdiction, the invariable rule being that if the transcript does
not exhibit some one of the questions specified in the section to
which reference has been made, the case must be dismissed. 1 Stat.
85, sec. 25; 14
id. 386, sec. 2. Process to remove the
judgment or decree from the state court to the Supreme Court is not
allowed as matter of right. Instead of that, the practice is to
submit the record of the state court to a Justice of the Supreme
Court, whose duty it is to ascertain whether, in his opinion, any
question cognizable in the appellate tribunal is involved and was
decided by the proper state court in a way to justify the allowance
of the writ, and if not to refuse to direct that it shall be
issued.
Two other differences between the writ of error to the state
court and the common law writ issued under the twenty-second
section of the Judiciary Act deserve to be noticed. By the
twenty-second section, no case is reexaminable unless the matter in
dispute exceeds the sum or value of a prescribed amount, but the
section granting the writ of error to the state court makes no
reference to the value involved in the controversy, the condition
being that some one of the questions specified in the section must
have been raised and decided adversely to the applicant for the
writ. They also differ in this, that the twenty-second section
confines the appellate power to final judgments and decrees in
civil cases, but the other provision, when the proper case is
presented, extends to criminal as well as civil cases.
Twitchell v. The
Commonwealth, 7 Wall. 321; Phillip's Prac. (rev.
ed.) 144.
Where the matter in dispute is sufficient in value, the common
law writ of error to the circuit court will lie in every case, if
the judgment is final in the court to which the writ of error is
addressed; but the writ of error to the state court will not lie at
all unless the construction of some clause of the Constitution, or
some act of Congress or treaty is drawn in question and the
decision was adverse to the party setting up such right or title.
If those conditions concur, the writ will lie
Page 100 U. S. 285
irrespective of the amount in dispute, provided it appears that
the right or title set up depends on the construction of the
Constitution, an act of Congress, or some constitutional treaty.
Williams v.
Norris, 12 Wheat. 117.
Power to reexamine such cases arises under that clause of the
Constitution which provides that the judicial power of the United
States shall extend to all cases in law or equity arising under the
Constitution, the laws of the United States, and treaties made or
which shall be made under their authority. State courts have no
jurisdiction whatever of cases affecting ambassadors, other public
ministers, or consuls, nor of cases of admiralty and maritime
cognizance. In all cases affecting ambassadors, other public
ministers, and consuls, and those in which a state shall be a
party, the Supreme Court, as the Constitution provides, "shall have
original jurisdiction." In all other cases mentioned in the article
of the Constitution granting judicial power, the provision is that
"the Supreme Court shall have appellate jurisdiction both as to law
and fact, with such exceptions and under such regulations as the
Congress shall make."
Early legislation of Congress gave the circuit courts original
cognizance concurrent with the several states of all suits of a
civil nature at common law or in equity where the matter in dispute
exceeds, exclusive of costs, the sum or value of $500 and the
United States are plaintiffs or petitioners, or an alien is a
party, or the suit is between a citizen of a state where the suit
is brought and a citizen of another state. 1 Stat. 78.
By the same section it is also provided to the effect, as before
explained, that the circuit courts shall also have exclusive
cognizance of all crimes and offenses
cognizable under the
authority of the United States, except as therein otherwise
provided.
Jurisdiction both of civil and criminal cases is beyond doubt
conferred upon the general government by several of the clauses of
the third article of the Constitution describing the judicial
power, entirely exclusive of that possessed by the tribunals of the
states, but it is equally clear that none of them, except the
introductory clause of sec. 2 of that article,
Page 100 U. S. 286
authorizes any federal court to reexamine the judgment of a
state court in a criminal case or to supersede the power of a state
court to exercise its lawful jurisdiction in such a case.
When the judicial system was organized under the Constitution,
Congress provided, in the twenty-fifth section of the Judiciary
Act, that cases falling within that clause of the judicial article
of the Constitution might be reversed or affirmed upon a writ of
error in the same manner and under the same regulations as if the
judgment or decree had been rendered or passed in the circuit
court. For eighty years that provision remained without any
alteration, and the new provision, so far as respects the question
before the Court, is exactly the same as the original enactment. 1
Stat. 85; 14
id. 386.
Earnest opposition was made to that provision when it first went
into operation, and it continued to increase until it culminated in
two important cases reported in the volumes containing the
decisions of the Supreme Court of that period.
Martin v.
Hunter's Lessee, 1 Wheat. 304,
14 U. S. 323;
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S.
375.
Attempt is made in argument to support the proceeding in this
case by which the indictment was removed from the state court into
the circuit court and the refusal of the circuit court to remand
the same by the judgment of the Supreme Court in those two cases,
but it is clear that those judgments do not afford any
justification either for the proceeding or the refusal to remand,
as both were transferred into the Supreme Court by writ of error
under the twenty-fifth section of the Judiciary Act. Both of those
cases were rightfully removed into the Supreme Court under that
section of the Judiciary Act, as appears by the respective
transcripts annexed to the writs of error and as appears by the
countless cases since decided by this Court and a great number,
probably more than one hundred, standing on the docket of the
present term for reexamination.
Nor is it necessary to look beyond these cases to establish the
proposition that they were reexamined under the twenty-fifth
section of the Judiciary Act. Take the first case. It was an action
of ejectment brought in a subordinate state court
Page 100 U. S. 287
for the recovery of a large parcel of land situated in that part
of Virginia then called the Northern Neck. Service was made, and
the defendant, Martin, appeared and pleaded the general issue upon
the usual terms of confessing lease, entry, and ouster. Title was
claimed by the defendant under a royal grant made prior to the
Revolution, and he claimed that his title was protected by the
treaty. Leave of court being obtained, the parties agreed as to the
facts, and the subordinate court rendered judgment in favor of the
plaintiff. Prompt appeal was taken by the defendant to the Court of
Appeals, and the appellate court reversed the judgment of the court
of original jurisdiction and rendered judgment for the
defendant.
Dissatisfied with the judgment of the Court of Appeals, the
plaintiff sued out a writ of error under the twenty-fifth section
of the Judiciary Act, and removed the cause into this Court, where
the judgment of the Court of Appeals was reversed. Pursuant to the
usual course, this Court sent down its mandate to the Court of
Appeals, which that court refused to execute. No new proceedings
took place, but a new writ of error was sued out, and the opinion
of the Court as reported is the one given in the case when brought
here under the second writ of error.
Aid and comfort are attempted to be derived from certain remarks
of the Court in that case, as warranting the proceedings in the
case before the Court; but it is clear that they cannot have any
such effect, as no such question was involved in the case, and of
course the remarks of the Court must be understood as applicable
only to the matter then in decision. Important federal questions
were involved in the case, and we have the authority of the Justice
who delivered the opinion for saying that the judgment drew in
question and denied the validity of a statute of the United States,
as appeared on the face of the record, and the Court also held that
the principles and rules of decision to be applied under the second
writ of error were the same as under the first, when the mandate
was sent down.
Comment upon the opinion of the Court in the second case is
hardly necessary, as it does not appear to contain anything
relating to the present theory of the government, except that
Page 100 U. S. 288
it proves what everybody admits -- that a writ of error under
the twenty-fifth section of the Judiciary Act will lie, in a proper
case and when the question is properly presented, as well in a
criminal as in a civil case, irrespective of the amount in
controversy.
Cohens was prosecuted in a state court for vending and selling
lottery tickets contrary to the statute of the state. Regular
process issued and he was arrested, and the parties entered into an
agreed statement of facts. Authority was given to the City of
Washington under an act of Congress to permit the drawing of
lotteries for effecting certain improvements in the city, and the
defendant, besides pleading the general issue, pleaded a
justification under the act of Congress. Extended hearing was had,
and the state court rendered judgment against the defendant, and he
sued out a writ of error under the twenty-fifth section of the
Judiciary Act, and removed the cause into this Court.
Due appearance was entered for the state, and her counsel moved
to dismiss the case for want of jurisdiction. Three causes were
assigned in the motion for the dismissal of the writ of error:
1. That a state is the defendant.
2. That no writ of error lies from this Court to a state
court.
3. That the Supreme Court had no right to review the judgment of
the state court because neither the Constitution nor any law of the
United States had been violated by the judgment of the state
court.
Extreme views were advanced on behalf of the state, among which
was the proposition that the Constitution did not provide any
tribunal for its final construction, and that in the last resort,
the courts of the respective states may exercise that power.
Responding to that extraordinary proposition, Marshall, C.J.,
speaking for the Court, said that jurisdiction is given to the
courts of the Union in two classes of cases. In the first, their
jurisdiction depends on the
character of the cause,
whoever may be the parties, and comprehends "all cases in law and
equity arising under the Constitution, the laws of the United
States, and treaties made or which shall be made under their
authority," and he added that that clause extends the jurisdiction
to all the cases described, without making in its
Page 100 U. S. 289
terms any exception whatever, and without any regard to the
condition of the party.
His description of the second class is that it comprehends
controversies between two or more states, between a state and a
citizen of another state, and between a state and foreign states,
citizens, or subjects. Of course the second proposition of the
Chief Justice must be subject to what is ordained in the Eleventh
Amendment to the Constitution. 2 Story, Const., sec. 1724.
Original jurisdiction is vested in the Supreme Court in certain
enumerated cases, and the Constitution also gives the same tribunal
appellate jurisdiction in all other specified cases. Among those in
which the jurisdiction must be exercised in the appellate form are
cases arising under the first clause of the second section,
including such as relate to the construction of the Constitution,
the acts of Congress, and treaties. If a state is a party, the
jurisdiction is original, except when the cases arise under the
first clause of the second section, in which event the jurisdiction
is appellate, as in such a case the jurisdiction can only be
practically exercised in that form. Where a state is a party and
the case is such as to admit of its originating in the Supreme
Court, in the opinion of the Chief Justice as there expressed, the
case ought to originate in the Supreme Court; but where, from the
nature of the case, it cannot originate here, he holds that the
proper construction of the clause is that the jurisdiction is
appellate.
When correctly understood, it is clear that the second case
cannot have any tendency whatever to support the proposition that
an indictment for willful and felonious murder with malice
aforethought, pending in a state court and found by a grand jury of
the state under a statute of the state, not involving any federal
question, may be removed from the state court into the circuit
court for trial merely because the prisoner at the time he
committed the homicide was a deputy collector of the internal
revenue.
Such a proposition, unsupported as it is by any respectable
judicial authority, is only calculated to excite amazement, as the
case cited is a direct and conclusive authority the other way,
showing to a demonstration that the federal courts cannot
exercise
Page 100 U. S. 290
any jurisdiction whatever in a criminal case properly pending in
a state court unless it involves some question arising under the
first clause of the second section of the article describing the
judicial power conferred by the Constitution. 2 Story, Const.,
secs. 1721, 1740; 1 Kent, Com. (12th ed.) 299; Sergeant, Const.,
59; Curtis, Com., sec. 9; Pomeroy, Const. (2d ed.), sec. 760.
Commentators on the Constitution seem to agree that Congress
enacted the twenty-fifth section of the Judiciary Act in order to
define the classes of cases originating in state tribunals to which
the appellate power of the national courts might extend by means of
the writ of error, to preserve the supremacy and to secure the
uniform construction of the Constitution, acts of Congress, and
international treaties. Curtis, Com., sec. 210.
All agree that the original jurisdiction of the Supreme Court is
defined and limited by the Constitution, and that it can neither be
extended nor restricted by an act of Congress, and it is equally
undeniable that the appellate jurisdiction of that tribunal is
granted subject to such exceptions and regulations as the Congress
may make, from which it follows that appellate jurisdiction can
only be exercised by the Supreme Court in such cases and to such
extent as the acts of Congress authorize.
Wiscart v.
Dauchy, 3 Dall. 321, 327 [argument of counsel --
omitted]; 1 Kent, Com. (12th ed.) 324;
Clarke v.
Bazadone, 1 Cranch 212.
Acts of Congress having been passed providing for the exercise
of appellate judicial power, the established rule is that the
affirmative description of the cases in which the jurisdiction may
be exercised implies a negative on the exercise of such power in
all other cases.
Durousseau v. The United
States, 6 Cranch 307,
10 U. S. 314;
United States v.
More, 3 Cranch 159, 170 [argument of counsel --
omitted].
Legislative power is undoubtedly vested in Congress to pass laws
to define and punish offenses against the authority of the United
States, but it does not follow by any means that a prisoner charged
with murder committed in violation of the laws of a state may claim
to be tried in a federal circuit court, or that a state indictment
for such an offense constitutes a case arising under the
Constitution or the laws of the United States, or that it can in
any way become cognizable in such
Page 100 U. S. 291
a tribunal, certainly not unless it can be removed there in
pursuance of some act of Congress defining the offense and
providing for the trial and punishment of the offender. Persons
charged with offenses against the authority of the states find
ample guaranties of a fair trial in the laws of the states and the
usages of the state courts, and if the federal officers need more,
it belongs to Congress to provide the remedy in some mode
authorized by the Constitution. 1 Kent, Com. (12th ed.) 340.
Adjudged cases admit that the power of removal, instead of the
writ of error, as prescribed in the twenty-fifth section of the
Judiciary Act, may also be exerted when the subject matter of the
suit is such as to bring the case within the first clause of the
second section of the article describing the federal judicial
power. Frequent cases of the kind of a civil nature arise, and if
they could not be transferred to the circuit courts by removal
under proper regulations, it might often happen that the object
intended to be accomplished by the appellate tribunal would be
defeated. Appellate power in the cases mentioned in the provision
before referred to is given in the Constitution, and it is left to
Congress to enact the manner of its exercise. Curtis, Com., sec.
148;
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S.
349.
Whether the appellate power is employed by removal or writ of
error, the right and extent of jurisdiction is the same, and in
both the extent is limited by the constitutional grant, and cannot
be extended beyond cases in law and equity arising under the
Constitution, the acts of Congress, and such treaties as are
therein described.
Legislative provision of a restricted character for the removal
of civil causes from the state courts into the circuit courts was
made by the Judiciary Act which was passed to organize our judicial
system. 1 Stat. 79. Since that, many other acts of Congress have
been passed upon the subject, by which the power in civil cases has
been very much enlarged. Proceedings were also prescribed by a
later act, not now in force, which authorized the officers
appointed for the collection of the customs to remove any suit or
prosecution commenced or pending against them in a state court, for
acts done by them
Page 100 U. S. 292
as such officers or under color of their respective offices,
into the circuit court for trial, but the Court is not furnished
with any evidence that any such jurisdiction was ever exercised by
the circuit court under that enactment in a criminal prosecution. 3
Stat. 198.
Special reference is also made to the second section in the
still later act of Congress, usually denominated the Force Bill. 4
Stat. 632. Jurisdiction of the circuit courts was by that section
extended to all cases in law and equity arising under the revenue
laws for which other provisions are not already made by law, and
provision was made to the effect that any revenue officer injured
in his person or property on account of any act done by him for the
protection of the revenue might maintain a suit for such damages in
the circuit court for the district where the wrongdoer resided.
Property taken or detained by a revenue officer was declared to
be irrepleviable, and that it should be deemed in the custody of
the law and subject only to the orders and decrees of the federal
court having jurisdiction of the same. Offenders who should
dispossess or rescue or attempt to dispossess or rescue any
property so taken or detained were to be deemed guilty of a
misdemeanor and punished as therein directed.
Sec. 3 of the same act empowered any such revenue officer to
remove any suit or prosecution commenced against him in a state
court on account of any act done by him for the protection of the
revenue into the proper circuit court for trial in the mode therein
prescribed.
Properly construed, the act, as originally passed, was intended
to furnish protection to the officers engaged in collecting import
duties, and a subsequent act provided that it should not be so
construed as to apply to cases arising under the internal revenue
acts. Unlike that, the fiftieth section of the act to increase
duties on imports extended the provisions of the act to cases
arising under the laws for the collection of internal duties. Had
legislation stopped there, it would be correct to say that the
Force Bill is still in force; but the still later act, passed July
13, 1866, repealed that section altogether, subject to a proviso
inapplicable to the present case.
Philadelphia v.
Collector, 5 Wall. 728; 13 Stat. 241; 14
id. 172;
Page 100 U. S. 293
Hornthall v.
Collector, 9 Wall. 560,
76 U. S. 566;
Assessors v.
Osborne, 9 Wall. 567,
76 U. S.
573.
Much stress in the argument was laid upon the word
"prosecution," found in the third section of the act, but neither
the written nor the oral argument furnished any evidence to show
that any indictment found in the state where the difficulty arose
which induced Congress to pass the act was ever removed from the
state court into the circuit court for trial, and it is well known
as a historical fact that no such removal of an indictment in that
state was ever made. Civil cases pending in the tribunals of other
states were in several instances removed under that act into the
circuit court and were there adjudicated to final judgment, but
there is no authentic account that any state indictment for an
offense against the authority of a state was ever removed under
that act into the circuit court for trial or sentence.
Grave doubts are entertained whether the Congress, in the use of
the word "prosecution," intended to extend the operation of the act
to such an indictment, as ample provision existed at the time of
its passage for the reexamination of every question of federal
cognizance arising on the trial of such an indictment, by a writ of
error sued out pursuant to the authority given in the twenty-fifth
section of the Judiciary Act. 1 Kent, Com. (12th ed.) 219.
Litigations of a civil nature, even when the jurisdiction of the
circuit court depends entirely upon the character of the parties,
may, under regulations enacted by Congress, be removed from the
state court into the circuit court for trial, but there is no just
pretense that a state indictment for an offense against the
authority of the state can be removed from the state court where
found into the circuit court for trial in any form of proceeding,
unless the case, whether a suit at law or in equity, involves some
question arising under the Constitution, the laws of Congress, or
treaties made or which shall be made under their authority.
Com. v. Casey, 12 Allen 214, 217.
Nothing is contained in the section which has any tendency to
support the opposite construction except the words "suit or
prosecution," and it should not be overlooked that it employs
Page 100 U. S. 294
no words exclusively applicable to an indictment, and contains
many expressions utterly repugnant to the theory that the
proceedings to effect the removal of process were intended to
extend to a criminal and indictable offense.
Every word of the section speaks a different intent, is as
conclusively shown by the distinguished judge who gave the opinion
of the court in the case last cited. Confirmation of that view is
also derived from the fact that every reported case, where the
removal was effected under that act, was a civil action, as appears
from the following examples:
Wood v. Matthews, 2 Blatch.
370;
Murray v. Patrie, 3
id. 342;
Fisk v. The
Union Pacific Railroad Co., 6
id. 362;
s.c.,
8
id. 243;
Tod, Relator v. Fanfield Com. Pleas,
15 Ohio St. 377, 387.
Formal application to the Supreme Court of Maine was made under
that act of Congress to remove an indictment for an offense against
the authority of the state into the circuit court of the district
for trial, but the court unanimously denied the application for the
same reasons as those given by the Supreme Court of Massachusetts
in the case before cited.
State v. Elder, 54 Me. 381.
Taken together, these two cases ought to be regarded as decisive
that a state indictment for an offense against the authority of the
state could not be removed from the state court, under that act of
Congress, into the circuit court for trial. Subordinate federal
courts find no other rules to guide them in the exercise of their
functions than are to be found in the acts of Congress, and they
can have no other recourse than to those enactments to determine
what constitutes an offense against the authority of the United
States. Conkling's Treatise (5th ed.) 181. Offenses against the
nation are defined and their punishment prescribed by acts of
Congress. Cooley, Const.Lim. (4th ed.) 26.
Like power was given to the defendant by the act relating to
habeas corpus for the removal into the circuit courts after
judgment of suits or prosecutions commenced in a state court
against officers, civil or military, for acts done or committed by
virtue of an order of the President or pursuant to an act of
Congress. 12 Stat. 756.
Pending an action in a state court against a marshal in
Page 100 U. S. 295
which the verdict and judgment were in favor of the plaintiff,
the defendant instituted proceedings in the state court for the
removal of the cause into the circuit court, but the state court
refused to send up the case. Thereupon the circuit court issued an
alternative mandamus to the state court, which was followed by the
peremptory process, when the plaintiff sued out a writ of error,
and removed the cause into this Court. Due hearing was had here,
and this Court unanimously held that so much of the act as provided
for the removal of a judgment in a state court, in which the issue
was tried by a jury, is not in pursuance of the Constitution, and
is void.
The Justices v.
Murray, 9 Wall. 274;
McKee v.
Rains, 10 Wall. 22,
77 U. S. 25.
Governed by that rule of decision, it must be considered that
the power of removal, when the facts have been found by a jury,
cannot be exercised in such a case after judgment.
Statutory power to remove an action from a state court into the
circuit, says Judge Story, if it exists before judgment because it
is included in the appellate power, must exist after judgment for
the same reason, as he held that the same objection exists as to
the removal before judgment as after, and that both must stand or
fall together.
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 349; 2
Story, Const., sec. 1745.
None of the advocates of the power of removal as applied to
criminal cases pretend that it may be exercised after judgment in
any other mode than by a writ of error; from which it would seem to
follow, if the authorities cited are good law, that a state
indictment for an offense against the authority of the state cannot
be removed at all into the circuit court for trial, nor into the
Supreme Court, except by writ of error.
Sec. 643 of the Revised Statutes, under which the removal in
this case was made, is a revision of the sixty-seventh section of
the Act to U.S. Reduce Internal Taxation. 14 Stat. 171. Officers
appointed under that act may, before trial, in any case, civil or
criminal, where suit or prosecution is commenced against them in a
state court, remove the said suit or prosecution into the circuit
court for trial. Rev.Stat. 643.
Further remarks in exposition of the enactment seem to be
unnecessary, as it is clear that it is in all essential respects
the
Page 100 U. S. 296
same as its predecessors, some of which were passed and went
into operation even before the actual close of the second war of
Independence.
Considering the long period the provision has been in operation,
it would naturally be expected, if it was intended by its framers
to include state indictments pending in state courts for offenses
against the authority of the state, that the advocates of such a
construction would be able to produce some authoritative exposition
of the enactment to support such an improbable and extraordinary
theory. Nothing of the kind is produced, and for the best possible
reason -- that no removal of such an indictment from a state court
into the circuit court for trial was ever before made in our
judicial history.
Should it be suggested that a recent case, cited in the brief
for the prisoner, is a precedent where a criminal case was removed
from a state court into the circuit court for trial, the answer to
the suggestion is that the case does not support the proposition,
for several reasons:
1. Because the order of removal was never carried into
effect.
2. Because nothing was done in the circuit court except to pass
the order for removal.
3. Because the opinion of the court as reported admits that the
circuit courts have no power to try offenses against the peace and
dignity of the state, nor to control the state courts in any such
case.
4. Because the court admits in that case that no man charged
with an offense against the authority of the state can defend
himself by the fact that he is a federal officer.
5. Because it does not appear that the state indictment was ever
transferred into the circuit court for trial.
6. Because it appears that the court giving the opinion in that
case entirely overlooked the settled rule that the circuit courts
have no jurisdiction of any act of an individual as an offense
unless the same is defined as such by an act of Congress nor unless
some act of Congress prescribes the punishment annexed to the
commission of the offense and designates the court to try and
sentence the offender.
7. Because the indictment, for aught that appears to the
contrary, is still pending in the state court, the report failing
to show that it has ever been in fact transferred into the circuit
court.
State v. Hoskins, 77 N.C. 530, 546.
Page 100 U. S. 297
Viewed in any light, the proposition to remove a state
indictment for felony from a state court having jurisdiction of the
case into the circuit court, where it is substantially admitted
that the prisoner cannot be tried until Congress shall enact some
mode of procedure, approaches so near to what seems to me both
absurd and ridiculous, that I fear I shall never be able to
comprehend the practical wisdom which it doubtless contains. Were
the object to give felons an immunity to commit crime and to
provide a way for their escape from punishment, it seems to me that
it would be difficult to devise any mode more effectual to that end
than the theory embodied in that proposition.
Difficulties almost without number would arise if any attempt
should be made to try such an indictment in a circuit court.
It was suggested at the argument that the attorney general of
the state might appear in the circuit court as the public
prosecutor, but he may not deem it any part of his duty to conduct
criminal prosecutions in any other tribunals than those of the
state from which he received his commission. Public prosecutions
against the authority of the United States are in the circuit
courts within the exclusive direction of the district attorneys,
but they have nothing to do with prosecutions against the statutes,
peace, and dignity of a state.
Confiscation
Cases, 7 Wall. 452.
Service of process is often required in a criminal case, and the
question would arise whether it should be made by the sheriff or
marshal. Subpoenas must be issued, and the inquiry would arise
whether they should be issued in the name of the state or of the
President. Expenses must be incurred for the service of process and
for the travel and attendance of witnesses, and it would at once
become a question whether the amount would be chargeable to the
United States or to the state, and if to the latter, may the state
be compelled to respond to the claim.
Persons indicted of murder and other high crimes are entitled to
a copy of the indictment and process to compel the attendance of
witnesses, and the inquiry arises whether it would be the duty of
the circuit court clerk or the clerk of the state
Page 100 U. S. 298
court to comply with that constitutional requirement. Under the
state law, the prisoner, if the charge is of felony punishable with
death, is entitled to thirty-five challenges, whereas under the act
of Congress, he is entitled only to twenty, and the inquiry would
immediately arise whether the right of the prisoner in that regard
must be governed by the act of Congress or the state law. 2 State
Stat., sec. 4014; Rev.Stat., sec. 819.
By the common law it was error for which the judgment might be
reversed if the clerk did not in capital felonies inquire of the
prisoner before sentence whether he had any thing to say why
judgment of death should not be pronounced against him, and the
question would arise whether this inquiry should be made by the
clerk of the state court whose laws were offended by his crime, or
by the clerk of the circuit court to which the indictment had been
transferred. 1 Chitty, Cr.Law, 700, 717.
Juries in the federal courts are not the judges of the law as
well as the fact; consequently they are usually sworn in capital
cases that they will well and truly try and true deliverance make
of the prisoner they have in charge, according to the law and the
evidence. Where such is the practice, the question will arise
whether the law referred to is federal or state law, or both
combined, including the common law, as is suggested for the other
rules of decision in conducting the trial.
State rules of evidence or of procedure, adopted since the
passage of the act of Congress organizing the federal courts, do
not apply in criminal cases where the indictment is found in the
circuit courts, and the question may immediately arise which system
of evidence and of procedure will furnish the rule of decision
where the indictment is found in the state court and the prisoner
is tried in the circuit court.
United States v.
Reid, 12 How. 361,
53 U. S.
365.
It was in view of these and many other equally embarrassing
questions which might be suggested that induced Judge Story to
remark, in one of his leading judgments upon the subject, that in
respect to criminal prosecutions, the difficulty seems admitted to
be insurmountable, which is fully equivalent to a
Page 100 U. S. 299
declaration that the power of removal in such a case does not
exist.
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S.
349.
Ingenious effort was made in the argument at the bar to show
that such was not the meaning of the learned justice when he gave
utterance to that important qualification to his antecedent remarks
in the same connection; but the effort is in vain, as the same
learned magistrate made the same admission in his valuable
Commentaries on the Constitution, published nearly twenty years
later. 2 Story, Const. (3d ed.), sec. 1746.
Whether conclusive or not, it must be conceded that great weight
is due to those admissions, and they are also much strengthened by
a similar admission in the commentaries of another learned writer
upon constitutional law. Curtis, Com., sec. 15.
Embarrassing questions, it is admitted, may arise in the
exercise of such a peculiar and hitherto unknown jurisdiction, but
the attempt is made to furnish a panacea for them all by referring
to sec. 722 of the Revised Statutes, which seems to contemplate
that where the laws of the United States are insufficient to define
offenses and punish offenders, resort may be had to the common law
as modified and changed by the state wherein the federal court
exercising jurisdiction is held, both in the trial of the accused
and in the infliction of punishment.
Examined in the most favorable light, the provision is a mere
jumble of federal law, common law, and state law, consisting of
incongruous and irreconcilable regulations which in legal effect
amounts to no more than a direction to a judge sitting in such a
criminal trial to conduct the same as well as he can in view of the
three systems of criminal jurisprudence, without any suggestion
whatever as to what he shall do in such an extraordinary emergency
if he should meet a question not regulated by any one of the three
systems.
Unless some better remedy than what is contained in that section
can be found, it seems to me that it would be better to close the
discussion without suggesting any, as it is plain that there is
nothing in that enactment which will enable the judge sitting in
such a criminal trial to solve any considerable number of the
embarrassing questions, which it may well be expected will arise in
the trial of such a criminal case.
Page 100 U. S. 300
State police, in its widest sense, comprehends the whole system
of internal regulation by which the state seeks not only to
preserve the public order and to prevent offenses against her
authority, but also to establish for the intercourse of one citizen
with another those rules of justice, morality, and good conduct
which are calculated to prevent a conflict of interests and to
insure to every one the uninterrupted enjoyment of his own as far
as is reasonably consistent with a like enjoyment of equal rights
by others. Public police is in effect defined by the great
commentator of the common law as the due regulation of domestic
order whereby the citizens of a state are bound to conform to the
rules of propriety and good conduct and to be moral, industrious,
and inoffensive in their respective stations. 4 Bl.Com. 162.
Police, says Bentham, is a system of precaution, either for the
prevention of crimes or calamities; and he divides the subject into
many heads, of which three only will be mentioned: 1. Police for
the prevention of offenses; 2. police for the prevention of
calamities; 3. police for the prevention of endemic diseases.
Bentham's Works, title Offenses against Police, vol. iii. p. 169,
Edinburgh ed.
Unlike the conceded right to appropriate private property when
the public exigency requires it, the power in question is one, says
Shaw, C.J., vested in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes,
and ordinances, either with penalties or without, not repugnant to
the Constitution, as they shall judge to be for the good and
welfare of the state and of the subjects of the same.
Commonwealth v. Alger, 7 Cush. 53, 85.
It extends, says another eminent judge, to the protection of the
lives, limbs, health, comfort, and quiet of all persons and of all
property within the state, as exemplified in the maxim,
sic
utere tuo ut alienum non laedas. Thorpe v. R. & B. R.
Co., 27 Vt. 140, 147.
Ordinary regulations of police, says Cooley, have been left with
the states, nor can it be taken from them and exercised under
legislation by Congress. Nor can the national government, through
any of its departments or officers, assume any supervision of the
police regulations of the states. All that
Page 100 U. S. 301
the federal authority can do is to see that the states do not
under cover of this power, invade the sphere of national
sovereignty, obstruct or impede the exercise of any authority which
the Constitution has confided to the nation, or deprive any citizen
of rights guaranteed by the federal Constitution. Cooley,
Const.Lim. (4th ed.) 715.
No direct general power over these objects, says Marshall, C.J.,
is granted to Congress, and consequently they remain subject to
state legislation.
Gibbons v.
Ogden, 9 Wheat. 203.
Within state limits, says Chase, C.J., an act of Congress upon
the subject can have no constitutional operation.
United
States v. Dewitt, 9 Wall.
76
U. S. 41,
76 U. S. 45.
Acts of Congress cannot properly supersede the police powers of
the state, nor can the police powers of the state override the
national authority, as the power of the state in that regard
extends only to a just regulation of rights with a view to the due
protection and enjoyment of all, and if the police law of the state
does not deprive any one 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 national jurisdiction or afford a
basis for an appeal to the protection of the national
authorities.
Startling propositions are advanced in argument, but it is not
probable that anyone will contend that it would be competent for
Congress to define as murder against the authority of the United
States the homicide charged in the petition for removal, or that
such act of homicide is now defined as murder by any act of
Congress now in operation or which was ever passed by the
Legislative Department since the Constitution was adopted.
Had the officer been killed, the proposition of removal would be
less astonishing than the one set forth in the petition. Judging
from the petition, the indictment is against the officer for
willfully, premeditatedly, and deliberately killing and murdering
the deceased, against the peace and dignity of the state. No
special ground is set forth for the removal nor anything that can
be tortured into a reason for withdrawing the case from the
jurisdiction of the state court, unless it be that the
Page 100 U. S. 302
prisoner is a deputy collector of the revenue and that he
alleges in the petition that the killing was in his own necessary
self-defense to save his own life, which is a defense that can as
well be made in the state court as in the circuit court, unless it
be assumed that a federal officer is entitled as a matter of right
to transfer every indictment against him for crime, when found in a
state court, into a federal court for trial.
Persons accused of capital or otherwise infamous crimes must be
indicted by a grand jury, and when the offense is committed in a
state, they must be tried in the state where it was committed; but
attention is not called to any article or section of the
Constitution that forbids that a federal officer shall be tried in
a state court for murder committed in the open state, against the
peace and dignity of the state and contrary to the form of the
state statute defining the offense.
Large concessions were made by the states to the United States,
but they never ceded to the national government their police powers
or the power to define and punish offenses against their authority,
as admitted by all courts and all commentators upon the
Constitution, which leads me to the following conclusions:
1. That the section of the Revised Statutes in question does not
authorize the removal of a state indictment for an offense against
the laws of the state from the state court where it is pending into
the circuit court of the United States for trial.
2. That if it does purport to confer that authority, it is
unconstitutional and void.
3. That the answer to each of the three questions certified here
from the circuit court should be in the negative.