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authorize the removal to the Federal courts of While it is limited in the number of its powers, so far cases involving crimes against State but not
as its sovereignty extends, it is supreme. No State Federal laws, it was in violation of the sover
government can exclude it from the exercise of any
authority conferred upon it by the Constitution, obeignty of the State and the Constitution of the struct its authorized officers against its will, or withUnited States.
hold from it for a moment the cognizance of any sub
has committed to it. tices, Justices Clifford and Field dissenting, intended to leave to the possibly varying decisions of The Supreine Court, by six of its nine jus- ject which that instrum
The founders of the Constitution could never have and Justice Hunt being absent, overruled these the State courts what the laws of the government it objections, and held that the removal was au established are, what rights they confer, and what thorized by the act of Congress; that it was a protection shall be extended to those who execute case within the jurisdiction of the Federal them. If they said, Where is the supremacy over courts, and that Congress had, under the Con- those questions vested in the Government by the Con
stitution !-if, whenever and wherever a case arises stitution, the power which it had exercised. under the Constitution and laws or treaties of the The court further held that the act of Congress United States, the national Government can not take authorizes the removal of any cause when the control of it, whether it be civil or criminal, in any acts of the defendant complained of were done, stage of its progressits judicial power is, at least, or claimed to have been done, in the discharge preme. In criminal as well as in civil proceedings in of his duty as a Federal officer. “That the act State courts, cases under the Constitution and laws of of Congress," says the opinion, "does provide the United States might have been expected to arise, for the removal of criminal prosecutions for as, in fact, they do. Indeed, the powers of the Genoffenses against the State laws, when there ercised or claimed under it, are quite as frequently in arises in them the claim of the Federal right or question in criminal cases in State courts as they are authority, is too plain to admit of denial. Such in civil cases, in proportion to their number. is its positive language, and it is not to be argued away by presenting the supposed incon From the decision of the majority Justices gruity of administering State criminal laws by Clifford and Field dissented, the former writother courts than those established by the ing an elaborate opinion, in which the latter State. It has been strenuously urged that concurred. Justice Clifford maintained that the murder within a State is not made a crime by act of Congress in question did not authorize any act of Congress, and that it is an offense the removal of a State indictment for an offense against the peace and dignity of the State alone. against the laws of the State from the State to Hence it is inferred that its trial and punish- the Federal courts for trial, and that, if it did, it ment can be conducted only in State tribunals, was unconstitutional and void. He held that and it is argued that the act of Congress can the Federal courts have no jurisdiction of a not mean what it says, but that it must intend criminal act which Congress has not made a only such prosecutions in State courts as are crime. “Decided cases everywhere hold," he for offenses against the United States-offenses said, “that, unless Congress first defines the against the revenue laws. But there can be no offense, affixes the punishinent, and declares, criminal prosecutions initiated in any State in some way, the court that shall have juriscourt for that which is merely an offense diction of the accusation, the Circuit Court against the General Government If, there can neither try the accused nor sentence him fore, the statute is allowed to mean anything, to punishment. Even the power of Congress when it speaks of criminal prosecutions in to define offenses and provide for the punishState courts, it must mean that those are insti- ment of offenders is limited to such subjects tuted for alleged violations of State laws in and circumstances as relate and are peculiar to which defenses are set up or claimed under the Federal Government.” He admitted that United States laws or authority.”
Congress might declare the killing of a revenue The authority of Congress to pass the act, officer, while in the discharge of his official the court said, was found in that provision of duties, even when done within a State, to be the Constitution which empowers Congress to murder, and might prescribe punishment for provide for carrying into effect all powers the crime. In that case the Federal courts granted by the Constitution. Among these would have jurisdiction of it. " But the prinpowers is the Federal judicial power, which cipal question in this case,” he said, “is of a extends to all cases in law and equity arising very different character, as the indictment is under the Constitution, the laws of the United against the officer of the revenue for murderStates," etc. This provision, the court de- ing a citizen of the State, having in no way any clared, embraces alike civil and criminal cases official connection with the collection of the under the Constitution and Federal laws; and public revenue. Neither the Constitution nor criminal as well as civil cases may be removed the acts of Congress give a revenue officer, or from a State to a Federal court whenever the any other officer of the United States, an imFederal authority is called in question. The munity to commit murder in a State, or provast power of the General Government is set hibit the State from executing its laws for the forth by Justice Strong as follows:
punishment of the offender. . . . Nobody beThe United States is a government with authority fore ever pretended that such an offense ever extending over the whole territory of the Union, act
was or could be defined by an act of Congress ing upon the States and upon the people of the States. as an offense against the Federal authority, or
that the Circuit Court, or any other Federal jurisdiction of the Federal courts has been court, has or ever had any jurisdiction of such immensely enlarged, and that of the State a case to try or sentence such offender for such courts correspondingly diminished. “From an offense. . . . Legislative power is undoubt- various causes which we need not now stop to edly vested in Congress to pass laws to define trace," says Judge Dillon, in his work on "Reand punish offenses against the authority of moval of Causes,” “the small tide of litigathe United States; but it does not follow by tion that formerly flowed into Federal chanany means that a prisoner, charged with mur- nels has swollen into a mighty stream. Cerder committed in violation of the laws of a tain it is that of late years the importance of the State, may claim to be tried in a Federal Cir- Federal courts has rapidly increased, and that cult Court, or that a State indictment for such much, perhaps most, of the great litigations an offense constitutes a case arising under the of the country are now conducted in them." Constitution or the laws of the United States, Among the special statutes that have been or that it can in any way become cognizable passed on this subject may be mentioned those in such a tribunal, certainly not unless it can providing for the removal from State to Fedbe removed there in pursuance of some act of eral courts in civil and criminal cases against Congress defining the offense and providing for persons denied civil rights; in civil and crimithe trial and punishment of the offender. Pernal cases against revenue officers of the United sons charged with offenses against the author- States; in civil and criminal cases arising ity of the States find ample guarantees of a under the Federal election laws; in suits by fair trial in the laws of the States and the aliens against officers of the United States, usages of the State courts, and, if the Federal under specified circumstances; and in actions officers need more, it belongs to Congress to against Federal corporations. Besides these, provide the remedy in some mode authorized several very important acts of more general by the Constitution. ... Large concessions operation have been passed. At the close of were made by the States to the United States, the war, the right of removal on the ground but they never ceded to the national Govern- of citizenship was limited to cases in which ment their police powers, or the power to de. the plaintiff, or all of the plaintiffs, if more fine and punish offenses against their authority, than one, were citizens of the State in which as admitted by all courts and all commentators the suit was brought, and the defendant, or all upon the Constitution."
of the defendants, were citizens of another The same view was also maintained by Jus- State or States. The right was further retice Field, with whom Justice Clifford con stricted to civil cases, and could be exercised curred, in the dissenting opinion in the case of only by the defendant, or, if more than one, all Virginia against Rives (100 U. S. Reports, had to join in the application. 336). He claimed that murder committed By the act of July 27, 1866, the right of within a State, in violation of its laws, is an removal was extended, under certain circumoffense against the authority of the State, and stances, to any one of the non-resident defendthat the State alone has the right to try and ants so far as the action affected him. By the punish the offender. "Murder," he said, “is * prejudice or local influence" act of 1867 the not an offense against the United States, ex- right was given to both a non-resident plaintcept when committed on an American vessel iff and a non-resident defendant, if either on the high seas, or in some port or haven makes "an affidavit that he has reason to without the jurisdiction of the State, or in the believe, and does believe, that from prejudice District of Columbia, or in the Territories, or or local influence be will not be able to obtain at places where the national Government has justice in such State court.” That is, on the exclusive jurisdiction. The offense within the conditions specified, if a suit is brought in a limits of a State, except where jurisdiction has State court by a citizen of that State, against been ceded to the United States, is as much the citizen of another State, the latter may beyond the jurisdiction of these courts as have the case removed to a Federal court; or though it had been committed on another con- when a person has brought an action in the tinent. The prosecution of the offense in such courts of his own State against the citizen of a case does not, therefore, arise under the another State, the plaintiff may remove it into Constitution and laws of the United States; the Federal court." This act,” says Dillon, and the act of Congress which attempts to "undoubtedly grew out of the condition of give the Federal courts jurisdiction of it is, to affairs in the Southern States after the war of my mind, a clear infraction of the Constitution. the rebellion, and was intended to afford to ... I do not think I am going too far in plaintiffs who had resorted to the State court asserting that, had it been supposed a power the right to transfer their suits to the Federal so dangerous' to the independence of the courts. This is the first act that, in any event, States, and so calculated to humiliate and de- extended the right to a plaintif to leave the grade them, lurked in any of the provisions forum he had voluntarily chosen, and in this of the Constitution, that instrument would respect was an entire departure from all the never have been adopted."
previous legislation. It is not so difficult to By the acts of Congress passed during and justify the act in this respect, even if it was since the war, for the removal of causes, the intended to be permanent, as it is to sustain
VOL. XXI.-31 A
the provision that this removal may be had, on involves questions that do not at all depend filing the general affidavit of prejudice or local on the Constitution or laws of the United influence, at any time before trial or final States; but when a question to which the judihearing of the suit.?"
cial power of the Union is extended by the The act of March 3, 1875, made another Constitution forms an ingredient of the origivery material enlargement of Federal at the nal cause, it is within the power of Congress expense of State jurisdiction. By all previous to give the Circuit Courts jurisdiction of that legislation, the right of removal was limited to cause, although other questions of fact or of cases in which either the plaintiff or the de- law may be involved in it.” The court bas fendant was a citizen of the State in which also held (Insurance Company against Morse, the suit was originally brought. The act of 20 Wallace, 445) that the right to remove cases 1875 abolishes this limitation and authorizes into the Federal court pursuant to the acts of the removal of cases in which neither party is Congress can not be defeated by State legislaa citizen of the State in which the action was tion. In accordance with this view it declared begun. It is enough if they are citizens of that a State statute allowing a foreign corporadifferent States. They need not be citizens of tion to do business in the State only on condithat in wbich the suit is brought, and the tion that it would agree not to remove suits right of removal is given to either plaintiff or against it to the Federal courts, was unconstidefendant. Besides thus increasing the class tutional, and the agreement void. of cases that may be removed into the Federal A striking development of Federal power courts on the ground of citizenship, the act may also be traced in the decisions of the also materially widens the circle of those that Supreme Court interpreting that clause of the may be removed on the ground of subject- Constitution which vests in Congress power matter independently of citizenship.
to regulate commerce among the States and The constitutional validity of all these acts with foreign nations. For more than a third has been affirmed or recognized by the Su- of a century after the adoption of the Constipreme Court, and on controverted points, as tution it was a much-debated question what to the meaning and effect of the acts, the de were the respective rights of the national and cisions of the court, which have not always the State governments under this clause. In been unanimous, have tended greatly to ex- 1824 the Supreme Court declared, in the case tend the jurisdiction of the Federal judiciary, of Gibbons against Ogden, that the power to and hence to limit that of the State courts. regulate foreign and interstate commerce was Thus, in construing the act of 1867, the ma- exclusive in Congress. This, however, left jority of the court held that a suit to annul a many important questions unsettled. will as a muniment of title, and to restrain the quarter of a century after its announcement enforcement of a decree admitting it to pro- it was maintained, not only by leading public bate, was a suit in equity which might be re men and constitutional lawyers, but also by moved to the Federal court when the parties several of the Supreme Court justices, that in were citizens of different States. Three of the the absence of congressional legislation a State judges dissented from this conclusion, and had the power to legislate on the subject, and maintained that the question involved was two decisions of the Supreme Court during simply one relating to the probate of a will, that period are in harmony with this doctrine, and that, under the act of Congress, the Fed- if they do not directly support it. In 1851, eral tribunals had no jurisdiction of such a case. however, the court denied to the States most (Gaines against Fuentes, 92 United States Re- of the power that had been claimed for them, ports, 10.) And so, in the case of a Railroad and conceded it to the Federal Government. Company against Mississippi, decided in 1880, It held that in all matters of national character and reported in 102 United States Reports, Jus- and concern the power was exclusive in Contice Miller maintained, in a dissenting opinion, gress, whether exercised or not, and hence that the act of 1875 did not authorize a re that even in the absence of congressional acmoval of a suit which was not founded on a tion no State had authority to pass laws in Federal law, but in which a Federal law was matters of that kind. It conceded, however, incidentally involved in the defense merely. that in the absence of Federal legislation a While Congress "intended to allow the re- State might deal with certain strictly local moval of a suit where the very foundation matters pertaining to foreign and interstate and support thereof was a law of the United commerce, but held that even in such case States, it did not intend to authorize a re- State legislation must give way to or at least moval where the cause of action depended harmonize with any acts that Congress might solely on the law of the State, and when the choose to pass on the subject. act of Congress only came in question incident The theory that in purely internal commerally as part (it might be a very sinall part) of cial affairs the authority of the State is supreme the defendants' plea in avoidance." The ma- has never been denied. But even here the jority of the court, however, consisting in this Federal power has been steadily carried by the case of six justices, held that "it is not suffi- logic of events and judicial decisions into the cient to exclude the judicial power of the domain of every State, and corresponding inUnited States from a particr.lar case, that it roads have been made upon State sovereignty.
Commerce has become nationalized, and now He was the only son of Isaac Lawrence and partakes of an interstate character to an ex his wife Cornelia, daughter of Dr. Abraham tent that was perhaps not dreamed of by the Beach, for many years one of the ministers of framers of the Constitution. In 1870 the Trinity Church, New York, and a descendant Supreme Court, holding that a steamer whose of the first white child born in the colony of trips were made wholly within one State, was Connecticut. Isaac Lawrence was an opulent subject to the laws of Congress, because trans- merchant, and for many years was President porting things brought from or destined to of the New York branch of the United States another State, declared that all local agencies Bank, and one of the presidential electors of or instruments, though operating wholly within James Monroe. Lawrence's ancestors came the State, fall under the jurisdiction of the from England about the middle of the sevenGeneral Government when employed in inter- teenth century, and received a patent for a state commerce. “It is said," remarked the portion of Long Island, now constituting the court, “ that if the position here asserted be towns of Flushing, Hempstead, and Newtown. sustained, there is no such thing as the domes- He was sent to Dr. Barry's school in Rector tic trade of a State; that Congress may take Street, and at the age of twelve, being too the entire control of the commerce of the young to gain admission in Columbia College, country, and extend its regulations to the rail- he entered Rutgers in New Jersey, spending roads within a State on whicb grain or fruit is two years there, when he joined the former intransported to a distant market. We answer stitution, graduating with high honors in the that the present case relates to transportation class of 1818. Henry J. Anderson was the only on the navigable waters of the United States, one above him, while James Lenox stood num. and we are not called upon to express an opin- ber nine in the same class. After a tour to the ion upon the power of Congress over inter- West as far as the Mississippi, Lawrence entered state commerce when carried on by land trans- the office of William Slosson, an eminent New portation. And we further answer that we York lawyer. He also spent a year under the are unable to draw any clear and distinct line instruction of Judges Gould and Reeves, in between the authority of Congress to regulate whose law-school, at Litchfield, Connecticut, an agency employed in commerce between the John C. Calhoun was then a student. During States, when that agency extends through two the winter of 1820–21 Mr. Lawrence visited or more States, and when it is confined in its some of the leading families of South Carolina, action entirely within the limits of a single and spent several days with Jefferson at MontiState. If its authority does not extend to an cello, and with Madison at Montpelier. Soon agency in such commerce, when that agency after his return to New York' he married is confined within the limits of a State, its en- Esther, daughter of Archibald Gracie, a wealthy tire authority over interstate commerce may merchant, and sailed for Europe in one of Mr.; be defeated.” (The Daniel Ball, 10 Wallace, Gracie's ships, carrying letters of introduction 566.)
from President Monroe, Secretary of State J. In the case of Lord against Steamship Com- Q. Adams, the French minister, Joseph Bonapany, decided during the session of 1880–'81, parte, his father-in-law's intimate friend and and reported in 102 United States Reports, the frequent guest, Madison, and Jefferson, by lines of Federal supremacy were carried by the whom he was introduced to Lafayette, who encourt to a frontier in State domain before un tertained him and his young wife for a fortnight known. It held that a vessel plying exclu- at La Grange. They were guests of Lord Hol. sively between the ports of one State, and en- land at Holland House, and of the Bonapartes gaged in traffic purely and wholly internal, is at Rome, then a center of elegant European employed in commerce over which Congress society. has exclusive control, provided that in making In 1823, Mr. Lawrence returned to the United its trips it goes out of the jurisdictional waters States, and was there admitted as counselor to of the State upon the high seas for any dis- the Supreme Court of New York. His special tance, however short. As vessels employed in attention was given there, as previously, to podomestic trade do generally go upon the high litical economy and international law, but not seas, the effect of this decision is to transfer to the exclusion of his taste for the beautiful, from a claimed State to Federal control the as seen in his address in 1825 before the New balk of the coasting-trade of the country, al- York Academy of Fine Arts. In 1826, at the though carried on entirely within the limits of request of Albert Gallatin, he was appointed the States.
secretary of legation to Great Britain, GallaThis general outline of the decisions by the tin being our embassador, and his part in the Supreme Court shows a remarkable develop- negotiations may be inferred from Mr. Gallament of central power on the most important tin's report to the State Department, that Mr. points affecting the relations between the Lawrence was competent alone to conduct the States and the General Government.
mission. In 1827 President Adams appointed LAWRENCE, William Beach, LL. D., an him chargé d'affaires, and his correspondence American jurist and eminent writer on inter- with Lords Dudley and Aberdeen concerning national law, was born in the city of New York, the settlement of the boundary of our northern October 23, 1800 ; died there, March 26, 1881. and northeastern frontier evinced his diplo
matic ability and established his reputation as Lawrence in 1863. Lawrence's Wheaton has an expounder of international law. While in ever since been the accepted text-book among London he was intimate with members of the diplomatists, and as such is always referred to Political Economy Club, including McCulloch, in the United States Senate, to which body, in Grote the historian, Jeremy Bentham, and Sir connection with the President, the whole treaJohn Bowring, who became both his friend and ty-making power is confided. It is the standphysician, and he was a frequent contributor ard work in the English language upon the subto the “Westminster Review." From England ject of international law, and it has appeared he went to Paris, and while pursuing his favor- in many of the European tongues. It has even ite studies, translated into English the “History been translated into the languages of China and of Louisiana,” by Marbois (which was published Japan, and was the first English work that apin 1830), and made the acquaintance of Cousin, peared in Japanese. A rival edition by RichGuizot, Villemain, and many other men of ard Henry Dana, purporting to be original, eminence. On his return to New York after and covering exactly the same ground as Lawan absence of four years, he formed a law part- rence's Wheaton, led to long litigation in the nership with Hamilton Fish, and displayed United States Circuit Court for Massachusetts. great powers in prosecuting claims for indem- Judge Clifford fully confirmed the claims of nity under the treaty of 1831, called the Rives Governor Lawrence, declaring Dana's work to Treaty, in wbich the Lawrence family were be an infringement of the American copyright largely interested, the claims being for spolia- law, and said, “Such a comprehensive collections under the decrees of Napoleon in viola- tion of authorities, explanations, and well-contion of the law of nations. His arguments were sidered suggestions, is nowhere, in the judgconimended by Webster, with whom he was ment of the court, to be found in our language, associated in some of the most important cases. as in Lawrence's Wheaton.
The lectures on political economy before the In 1868 there was published at Leipsic the senior class of Columbia College were repeated first volume of Lawrence's great original work by Mr. Lawrence before the Mercantile Library on “International Law.” The fifth volume of Association, and were afterward published. this important treatise appeared in 1880, and These able lectures were in defense of free the sixth and concluding volume, now in manutrade, of which he was always a warm advo- script and almost complete, will soon be tincate. He was an active member of the New ished by another hand, and published by BrockYork Historical Society, and from 1836 to 1845 haus. This magnum opus, which was written vice-president of the society, Gallatin being and published in French, occupied a large porpresident. In the latter year, Mr. Lawrence, tion of the author's time during the last twelve by his able argument before the Court of Er- years of his long and busy life. Among his rors, obtained a reversal of the Chancellor's many other publications may be mentioned, decision (Miller vs. Gable, 4 Denio, 570). At “The History of the Negotiations in Reference this period he purchased a large estate known to the Eastern and Northeastern Bonndaries of as Ochre Point, at Newport, Rhode Island, where the United States " (New York, 1841); “The he erected a commodious summer residence, Treaty of Washington " (Providence, 1871); and in 1850 he removed his permanent home “Disabilities of American Women Abroad to that place, where he continued to reside (New York, 1871); and “Administration of until his death, with the exception of an oc- Equity Jurisprudence" (Boston, 1874). casional visit to Europe, or a winter spent in While in Europe, Brown University conWashington. Soon after his settlement in New- ferred upon him the degree of Doctor of Laws, port he was elected Lieutenant-Governor, and and he was distinguished as the first recipient in a short time, by a provision of the State Con- of the title of Doctor of Civil Law granted in stitution, he became Governor of Rhode Island. the United States, by a degree conferred by the While acting as such, he was instrumental in Regents of the University of the State of New abolishing the law for imprisonment for debt, York. As an international counselor he was in procuring a reform in the management of unsurpassed perhaps either in Europe or Amerthe jails, and in advancing various other re ica. He achieved great professional distincforms.
tion in appearing before the British and AmerAfter the death of his friend Henry Wheaton, ican International Tribunal at Washington, in Mr. Lawrence prepared an edition of his “Ele- 1873, in the case of the Circassian, involving ments of International Law,” which was pub- more than half a million dollars. He won the lished in 1855, for the benefit of Mr. Wheaton's suit, obtaining for his clients the reversal of destitute family. This work, which was more a decision of the United States Supreme Court, than doubled in size by the addition of Law- the only instance of that character which has rence's original matter, made the name of occurred in the country's history. Lawrence's Wheaton well known throughout the United argument in the case, on which the decision States and Europe. It immediately met with was rendered, is now regarded, both here and almost universal adoption in courts and con- in Europe, as an authoritative exposition of sular offices, and in colleges and universities, at several most important points of international home and abroad. A second edition, bringing law. He was one of the original members of the text down to date, was issued by Governor the “ Institute of the Law of Nations," com