Federal right to maintain order Federal courts enforce rules of war - but merely the utilization of force sufficient to maintain the federal supremacy. There was no declaration of war by Congress, nor was there a treaty made at the close of the war, but the Confederacy collapsed with the surrender of the various generals to the Union forces. Since the Civil War the supremacy of the national government has not been defied. Indeed, the utilization of the power of the government to maintain peace within the various states has been sanctioned by the courts. Thus, in ex parte Siebold,1 it was said: We hold it to be an incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. In 1894, in the Debs case, the court said, "The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its care." 2 Thus, although the enforcement and maintenance of federal supremacy is in the last resort in the hands of the executive department of the government, the determination of whether this supremacy has been infringed or violated is a judicial question and must be decided by the courts of the United States. By Article III, Sect. ii, of the Constitution the jurisdiction of the courts is defined; in some cases the Supreme Court is given original jurisdiction, in others appellate jurisdiction, under such rules and regulations as Congress shall make. Acting upon this, Congress, in the great judiciary act of 17893 and in the subsequent amendments, has made it possible for the federal courts to take jurisdiction over all cases in which a federal right or law has been construed adversely to the power of the federal government, and, by means of appeals, writs, and other judicial processes, has made it possible for the court to protect the agents of the national government against interference by state tribunals and thus to enforce the rights and powers granted by the Constitution within the boundaries of the states. Thus assertion of federal supremacy is a judicial question, — not a contest between the federal government and the government of a state, but a judicial determination of the rights claimed by a citizen under the federal Constitution. METHODS OF ASSERTION OF FEDERAL SUPREMACY federal courts Federal supremacy is maintained in several ways. First, by Appeal to the appellate power granted to the Supreme Court by the Constitution and exercised under such laws as Congress shall make. By the judiciary act of 1789 cases may be carried from the state courts to the courts of the United States upon writs of error, if the judgment of the state court has been against a federal law or right or if the state court has upheld a state law or right contrary to a claimed federal law or right. This clause has been seriously questioned only three times. In 1816 the court of Virginia denied the constitutionality of the act, but was overruled in Martin v. Hunter's Lessee.1 Again, in Cohens v. Virginia,2 Marshall held that the clause did not contravene the Eleventh Amendment, and such an appeal because started by the state was not a suit against a state. Again, in 1859, Wisconsin endeavored, unsuccessfully, to resist this appellate power in the attempt to render void the Fugitive Slave Law, but the right was vindicated by Taney in the case of Ableman v. Booth.3 A second way in which federal supremacy is maintained is by the removal of a case from the courts of a state to the federal courts. This right has been invoked to protect federal officers in the exercise of their duties. The principle is thus set forth in Tennessee v. Davis. Davis, a revenue officer, in the exercise of his duties, killed a man and was arrested by the authorities of the state. When his case came to trial he demanded that it be removed to a federal court under the authority of a law of the Removal to United States authorizing such a removal. The state asserted federal courts Protection of federal officers State powerless over fed that the crime, that of homicide, was not one against the federal but against the state laws. This was of course admitted by the federal authorities, but it was claimed that inasmuch as the defendant was a federal officer who was performing his duties, the case should go before the federal courts. In sustaining this position the court said: It [the federal government] can only act 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. Not only may the federal government exercise affirmative power to enforce federal law and rights, but the state courts are prohibited from interfering with the judicial processes of the federal courts. This was firmly established in 1872 in the case of United States v. Tarble, where, in checking an attempt of a state court to discharge a federal prisoner by a writ of habeas corpus, the court used the following words: Such being the distinct and independent character of the two goveral prisoners ernments, within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the national government to preserve its rightful supremacy in case of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. . . . State judges and state courts, authorized by the laws of their states to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused. In recent years the United States courts have gone even further, and have themselves, by writs of habeas corpus, removed 1 13 Wall. 397, 407, 409. to protect prisoners persons charged with offenses against state laws from the custody Habeas corpus of the officers of the state. This power is derived from a series of federal rights statutes beginning with the judiciary act of 1789, which allowed of state the use of the writ only in cases where the persons were detained under the authority of the United States, and culminated in the amendment of 1867, whereby the writ might be issued in all cases where any person might be restrained in violation of the Constitution or any treaty or law of the United States. The most extreme use of this writ was seen in the Neagle case, where a deputy marshal who had committed homicide when acting according to an executive order, but not upon the authority of any statute, was transferred from the jurisdiction of the California officials to that of the United States.1 protected against encroachments Not only do the courts by these means maintain the inde- Federal pendence of the federal agents and assert the supremacy of federal law, but all federal agencies within the states are protected from state action which might interfere with the efficient by the states performance of their functions. One of the earliest assertions of this principle was in the celebrated case of McCulloch v. Maryland. The state of Maryland denied the constitutionality of the act establishing the United States Bank and attempted to tax its branches operating in Maryland. In deciding the case adversely to the state, Marshall used the following reasoning: Protected from taxation by states which may impair their That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create ; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with efficiency respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other in- · strument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax papers of the customhouse; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. Present rule concerning state taxation of federal instrumentalities Conversely, instrumen talities of government This decision, however, does not prevent the taxation of federal agencies whose efficiency was not interfered with by such taxation. The following rule was laid down in National Bank v. Commonwealth.1 It certainly cannot be maintained that banks or other corporations or instrumentalities of the government are to be wholly withdrawn from the operation of state legislation. The most important agencies of the federal government are its officers, but no one will contend that when a man becomes an officer of the government he ceases to be subject to the laws of the state. The principle we are discussing has its limitation, a limitation growing out of the necessity on which the principle itself is founded. That limitation is that the agencies of the federal government are only exempted from state legislation so far as the legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve that government. In like manner Congress may by statute allow the state to tax federal property of certain kinds; for example, by the act of 1894 the notes of national banks may be so taxed, but such taxation must be in accord with congressional legislation and form an exception to the general rules. Conversely, it was held in Collector v. Day 2 that the federal government could not levy an income tax upon the salaries of state officials. The reasoning laid down a principle which has been generally followed: And if the means and instrumentalities employed by that governnot tax state ment to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, exempt from taxation by the states, why are not those of the states depending upon their reserved powers, for like reasons, equally exempt from federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the states, nor is there any prohibiting the states from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations, if subject to the control of 2 11 Wall. 113, 127. 19 Wall. 353, 361–362. |