of 1833, however, an act passed at the time of South Carolina's attempted nullification of the United States tariff law, it was provided 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 by or under authority of any such officer, or on account of any act done under color of his office," the case, at the defendant's instance, might be at once removed from the State to the Federal courts for trial.

This act has been from time to time amended, and now forms § 33 of the act of March 3, 1911. Its constitutionality was first judicially examined by the Supreme Court in Tennessee v. Davis. 23 In this case Davis, a Federal revenue officer, killed a man, was arrested therefor, and, when brought to trial, applied for removal to a Federal court under this act. The State of Tennessee denied the constitutionality of this grant of right upon the ground that the act for which Davis was being tried was a violation of State and not of Federal law. This the Federal authorities admitted, but asserted that, inasmuch as the defendant was a Federal official, and claimed to have committed the homicide while in pursuance of his duties as such, the Federal courts had the right to assume jurisdiction of the case in order that the independence and supremacy of Federal authority might be maintained.

It is seen that § 33 gives the power of removal only with reference to suits against revenue officers of the Federal Government. Section 31 however, provides that “when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against any person who is denied or cannot enforce in the judicial tribunals

23 100 U. S. 257; 25 L. ed. 648.

of the State or in the part of the State where such suit or prosecution is pending any right secured by him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of, or under color of, authority derived from any law providing for equal rights, as aforesaid, or refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next District Court to be held in the district where it is pending." The constitutionality of this provision has been affirmed. As to all Federal officials other than revenue officers, Federal protection against State action, when necessary, must be sought, in cases not covered by § 31, either by way of writ of error from the highest State court to the Supreme Court of the United States, or, if that be inadequate, by writ of habeas corpus.

CHAPTER XLI

THE INDEPENDENCE OF THE FEDERAL JUDICIARY

The independence of the Federal judiciary

During the ante bellum period the Federal Government often made use of State tribunals and officers for the execution of its laws. Thus State justices of the peace acted as examining magistrates in criminal cases for the Federal courts, State judges officiated in the execution of extradition treaties with foreign countries, aliens were naturalized in State courts, and State jails and penitentiaries were used for the incarceration of Federal criminals. Both because of this admixture of Federal and State judicial agencies, and because the principle of the absolute independence of the Federal Government from State control was not clearly recognized and admitted, the State courts early assumed the right, by the issuance of writs of habeas corpus, to determine whether a fugitive from the justice of a foreign country and fugitive slaves should be surrendered; whether persons in the Federal army were properly held to military service; and even whether persons in the military service of a foreign State should be tried for acts done as belligerents and under the authority of their sovereigns in conformity with the laws of nations. It was not, indeed, until 1859 that it was authoritatively established by the Supreme Court that the State courts were without the constitutional power to interfere in any way with the processes of the Federal courts, or, in truth, with any of the agencies of the National Government. This was determined in Ableman v. Booth.1 Here a State court had 121 How. 506; 16 L. ed. 169.

taken possession of and released a prisoner in Federal custody.

The Supreme Court declared the impropriety of these actions in the following language: "We do not question the authority of State court, or judge, who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. But, after the return is made, and the State judge or court is judicially appraised that the party is in custody under the authority of the United States, they can proceed no further."

Notwithstanding this decision, however, a number of the State courts still claimed and exercised the right to discharge enlisted soldiers and sailors of the United States from the custody of their officers, and this practice was not stopped until 1872 when, in Tarble's case,2 the Federal Supreme Court held this to be beyond their

power.

Here again, as in the case of Tennessee v. Davis,3 the point at issue narrowed itself down to the question whether or not State agencies should be recognized to have a power which might, should the States see fit, be so exercised as seriously to embarrass the National Government in the performance of its constitutional duties. The strict application of the doctrine of a divided sovereignty would have led in both cases to a constitutional impasse. But in these as in other cases the Federal Supreme Court com

2 13 Wall. 397; 20 L. ed. 597. 3100 U. S. 257; 25 L. ed. 648.

pelled the States in the exercise of their powers to subordinate themselves to the requirements of national convenience and necessity.

This case settled once for all the principle that it is a sufficient return to a writ of habeas corpus issued by a State court that the party is in custody under claim or color of Federal authority derived from either a statute or judicial process.

Federal writs of habeas corpus

Instead of submitting to interference by the States with the exercise of their powers, the Federal courts have, especially of recent years, again and again, on writs of habeas corpus, removed from State custody persons charged with offenses against the peace of the States.

The Judiciary Act of 1789 gave to the Federal court authority to issue the writ of habeas corpus only as to persons in jail under or by color of authority of the United States. No provision was thus made for the release by Federal courts of persons in custody by order of the authorities of a State.

The "Force" Act of 1833 gave to the Federal courts the power to issue writs of habeas corpus in “all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined, on or by any authority or law for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof."

In 1842 this authority of the Federal courts was further broadened by the provision that the writ might issue when a subject or citizen of a foreign State, domiciled therein, is in custody because of an act done or omitted under an alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign State, or under color thereof, the