19 1 2-] OF THE UNITED STATES. 383 



were made. There is no one else to whom application can be directed. For 

 treaty purposes the separate States are non-existent ; they have parted with 

 a certain defined portion of their inherent sovereignty, and can only be 

 dealt with through their accredited representative or delegate, the Federal 

 Government."'" 



It is now neces.sary to examine whether, under existing decisions 

 of the Supreme Court, such statutes as have been recommended by 

 three Presidents would be unconstitutional ; and further, considering 

 the suggestion of President Roosevelt, to ask what means of giving 

 effectiveness to treaty provisions exist in the Federal government, 

 in the absence of such statutory enactment. 



In 1879 were decided three cases of great significance to us here. 

 The first was Tennessee vs. Davis,^**^ wherein the defendant was 

 indicted in a State court for murder. Acting under Section 643 of the 

 Revised Statutes of the United States, he petitioned the circuit court of 

 the United States for removal of the prosecution to that court, alleging 

 that the killing occurred in self-defence while he was acting as deputy 

 collector of internal revenue by the authority of Federal laws. The 

 question was raised as to the constitutionality of the statute. On 

 appeal, the Supreme Court sustained its constitutionality and said : 



" 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 z's. Hunter (i Wheat., 363), 'the general 

 government must cease to exist whenever it loses the 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 act- 

 ing, 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 con- 

 ferred 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 



"" Ibid., p. 1439. 



^""'loo U. S., 257 (1879). 



