250 



CONGRESS, U. S. 



courts, and since the senator from Illinois has 

 been speaking on this question my eye has 

 rested on the language of Chief-Justice Mar- 

 shall, as quoted by Judge Story in his Com- 

 mentaries on this question, and it presents in a 

 very few words an answer to his difficulty. 

 This is the language of Chief-Justice Mar- 

 shall : 



This power of removal is not to be found in ex- 

 press terms in any part of the Constitution ; if it be 

 given, it is only given by implication, as a power 

 necessary and proper to carry into effect some express 

 power. The power of removal is certainly not, in 

 strictness of language, an exercise of original jurisdic- 

 tion ; it presupposes an exercise of original jurisdic- 

 tion to have attached elsewhere. 



" In the State courts. 



The existence of this power of removal is familiar 

 in courts, acting according to the. course of the com- 

 mon law, in criminal as well as in civil cases; audit 

 is exercised before as well as after judgment. 



" That is precisely what is proposed here. 



But this is always deemed, in both cases, an exer- 

 cise of appellate, and not of original jurisdiction. If, 

 then, the right of removal be included in the appellate 

 jurisdiction, it is only because it is oiie mode of exer- 

 cising that power ; and as Congress is not limited by 

 the Constitution to any particular mode, or time of 

 exercising it, it may authorize a removal either before 

 or after judgment. 



Mr. Powell, of Kentucky, strongly opposed 

 the amendment, saying : " I hope the amend- 

 ment of the senator from New York will not 

 prevail. It has been decided by the Supreme 

 Court that no jurisdiction over crimes against 

 the United States has been delegated to the State 

 courts, and by parity of reasoning, it would cer- 

 tainly be held by any enlightened court that 

 crimes committed against the States cannot be 

 transferred to the jurisdiction of the United 

 States courts. The scope and object of this 

 bill is to prevent those who have been injured 

 in their persons and their property from hav- 

 ing redress in the courts. It is astonishing to 

 me that so distinguished a senator as the sen- 

 ator from Vermont should ever have produced 

 such a bill. Alfred the Great has received more 

 approval and won more distinction for having 

 brought justice to the door of every English- 

 man than for fighting a hundred pitched bat- 

 tles. But here, sir, we find the Senate of the 

 United States engaged, by its legislation, in 

 preventing those who have been injured by 

 the minions of power from having redress in 

 the courts of justice ; and it is now proposed 

 to insert a clause that criminals who have 

 violated the criminal laws of the country shall 

 have their cases transferred to the courts of 

 the United States. Sir, suppose you do it; 

 you try a man in the Federal court you con- 

 vict him. I ask you, if he is tried for an in- 

 fraction of the criminal laws of a State, has 

 the President of the United States any power 

 to pardon him? None. The Governors of 

 the. States alone have the right to pardon 

 for criminal offences against the criminal codes 

 of the States. The amendment of the senator, 

 in my judgment, is clearly unconstitutional." 



Mr. Collamer, of Vermont, in answer to 

 Mr. Powell, said : " This bill the senator seems 

 to think is a perfect outrage upon all men's 

 rights. I do not want to argue it, but there is 

 a precedent for it. The case occurred in the 

 days of Mr. Madison. Chief-Justice Marshall 

 says, in relation to these questions over which 

 the United States courts have .jurisdiction 

 that is, questions arising on the construction 

 of the Constitution and the United States laws 

 that by statute made for that purpose they 

 may be removed into the courts of the United 

 States for their decision." 



Mr. Bayard, of Delaware, followed in oppo- 

 sition to the bill : " I believe the honorable 

 senator from New York proposes to insert in 

 the third line of the substitute, after the word 

 'prosecution,' the words 'civil or criminal.' 

 The effect of that is intended to be, I presume 

 it certainly will be the assumption, by the 

 authority of Congress, of the power of remov- 

 ing from a State court the exercise of its crim- 

 inal jurisdiction. It is perfectly clear, and has 

 been frequently decided, that the criminal laws 

 of the United States cannot be enforced in the 

 State courts ; nor can the criminal laws of the 

 State courts be enforced in the courts of the 

 United States. If a party is indicted in a crim- 

 inal prosecution in a State court for an offence, 

 it must be an offence against the laws of the 

 State. Does this Congress mean to pass a law 

 which shall authorize offences against the laws 

 of the States to be tried in the Circuit Court of 

 the United States on appeal ? When I pursue 

 the substitute farther, it seems that it would 

 not only give the power to appeal before trial, 

 but, after judgment in a criminal case, to carry 

 the case into the Circuit Court of the United 

 States to rehear it on the law and the facts. 



" Sir, I cannot believe that that is within the 

 intent of the Federal Constitution. I cannot 

 believe it is within your powers in any way 

 whatever. I can easily see that it must lead 

 necessarily to the entire destruction of the 

 power of the States as regards their own crim- 

 inal jurisprudence. It tends to a system of 

 centralization which musj; subvert and break 

 down this Government, if carried out." 



The substitute was subsequently accepted. 

 Yeas, 27; nays, 15. 



The point, however, came up again for dis- 

 cussion under other amendments. 



Mr. Browning, of Illinois, said: "Mr. Presi- 

 dent, I had intended to move to strike out this 

 portion of the bill, with a view to hear the 

 views of senators upon it, from the word ' and,' 

 in the thirty-fourth line, to the word ' court,' 

 in the seventy-second line, inclusive all that 

 portion of the bill which relates to annulling 

 or avoiding judgments after they shall have 

 been rendered in the State courts. That is go- 

 ing very far. I do not know of any precedent 

 for taking a case from the State courts to the 

 Circuit Court of the United States after it has 

 been tried and judgment pronounced. In a 

 class of cases provided for by the statute upon 



