LAW, CONSTITUTIONAL. 



479 



Congress, is no sufficient answer to the power of Con- 

 gress to impose punishment. It is true that Congress 

 has not deemed it necessary to interfere with the duties 

 of the ordinary officers of election, but has been con- 

 tent to leave them as prescribed by State laws. It has 

 only created additional sanctions for their perform- 

 ance, and provided means of supervision in order 

 more effectually to secure such performance. The 

 imposition of punishment implies a prohibition of the 

 act punished. The State lawsj which Congress sees 

 no occasion to alter, but which it allows to stand, are 

 in effect adopted by Congress. It simply demands 

 their fulfillment. Content to leave the laws as they 

 are, it is not content with the means provided for their 

 enforcement. It provides additional means for that 

 purpose ; and we think it is entirely within its con- 

 stitutional power to do so. It is simply the exercise 

 of the power to make additional regulations. ( Ex parts 

 Siebold, 100 U. S. Reports, 387.) 



From this doctrine Justices Field and Clif- 

 ford dissented. Justice Hunt took no part in 

 the case. Hence but six justices concurred in 

 the decision of the court. In an elaborate 

 opinion, in which Justice Clifford concurred, 

 Judge Field maintained : first, that Congress 

 lias no power to punish a State officer for the 

 manner in which he discharges duties imposed 

 upon him by the laws of the State, or to sub- 

 ject him, in the performance of such duties, to 

 the supervision and control of others, and pun- 

 ish him for resisting their interference ; and, 

 second, that it is not competent for Congress 

 to make the exercise of its primitive power 

 dependent upon the legislation of the States. 

 He did not doubt that Congress might adopt 

 the law of a State, but, in that case, the adopt- 

 ed law must be enforced as a law of the United 

 States. In the case before the court there was 

 no pretenso of such adoption. The act of 

 Congress did not say that the neglect or dis- 

 regard of a duty prescribed by any existing 

 law of Ohio should constitute the defense. It 

 is the neglect or disregard of any duty pre- 

 scribed by any law of the State, present or 

 future. " The act of Congress," said Judge 

 Field, " asserts a power inconsistent with, and 

 destructive of, the independence of the States. 

 The right to control their own officers, to pre- 

 scribe the duties they shall perform, without 

 the supervision or interference of any other, 

 authority, and the penalties to which they 

 shall be subjected for a violation of duty, is es- 

 sential to that independence. If the Federal 

 Government can punish a violation of the laws 

 of the State, it may punish obedience to them, 

 and graduate the punishment according to its 

 own judgment of their propriety and wisdom. 

 It may thus exercise a control over the legisla- 

 tion of the States subversive of all their re- 

 served rights. However large the powers con- 

 ferred upon the government formed by the 

 Constitution, and however numerous its re- 

 straints, the right to enforce their own laws 

 by such sanctions as they may deem appro- 

 priate is left where it was originally with the 

 States. It is a right which has never been 

 surrendered. Indeed, a State could not be con- 

 sidered as independent in any matter with re- 

 spect to which its officers, in the discharge of 



their duties, could be subjected to punishment 

 by any external authority ; nor in which its 

 officers, in the execution of its laws, could be 

 subject to the interference of others." (Ex 

 parte Clarke, 100 U. S. Reports, 409.) 



In Tennessee against Davis (100 United 

 States Reports, 257), decided at the term begin- 

 ing in October, 1879, one of the most impor- 

 tant questions that has ever risen as to the re- 

 lations between the State and the Federal Gov- 

 ernment was elaborately discussed and decided 

 by the Supreme Court. It was whether Con- 

 gress has the constitutional power to author- 

 ize the removal from a State to a Federal court 

 of a case in which a revenue officer of the Unit- 

 ed States has been indicted by the State au- 

 thorities for a crime against the State committed 

 by the accused in the discharge of his duties as a 

 Federal officer, and whether the Federal courts 

 have the right to try the prisoner when Con- 

 gress has neither defined the crime with which 

 he is charged, nor prescribed punishment for it. 



" A more important question," said Justice 

 Strong, who delivered the opinion of the court, 

 "can hardly be imagined. Upon its answer 

 may depend the possibility of the General Gov- 

 ernment's preserving its own existence." 



The question arose under the act passed by 

 Congress in 1866, and now embodied in sec- 

 tion 643 of the Revised Statutes of the United 

 States. The statute provides that " when any 

 civil suit or criminal prosecution is commenced 

 in any court of a State against any officer ap- 

 pointed 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, on 

 account of any act done under color of his 

 office or of any such law, or on account of any 

 right, title, or authority claimed by such officer 

 or other person under any such law," the case 

 may be removed from the State into the United 

 States Circuit Court and there tried. The pris- 

 oner, Davis, had been indicted for murder in 

 one of the courts of Tennessee. He petitioned 

 for the removal of his case to the Federal 

 court, alleging that he was a United States 

 deputy collector of internal revenue ; that it 

 was his duty to seize illicit distilleries; that 

 while so attempting to enforce the revenue 

 laws of the United States he was assaulted and 

 fired upon by a number of armed men, and 

 that in self-defense he returned the fire, and 

 committed the homicide for which he had been 

 indicted. In behalf of the State, it was con- 

 tended that murder within a State is not made 

 a crime nor is it punishable by any act of Con- 

 gress, and hence is not triable by a Federal 

 court ; that it is a crime against the peace and 

 dignity of the State, defined and punished by 

 the laws of the State, and a matter wholly 

 within the jurisdiction of the courts of the 

 State. It was further maintained that the act 

 of Congress was intended to apply only to 

 cases involving offenses against the revenue 

 laws, and that if its purpose or effect was to 



