LAW, CONSTITUTIONAL. 



481 



that the Circuit Conrt, or any other Federal 

 court, has or ever had any jurisdiction of such 

 a case to try or sentence such offender for such 

 an offense. . . . Legislative power is undoubt- 

 edly vested in Congress to pass laws to define 

 and punish offenses against the authority of 

 the United States ; but it does not follow by 

 any means that a prisoner, charged with mur- 

 der committed in violation of the laws of a 

 State, may claim to be tried in a Federal Cir- 

 cuit Court, or that a State indictment for such 

 an offense constitutes a case arising under the 

 Constitution or the laws of the United States, 

 or that it can in any way become cognizable 

 in such a tribunal, certainly not unless it can 

 be removed there in pursuance of some act of 

 Congress defining the offense and providing for 

 the trial and punishment of the offender. Per- 

 sons charged with offenses against the author- 

 ity of the States find ample guarantees of a 

 fair trial in the laws of the States and the 

 usages of the State courts, and, if the Federal 

 officers need more, it belongs to Congress to 

 provide the remedy in some mode authorized 

 by the Constitution. . . . Large concessions 

 were made by the States to the United States, 

 but they never ceded to the national Govern- 

 ment their police powers, or the power to de- 

 fine and punish offenses against their authority, 

 as admitted by all courts and all commentators 

 upon the Constitution." 



The same view was also maintained by Jus- 

 tice Field, with whom Justice Clifford con- 

 curred, in the dissenting opinion in the case of 

 Virginia against Rives (100 U. S. Reports, 

 336). He claimed that murder committed 

 within a State, in violation of its laws, is an 

 offense against the authority of the State, and 

 that the State alone has the right to try and 

 punish the offender. "Murder," he said, "is 

 not an offense against the United States, ex- 

 cept when committed on an American vessel 

 on the high seas, or in some port or haven 

 without the jurisdiction of the State, or in the 

 District of Columbia, or in the Territories, or 

 at places where the national Government has 

 exclusive jurisdiction. The offense within the 

 limits of a State, except where jurisdiction has 

 been ceded to the United States, is as much 

 beyond the jurisdiction of these courts as 

 though it had been committed on another con- 

 tinent. The prosecution of the offense in such 

 a case does not, therefore, arise under the 

 Constitution and laws of the United States; 

 and the act of Congress which attempts to 

 give the Federal courts jurisdiction of it is, to 

 my mind, a clear infraction of the Constitution. 

 ... I do not think I am going too far in 

 asserting that, had it been supposed a power 

 so dangerous to the independence of the 

 States, and so calculated to humiliate and de- 

 grade them, lurked in any of the provisions 

 of the Constitution, that instrument would 

 never have been adopted." 



By the acts of Congress passed during and 

 since the war, for the removal of causes, the 

 VOL. xxi. 31 A 



jurisdiction of the Federal courts has been 

 immensely enlarged, and that of the State 

 courts correspondingly diminished. "From 

 various causes which we need not now stop to 

 trace," says Judge Dillon, in his work on " Re- 

 moval of Causes," "the small tide of litiga- 

 tion that formerly flowed into Federal chan- 

 nels has swollen into a mighty stream. Cer- 

 tain it is that of late years the importance of the 

 Federal courts has rapidly increased, and that 

 much, perhaps most, of the great litigations 

 of the country are now conducted in them." 

 Among the special statutes that have been 

 passed on this subject may be mentioned those 

 providing for the removal from State to Fed- 

 eral courts in civil and criminal cases against 

 persons denied civil rights; in civil and crimi- 

 nal cases against revenue officers of the United 

 States ; in civil and criminal cases arising 

 under the Federal election laws ; in suits by 

 aliens against officers of the United States, 

 under specified circumstances ; and in actions 

 against Federal corporations. Besides these, 

 several very important acts of more general 

 operation have been passed. At the close of 

 the war, the right of removal on the ground 

 of citizenship was limited to cases in which 

 the plaintiff, or all of the plaintiffs, if more 

 than one, were citizens of the State in which 

 the suit was brought, and the -defendant, or all 

 of the defendants, were citizens of another 

 State or States. The right was further re- 

 stricted to civil cases, and could be exercised 

 only by the defendant, or, if more than one, all 

 had to join in the application. 



By the act of July 27, 1866, the right of 

 removal was extended, under certain circum- 

 stances, to any one of the non-resident defend- 

 ants so far as the action affected him. By the 

 "prejudice or local influence " act of 1867 the 

 right was given to both a non-resident plaint- 

 iff and a non-resident defendant, if either 

 makes " an affidavit that he has reason to 

 believe, and does believe, that from prejudice 

 or local influence he will not be able to obtain 

 justice in such State court." That is, on the 

 conditions specified, if a suit is brought in a 

 State court by a citizen of that State, against 

 the citizen of another State, the latter may 

 have the case removed to a Federal court ; or 

 when a person has brought an action in the 

 courts of his own State against the citizen of 

 another State, the plaintiff may remove it into 

 the Federal court. " This act," says Dillon, 

 "undoubtedly grew out of the condition of 

 affairs in the Southern States after the war of 

 the rebellion, and was intended to afford to 

 plaintiffs who had resorted to the State court 

 the right to transfer their suits to the Federal 

 courts. This is the first act that, in any event, 

 extended the right to a plaintiff to leave the 

 forum he had voluntarily chosen, and in this 

 respect was an entire departure from all the 

 previous legislation. It is not so difficult to 

 justify the act in this respect, even if it was 

 intended to be permanent, as it is to sustain 



