RODMAN, J., dissenting.
The defendants, Jesse F. Hoskins, George J. Cronenberger, and John Starr, were indicted for an assault and battery upon one Levi Humble. They were arrested and gave bond for their appearance, and on Saturday, 3 March, 1877, before said court conveyed (5 March), they filed a petition with the clerk of the Circuit Court of the United States for the
Western District of North Carolina, praying that the prosecution against them in the Superior Court should be removed to the Circuit Court, pursuant to the provisions of section 643 of the Revised Statutes of the United States. On said 5 March a copy of an order removing the case was duly served on the clerk of the Superior Court, and when the case was called the defendants objected to further proceedings in the State court on the ground that said court had no further jurisdiction, the order of removal having already been served upon the clerk thereof.
Upon issue joined on the question of law involved, and it appearing that the defendants were officers of the Internal Revenue Department of the United States, and it being alleged that the offense with (531) which they were charged was committed under color of their office, his Honor held that said act of Congress was constitutional, and ordered the proceedings in the Superior Court to be stayed. From which judgment Strudwick, solicitor for the State, appealed.
The preparation of the opinion in this case was assigned to our learned brother, the Chief Justice, but on account of his protracted indisposition he was unable to undergo the labor, and, therefore, he turned the case over to me.
We quote such parts of the Constitution of the United States and of the Constitution of North Carolina as bear upon the questions involved in the case, in order that they may all be under the same view at the same time.
"The Congress shall have power to lay and collect taxes," etc. Const. U.S., art. I, sec. 8 (1).
"To make all laws which may be necessary and proper for carrying into execution the foregoing powers." Const. U.S., Art. I, sec. 8 (17).
"The Constitution and the laws of the United States which shall be made in pursuance thereof. . . shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Const. U.S., Art. VI, sec. 2.
"That every citizen of this State owes paramount allegiance to the Constitution and Government of the United States, and that no (532) law or ordinance of the State in contravention thereof can have any binding force." Const. N.C. Art. I, sec. 5.
"That this State shall ever remain a member of the American Union; that the people thereof are part of the American Nation," etc. Const. N.C. Art. I, sec. 4.
There was much in the discussion before us upon the trite subjects of "State rights" and "Federal powers," which used to divide the politicians and statesmen; but we have no purpose to ally the Court with either school, or to express our individual opinion as to what ought to be the form of government; we mean to declare only what we believe to be the proper construction of what is written.
In order to see what are the precise questions involved, we must state the facts:
The Congress under its power to "lay and collect taxes" passed the revenue law now in operation, the validity of which no one questions, although its propriety is very much assailed. The defendant was appointed by the United States authorities to collect United States taxes in North Carolina. While engaged in that business, and in the execution of his office, and by color thereof, he did what but for his office would have been an assault and battery and a breach of the law of North Carolina. For that act he was indicted in the State Superior Court and held for trial in that court. The defendant thereupon filed his petition in the Circuit Court of the United States to have the case removed from the State court to the United States court, upon the ground that he was an officer of the United States, and that what he did was by virtue of his office. The Circuit Court of the United States made an order for the removal of the case, and his Honor, Judge Cox, of the State court, obeyed the order under that clause of the Constitution of the United States quoted above, which provides that, "The judges in every State shall be bound by the supreme law of the land," and from that order of Judge Cox the State appealed to this Court.
The comprehensive question arising out of these facts is, Was (533) the order of Judge Cox a proper one?
Let us first consider it as a question of comity. The State, a sovereign, claims that the defendant has trespassed upon its rights; the United States, a sovereign, claims that the defendant was its officer and acting under its orders, and, for the purposes of the demand, assumes the responsibility of the act complained of, and demands its officer in order that it may investigate his conduct and punish or protect him, as he may deserve. Now, what ought the State to do? Ought it to hold the officer and punish him, although he was acting under orders and is justified by his Government? That would be pusillanimous. Sovereigns to do not quarrel withservants, but with sovereigns, when they are angry. And when they arefriendly they defer to each other the control of their own servants. Wheaton's International Law, 209, 224, 225. So it is with neighbors: A. and B. are neighbors, and their children play on common ground, and the child of A. trespasses upon the child of B. B. does not try and punish the child, but turns it over to A. with the cause of
complaint. If A. will redress the wrong, well; if not, then the quarrel is with A. and no longer with the child. Concede, then, that the State had a good cause of complaint against the defendant, yet the moment that the United States assumed the responsibility and demanded him as her servant, if in friendship, comity required his surrender to his master; if in anger, then the quarrel is with the master.
But the case does not turn upon comity alone.
We have seen that Congress has power "to lay and collect taxes" and "to pass all laws necessary and proper to execute the power," and a law has been passed and an officer appointed to execute it, and that officer says he has been resisted. Now, must not the United States protect (534) its officer? What is the use of the power to lay the tax and to appoint the officer if he may not be protected? It is no answer to this to say he may be protected when he does right, but not when he does wrong; for how can the United States know whether he has done right or wrong unless she can try him, and how can she try him unless he be delivered up on demand? It would seem to be too plain for discussion that the right to protect the officer is indispensable to the service and inseparable from the power of the Government which appoints him. Nor is it an answer to say that the State will protect him if he deserves protection; for no one ever heard that one Government could intrust the execution of its laws, or the control of its officers, to another Government, however friendly. Governments could not remain friendly upon such relations.
But the case does not stand upon this implied right alone of the United States to protect its officers, but upon an express act of Congress, which is as follows: "When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under any revenue law of the United States . . . on account of any act done under color of his office, or of any such law, . . . the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the Circuit Court next to be holden in the district where the same is pending, upon the petition of such defendant to said Circuit Court, and in the following manner," etc. U.S. Rev. Stat., sec. 643.
It is not denied, but is admitted by all, that that act of Congress inexpress terms authorizes the removal and justifies the order of Judge Cox
in this case. But then it is said that that act is unconstitutional and void. And we now have to consider that question.
As preliminary, we would remark that if we were satisfied that his Honor was in error in holding the act to be constitutional, we would still commend his prudence; for it is settled by all the authorities that (535) no court, not even the highest, upon full consideration, ought to
declare an act, either of Congress or the General Assembly, unconstitutional unless it is plainly so. And the act in question, substantially in the same form as now, having been upon our statute-book for a half century, and repeatedly considered and never having been declared void by any court or text-writer, it would have been a judicial adventure to make a conflict of jurisdiction between the State and the United States courts. But we think his Honor was not only prudent, but wise, and that his decision was right.
We invite attention to a short history of the act in question, which we are able to give from the act itself as enacted and reenacted at different times and for different purposes. This will be found most conveniently by reference to 1 Abbott's United States Practice and the United States Revised Statutes. And we are also aided by an opinion of the Solicitor-General of the United States, indorsed by the Attorney-General of the United States, filed in the case.
As early as the Judiciary Act of 1789 it was provided for the removal of causes from the State to the Federal court before trial in certain civil suits, and for the "reexamination" of certain cases after judgment in the highest State court. In 1815 removals were provided for before trial in revenue cases, both in civil and criminal cases, except in such criminal cases as inflicted corporal punishment. Note that here was the removal of criminal cases, which is now so stoutly denied.
For one purpose and another this provision for removal was repeatedly reenacted until 1833, when the matter was brought most prominently forward, in order to meet the pretensions of nullification. It was brought before Congress by President Jackson. It was elaborately discussed and fully considered by the ablest men which this country has ever produced. The Judiciary Committee of the United States Senate — Wilkins, Webster, Frelinghuysen, Grundy, and Mangum — reported the bill, (536) Mangum dissenting. It was fully discussed and passed almost unanimously in the Senate, and by a large majority in the House. That bill was not precisely, but substantially, the same as the act of 1815, and the act now under consideration of 1866. The act of 1815 allowed the removal of all cases, civil and criminal, not involving corporal punishment. The act of 1833 left out the exception and substituted any "suit or prosecution," and the act of 1866 substituted "any civil suit or criminal prosecution."
It is not now denied that civil action may be removed, but it is denied that criminal actions can be. Why not? There are both expressly named in the act. The objection is put principally upon two grounds: First, that although the act says criminal actions may be removed, yet it provides how
civil actions may be removed, and does not provide how criminal actions may be removed. This is a mistake; and it is a little
surprising that the learned counsel did not discover the fallacy of the argument which led them to that conclusion. They say that the act provides that if the suit was commenced by summons, then it may be removed simply bycertiorari; but if by capias, then by habeas corpus; and that this only applies to civil actions. But the truth is that it applies to both civil and criminal. It means that if the action, whatever it is, was by summons, so that the defendant is at large, a certiorari will bring the record, and the defendant can come himself. But if the action, whatever it is, was bycapias, so that the defendant is in custody and cannot come, then there must be a certiorari to bring the record and a habeas corpus to bring the defendant.
The second objection is that it is a violation of the rights of the State; that the State has the right to try offenders against her criminal law, and that she cannot be deprived of it; and that the United (537) States has no right to try offenses against State laws.
Here lies the fallacy and the danger. Every mind assents to the proposition that the United States has no jurisdiction to try offenses against the State by her citizens, or in any manner to interfere in the police regulations of the State. In these matters the State is sovereign and supreme. The fallacy consists in supposing that the matter in hand has anything to do with the State or the State with it. And the danger consists in the case with which the people may be deceived by the fallacy, and irritated against the United States for the supposed aggression.
Let it be true, as often charged, that the United States revenue law is a bad one, and that its execution is still worse, and that it is oppressive altogether, yet North Carolina is not responsible for it. She did not pass it. She cannot repeal it. Nor can she or her citizens resist it. Any attempt to do so has always involved and will always involve, the most hurtful troubles. Yet the remedy is plain. The law was passed and is executed by the United States. The United States is not a foreign government. It is our Government, as much so as North Carolina is; we are represented in it, and we are its citizens. It can protect its citizens, it can punish its officers, and it can repeal bad laws. How puerile, then, it is to regard the United States as a "foreign" government, and to look to North Carolina or any other government to protect us against its oppressions! As well might we appeal to Virginia to protect us against the aggressions of North Carolina!
In certain particulars, North Carolina is our Government, supreme. In all matters in which there is no "Federal ingredient," she is supreme. An instance of this is the laying and collecting of her own taxes by her own officers out of her own citizens. She acts precisely as if the United States was not in existence.
So, there are particulars in which the United States is our (538) Government, supreme. In all matters in which there is a Federal ingredient, it is supreme, a familiar instance of which is the post-office system, and so is the revenue system. In such matters it acts as if there were no State in existence. The United States lays and collects its own taxes, by its own officers out of its own citizens. It does not law a dollar of tax upon the State of North Carolina, nor upon any citizen of North Carolina, as such. No citizen of North Carolina, as such, ever paid a dollar of taxes to the United States. Its taxes are laid upon citizens of the United States by a uniform rule all over the Nation. If it oppresses any one, it is not a citizen of any State, as such, but its own citizen. What, then, has North Carolina to do with it? Can it be supposed that when the United States lays a tax upon its citizens uniform over the whole Nation, and sends out its officers to collect it, its officers are subject to arrest and trial in each of thirty-eight States of the Union, with as many different views and constructions? If so, then the collection of the United States taxes is at the mercy of the States; and as taxes are necessary to the existence of every government, the very existence of the United States would be at the mercy of the States, or of any one of them.
It is claimed for the State that she must try every offense against her "peace and dignity," and that an assault and battery and a trespass upon property are such offenses. This, as a general proposition, is undoubtedly true. But suppose a United States revenue officer arrests a delinquent United States taxpayer, or seizes his property, and a question arises as to whether the arrest or seizure was regular: is that a matter for the State or is it for the United States to try? It is claimed for the State that she must try the officer in the State Superior Court, and then there may be an appeal to the State Supreme Court, and then it may be removed to the United States Supreme Court. (539) Now, upon the supposition that it was a matter of State sovereignty, how is it preserved by allowing the United States to take it out of its hands at all? It is a luxury which a sovereign State should covet, to try and convict a man whom she cannot punish? It is an insult to her dignity, they say, to refuse to let her try and convict, but it is quite a compliment not to let her punish!
It is true that if the State does try and convict, the officer may be protected in the manner above stated, by removing the case to the United States Supreme Court by writ of error, but it is vaxatious [vexatious] and dilatory to the officer and destructive of the United States service; for although another and another officer might be appointed in the place of the one arrested, yet they all might be arrested in like manner.
To prevent these evils, an act of Congress has been passed to remove the case from the State to the Federal court before trial; and it is this
act which is resisted. Admitting that the case may be moved after trial, they deny that it can be removed before trial. Now, in the discussion in the United States Senate upon the passage of the removal act of 1833, it was said that while it might be supposed to be some reflection upon the State courts to allow them to try the case and convict, and then remove it from them, yet there could be no such supposition where the removal was before trial. But now, conceding the propriety of removalafter trial, the sensitiveness is about the removal before trial. The truth is that there ought to be no sensitiveness about either. It ought to be a matter of satisfaction that the United States is ready at any time, and especially at the earliest time, to take judicial control of its officers for trial, and for protection of its citizens and taxpayers; for just as two neighbors, although they may be the best friends, or even brothers, cannot live in peace if either will punish the children or servants (540) of the other, so two sovereigns cannot preserve friendly relations, or even their own existence, if either seeks to control and punish the servants of the other. Hence, "the moment a public minister, or agent, enters the territory of the State to which he is sent, during the time of his residence and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction, civil and criminal." Wheaton's International Law, 224, 209n. "In all cases of offenses committed by public ministers affecting the existence and safety of the State where they reside, if the danger is urgent their persons and papers may be seized, and they may be sent out of the country. In all other cases it appears to be the established usage of nations to request their recall by their own sovereign, which, if unreasonably refused by him, would unquestionably authorize the offended State to send away the offender." Ibid., 225.
These are the views which have occured [occurred] to us, without reference to the decisions of other tribunals. And now, in deference to the importance of the subject and the ability with which it has been discussed, and in respect to other tribunals and in justice to ourselves, we will consider the matter in the light of the decisions of other courts.
The act of Congress having in express terms authorized the defendant to apply for the removal of the case from the State to the Federal court, and the Federal court having ordered the removal, and the State court having obeyed the order, the question is, Is the act of Congress constitutional?
We have already stated what has been the legislation upon the subject of the removal of cases from the State to the Federal courts, from the passage of the Federal judiciary act in 1879, down to the act now under consideration (1866). We will now notice a few of the more celebrated decisions under them.
In 1816, in Martin v. Hunter, in the Supreme Court of the (541) United States, 1 Wheaton, 335; and in 1821, in Cohen v. Virginia, 6 Wheaton, 264, in the same Court, the whole matter was most elaborately discussed by the ablest counsel, and exhaustive opinions delivered by the Court, in the first case by Justice Story, and in the second by ChiefJustice Marshall. And the questions were subsequently fully treated of in the light of those decisions by Justice Story in his work upon the Constitution. 3 Story, secs. 1695 et seq. It would be superfluous to say that every question then involved was settled for all time.
In the first named case the precise point was whether a civil suit which involved "a Federal ingredient" could be removed from a State to a Federal court, and it was decided that the removal could be made.
In the second case the precise point was whether a criminal prosecution involving "a Federal ingredient," and where a State was a party, could be removed from a State to a Federal court, and it was decided that the removal could be made.
Why, then, do not those cases settle this case, which is the removal of a criminal action from the State to the Federal court? It is objected that they do not, for the reason that those cases were tried in the State courts, and judgments rendered by the State courts, and were then removed to the Federal Supreme Court for revision; whereas this is an attempt to remove the case from an inferior State court to an inferior United States court, for which it is said for the State that there is no authority in the United States Constitution or laws. Let us examine that position, and in doing so we prefer to rely upon what has been said by those luminaries of the law, Story and Marshall, rather than upon any line of argument of our own.
It may be stated as a fact, not disputed by any, that the Federal judiciary has in one form or another supreme jurisdiction over every conceivable case which can arise which has in it a Federal ingredient, (542) as it is admitted this case has. The supreme Court of the United States has original jurisdiction — that is, suits may be commenced in that Court in two cases: (1) where ambassadors, etc., are concerned, and (2) where a State shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make. Art. III, sec. 2. It follows that if the United States judiciary has jurisdiction of all cases with a Federal ingredient, and the United States Supreme Court has original jurisdiction in only two cases, then the inferior United States courts must have original jurisdiction in all other cases except the two, as they also have in those two under certain circumstances But it does not follow that because the United States inferior courts have original jurisdiction in all cases except the two, that they may not have also appellate
jurisdiction from one to another, and from a State court. It is said expressly by Justice Story and by The Federalist, contemporary with the adoption of the United States Constitution, that inferior courts may have such jurisdiction.
Justice Story says: "But although the Supreme Court cannot exercise original jurisdiction in any cases except those specially enumerated, it is certainly competent for Congress to vest in any inferior courts of the United States original jurisdiction of all other cases not thus specially assigned to the Supreme Court; for there is nothing in the Constitution which excludes such inferior courts from the exercise of such original jurisdiction. Original jurisdiction, so far as the Constitution gives a rule, is coextensive with the judicial power; and except so far as the Constitution has made any distribution of it among the courts of the United States, it remains to be exercised in an original or appellate form, or both, as Congress may in their wisdom deem fit. Now, (543) the Constitution has made no distribution except of the original and appellate jurisdiction of the Supreme Court. It has nowhere insinuated that the inferior tribunals shall have no original jurisdiction. It is nowhere affirmed that they shall have appellate jurisdiction. Both are left unrestricted and undefined. Of course. as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of Congress." Story Const. L., sec. 1698, citing Martin v. Hunter, Osborne v. Banks, and Cohen v. Virginia.
And again he says: "There is no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction, section 1701. The Federalist, No. 82, is put as a note to that section as follows:
"The Federalist, No. 82, has spoken of the right of Congress to vest appellate jurisdiction in the inferior courts of the United States from State courts (for it had before expressly affirmed that of the Supreme Court in such cases) in the following terms: `But could an appeal be made to lie from the State courts to the subordinate Federal jurisdictions? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affimative.' And then, after enumerating the considerations, proceeds: . . . `Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the Legislature.' And this being the case, I see no impediment to the establishment of an appeal from the State courts to the subordinate National tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of Federal courts, and would admit of arrangements calculated to contract the
appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of Federal causes, and appeals in most cases, in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State (544) courts to district courts of the Union."
In Cohen v. Virginia, Chief Justice Marshall says: "There can be no doubt that Congress may create a succession of inferior courts in each of which it may vest appellate as well as original jurisdiction."
Again he says: "If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising 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. The time, the process, and the manner, must be subject to its absolute legislative control. . . . And if the right of removal from State courts before judgment, because it is included in the appellate power, it must for the same reason exist after judgment. And if the appellate power by the Constitution does not include cases pending in State courts, the right of removal, which is but a mode of exercising the power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment as after, and both must stand or fall together."
And again he says: "The remedy, too, of the removal of suits would be utterly inadequate to the purposes of the Constitution if it acted only on the parties, and not on the State courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable; and in many civil suits there would in many cases be rights without corresponding remedies. If State courts should deny the constitutionality of the authority to remove suits from their cognizance, in what manner could they be compelled to relinquish the jurisdiction? In respect to criminal cases there would at once be an end of all control, and (545) the State decisions would be paramount to the Constitution."
The expression above, that "in respect to criminal prosecutions it seems to be admitted to be insurmountable," has had a strange construction in the argument in this case. It is construed to mean that there is an insurmountable difficulty against their removal. Whereas it means precisely the contrary. It means that if they cannot be removed, the difficulties would be insurmountable, because it would make the State courts superior to the Constitution of the United States. And Chief Justice Marshall says: "The public mischiefs which would attend such a state of things would be truly deplorable."
We will refer now to a late case in the Supreme Court of the United States, The Mayor v. Cooper, 6 Wallace, 247. It was a civil suit, commenced in the State court, for trespass on property. The defendants'
defense was that they were acting under orders of the President of the United States, and under the acts of Congress of 1865, '66 — same as in this case. They filed their petition in the Federal Circuit Court for the removal of the case from the State to the Federal court. The State court sent the case to the Federal court, and the Federal court dismissed the case and sent it back to the State court for trial, holding that the acts of Congress were void; and from that ruling the case went up to the Supreme Court of the United States. We call attention to the fact that here was a case which went from a subordinate State court to a subordinate Federal court, and thence to the Supreme Court of the United States, without having gone to the State Supreme Court at all.
The opinion of the United States Supreme Court in that case, speaking of the jurisdiction of the courts, says: "Jurisdiction, original or appellate, alike comprehensive in either case, may be given. The constitutional boundary line of both is the same. Every variety and form of appellate jurisdiction within the sphere of the power, extending (546) as well to the courts of the States as to those of the Nation, is permitted. There is no distinction in this respect between civil and criminal cases. Both are within its scope. . . . It is the right and the duty of the National Government to have its Constitution and laws interpreted and applied by its own judicial tribunals. . . . This is essential to the peace of the Nation and to the vigor and efficiency of the Government. A different principle would lead to the most mischievous consequences. The courts of the several States might determine the same question in different ways. There would be no uniformity of decision. For every act of an officer, civil or military, of the United States, including alike the highest and the lowest, done under his authority, he would be liable to harassing litigation in the State courts. However regular his conduct, neither the laws nor the Constitution of the United States could avail him, if the views of those tribunals and of the juries which sit in them should be adverse. The authority which he had served and obeyed would be impotent to protect him. Such a government would be one of pitiable weakness and would wholly fail to meet the ends which the framers of the Constitution had in view. They designed to make a government, not only independent and self-sustained, but supreme in every function within the scope of its authority. The judgments of this Court have uniformly held that it is so. . . . We entertain no doubt of the constitutionality of the jurisdiction given by the acts under which this case has arisen."
These authorities are too plain to be misunderstood, and of too high authority to be disregarded.
But we repeat, and desire it to be distinctly understood, that neither these authorities nor anything that we have said go to the extent of saying
that the United States courts have any power to try offenses "against the peace and dignity of the State," nor to control the State courts therein. But where a United States officer is charged with a duty (547) and does acts under color of his duty which, but for his office, would be a crime against the State, then and in that case the United States courts have jurisdiction, and under the act of Congress can remove the case from the State courts into the Federal courts. This power is indispensable to the United States, and is in no way derogatory to the State.
How the Federal courts dispose of the case, and of the officer, is for them to determine. All that the State has to do is to send the case, when demanded, to the Federal court. As has been already said, the defendant is an officer of the United States; the taxpayers whom he has offended are citizens of the United States; the United States is able and we are to suppose willing to protect its citizens from the oppression of its officer, if he has oppressed them; and to protect its officer, if they have resisted him. Just as North Carolina is bound to protect its citizens in "life, liberty, and property," so the United States is bound to protect its citizens in "life, liberty, and property." When the United States is dealing with its citizens — collecting its taxes, for instance — the State must stand off; and when the State is dealing with its citizens the United States must stand off.
Nor is it to be understood from anything that we have said that when a man commits a crime against the laws of the State in his individualcapacity, whether the crime is small or great, that he can defend himself by the fact that he is a United States officer. Not at all. He is just as guilty, and may be convicted — hung it may be — just as if he was not an officer. It is only where the act complained of is an official act, or done by virtue or under color of his office, that he is entitled to have his case passed upon by the power which appointed him. To his own master he must stand or fall; for illustration: If the defendant arrested a man, that is a crime against the State for which the (548) State court may try him; but if he says, "True, I arrested him; but I as a United States officer arrested him as a delinquent taxpayer," then that which seemed at first to be a crime against the State seems now to be official duty to the United States; and whether it is or not, the United States has the right to determine.
It would seem that the proper way to have disposed of this case was that which was pursued in the case already cited — The Mayor v. Cooper. In that case, as in this, the State court sent the case to the subordinate Federal court, and the plaintiff followed the case into the Federal court and moved to dismiss it and send it back to the State court for trial, which the Feedral [Federal] court did, and then the defendant appealed to the
Supreme Court of the United States by writ of error. So here, when JudgeCox ordered the case to be sent to the Federal court, the State ought to have followed the case to the Circuit Federal Court and moved to dismiss it upon the ground that the act complained of was done by the defendant, not as an officer, but as a man, and then the Federal court could have determined that matter; and if it had been satisfied that the defendant was not acting as an officer, or, if he was. that he was misbehaving, then the case could have been returned to the State court for trial; but if satisfied that the defendant was only doing his duty as an officer, then he could have been discharged, and from the judgment of the Circuit Court either party could have carried it to the Supreme Court of the United States.
But to this it is objected that the Circuit Federal Court has no power to do anything with it, if it were sent to it, and, therefore, why send it? That is a mistake. If that were so, what would have been the action of the Supreme Court of the United States in the case last cited — TheMayor v. Cooper? It would have sustained the action of the court below in dismissing the case for want of jurisdiction; but instead of that, it reversed the action of the court below, and said, "An order will (549) issue that the cause be reinstated, and that the court below proceed in it according to law."
Why "reinstate" it if it ought not to have been there? Why "proceed in it according to law" if it could not proceed at all?
The question as to how the Circuit Federal Court will proceed, or what it should do, is not before us. If there is any defect of the machinery, Congress can supply it. Nor is there any difference between criminal and civil cases so far as the power of removal is concerned, as we have already shown. The points intended to be decided are: (1) That the act of Congress under which the removal was ordered is constitutional; and (2) that the ruling of Judge Cox was proper.