power to pass). If it is, conform your conduct to it at all hazards. If it is not, disregard it, and obey the law of your state.” This may seem hard on the private citizen. How shall he settle for himself such a delicate point of law as whether Congress had power to pass a particular statute, seeing that the question may be doubtful and not have come before the courts? But in practice little inconvenience arises, for Congress and the state legislatures have learnt to keep within their respective spheres, and the questions that arise between them are seldom such as need disturb an ordinary man.
The same remarks apply to conflicts between the commands of executive officers of the national government on the one hand, and those of state officials on the other. If the national officer is acting within his constitutional powers, he is entitled to be obeyed in preference to a state official, and conversely, if the state official is within his powers, and the national officer acting in excess of those which the federal Constitution confers, the state official is to be obeyed.
The limits of judicial power are more difficult of definition. Every citizen can sue and be sued or indicted both in the courts of his state and in the federal courts, but in some classes of cases the former, in others the latter, is the proper tribunal, while in many it is left to the choice of the parties before which tribunal they will proceed. Sometimes a plaintiff who has brought his action in a state court finds when the case has gone a certain length that a point of federal law turns up which entitles either himself or the defendant to transfer it to a federal court, or to appeal to such a court should the decision have gone against the applicability of the federal law. Suits are thus constantly transferred from state courts to federal courts, but you can never reverse the process and carry a suit from a federal court to a state court. Within its proper sphere of pure state law—and of course the great bulk of the cases turn on pure state law—there is no appeal from a state court to a federal court; and though the point of law on which the case turns may be one which has arisen and been decided in the Supreme Court of the Union, a state judge, in a state case, is not bound to regard that decision. It has only a moral weight, such as might be given to the decision of an English court, and where the question is one of state law, whether common law or statute law, in which state courts have decided one way and a federal court the other way, the state judge ought to follow his own courts. So far does this go, that a federal court in administering state law, ought to reverse its own previous decision rather than depart from the view which the highest state court has taken.17 All this seems extremely complex. I can only say that it is less troublesome in practice than could have been expected, because American lawyers are accustomed to the intricacies of their system.
When a plaintiff has the choice of proceeding in a state court or in a federal court, he is sometimes, especially if he has a strong case, inclined to select the latter, because the federal judges are more independent than those of most of the states, and less likely to be influenced by any bias. So, too, if he thinks that local prejudice may tell against him, he will prefer a federal court, because the jurors are summoned from a wider area, and because the judges are accustomed to exert a larger authority in guiding and controlling the jury. But it is usually more convenient to sue in a state court, seeing that there is such a court in every county, whereas federal courts are comparatively few; in many states there is but one.18
The federal authority, be it executive or judicial, acts upon the citizens of a state directly by means of its own officers, who are quite distinct from and independent of the state officials. Federal indirect taxes, for instance, are levied all along the coast and over the country by federal customhouse collectors and excisemen, acting under the orders of the Treasury Department at Washington. The judgments of federal courts are carried out by United States marshals, likewise dispersed over the country and supplied with a staff of assistants. This is a provision of the utmost importance, for it enables the central national government to keep its finger upon the people everywhere, and make its laws and the commands of its duly constituted authorities respected whether the state within whose territory it acts be heartily loyal or not, and whether the law which is being enforced be popular or obnoxious. The machinery of the national government ramifies over the whole Union as the nerves do over the human body, placing every point in direct connection with the central executive. The same is, of course, true of the army; but the army is so small and stationed in but few spots, mostly in the Far West where Indian raids used to be feared, and where there are federal reservations to protect, it scarcely comes into a view of the ordinary working of the system.
What happens if the authority of the national government is opposed, if, for instance, an execution levied in pursuance of a judgment of a federal court is resisted, or federal excisemen are impeded in the seizure of an illicit distillery?
Should the United States marshal or other federal officers be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the president, who may either order national troops to his aid or may require the militia of the state in which resistance is offered to overcome that resistance. Inferior federal officers are not entitled to make requisitions for state force. The common law principle that all citizens are bound to assist the ministers of the law holds in America as in England, but it is as true in the one country as in the other, that what is everybody’s business is nobody’s business. Practically, the federal authorities are not resisted in the more orderly states and more civilized districts. In such regions, however, as the mountains of Tennessee, Eastern Kentucky, and North Carolina the inland revenue officials find it very hard to enforce the excise laws, because the country is wild, concealment is easy among the woods and rocks, and the population sides with the smugglers. And in some of the Western states an injunction granted by a court, whether a federal or a state court, is occasionally disregarded.19 Things were, of course, much worse before the War of Secession had established the authority of the central government on an immovable basis. Federal law did not prove an unquestioned protection either to persons who became in some districts unpopular from preaching abolitionism, or to those Southern slave-catchers, who endeavoured, under the Fugitive Slave laws, to recapture in the Northern states slaves who had escaped from their masters.20 Passion ran high, and great as is the respect for law, passion in America, as everywhere else in the world, will have its way.
If the duly constituted authorities of a state resist the laws and orders of the national government, a more difficult question arises. This has several times happened.
In November 1798 the legislature of Kentucky adopted resolutions declaring that the Constitution was not a submission of the states to a general government, but a compact whereby they formed such a government for special purposes and delegated to it certain definite powers; that when the general government assumed undelegated powers, its acts were unauthoritative and void; and that it had not been made the exclusive or final judge of the extent of the powers delegated to it. Five weeks later the Virginia legislature passed similar but more guarded resolutions, omitting, inter alia, the last of the above-mentioned deliverances of Kentucky. Both states went on to declare that the Sedition and Alien Acts recently passed by Congress were unconstitutional, and asked the other states to join in this pronouncement and to cooperate in securing the repeal of the statutes.21 Seven states answered, all in an adverse sense.
In 1808 the legislatures of some of the New England states passed resolutions condemning the embargo which the national government had laid upon shipping by an act of that year. The state judges, emboldened by these resolutions, took an attitude consistently hostile to the embargo, holding it to be unconstitutional; popular resistance broke out in some of the coast towns; and the federal courts in New England seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions. At the outbreak of the war of 1812 the governors of Massachusetts and Connecticut refused to allow the state militia to leave their state in pursuance to a requisition made by the president under the authority of an act of Congress, alleging the requisition to be unconstitutional; and in October 1814 the legislatures of these two states and of Rhode Island, states in which the New England feeling against the war had risen high, sent delegates to a convention
