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Section 643 of the Revised Statutes provides also that: “When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by 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 such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue 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 petition of such defendant to said circuit court.” The section goes on to provide for issuance of writ by habeas corpus by the federal court to obtain the custody of the defendant.57

8 576. Congress May not Confer Jurisdiction upon State Courts.

As has been pointed out in Section 574 the state courts possess jurisdiction over certain cases concurrently with that possessed by the federal courts. This, howerer, is not a jurisdiction which is conferred upon them by federal statute, but one which they possess under state law and which they are permitted to retain even after the same jurisdiction is by act of Congress conferred upon the inferior federal tribunals. Congress, indeed, is without power to confer jurisdiction upon any courts not created by itself.58

bar to any further suit touching the matter in controversy. Section 642 provides for the issuance of the writ of habeas corpus to obtain the custody of the defendant. A valuable discussion of the scope and intent of these sections is to be found in Kentucky v. Powers, 201 U. S. 1; 26 Sup. Ct. Rep. 387; 50 L. ed, 633.

57 For further consideration of this law see in this treatise, Chapter VII. 68 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19.


Congress may, however, delegate to state courts the performance of certain routine functions which do not involve the trial of

Any state chancellor, judge, justice of the peace, etc., may cause to be arrested and commited or held to trial any person charged with an offense against the United States.

cases." 69

69 In Robertson v. Baldwin (165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715), the court say: “ The better opinion is that the second section of Article III of the Constitution was intended as a constitutional definition of the judicial power which the Constitution intended to confine to courts created by Congress; in other words, that such power extends only to the trial and determination of 'cases' in courts of record, and that Congress is still at liberty to authorize the judicial oflicers of the several States to exercise such power as is ordinarily given to officers of courts not of record; such, for instance, as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judi. cial power rather than a part of the judicial power itself. ... In the case of Prigg v. Pennsylvania (16 Pet. 539; 10 L. ed. 1000), it was said that, as to the authority conferred on state magistrates to arrest fugitive slaves and deliver them to their owners, under the act of February 12, 1793, while a difference of opinion existed, and might still exist upon this point in different States, whether state magistrates were bound to act under it, no doubt was entertained by this court that state magistrates might, if they chose, exercise the authority unless prohibited by state legislation. See also Moore v. Illinois, 14 How. 13; 14 L. ed. 306; In re Kaine, 14 How. 103; 14 L. ed. 345. We think the power of justices of the peace to arrest deserting seamen and deliver them on board their vessels is not within the definition of the judicial power' as defined by the Constitution, and may be lawfully conferred on state officers."



§ 577. Political Questions.

Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but within these limits they do permit the departments, separately or together, to recognize that a certain set of facts, that a given status, exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts.

In the exercise of his political powers, not only the President, but those acting under his order are exempt from judicial control. In Marbury v. Madison, Marshall says: “By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist no power to control that discretion. The subjects are political. They respect the Nation, not individual rights, and, being intrusted to the executive, the decision of the executive is conolusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the department of foreign affairs. This officer as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is to be communicated. The acts of such an officer, as an officer, can never be examined by the courts."

11 Cr. 137; 2 L. ed. 60.

No comprehensive enumeration of these political determinations has been attempted by the courts, nor, indeed, is such an enumeration possible. Specifically, however, the following hare been decided, as the cases have arisen, to be political and, therefore, not justiciable:

8 578. Cherokee Indians v. Georgia.

In the Cherokee Nation v. Georgia’ an injunction was prayed to restrain the State of Georgia from executing certain laws within that State, which, it was alleged, would annihilate the Cherokees as a political body. The suit was dismissed on the ground of lack of jurisdiction, it being held that the Cherokee Nation was not a foreign State in the sense in which the term is used in the provision of the Constitution which extends the federal judicial power to “controversies between a State or the citizens thereof, and foreign States, citizens or subjects.” Marshall, however, in his opinion went on to say: “A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a State from the forcible exercise of legislative power over a neighboring people asserting their independence, their right to which the State denies. On several of the matters

alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self-government in their own country by the Cherokee Nation, this court cannot interpose, at least in the form in which those matters are presented. That part of the bill which respects the land occupied by the Indians and prays the aid of the court to protect their possession may be more doubtful. The mere question of right might be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may well be questioned. It savors too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.” As this last sentence shows, all of Marshall's opinion what has been quoted was purely obiter, but was later relied upon by the court in Georgia v. Stanton.


§ 579. Georgia v. Stanton.

The difficulty sometimes experienced in deciding between a justiciable and a non-justiciable question is well illustrated in this latter case.

Here a bill was filed invoking the original jurisdiction of the Supreme Court to restrain the Secretary of War, the General of the Army, and Major-General Pope from putting into effect the acts of Congress of 1867, providing for military government in the State of Georgia. The bill alleged that the intent of the acts of Congress as apparent on their face and by their very terms was to overthrow the existing constitutional government of the

25 Pet. 1; 8 L. ed. 25.
36 Wall. 50; 18 L. ed. 721.

4 In Mississippi v. Johnson (4 Wall. 475; 18 L. ed. 437) the attempt had been made to restrain the President of the United States from executing the reconstruction acts, but the bill had been dismissed on the ground that an injunction or mandamus would not lie to the chief executive of the nation.

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