The American Commonwealth. Viscount James Bryce

authority can interfere within the limits of a state to maintain order? Are law and order, i.e., the punishment of crimes and the enforcement of civil rights, left entirely to state authorities? The answer is:

      Offences against federal statutes are justiciable in federal courts, and punishable under federal authority. There is no federal common law of crimes;

      Resistance offered to the enforcement of a federal statute may be suppressed by federal authority;

      Attacks on the property of the federal government may be repelled, and disturbances thence arising may be quelled by federal authority;

      The judgments pronounced in civil causes by federal courts are executed by the officers of these courts;

      All other offences and disorders whatsoever are left to be dealt with by the duly constituted authorities of the state, who are, however, entitled in one case to summon the power of the Union to their aid.

      This case is that of the breaking out in a state of serious disturbances. The president is bound on the application of the state legislature or executive to quell such disturbances by the armed forces of the Union, or by directing the militia of another state to enter. Thus in 1794 Washington suppressed the so-called Whisky Insurrection in Pennsylvania by the militia of Pennsylvania, New Jersey, Virginia, and Maryland.¹⁴ President Grant was obliged to use military force during the troubles which disturbed several of the Southern states after the Civil War; as was President Hayes, during the tumults in Pennsylvania caused by the great railway strikes of 1877. There have, however, been cases, such as the Dorr rebellion in Rhode Island in 1842,¹⁵ in which a state has itself suppressed an insurrection against its legitimate government. It is the duty of a state to do so if it can, and to seek federal aid only in extreme cases, when resistance is formidable. The most remarkable recent instance of federal interposition occurred in 1894 when, during a railway strike in Illinois, mobs had stopped the passage of trains carrying the U.S. mails. President Cleveland, on the ground that federal property must be protected and the constitutional duty of carrying the mails discharged, sent federal troops to Chicago, though not asked to do so by the governor of Illinois, and secured the passage of the mail trains. His action was generally approved both by the legal profession and by the nation.

      So far we have been considering the relations of the national government to the states as political communities. Let us now see what are its relations to the individual citizens of these states. They are citizens of the Union as well as of the states, and owe allegiance to both powers. Each power has a right to command their obedience. To which then, in case of conflict, is obedience due?

      The right of the state to obedience is wider in the area of matters which it covers. Prima facie, every state law, every order of a competent state authority, binds the citizen, whereas the national government has but a limited power: it can legislate or command only for certain purposes or on certain subjects. But within the limits of its power, its authority is higher than that of the state, and must be obeyed even at the risk of disobeying the state. An instance in which a state official suffered for obeying his state where its directions clashed with a provision of the federal Constitution may set the point in a clear light. A statute of California had committed to the city and county authority of San Francisco the power of making regulations for the management of gaols. This authority had in 1876 passed an ordinance directing that every male imprisoned in the county gaol should “immediately on his arrival have his hair clipped to a uniform length of one inch from the scalp.” The sheriff having, under this ordinance, cut off the queue of a Chinese prisoner, Ho Ah Kow, was sued for damages by the prisoner, and the court, holding that the ordinance had been passed with a special view to the injury of the Chinese, who consider the preservation of their queue a matter of honour, and that it operated unequally and oppressively upon them, in contravention of the Fourteenth Amendment to the Constitution of the United States, declared the ordinance invalid, and gave judgment against the sheriff.¹⁶ Similar subsequent attempts against the Chinese, made under cover of the Constitution of California of 1879 and divers statutes passed thereunder, have been defeated by the courts.

      The safe rule for the private citizen may be thus expressed: “Ascertain whether the federal law is constitutional (i.e., such as Congress has 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