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Supreme Court thereupon was an emphatic condemnation of the State's action. "No State, judge or court," declared Taney who rendered the opinion of the court, "after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of the State, in form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference."

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From the foregoing brief review it is thus seen that prior to the Civil War the supremacy of the federal law had been sustained under a wide variety of circumstances and that the resulting subordinate status of the States had been made fully evident. That status the people of certain of the Southern States in 1861 decided no longer to support, and in defense of their views, declared their respective commonwealths independent of the Union, and in support of this independence resorted to the arbitrament of war. That this secession was an illegal act, and that, therefore the seceding States, from the constitutional viewpoint, never were out of the Union, has repeatedly been declared by the Supreme Court. In Texas v. White28 the Union was declared to be "an indestructible Union composed of indestructible States." The opinion continues: "When, therefore, Texas became one of the United States, she entered into an indissoluble relation. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. The union between Texas and the other States was as complete, as perpetual and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through the consent of the States. Considered, therefore, as transactions under the Constitution, the 28 7 Wall. 700; 19 L. ed. 227.

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ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union."

In Knox v. Lee the court said, speaking through the mouth of Justice Bradley: "The doctrine so long contended for, that the federal Union was a mere compact of States, and that the States, if they chose, might annul and disregard the acts of the national legislature, or might secede from the Union at their pleasure, and that the General Government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally affected by the national power, as it had often been before by overwhelming argument. The United States is not only a government, but it is a National Government, and the only government in this country that has the character of nationality."

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§ 43. The States May Not Be Coerced.

In a Confederacy which is, in effect, a league of completely sovereign States, such coercion as it may be necessary for the central power to apply, may in certain cases be directed directly against the States as such.

In a Federal State such as the United States is now agreed to be, the supremacy of the national authority is never maintained by direct action against its member Commonwealths, but is exhibited in its authority to execute its will upon all persons subject to its jurisdiction, anything in the Constitution or laws of any State to the contrary notwithstanding, and irrespective of what may be the opinions and effects of those exercising the political powers of those States.

29 12 Wall. 457; 20 L. ed. 287.

The individual Commonwealths, having a political status only as members of the Union, have not the legal power to place themselves, as political bodies, in opposition to the national will. Their legislatures, their courts, or their executive officials may attempt acts unwarranted by the federal Constitution or federal law, and they may even command that their citizens generally shall refuse obedience to some specified federal laws or the federal authorities generally, but in all such cases, such acts are, legally viewed, simply void, and all individuals obeying them subject to punishment as offenders against national law. The fact that their respective States have directed them to refuse obedience or to offer resistance to the execution of the federal laws can afford them no immunity from punishment, for no one can shelter himself behind an unconstitutional law, such a law being, in truth, as we have seen, not a law at all, but only an unsuccessful attempt at a law.

Thus President Lincoln, in his first inaugural message, assumed the correct constitutional position when he declared that the Federal Government could not wage public war against a State, not, however, because of a lack of constitutional authority to maintain in every respect its supremacy, but because from the very nature of the Union a State, qua State, could not place itself in a position where coercion could be applied to it. After an argument tending to show the sovereign character of the Union, and that it was intended to be perpetual, he declared: "It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances. Ι therefore consider that, in view of the Constitution and the laws, the Union is unbroken, and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. In doing this there needs to be no bloodshed or violence, and there shall be none unless it be forced upon the national au

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thority. The power conferred upon me will be used to hold, occupy and possess the property and places belonging to the Government and to collect the duty and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere."

In taking this position Lincoln had to treat the war when it began as merely an insurrection in which the coercion and punishments were to be applied to individuals. Thus he began his

Proclamation of April 15, 1861, in which he called for seventyfive thousand of the militia of the States, by saying: "Whereas the laws of the United States have been for some time past and now are opposed and the execution thereof obstructed in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings:" and closed by commanding "the persons composing the combinations aforesaid to disperse and retire peaceably to their respective abodes within twenty days from this date."

As further showing the theory as to the nature of the contest that was held by the National Government is the fact that Congress did not "declare war" against the South, or, when the struggle was over, enter into a treaty of peace with the Southern Confederacy. The United States did not recognize that the Confederacy had or could have a standing as a political power with which it might deal as with a foreign State. One after another, the surrender of his forces by each Confederate general was accepted as an act of war and thus the Confederacy left to collapse and disappear without any formal, official act to mark its demise.

The possession by the Federal Government of full power to protect any right and to enforce any law of its own at any time, and at any place within its territorial limits, any resistance of private individuals, or state officials, acting with or without the authority of state law to the contrary notwithstanding, has been uniformly asserted by the Supreme Court whenever such an assertion has been necessary. Thus in 1824, in the case of Osborn v. Bank of the United States,30 Chief Justice Mar30 9 Wh. 738; 6 L. ed. 204.

shall met the argument that the suit, being against one of its officials and based upon acts committed by him in his official capacity, was in fact a suit against the State of Ohio, one, therefore, which, under the Eleventh Amendment, the court was without authority to try, by declaring: "A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to all cases perfectly clear in themselves; to cases where the [National] Government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts that the agents of a State, alleging the authority of a law, void in itself, because repugnant to the Constitution, may arrest the execution of any law of the United States. It maintains that if a State shall impose a fine or penalty on any person employed in the execution of any law in the United States, it may levy that fine or penalty by a ministerial officer, without the sanction of even its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the [National] GovernThe question, then, is whether the Constitution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union from the attempts of a particular State to resist the execution of those laws." That Marshall answered this question in the affirmative needs not be said.

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The attitude of the federal Supreme Court in the case of Ableman v. Booth, decided in 1859, has already been mentioned. Again, after the Civil War, the court said, when confronted by the proposition that because the United States was without any general criminal jurisdiction it might not punish criminally individuals who had violated certain of its laws relating to congressional elections: "It is argued that the preservation of peace and good order in society is not within the powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and terri

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