An appeal from the decision of a Circuit Court of the United
States in a habeas corpus case, under Rev.Stat. § 764, as amended
by the act of March 3, 1885, 23 Stat. 437, c. 353, brings up the
whole case, both law and facts, and imposes upon this court the
duty of reexamining it, upon the full record as it was heard in the
inferior court.
A person who is in custody for an act done or omitted in
pursuance of a law of the United States, or of an order, process or
decree of a court, or judge thereof, or is in custody in violation
of the Constitution, or a law or treaty of the United States, may,
under the provisions of Rev.Stat. § 753, be brought before any
court of the United States, or justice or judge thereof, by writ of
habeas corpus, for the purpose of an inquiry into the cause of his
detention, and the court or justice or judge is required by § 761
to proceed in a summary way to determine the facts of the case, by
hearing the testimony and arguments, and thereupon to dispose of
the party as law and justice require.
By virtue of Rev.Stat. §§ 606, 610, the justices of the Supreme
Court of the United States are allotted among the nine circuits, to
each one of which a judge is assigned, and the latter section makes
it the duty of each judge to attend the Circuit Court in each
district of the circuit to which he is allotted, and thereby
imposes upon him the necessity of
Page 135 U. S. 2
traveling from his residence to the Circuit Court which he is to
attend, and from each place in that circuit where the court is held
to the other places where it is held.
Held, that, while a
judge is thus traveling to or from those places, he is as much in
discharge of his duty as when listening to and deciding cases in
open court, and is as much entitled to protection in the one case
as in the other.
While there is no express statute authorizing the appointment of
a deputy marshal, or any other officer to attend a judge of the
Supreme Court when traveling in his circuit, and to protect him
against assaults or other injury, the general obligation imposed
upon the President of the United States by the Constitution to see
that the laws be faithfully executed, aud the means placed in his
hands, both by the Constitution and the laws of the United States,
to enable him to do this, impose upon the Executive department the
duty of protecting a justice or judge of any of the courts of the
United States, when there is just reason to believe that he will be
in personal danger while executing the duties of his office.
An assault upon a judge of a court of the United States, while
in discharge of his official duties, is a breach of the peace of
the United States, a distinguished from the peace of the State in
which the assault takes place.
Under the provisions of Rev.Stat. § 788, it is the duty of
marshals and their deputies in each State to exercise, in keeping
the peace of the United States, the powers given to the sheriffs of
the State for keeping the peace of the State; aud a deputy marshal
of the United States, specially charged with the duty of protecting
and guarding a judge of a court of the United States, has imposed
upon him the duty of doing whatever may be necessary for that
purpose, even to the taking of human life.
United States officers and other persons, held in custody by
state authorities for doing acts which they were authorized or
required to do by the Constitution and laws of the United States,
are entitled to be released from such imprisonment, and the writ of
habeas corpus is the appropriate remedy for that purpose.
David Neagle, a deputy marshal of the United States for the
District of California, was brought by writ of habeas corpus before
the Circuit Court of that District, upon the allegation that he was
held in imprisonment by the sheriff of San Joaquin County,
California, on a charge of the murder of David S. Terry. He alleged
that the killing of Terry by him was done in pursuance of his duty
as such deputy marshal in defending the life of Mr. Justice Field,
while in discharge of his duties as Circuit judge of the ninth
circuit. On the trial of this writ in the Circuit Court, it entered
an order discharging the prisoner, finding that he was in custody
for an act done in pursuance of a law of the United States, and was
imprisoned in violation of the Constitution and laws of the United
States. The case being brought up to the Supreme Court by appeal,
this court, on examining the voluminous testimony, arrived at
Page 135 U. S. 3
the conviction that there was a settled purpose on the part of
Terry and his wife, amounting to a conspiracy, to murder Mr.
Justice Field, on his official visit to California in the summer of
1889; that this arose from animosity against him on account of
judicial decisions made in the Circuit Court of the United States
for the Northern District of California in a suit or suits to which
they were parties; that the purpose which they had of doing Mr.
Justice Field an injury became so well and so publicly known that a
correspondence ensued between the marshal and the District Attorney
of that District and the Attorney General of the United States, the
result of which was that Neagle was appointed a deputy marshal for
the express purpose of guarding Mr. Justice Field against an attack
by Terry and his wife which might result in his death; that such an
attack did take place; that Neagle, being there for the said
purpose of affording protection, had just reason to believe that
the attack would result in the death of Mr. Justice Field unless he
interfered, and that he did justifiably interfere by shooting Terry
while in the act of assaulting Mr. Justice Field, whom he had
already struck two or three times.
Held,
(1) That eagle was justified in defending Mr. Justice Field in
this manner;
(2) That, in so doing, he acted in discharge of his duty as an
officer of the United States;
(3) That having so acted, in that capacity, he could not be
guilty of murder under the laws of California, nor held to answer
to its courts for an act for which he had the authority of the laws
of the United States;
(4) That the judgment of the Circuit Court discharging him from
the custody of the sheriff of San Joaquin County must therefore he
affirmed.
MR. JUSTICE MILLER, on behalf of the court, stated the case as
follows:
This was an appeal by Cunningham, sheriff of the county of San
Joaquin, in the State of California, from a judgment of the Circuit
Court of the United States for the Northern District of California,
discharging David Neagle from the custody of said sheriff, who held
him a prisoner on a charge of murder.
On the 16th day of August, 1889, there was presented to Judge
Sawyer, the Circuit Judge of the United States for the Ninth
Circuit, embracing the Northern District of California, a petition
signed David Neagle, deputy United States marshal, by A. T. Farrish
on his behalf. This petition represented that
Page 135 U. S. 4
the said Farrish was a deputy marshal duly appointed for the
Northern District of California by J. C. Franks, who was the
marshal of that district. It further alleged that David Neagle was,
at the time of the occurrences recited in the petition and at the
time of filing it, a duly appointed and acting deputy United States
marshal for the same district. It then proceeded to state that said
Neagle was imprisoned, confined and restrained of his liberty in
the county jail in San Joaquin County, in the State of California,
by Thomas Cunningham, sheriff of said county, upon a charge of
murder, under a warrant of arrest, a copy of which was annexed to
the petition. The warrant was as follows:
"
I
n the Justice's Court of Stockton Township"
"STATE OF CALIFORNIA "
"COUNTY OF SAN JOAQUIN "
"The People of the State of California to any sheriff,
constable, marshal, or policeman of said State or of the county of
San Joaquin:"
"Information on oath having been this day laid before me by
Sarah A. Terry that the crime of murder, a felony, has been
committed within said County of San Joaquin on the 14th day of
August, A.D. 1889, in this, that one David S. Terry, a human being
then and there being, was willfully, unlawfully, feloniously, and
with malice aforethought shot, killed and murdered, and accusing
Stephen J. Field and David Neagle thereof: You are therefore
commanded forthwith to arrest the above-named Stephen J. Field**
and David Neagle and bring them before me at my office in the city
of Stockton, or, in
Page 135 U. S. 5
case of my absence or inability to act, before the nearest and
most accessible magistrate in the county."
"Dated at Stockton this 14th day of August, A.D. 1889."
"H. V. J. SWAIN"
"
Justice of the Peace"
"The defendant, David Neagle, having been brought before me on
this warrant, is committed for examination to the sheriff of San
Joaquin County, California."
"Dated August 1, 1889. H. W. J. SWAIN"
"
Justice of the Peace"
The petition then recited the circumstances of a rencontre
between said Neagle and David S. Terry, in which the latter was
instantly killed by two shots from a revolver in the hands of the
former. The circumstances of this encounter and of what led to it
will be considered with more particularity hereafter. The main
allegation of this petition was that Neagle, as United States
deputy marshal, acting under the orders of Marshal Franks, and in
pursuance of instructions from the Attorney General of the United
States, had, in consequence of an anticipated attempt at violence
on the part of Terry against the Honorable Stephen J. Field, a
justice of the Supreme Court of the United States, been in
attendance upon said justice, and was sitting by his side at a
breakfast table when a murderous assault was made by Terry on Judge
Field, and in defence of the life of the judge, the homicide was
committed for which eagle was held by Cunningham. The allegation
was very distinct that Justice Field was engaged in the discharge
of his duties as circuit justice of the United States for that
circuit, having held court at Los Angeles, one of the places at
which the Court is by law held, and, having left that court, was on
his way to San Francisco for the purpose of holding the Circuit
Court at that place. The allegation was also very full that Neagle
was directed by Marshal Franks to accompany him for the purpose of
protecting him, and that these orders of Franks were given in
anticipation of the assault which actually occurred. It was also
stated, in more general
Page 135 U. S. 6
terms, that Marshal Neagle, in killing Terry under the
circumstances, was in the discharge of his duty as an officer of
the United States, and was not, therefore, guilty of a murder, and
that his imprisonment under the warrant held by Sheriff Cunningham
was in violation of the laws and Constitution of the United States,
and that he was in custody for an act done in pursuance of the laws
of the United States. This petition being sworn to by Farrish, and
presented to Judge Sawyer, he made the following order:
"Let a writ of habeas corpus issue in pursuance of the prayer of
the within petition, returnable before the United States Circuit
Court for the Northern District of California."
"SAWYER,
Circuit Judge"
"The writ was accordingly issued and delivered to Cunningham,
who made the following return:"
"COUNTY OF SAN JOAQUIN,
State of California"
"SHERIFF'S OFFICE"
"To the honorable Circuit Court of the United States for the
Northern District of California:"
"I hereby certify and return that, before the coming to me of
the annexed writ of habeas corpus the said David Neagle was
committed to my custody, and is detained by me by virtue of a
warrant issued out of the justice's court of Stockton township,
State of California, county of San Joaquin, and by the endorsement
made upon said warrant. Copy of said warrant and endorsement is
annexed hereto and made a part of this return. Nevertheless, I have
the body of the said David Neagle before the honorable court, as I
am in the said writ commanded."
"August 17, 1889. THOS. CUNNINGHAM"
"
Sheriff San Joaquin County, California"
Various pleadings and amended pleadings were made which do not
tend much to the elucidation of the matter before us. Cunningham
filed a demurrer to the petition for the writ of
Page 135 U. S. 7
habeas corpus and Neagle filed a traverse to the return of the
sheriff, which was accompanied by exhibits, the substance of which
will be hereafter considered when the case comes to be examined
upon its facts.
The hearing in the Circuit Court was had before Circuit Judge
Sawyer and District Judge Sabin. The sheriff, Cunningham, was
represented by G. A. Johnson, Attorney General of the State of
California, and other counsel. A large body of testimony,
documentary and otherwise, was submitted to the court, on which,
after a full consideration of the subject, the court made the
following order:
"In the Matter of David Neagle, on habeas corpus."
"In the above-entitled matter, the court having heard the
testimony introduced on behalf of the petitioner, none having been
offered for the respondent, and also the arguments of the counsel
for petitioner and respondent, and it appearing to the court that
the allegations of the petitioner in his amended answer or traverse
to the return of the sheriff of San Joaquin County, respondent
herein, are true, and that the prisoner is in custody for an act
done in pursuance of a law of the United States, and in custody in
violation of the Constitution and laws of the United States, it is
therefore ordered that petitioner be, and he is hereby, discharged
from custody."
From that order an appeal was allowed which brought the case to
this court, accompanied by a voluminous record of all the matters
which were before the court on the hearing.
Page 135 U. S. 40
MR. JUSTICE MILLER, after stating the case as above, delivered
the opinion of the court.
If it be true, as stated in the order of the court discharging
the prisoner, that he was held
"in custody for an act done in pursuance of a law of the United
States, and in custody in violation of the Constitution and laws of
the United States,"
there does not seem to be any doubt that, under the statute on
that subject, he was properly discharged by the Circuit Court.
Section 753 of the Revised Statutes reads as follows:
"The writ of habeas corpus shall in no case extend to a prisoner
in jail unless where he is in custody under or by color
Page 135 U. S. 41
of the authority of the United States, or is committed for trial
before some court thereof, or is in custody for an act done or
omitted in pursuance of a law of the United States, or of an order,
process, or decree of a court or judge thereof, or is in custody in
violation of the Constitution or of a law or treaty of the United
States, or, being a subject or citizen of a foreign State, and
domiciled therein, is in custody for an act done or omitted under
any alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, or order, or sanction of
any foreign State, or under color thereof, the validity and effect
whereof depend upon the law of nations, or unless it is necessary
to bring the prisoner into court to testify."
And section 761 declares that when, by the writ of habeas
corpus, the petitioner is brought up for a hearing, the
"court or justice or judge shall proceed in a summary way to
determine the facts of the case, by hearing the testimony and
arguments, and thereupon to dispose of the party as law and justice
require."
This, of course, means that, if he is held in custody in
violation of the Constitution or a law of the United States, or for
an act done or omitted in pursuance of a law of the United States,
he must be discharged.
By the law as it existed at the time of the enactment of the
Revised Statutes, an appeal could be taken to the Circuit Court
from any court of justice or judge inferior to the Circuit Court in
a certain class of habeas corpus cases. But there was no appeal to
the Supreme Court in any case except where the prisoner was the
subject or citizen of a foreign State, and was committed or
confined under the authority or law of the United States or of any
State, on account of any act done or omitted to be done under the
commission or authority of a foreign State, the validity of which
depended upon the law of nations. But afterwards, by the act of
Congress of March 3, 1885, 23 Stat. 437, this was extended by
amendment as follows:
"That section seven hundred and sixty-four of the Revised
Statutes be amended so that the same shall read as follows: 'From
the final decision of such Circuit Court an appeal may be taken to
the Supreme Court in the cases described in the preceding section.'
"
Page 135 U. S. 42
The preceding section here referred to is section 763, and is
the one on which the prisoner relies for his discharge from custody
in this case.
It will be observed that, in both the provisions of the Revised
Statutes and of this latter act of Congress, the mode of review,
whether by the Circuit Court of the judgment of an inferior court
or justice or judge or by this court of the judgment of a Circuit
Court, the word " appeal," and not "writ of error," is used, and as
Congress has always used these words with a clear understanding of
what is meant by them, namely, that, by a writ of error, only
questions of law are brought up for review, as in actions at common
law, while by an appeal, except when specially provided otherwise,
the entire case on both law and facts is to be reconsidered, there
seems to be little doubt that, so far as it is essential to a
proper decision of this case, the appeal requires us to examine
into the evidence brought to sustain or defeat the right of the
petitioner to his discharge.
The history of the incidents which led to the tragic event of
the killing of Terry by the prisoner Neagle had its origin in a
suit brought by William Sharon of Nevada, in the Circuit Court of
the United States for the District of California, against Sarah
Althea Hill, alleged to be a citizen of California, for the purpose
of obtaining a decree adjudging a certain instrument in writing,
possessed and exhibited by her, purporting to be a declaration of
marriage between them, under the code of California, to be a
forgery, and to have it set aside and annulled. This suit, which
was commenced October 3, 1883, was finally heard before Judge
Sawyer, the Circuit Judge for that circuit, and Judge Deady, United
States District Judge for Oregon, who had been duly appointed to
assist in holding the Circuit Court for the District of California.
The hearing was on September 29, 1885, and on the 15th of January,
1886, a decree was rendered granting the prayer of the bill. In
that decree, it was declared that the instrument purporting to be a
declaration of marriage, set out and described in the bill of
complaint,
"was not signed or executed at any time by William Sharon, the
complainant; that it is not
Page 135 U. S. 43
genuine; that it is false, counterfeited, fabricated, forged,
and fraudulent, and, as such, is utterly null and void. And it is
further ordered and decreed that the respondent, Sarah Althea Hill,
deliver up and deposit with the clerk of the court said instrument,
to be endorsed 'cancelled,' and that the clerk write across it
'cancelled' and sign his name and affix his seal thereto."
The rendition of this decree was accompanied by two opinions,
the principal one being written by Judge Deady and a concurring one
by Judge Sawyer. They were very full in their statement of the
fraud and forgery practised by Miss Hill, and stated that it was
also accompanied by perjury. And inasmuch as Mr. Sharon had died
between the hearing of the argument of the case on the 29th of
September, 1885, and the time of rendering this decision, January
15, 1886, an order was made setting forth that fact and declaring
that the decree was entered as of the date of the hearing,
nunc
pro tunc.
Nothing was done under this decree. The defendant, Sarah Althea
Hill, did not deliver up the instrument to the clerk to be
cancelled, but she continued to insist upon its use in the state
court. Under these circumstances, Frederick W. Sharon, as the
executor of the will of his father, William Sharon, filed in the
Circuit Court for the Northern District of California, on March 12,
1888, a bill of revivor, stating the circumstances of the decree,
the death of his father, and that the decree had not been
performed; alleging also the intermarriage of Miss Hill with David
S. Terry, of the city of Stockton in California, and making the
said Terry and wife parties to this bill of revivor. The defendants
both demurred and answered, resisting the prayer of the plaintiff,
and denying that the petitioner was entitled to any relief.
This case was argued in the Circuit Court before Field, Circuit
Justice, Sawyer, Circuit Judge, and Sabin, District Judge. While
the matter was held under advisement, Judge Sawyer, on returning
from Los Angeles, in the Southern District of California, where he
had been holding court, found himself on the train as it left
Fresno, which is understood to
Page 135 U. S. 44
have been the residence of Terry and wife, in a car in which he
noticed that Mr. and Mrs. Terry were in a section behind him, on
the same side. On this trip from Fresno to San Francisco, Mrs.
Terry grossly insulted Judge Sawyer, and had her husband change
seats so as to sit directly in front of the Judge, while she passed
him with insolent remarks, and pulled his hair with a vicious jerk,
and then, in an excited manner, taking her seat by her husband's
side, said: "I will give him a taste of what he will get by and by.
Let him render this decision if he dares," -- the decision being
the one already mentioned, then under advisement. Terry then made
some remark about too many witnesses being in the car, adding that
"The best thing to do with him would be to take him out into the
bay and drown him." These incidents were witnessed by two gentlemen
who knew all the parties, and whose testimony is found in the
record before us.
This was August 14, 1888. On the 3d of September, the court
rendered its decision granting the prayer of the bill of revivor in
the name of Frederick W. Sharon and against Sarah Althea Terry and
her husband, David S. Terry. The opinion was delivered by Mr.
Justice Field, and, during its delivery, a scene of great violence
occurred in the courtroom. It appears that, shortly before the
court opened on that day, both the defendants in the case came into
the courtroom and took seats within the bar at the table next the
clerk's desk, and almost immediately in front of the judges.
Besides Mr. Justice Field, there were present on the bench Judge
Sawyer and Judge Sabin of the District Court of the United States
for the District of Nevada. The defendants had denied the
jurisdiction of the court originally to render the decree sought to
be revived, and the opinion of the court necessarily discussed this
question without reaching the merits of the controversy. When
allusion was made to this question, Mrs. Terry rose from her seat
and, addressing the justice who was delivering the opinion, asked
in an excited manner whether he was going to order her to give up
the marriage contract to be cancelled. Mr. Justice Field said: "Be
seated, madam." She repeated the question, and was again told to be
seated. She then said,
Page 135 U. S. 45
in a very excited and violent manner, that Justice Field had
been bought, and wanted to know the price he had sold himself for;
that he had got Newland's money for it, and everybody knew that he
had got it, or words to that effect. Mr. Justice Field then
directed the marshal to remove her from the courtroom. She asserted
that she would not go from the room, and that no one could take her
from it.
Marshal Franks proceeded to carry out the order of the court by
attempting to compel her to leave, when Terry, her husband, rose
from his seat under great excitement, exclaiming that no man living
should touch his wife, and struck the marshal a blow in his face so
violent as to knock out a tooth. He then unbuttoned his coat,
thrust his hand under his vest, apparently for the purpose of
drawing a bowie knife, when he was seized by persons present and
forced down on his back. In the meantime, Mrs. Terry was removed
from the courtroom by the marshal, and Terry was allowed to rise
and was accompanied by officers to the door leading to the
marshal's office. As he was about leaving the room, or immediately
after being out of it, he succeeded in drawing a bowie knife, when
his arms were seized by a deputy marshal and others present to
prevent him from using it, and they were able to wrench it from him
only after a severe struggle. The most prominent person engaged in
wresting the knife from Terry was Neagle, the prisoner now in
court.
For this conduct, both Terry and his wife were sentenced by the
court to imprisonment for contempt, Mrs. Terry for one month and
Terry for six months, and these sentences were immediately carried
into effect. Both the judgment of the court on the petition for the
revival of the decree in the case of Sharon against Hill and the
judgment of the Circuit Court imprisoning Terry and wife for
contempt have been brought to this court for review, and in both
cases the judgments have been affirmed. The report of the cases may
be found in
Ex parte Terry, 128 U.
S. 289, and
Terry v. Sharon, 131 U. S.
40.
Terry and Mrs. Terry were separately indicted by the grand jury
of the Circuit Court of the United States during the same term for
their part in these transactions, and the cases were
Page 135 U. S. 46
pending in said court at the time of Terry's death. It also
appears that Mrs. Terry, during her part of this altercation in the
courtroom, was making efforts to open a small satchel which she had
with her, but, through her excitement, she failed. This satchel,
which was taken from her, was found to have in it a revolving
pistol.
From that time until his death, the denunciations by Terry and
his wife of Mr. Justice Field were open, frequent, and of the most
vindictive and malevolent character. While being transported from
San Francisco to Alameda, where they were imprisoned, Mrs. Terry
repeated a number of times that she would kill both Judge Field and
Judge Sawyer. Terry, who was present, said nothing to restrain her,
but added that he was not through with Judge Field yet; and, while
in jail at Alameda, Terry said that, after he got out of jail, he
would horsewhip Judge Field, and that he did not believe he would
ever return to California, but this earth was not large enough to
keep him from finding Judge Field and horsewhipping him; and, in
reply to a remark that this would be a dangerous thing to do, and
that Judge Field would resent it, he said: "if Judge Field resents
it, I will kill him." And while in jail, Mrs. Terry exhibited to a
witness Terry's knife, at which he laughed, and said, "Yes, I
always carry that," and made a remark about judges and marshals,
that "they were all a lot of cowardly curs," and he would "see some
of them in their graves yet." Mrs. Terry also said that she
expected to kill Judge Field some day.
Perhaps the clearest expression of Terry's feelings and
intentions in the matter as in a conversation with Mr. Thomas T.
Williams, editor of one of the daily newspapers of California. This
interview was brought about by a message from Terry requesting
Williams to call and see him. In speaking of the occurrences in the
court, he said that Justice Field had put a lie in the record about
him, and, when he met Field, he would have to take that back, "and
if he did not take it back and apologize for having lied about him,
he would slap his face or pull his nose." "I said to him," said the
witness,
"'Judge Terry, would not that be a dangerous thing to do?
Page 135 U. S. 47
Justice Field is not a man who would permit anyone to put a
deadly insult upon him like that.' He said, 'Oh, Field won't
fight.' I said, 'Well, Judge, I have found nearly all men will
fight; nearly every man will fight when there is occasion for it,
and Judge Field has had a character in this State of having the
courage of his convictions, and being a brave man.' At the
conclusion of that branch of the conversation, I said to him,
'Well, Judge Field is not your physical equal, and if any trouble
should occur, he would be very likely to use a weapon.' He said,
'Well, that's as good a thing as I want to get.' The whole
impression conveyed to me by this conversation was that he felt he
had some cause of grievance against Judge Field; that he hoped they
might meet, that he might have an opportunity to force a quarrel
upon him, and he would get him into a fight."
Mr. Williams says that, after the return of Justice Field to
California in the spring or summer of 1889, he had other
conversations with Terry in which the same vindictive feelings of
hatred were manifested and expressed by him.
It is useless to go over the testimony on this subject more
particularly. It is sufficient to say that the evidence is abundant
that both Terry and wife contemplated some attack upon Judge Field
during his official visit to California in the summer of 1889 which
they intended should result in his death. Many of these matters
were published in the newspapers, and the press of California was
filled with the conjectures of a probable attack by Terry on
Justice Field as soon as it became known that he was going to
attend the Circuit Court in that year.
So much impressed were the friends of Judge Field, and of public
justice, both in California and in Washington, with the fear that
he would fall a sacrifice to the resentment of Terry and his wife
that application was made to the Attorney General of the United
States suggesting the propriety of his furnishing some protection
to the judge while in California. This resulted in a correspondence
between the Attorney General of the United States, the District
Attorney, and the marshal of the Northern District of California on
that subject. This correspondence is here set out:
Page 135 U. S. 48
"DEPARTMENT OF JUSTICE"
"WASHINGTON,
April 27th, 1889"
"JOHN C. FRANKS, United States Marshal, San Francisco, Cal."
"SIR: The proceedings which have heretofore been had in
connection with the case of Mr. and Mrs. Terry in your United
States Circuit Court have become matter of public notoriety, and I
deem it my duty to call your attention to the propriety of
exercising unusual caution in case further proceedings shall be had
in that case, for the protection of his Honor Justice Field or
whoever may be called upon to hear and determine the matter. Of
course, I do not know what may be the feelings or purpose of Mr.
and Mrs. Terry in the premises, but many things which have happened
indicate that violence on their part is not impossible. It is due
to the dignity and independence of the court and the character of
its judge that no effort on the part of the government shall be
spared to make them feel entirely safe and free from anxiety in the
discharge of their high duties."
"You will understand, of course, that this letter is not for the
public, but to put you upon your guard. It will be proper for you
to show it to the district attorney, if deemed best."
"Yours truly, W. H. H. MILLER."
"
Attorney General"
"UNITED STATES MARSHAL'S OFFICE"
"NORTHERN DISTRICT OF CALIFORNIA"
"SAN FRANCISCO,
May 6, 1889"
"Hon. W. H. H. MILLER, Attorney General, Washington, D.C."
"SIR: Yours of the the 27th ultimo, at hand."
"When the Hon. Judge Lorenzo Sawyer, our Circuit Judge, returned
from Los Angeles (some time before the celebrated court scene) and
informed me of the disgraceful action of Mrs. Terry towards him on
the cars, while her husband sat in front smilingly approving it, I
resolved to watch the Terrys (and so notified my deputies) whenever
they should enter the courtroom, and be ready to suppress the very
first indignity offered by either of them to the judges. After
this, at the time of their ejectment from the courtroom, when I
held Judge Terry
Page 135 U. S. 49
and his wife as prisoners in my private office and heard his
threats against Justice Field, I was more fully determined than
ever to throw round the Justice and Judge Sawyer every safeguard I
could."
"I have given the matter careful consideration, with the
determination to fully protect the federal judges at this time,
trusting that the department will reimburse me for any reasonable
expenditure."
"I have always, whenever there is any likelihood of either Judge
or Mrs. Terry appearing in court, had a force of deputies with
myself on hand to watch their every action. You can rest assured
that, when Justice Field arrives, he, as well as all the federal
judges, will be protected from insults, and where an order is made,
it will be executed without fear as to consequences. I shall follow
your instructions and act with more than usual caution. I have
already consulted with the United States attorney, J. T. Carey,
Esq., as to the advisability of making application to you, at the
time the Terrys are tried upon criminal charges, for me to select
two or more detectives to assist in the case, and also assist me in
protecting Justice Field while in my district. I wish the judges to
feel secure, and for this purpose will see to it that their every
wish is promptly obeyed. I notice your remarks in regard to the
publicity of your letter, and will obey your request. I shall only
be too happy to receive any suggestions from you at any time."
"The opinion among the better class of citizens here is very
bitter against the Terrys, though, of course, they have their
friends, and, unfortunately, among that class it is necessary to
watch."
"Your most obedient servant, J. S. FRANKS,"
"
U.S. Marshal Northern Dist. of Cal."
"SAN FRANCISCO, CAL.,
May 7, 1889"
"Hon. W. H. H. MILLER,"
"U.S. Attorney General, Washington, D.C."
"DEAR SIR: Marshal Franks exhibited to me your letter bearing
date the 27th ult., addressed to him upon the subject
Page 135 U. S. 50
of using due caution by way of protecting Justice Field and the
federal judges here in the discharge of their duties in matters in
which the Terrys are interested. I noted your suggestion with a
great degree of pleasure, not because our marshal is at all
disposed to leave anything undone within his authority or power to
do, but because it encouraged him to know and feel that the Head of
our Department was in full sympathy with the efforts being made to
protect the judges and vindicate the dignity of our courts."
"I write merely to suggest that there is just reason, in the
light of the past and the threats made by Judge and Mrs. Terry
against Justice Field and Judge Sawyer, to apprehend personal
violence at any moment and at any place, as well in court as out of
court, and that, while due caution has always been taken by the
marshal when either Judge or Mrs. Terry is about the building in
which the courts are held, he has not felt it within his authority
to guard either Judge Sawyer or Justice Field against harm when
away from the appraisers' building."
"Discretion dictates, however, that a protection should be
thrown about them at other times and places, when proceedings are
being had before them in which the Terrys are interested, and I
verily believe, in view of the direful threats made against Justice
Field, that he will be in great danger at all times while
here."
"Mr. Franks is a prudent, cool, and courageous officer who will
not abuse any authority granted him. I would therefore suggest that
he be authorized in his discretion to retain one or more deputies,
at such times as he may deem necessary, for the purposes suggested.
That publicity may not be given to the matter, it is important that
the deputies whom he may select be not known as such, and that
efficient service may be assured for the purposes indicated, it
seems to me that they should be strangers to the Terrys."
"The Terrys are unable to appreciate that an officer should
perform his official duty when that duty in any way requires his
efforts to be directed against them. The marshal, his deputies, and
myself suffer daily indignities and insults from Mrs.
Page 135 U. S. 51
Terry, in court and out of court, committed in the presence of
her husband and without interference upon his part. I do not
purpose being deterred from any duty, nor do I purpose being
intimidated in the least degree from doing my whole duty in the
premises, but I shall feel doubly assured in being able to do so
knowing that our marshal has your kind wishes and encouragement in
doing everything needed to protect the officers of the court in the
discharge of their duties."
"This, of course, is not intended for the public files of your
office, nor will it be on file in my office. Prudence dictates
great caution on the part of the officials who may be called upon
to have anything to do in the premises, and I deem it to be of the
greatest importance that the suggestions back and forth be
confidential."
"I shall write you further upon the subject of these cases in a
few days."
"I have the honor to be, your most obedient servant,"
"JOHN T. CAREY"
"
U.S. Attorney"
"DEPARTMENT OF JUSTICE"
"WASHINGTON, D.C.,
May 27, 1889"
"J. C FRANKS, Esq., United States Marshal, San Francisco,
Cal."
"SIR: Referring to former correspondence of the department
relating to a possible disorder in the session of the approaching
term of court, owing to the small number of bailiffs under your
control to preserve order, you are directed to employ certain
special deputies at a
per diem of five dollars, payable
out of the appropriation for fees and expenses of marshals, to be
submitted to the court as a separate account from your other
accounts against the government for approval, under section 846,
Revised Statutes, as an extraordinary expense, that the same may be
forwarded to this Department in order to secure executive action
and approval."
"Very respectfully, W. H. H. MILLER"
"
Attorney General"
Page 135 U. S. 52
The result of this correspondence was that Marshal Franks
appointed Mr. Neagle a deputy marshal for the Northern District of
California, and gave him special instructions to attend upon Judge
Field both in court and while going from one court to another, and
protect him from any assault that might be attempted upon him by
Terry and wife. Accordingly, when Judge Field went from San
Francisco to Los Angeles to hold the Circuit Court of the United
States at that place, Mr. Neagle accompanied him, remained with him
for the few days that he was engaged in the business of that court,
and returned with him to San Francisco.
It appears from the uncontradicted evidence in the case that,
while the sleeping car, in which were Justice Field and Mr. Neagle,
stopped a moment in the early morning at Fresno, Terry and wife got
on the train. The fact that they were on the train became known to
Neagle, and he held a conversation with the conductor as to what
peace officers could be found at Lathrop, where the train stopped
for breakfast, and the conductor was requested to telegraph to the
proper officers of that place to have a constable or some peace
officer on the ground when the train should arrive, anticipating
that there might be violence attempted by Terry upon Judge Field.
It is sufficient to say that this resulted in no available aid to
assist in keeping the peace. When the train arrived, Neagle
informed Judge Field of the presence of Terry on the train, and
advised him to remain and take his breakfast in the car. This the
Judge refused to do, and he and Neagle got out of the car and went
into the dining room, and took seats beside each other in the place
assigned them by the person in charge of the breakfast room, and
very shortly after this, Terry and wife came into the room, and
Mrs. Terry, recognizing Judge Field, turned and left in great
haste, while Terry passed beyond where Judge Field and Neagle were
and took his seat at another table. It was afterwards ascertained
that Mrs. Terry went to the car and took from it a satchel in which
was a revolver. Before she returned to the eating room, Terry arose
from his seat and, passing around the table in such a way as
brought him behind Judge Field, who did not see him or notice him,
came
Page 135 U. S. 53
up where he was sitting with his feet under the table, and
struck him a blow on the side of his face, which was repeated on
the other side. He also had his arm drawn back and his fist doubled
up, apparently to strike a third blow, when Neagle, who had been
observing him all this time, arose from his seat with his revolver
in his hand, and in a very loud voice shouted out: "Stop! stop! I
am an officer!" Upon this, Terry turned his attention to Neagle,
and, as Neagle testifies, seemed to recognize him, and immediately
turned his hand to thrust it in his bosom, as Neagle felt sure,
with the purpose of drawing a bowie knife. At this instant, Neagle
fired two shots from his revolver into the body of Terry, who
immediately sank down and died in a few minutes.
Mrs. Terry entered the room with the satchel in her hand just
after Terry sank to the floor. She rushed up to the place where he
was, threw herself upon his body, made loud exclamations and moans,
and commenced inviting the spectators to avenge her wrong upon
Field and Neagle. She appeared to be carried away by passion, and
in a very earnest manner charged that Field and Neagle had murdered
her husband intentionally, and shortly afterwards she appealed to
the persons present to examine the body of Terry to see that he had
no weapons. This she did once or twice. The satchel which she had,
being taken from her, was found to contain a revolver.
These are the material circumstances produced in evidence before
the Circuit Court on the hearing, of this habeas corpus case. It is
but a short sketch of a history which is given in over five hundred
pages in the record, but we think it is sufficient to enable us to
apply the law of the case to the question before us. Without a more
minute discussion of this testimony, it produces upon us the
conviction of a settled purpose on the part of Terry and his wife,
amounting to a conspiracy, to murder Justice Field. And we are
quite sure that, if Neagle had been merely a brother or a friend of
Judge Field, traveling with him, and aware of all the previous
relations of Terry to the Judge -- as he was -- of his bitter
animosity, his declared purpose to have revenge even to the
point
Page 135 U. S. 54
of killing him, he would have been justified in what he did in
defence of Mr. Justice Field's life, and possibly of his own.
But such a justification would be a proper subject for
consideration on a trial of the case for murder in the courts of
the State of California, and there exists no authority in the
courts of the United States to discharge the prisoner while held in
custody by the State authorities for this offence unless there be
found in aid of the defence of the prisoner some element of power
and authority asserted under the government of the United
States.
This element is said to be found in the facts that Mr. Justice
Field, when attacked, was in the immediate discharge of his duty as
judge of the Circuit Courts of the United States within California;
that the assault upon him grew out of the animosity of Terry and
wife, arising out of the previous discharge of his duty as circuit
justice in the case for which they were committed for contempt of
court, and that the deputy marshal of the United States, who killed
Terry in defence of Field's life, was charged with a duty under the
law of the United States to protect Field from the violence which
Terry was inflicting, and which was intended to lead to Field's
death.
To the inquiry whether this proposition is sustained by law and
the facts which we have recited we now address ourselves.
Mr. Justice Field was a member of the Supreme Court of the
United States, and had been a member of that court for over a
quarter of a century, during which he had become venerable for his
age and for his long and valuable service in that court. The
business of the Supreme Court has become so exacting that for many
years past, the justices of it have been compelled to remain for
the larger part of the year in Washington City, from whatever part
of the country they may have been appointed. The term for each
year, including the necessary travel and preparations to attend at
its beginning, has generally lasted from eight to nine months.
But the justices of this court have imposed upon them other
duties, the most important of which arise out of the fact that they
are also judges of the Circuit Courts of the United States.
Page 135 U. S. 55
Of these circuits there are nine, to each one of which a justice
of the Supreme Court is allotted, under section 606 of the Revised
Statutes, the provision of which is as follows:
"The chief justice and associate justices of the Supreme Court
shall be allotted among the circuits by an order of the court, and
a new allotment shall be made whenever it becomes necessary or
convenient by reason of the alteration of any circuit, or of the
new appointment of a chief justice or associate justice, or
otherwise."
Section 610 declares that it
"shall be the duty of the chief justice, and of each justice of
the Supreme Court, to attend at least one term of the Circuit
Court, in each district of the circuit to which he is allotted
during every period of two years."
Although this enactment does not require in terms that the
justices shall go to their circuits more than once in two years,
the effect of it is to compel most of them to do this, because
there are so many districts in many of the circuits that it is
impossible for the circuit justice to reach them all in one year,
and the result of this is that he goes to some of them in one year,
and to others in the next year, thus requiring an attendance in the
circuit every year.
The justices of the Supreme Court have been members of the
Circuit Courts of the United States ever since the organization of
the government, and their attendance on the circuit and appearance
at the places where the courts are held has always been thought to
be a matter of importance. In order to enable him to perform this
duty, Mr. Justice Field had to travel each year from Washington
City, near the Atlantic coast, to San Francisco, on the Pacific
coast. In doing this, he was as much in the discharge of a duty
imposed upon him by law as he was while sitting in court and trying
causes. There are many duties which the judge performs outside of
the courtroom where he sits to pronounce judgment or to preside
over a trial. The statutes of the United States, and the
established practice of the courts, require that the judge perform
a very large share of his judicial labors at what is called
"chambers." This chamber work is as important as necessary, as much
a discharge of his official duty as that performed
Page 135 U. S. 56
in the courthouse. Important cases are often argued before the
judge at any place convenient to the parties concerned, and a
decision of the judge is arrived at by investigations made in his
own room, wherever he may be, and it is idle to say that this is
not as much the performance of judicial duty as the filing of the
judgment with the clerk and the announcement of the result in open
court.
So it is impossible for a justice of the Supreme Court of the
United States, who is compelled by the obligations of duty to be so
much in Washington City, to discharge his duties of attendance on
the Circuit Courts as prescribed by section 610 without traveling
in the usual and most convenient modes of doing it to the place
where the court is to be held. This duty is as much an obligation
imposed by the law as if it had said in words "the Justices of the
Supreme Court shall go from Washington City to the place where
their terms are held every year."
Justice Field had not only left Washington and traveled the
three thousand miles or more which were necessary to reach his
circuit, but he had entered upon the duties of that circuit, had
held the court at San Francisco for some time; and, taking a short
leave of that court, had gone down to Los Angeles, another place
where a court was to be held, and sat as a judge there for several
days, hearing cases and rendering decisions. It was in the
necessary act of returning from Los Angeles to San Francisco, by
the usual mode of travel between the two places, where his court
was still in session, and where he was required to be, that he was
assaulted by Terry in the manner which we have already
described.
The occurrence which we are called upon to consider was of so
extraordinary a character that it is not to be expected that many
cases can be found to cite as authority upon the subject.
In the case of
United States v. The Schooner Little
Charles, 1 Brock. 380, 382, a question arose before Chief
Justice Marshall, holding the Circuit Court of the United States
for Virginia, as to the validity of an order made by the District
Judge at his chambers, and not in court. The act of Congress
authorized stated terms of the District Court, and gave the
judge
Page 135 U. S. 57
power to hold special courts at his discretion, either at the
place appointed by the law or such other place in the district as
the nature of the business and his discretion should direct. He
says:
"It does not seem to be a violent construction of such an act to
consider the judge as constituting a court whenever he proceeds on
judicial business;"
and cites the practice of the courts in support of that view of
the subject.
In the case of
United States v. Gleason, 1 Wool.C.C.
128, 132, the prisoner was indicted for the murder of two enrolling
officers who were charged with the duty of arresting deserters, or
those who had been drafted into the service and had failed to
attend. These men, it was said, had visited the region of country
where they were murdered, and, having failed of accomplishing their
purpose of arresting the deserters, were on their return to their
home when they were killed, and the court was asked to instruct the
jury that, under these circumstances, they were not engaged in the
duty of arresting the deserters named. "It is claimed by the
counsel for the defendant," says the report,
"that, if the parties killed had been so engaged, and had come
to that neighborhood with the purpose of arresting the supposed
deserters, but at the moment of the assault had abandoned the
purpose of making the arrests at that time, and were returning to
headquarters at Grinnell with a view to making other arrangements
for arrest at another time, they were not so engaged as to bring
the case within the law."
But the court held that this was not a sound construction of the
statute, and
"that, if the parties killed had come into that neighborhood
with intent to arrest the deserters named, and had been employed by
the proper officer for that service, and were in the proper
prosecution of that purpose, returning to Grinnell with a view to
making other arrangements to discharge this duty, they were still
engaged in arresting the deserters within the meaning of the
statute. It is not necessary,"
said the court,
"that the party killed should be engaged in the immediate act of
arrest, but it is sufficient if he be employed in and about that
business when assaulted. The purpose of the law is to protect the
life of the person so employed, and this protection continues
so
Page 135 U. S. 58
long as he is engaged in a service necessary and proper to that
employment."
We have no doubt that Mr. Justice Field, when attacked by Terry,
was engaged in the discharge of his duties as Circuit Justice of
the Ninth Circuit, and was entitled to all the protection under
those circumstances which the law could give him.
It is urged, however, that there exists no statute authorizing
any such protection as that which Neagle was instructed to give
Judge Field in the present case, and indeed no protection whatever
against a vindictive or malicious assault growing out of the
faithful discharge of his official duties, and that the language of
section 753 of the Revised Statutes, that the party seeking the
benefit of the writ of habeas corpus must in this connection show
that he is "in custody for an act done or omitted in pursuance of a
law of the United States," makes it necessary that, upon this
occasion, it should be shown that the act for which Neagle is
imprisoned as done by virtue of an act of Congress. It is not
supposed that any special act of Congress exists which authorizes
the marshals or deputy marshals of the United States in express
terms to accompany the judges of the Supreme Court through their
circuits, and act as a bodyguard to them, to defend them against
malicious assaults against their persons. But we are of opinion
that this view of the statute is an unwarranted restriction of the
meaning of a law designed to extend in a liberal manner the benefit
of the writ of habeas corpus to persons imprisoned for the
performance of their duty. And we are satisfied that, if it was the
duty of Neagle, under the circumstances, a duty which could only
arise under the laws of the United States, to defend Mr. Justice
Field from a murderous attack upon him, he brings himself within
the meaning of the section we have recited. This view of the
subject is confirmed by the alternative provision, that he must be
in custody
"for an act done or omitted in pursuance of a law of the United
States or of an order, process, or decree of a court or judge
thereof, or is in custody in violation of the Constitution or of a
law or treaty of the United States. "
Page 135 U. S. 59
In the view we take of the Constitution of the United States,
any obligation fairly and properly inferrible from that instrument,
or any duty of the marshal to be derived from the general scope of
his duties under the laws of the United States, is "a law" within
the meaning of this phrase. It would be a great reproach to the
system of government of the United States, declared to be within
its sphere sovereign and supreme, if there is to be found within
the domain of its powers no means of protecting the judges, in the
conscientious and faithful discharge of their duties, from the
malice and hatred of those upon whom their judgments may operate
unfavorably.
It has in modern times become apparent that the physical health
of the community is more efficiently promoted by hygienic and
preventive means than by the skill which is applied to the cure of
disease after it has become fully developed. So also the law, which
is intended to prevent crime, in its general spread among the
community, by regulations, police organization, and otherwise,
which are adapted for the protection of the lives and property of
citizens, for the dispersion of mobs, for the arrest of thieves and
assassins, for the watch which is kept over the community, as well
as over this class of people, is more efficient than punishment of
crimes after they have been committed.
If a person in the situation of Judge Field could have no other
guarantee of his personal safety, while engaged in the
conscientious discharge of a disagreeable duty, than the fact that,
if he was murdered, his murderer would be subject to the laws of a
State, and by those laws could be punished, the security would be
very insufficient. The plan which Terry and wife had in mind of
insulting him and assaulting him and drawing him into a defensive
physical contest, in the course of which they would slay him, shows
the little value of such remedies. We do not believe that the
government of the United States is thus inefficient, or that its
Constitution and laws have left the high officers of the government
so defenceless and unprotected.
The views expressed by this court through Mr. Justice
Page 135 U. S. 60
Bradley, in
Ex parte Siebold, 100 U.
S. 371,
100 U. S. 394,
are very pertinent to this subject, and express our views with
great force. That was a case of a writ of habeas corpus, where
Siebold had been indicted in the Circuit Court of the United States
for the District of Maryland for an offence committed against the
election laws during an election at which members of Congress and
officers of the State of Maryland were elected. He was convicted,
and sentenced to fine and imprisonment, and filed his petition in
this court for a writ of habeas corpus to be relieved on the ground
that the court which had convicted him was without jurisdiction.
The foundation of this allegation was that the Congress of the
United States had no right to prescribe laws for the conduct of the
election in question, or for enforcing the laws of the State of
Maryland by the courts of the United States. In the course of the
discussion of the relative powers of the federal and state courts
on this subject, it is said:
"Somewhat akin to the argument which has been considered is the
objection that the deputy marshals authorized by the act of
Congress to be created and to attend the elections are authorized
to keep the peace, and that this is a duty which belongs to the
state authorities alone. 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
territory of the country. We think that this theory is founded on
an entire misconception of the nature and powers of that
government. We hold it to be an incontrovertible principle that the
government of the United States may, by means of physical force,
exercised through its official agents, execute on every foot of
American soil the powers and functions that belong to it. This
necessarily involves the power to command obedience to its laws,
and hence the power to keep the peace to that extent. This power to
enforce its laws and to execute its functions in all places does
not derogate from the power of the State to execute its laws at the
same time and in the same
Page 135 U. S. 61
places. The one does not exclude the other, except where both
cannot be executed at the same time. In that case, the words of the
Constitution itself show which is to yield. 'This Constitution, and
all laws which shall be made in pursuance thereof, . . . shall be
the supreme law of the land.' . . . Without the concurrent
sovereignty referred to, the national government would be nothing
but an advisory government. Its executive power would be absolutely
nullified. Why do we have marshals at all if they cannot physically
lay their hands on persons and things in the performance of their
proper duties? What functions can they perform if they cannot use
force? In executing the processes of the courts, must they call on
the nearest constable for protection? must they rely on him to use
the requisite compulsion, and to keep the peace, whilst they are
soliciting and entreating the parties and bystanders to allow the
law to take its course? This is the necessary consequence of the
positions that are assumed. If we indulge in such impracticable
views as these, and keep on refining and re-refining, we shall
drive the national government out of the United States, and
relegate it to the District of Columbia, or perhaps to some foreign
soil. We shall bring it back to a condition of greater helplessness
than that of the old confederation. . . . It must execute its
powers, or it is no government. It must execute them on the land as
well as on the sea, on things as well as on persons. And, to do
this, it must necessarily have power to command obedience, preserve
order, and keep the peace, and no person or power in this land has
the right to resist or question its authority so long as it keeps
within the bounds of its jurisdiction."
At the same term of the court, in the case of
Tennessee v.
Davis, 100 U. S. 257,
100 U. S. 262,
where the same questions in regard to the relative powers of the
federal and state courts were concerned, in regard to criminal
offences, the court expressed its views through Mr. Justice Strong,
quoting from the case of
Martin v.
Hunter, 1 Wheat. 363, the following language: "The
general government must cease to exist whenever it loses the power
of protecting itself in the exercise of its Constitutional
Page 135 U. S. 62
powers," and then proceeding:
"It can act only through its officers and agents, and they must
act within the States. If, when thus acting, and within the scope
of their authority, those officers can be arrested and brought to
trial in a state court, for an alleged offence against the law of
the State, yet warranted by the federal authority they possess, and
if the general government is powerless to interfere at once for
their protection -- if their protection must be left to the action
of the state court -- the operations of the general government may
at any time be arrested at the will of one of its members. The
legislation of a State may be unfriendly. It may affix penalties to
acts done under the immediate direction of the national government,
and in obedience to its laws. It may deny the authority conferred
by those laws. The state court may administer not only the laws of
the State, but equally federal law, in such a manner as to paralyze
the operations of the government. And even if, after trial and
final judgment in the state court, the case can be brought into the
United States court for review, the officer is withdrawn from the
discharge of his duty during the pendency of the prosecution, and
the exercise of acknowledged federal power arrested. We do not
think such an element of weakness is to be found in the
Constitution. The United States is a government with authority
extending over the whole territory of the Union, acting upon the
States and the people of the States. While it is limited in the
number of its powers, so far as its sovereignty extends, it is
supreme. No state government can exclude it from the exercise of
any authority conferred upon it by the Constitution, obstruct its
authorized officers against its will, or withhold from it for a
moment the cognizance of any subject which that instrument has
committed to it."
To cite all the cases in which this principle of the supremacy
of the government of the United States, in the exercise of all the
powers conferred upon it by the Constitution, is maintained would
be an endless task. We have selected these as being the most
forcible expressions of the views of the court having a direct
reference to the nature of the case before us.
Where, then, are we to look for the protection which we
Page 135 U. S. 63
have shown Judge Field was entitled to when engaged in the
discharge of his official duties? Not to the courts of the United
States, because, as has been more than once said in this court, in
the division of the powers of government between the three great
departments, executive, legislative and judicial, the judicial is
the weakest for the purposes of self-protection and for the
enforcement of the powers which it exercises. The ministerial
officers through whom its commands must be executed are marshals of
the United States, and belong emphatically to the executive
department of the government. They are appointed by the President,
with the advice and consent of the Senate. They are removable from
office at his pleasure. They are subjected by act of Congress to
the supervision and control of the Department of Justice, in the
hands of one of the cabinet officers of the President, and their
compensation is provided by acts of Congress. The same may be said
of the district attorneys of the United States, who prosecute and
defend the claims of the government in the courts.
The legislative branch of the government can only protect the
judicial officers by the enactment of laws for that purpose, and
the argument we are now combating assumes that no such law has been
passed by Congress.
If we turn to the executive department of the government, we
find a very different condition of affairs. The Constitution,
section 3, Article 2, declares that the President "shall take care
that the laws be faithfully executed," and he is provided with the
means of fulfilling this obligation by his authority to commission
all the officers of the United States, and, by and with the advice
and consent of the Senate, to appoint the most important of them
and to fill vacancies. He is declared to be commander-in-chief of
the army and navy of the United States. The duties which are thus
imposed upon him he is further enabled to perform by the
recognition in the Constitution, and the creation by acts of
Congress, of executive departments, which have varied in number
from four or five to seven or eight, the heads of which are
familiarly called cabinet ministers. These aid him in the
performance of the
Page 135 U. S. 64
great duties of his office, and represent him in a thousand acts
to which it can hardly be supposed his personal attention is
called, and thus he is enabled to fulfill the duty of his great
department, expressed in the phrase that "he shall take care that
the laws be faithfully executed."
Is this duty limited to the enforcement of acts of Congress or
of treaties of the United States according to their
express
terms, or does it include the rights, duties and obligations
growing out of the Constitution itself, our international
relations, and all the protection implied by the nature of the
government under the Constitution?
One of the most remarkable episodes in the history of our
foreign relations, and which has become an attractive historical
incident, is the case of Martin Koszta, a native of Hungary, who,
though not fully a naturalized citizen of the United States, had in
due form of law made his declaration of intention to become a
citizen. While in Smyrna, he was seized by command of the Austrian
consul general at that place, and carried on board the Hussar, an
Austrian vessel, where he was held in close confinement. Captain
Ingraham, in command of the American sloop of war St. Louis,
arriving in port at that critical period, and ascertaining that
Koszta had with him his naturalization papers, demanded his
surrender to him, and was compelled to train his guns upon the
Austrian vessel before his demands were complied with. It was,
however, to prevent bloodshed, agreed that Koszta should be placed
in the hands of the French consul subject to the result of
diplomatic negotiations between Austria and the United States. The
celebrated correspondence between Mr. Marcy, Secretary of State,
and Chevalier Hulsemann, the Austrian minister at Washington, which
arose out of this affair and resulted in the release and
restoration to liberty of Koszta, attracted a great deal of public
attention, and the position assumed by Mr. Marcy met the approval
of the country and of Congress, who voted a gold medal to Captain
Ingraham for his conduct in the affair. Upon what act of Congress
then existing can anyone lay his finger in support of the action of
our government in this matter?
Page 135 U. S. 65
So, if the President or the Postmaster General is advised that
the mails of the United States, possibly carrying treasure, are
liable to be robbed and the mail carriers assaulted and murdered in
any particular region of country, who can doubt the authority of
the President or of one of the executive departments under him to
make an order for the protection of the mail and of the persons and
lives of its carriers, by doing exactly what was done in the case
of Mr. Justice Field, namely, providing a sufficient guard, whether
it be by soldiers of the army or by marshals of the United States,
with a
posse comitatus properly armed and equipped, to
secure the safe performance of the duty of carrying the mail
wherever it may be intended to go?
The United States is the owner of millions of acres of valuable
public land, and has been the owner of much more which it has sold.
Some of these lands owe a large part of their value to the forests
which grow upon them. These forests are liable to depredations by
people living in the neighborhood, known as timber thieves, who
make a living by cutting and selling such timber, and who are
trespassers. But until quite recently, even if there be one now,
there was no statute authorizing any preventive measures for the
protection of this valuable public property. Has the President no
authority to place guards upon the public territory to protect its
timber? No authority to seize the timber when cut and found upon
the ground? Has he no power to take any measures to protect this
vast domain? Fortunately we find this question answered by this
court in the case of
Wells v. Nickles, 104 U.
S. 444. That was a case in which a class of men
appointed by local land officers, under instructions from the
Secretary of the Interior, having found a large quantity of this
timber cut down from the forests of the United States and lying
where it was cut, seized it. The question of the title to this
property coming in controversy between Wells and Nickles, it became
essential to inquire into the authority of these timber agents of
the government thus to seize the timber cut by trespassers on its
lands. The court said:
"The effort we have made to ascertain and fix the authority of
these timber agents by any
Page 135 U. S. 66
positive provision of law has been unsuccessful."
But the court, notwithstanding there was no special statute for
it, held that the Department of the Interior, acting under the idea
of protecting from depredation timber on the lands of the
government, had gradually come to assert the right to seize what is
cut and taken away from them wherever it can be traced, and in aid
of this, the registers and receivers of the Land Office had, by
instructions from the Secretary of the Interior, been constituted
agents of the United States for these purposes, with power to
appoint special agents under themselves. And the court upheld the
authority of the Secretary of the Interior to make these rules and
regulations for the protection of the public lands.
One of the cases in this court in which this question was
presented in the most imposing form is that of
United States v.
San Jacinto Tin Company, 125 U. S. 273,
125 U. S. 279,
125 U. S. 280.
In that case, a suit was brought in the name of the United States,
by order of the Attorney General, to set aside a patent which had
been issued for a large body of valuable land on the ground that it
was obtained from the government by fraud and deceit practised upon
its officers. A preliminary question was raised by counsel for
defendant, which was earnestly insisted upon, as to the right of
the Attorney General or any other officer of the government to
institute such a suit in the absence of any act of Congress
authorizing it. It was conceded that there was no express authority
given to the Attorney General to institute that particular suit or
any suit of that class. The question was one of very great
interest, and was very ably argued both in the court below and in
this court. The response of this Court to that suggestion conceded
that, in the acts of Congress establishing the Department of
Justice and defining the duties of the Attorney General, there was
no such express authority, and it was said that there was also no
express authority to him to bring suits against debtors of the
government upon bonds, or to begin criminal prosecutions, or to
institute criminal proceedings in any of the cases in which the
United States was plaintiff, yet he was invested with the general
superintendence of all such suits. It was further said:
Page 135 U. S. 67
"If the United States, in any particular case, has a just cause
for calling upon the judiciary of the country, in any of its
Courts, for relief by setting aside or annulling any of its
contracts, its obligations, or its most solemn instruments, the
question of the appeal to the judicial tribunals of the country
must primarily be decided by the Attorney General of the United
States. That such a power should exist somewhere, and that the
United States should not be more helpless in relieving itself of
frauds, impostures, and deceptions than the private individual is
hardly open to argument. . . . There must, then, be an officer or
officers of the government to determine when the United States
shall sue, to decide for what it shall sue, and to be responsible
that such suits shall be brought in appropriate cases. The
attorneys of the United States in every judicial district are
officers of this character, and they are by statute under the
immediate supervision and control of the Attorney General. How,
then, can it be argued that, if the United States has been
deceived, entrapped, or defrauded into the making, under the forms
of law, of an instrument which injuriously affects its rights of
property, or other rights, it cannot bring a suit to avoid the
effect of such instrument, thus fraudulently obtained, without a
special act of Congress in each case, or without some special
authority applicable to this class of cases?"
The same question was raised in the earlier case of
United States v.
Hughes, 11 How. 552, and decided the same way.
We cannot doubt the power of the President to take measures for
the protection of a judge of one of the courts of the United States
who, while in the discharge of the duties of his office, is
threatened with a personal attack which may probably result in his
death, and we think it clear that, where this protection is to be
afforded through the civil power, the Department of Justice is the
proper one to set in motion the necessary means of protection. The
correspondence already recited in this opinion between the marshal
of the Northern District of California and the Attorney General,
and the district attorney of the United States for that district,
although prescribing no very specific mode of affording this
Page 135 U. S. 68
protection by the Attorney General, is sufficient, we think, to
warrant the marshal in taking the steps which he did take, in
making the provisions which he did make, for the protection and
defence of Mr. Justice Field.
But there is positive law investing the marshals and their
deputies with powers which not only justify what Marshal Neagle did
in this matter, but which imposed it upon him as a duty. In chapter
fourteen of the Revised Statutes of the United States, which is
devoted to the appointment and duties of the district attorneys,
marshals, and clerks of the courts of the United States, section 78
declares:
"The marshals and their deputies shall have, in each State, the
same powers, in executing the laws of the United States, as the
sheriffs and their deputies in such State may have, by law, in
executing the laws thereof."
If, therefore, a sheriff of the State of California was
authorized to do in regard to the laws of California what Neagle
did, that is, if he was authorized to keep the peace, to protect a
judge from assault and murder, then Neagle was authorized to do the
same thing in reference to the laws of the United States.
Section 4176 of the Political Code of California reads as
follows:
"The sheriff must:"
"First. Preserve the peace."
"Second. Arrest and take before the nearest magistrate for
examination all persons who attempt to commit or have committed a
public offence."
"Third. Prevent and suppress all affrays, breaches of the peace,
riots and insurrections, which may come to his knowledge. . .
."
And the Penal Code of California declares (section 19) that
homicide is justifiable when committed by any person "when
resisting any attempt to murder any person or to commit a felony or
to do some great bodily injury upon any person;" or
"when committed in defence of habitation, property or person
against one who manifestly intends or endeavors by violence or
surprise to commit a felony. "
Page 135 U. S. 69
That there is a peace of the United States, that a man
assaulting a judge of the United States while in the discharge of
his duties violates that peace, that, in such case, the marshal of
the United States stands in the same relation to the peace of the
United States which the sheriff of the county does to the peace of
the State of California, are questions too clear to need argument
to prove them. That it would be the duty of a sheriff, if one had
been present at this assault by Terry upon Judge Field, to prevent
this breach of the peace, to prevent this assault, to prevent the
murder which was contemplated by it, cannot be doubted. And if, in
performing this duty, it became necessary for the protection of
Judge Field, or of himself, to kill Terry, in a case where, like
this, it was evidently a question of the choice of who should be
killed, the assailant and violator of the law and disturber of the
peace or the unoffending man who was in his power, there can be no
question of the authority of the sheriff to have killed Terry. So
the marshal of the United States, charged with the duty of
protecting and guarding the judge of the United States court
against this special assault upon his person and his life, being
present at the critical moment, when prompt action was necessary,
found it to be his duty, a duty which he had no liberty to refuse
to perform, to take the steps which resulted in Terry's death. This
duty was imposed on him by the section of the Revised Statutes
which we have recited, in connection with the powers conferred by
the State of California upon its peace officers, which become, by
this statute, in proper cases, transferred as duties to the
marshals of the United States.
But all these questions being conceded, it is urged against the
relief sought by this writ of habeas corpus that the question of
the guilt of the prisoner of the crime of murder is a question to
be determined by the laws of California and to be decided by its
courts, and that there exists no power in the government of the
United States to take away the prisoner from the custody of the
proper authorities of the State of California and carry him before
a judge of the court of the United States, and release him without
a trial by jury according
Page 135 U. S. 70
to the laws of the State of California. That the statute of the
United States authorizes and directs such a proceeding and such a
judgment in a case where the offence charged against the prisoner
consists in an act done in pursuance of a law of the United States
and by virtue of its authority, and where the imprisonment of the
party is in violation of the Constitution and laws of the United
States, is clear by its express language.
The enactments now found in the Revised Statutes of the United
States on the subject of the writ of habeas corpus are the result
of a long course of legislation forced upon Congress by the attempt
of the States of the Union to exercise the power of imprisonment
over officers and other persons asserting rights under the federal
government or foreign governments, which the States denied. The
original act of Congress on the subject of the writ of habeas
corpus, by its 14th section, authorized the judges and the courts
of the United States, in the case of prisoners in jail or in
custody under or by color of the authority of the United States, or
committed for trial before some court of the same, or when
necessary to be brought into court to testify, to issue the writ,
and the judge or court before whom they were brought was directed
to make inquiry into the cause of commitment. 1 Stat. 81, c. 20, §
14. This did not present the question, or, at least, it gave rise
to no question which came before the courts, as to releasing by
this writ parties held in custody under the laws of the States. But
when, during the controversy growing out of the nullification laws
of South Carolina, officers of the United States were arrested and
imprisoned for the performance of their duties in collecting the
revenue of the United States in that State, and held by the state
authorities, it became necessary for the Congress of the United
States to take some action for their relief. Accordingly, the act
of Congress of March 2, 1833, 4 Stat. 634, c. 7, § , among other
remedies for such condition of affairs, provided, by its the
section, that the federal judges should grant writs of habeas
corpus in all cases of a prisoner in jail or confinement, where he
should be committed or confined on or by any authority or law, for
any act
Page 135 U. S. 71
done, or omitted to be done, in pursuance of a law of the United
States, or any order, process or decree of any judge or court
thereof.
The next extension of the circumstances on which a writ of
habeas corpus might issue by the federal judges arose out of the
celebrated
McLeod Case, Case, in which McLeod, charged
with murder in a state court of New York, had pleaded that he was a
British subject, and that what he had done was under and by the
authority of his government, and should be a matter of
international adjustment, and that he was not subject to be tried
by a court of New York under the laws of that State. The federal
government acknowledged the force of this reasoning, and undertook
to obtain from the government of the State of New York the release
of the prisoner, but failed. He was, however, tried and acquitted,
and afterwards released by the State of New York. This led to an
extension of the powers of the federal judges under the writ of
habeas corpus by the act of August 29, 1842, Stat. 39, c. 27,
entitled "In act to provide further remedial justice in the courts
of the United States." It conferred upon them the power to issue a
writ of habeas corpus in all cases where the prisoner claimed that
the act for which he was held in custody was done under the
sanction of any foreign power, and where the validity and effect of
this plea depended upon the law of nations. In advocating the bill,
which afterwards became a law, on this subject, Senator Berrien,
who introduced it into the Senate, observed:
"The object was to allow a foreigner, prosecuted in one of the
States of the Union for an offence committed in that State, but
which he pleads has been committed under authority of his own
sovereign or the authority of the law of nations, to be brought up
on that issue before the only competent judicial power to decide
upon matters invoked in foreign relations or the law of nations.
The plea must show that it has reference to the laws or treaties of
the United States or the law of nations, and, showing this, the
writ of habeas corpus is awarded to try that issue. If it shall
appear that the accused has a bar on the plea alleged, it is right
and proper that he should not be delayed in prison awaiting the
Page 135 U. S. 72
proceedings of the state jurisdiction on the preliminary issue
of his plea at bar. If satisfied of the existence in fact and
validity in law of the bar, the federal jurisdiction will have the
power of administering prompt relief."
No more forcible statement of the principle on which the law of
the case now before us stands can be made.
The next extension of the powers of the court under the writ of
habeas corpus was the act of February 5, 1867, 14 Stat. 38, c. 28,
and this contains the broad ground of the present Revised Statutes,
under which the relief is sought in the case before us, and
includes all cases of restraint of liberty in violation of the
Constitution or a law or treaty of the United States, and declares
that
"the said court or judge shall proceed in a summary way to
determine the facts of the case by hearing testimony and the
arguments of the parties interested, and if it shall appear that
the petitioner is deprived of his or her liberty in contravention
of the Constitution or laws of the United States, he or she shall
forthwith be discharged and set at liberty."
It would seem as if the argument might close here. If the duty
of the United States to protect its officers from violence, even to
death, in discharge of the duties which its laws impose upon them,
be established, and Congress has made the writ of habeas corpus one
of the means by which this protection is made efficient, and if the
facts of this case show that the prisoner was acting both under the
authority of law and the directions of his superior officers of the
Department of Justice, we can see no reason why this writ should
not be made to serve its purpose in the present case.
We have already cited such decisions of this court as are most
important and directly in point, and there is a series of cases
decided by the Circuit and District Courts to the same purport.
Several of these arose out of proceedings under the fugitive slave
law, in which the marshal of the United States, while engaged in
apprehending the fugitive slave with a view to returning him to his
master in another State, was arrested by the authorities of the
State. In many of these cases, they made application to the judges
of the United States for relief
Page 135 U. S. 73
by the writ of habeas corpus which give rise to several very
interesting decisions on this subject.
In
Ex parte
Jenkins, 2 Wall. 521,
69 U. S. 529,
the marshal, who had been engaged, while executing a warrant, in
arresting a fugitive, in a bloody encounter, was himself arrested
under a warrant of a justice of the peace for assault with intent
to kill, which makes the case very analogous to the one now under
consideration. He presented to the Circuit Court of the United
States for the Eastern District of Pennsylvania a petition for a
writ of habeas corpus, which was heard before Mr. Justice Grier,
who held that, under the act of 1833, already referred to, the
marshal was entitled to his discharge, because what he had done was
in pursuance of and by the authority conferred upon him by the act
of Congress concerning the rendition of fugitive slaves. He
said:
"The authority conferred on the judges of the United States by
this act of Congress gives them all the power that any other court
could exercise under the writ of habeas corpus or gives them none
at all. If under such a writ they may not discharge their officer
when imprisoned 'by any authority' for an act done in pursuance of
a law of the United States, it would be impossible to discover for
what useful purpose the act was passed."
It
"was passed when a certain state of this Union had threatened
to"
nullify acts of Congress, and to treat those as criminals
who
should attempt to execute them; and it was intended as a
remedy
against such state legislation.
This same matter was up again when the fugitive slave, Thomas,
had the marshal arrested in a civil suit for an alleged assault and
battery. He was carried before Judge Kane on another writ of habeas
corpus, and again released. 2 Wall. 531 [argument of counsel --
omitted]. A third time the marshal, being indicted, was arrested on
a bench warrant issued by the state court, and again brought before
the circuit court of the United States by a writ of habeas corpus,
and discharged. Some remarks of Judge Kane on this occasion are
very pertinent to the objections raised in the present case. He
said (2 Wall.
69 U. S.
543:)
"It has been urged that my order, if it shall withdraw the
relators from the prosecution pending against them, [in the
Page 135 U. S. 74
state court,] will, in effect, prevent their trial by jury at
all, since there is no act of Congress under which they can be
indicted for an abuse of process. It will not be an anomaly,
however, if the action of this court shall interfere with the trial
of these prisoners by a jury. Our Constitutions secure that mode of
trial as a right to the accused; but they nowhere recognize it as a
right of the government, either state or federal, still less of an
individual prosecutor. The action of a jury is overruled constantly
by the granting of new trials after conviction. It is arrested by
the entering of
nolle prosequis while the case is at bar.
It is made ineffectual at any time by the discharge on habeas
corpus. . . . And there is no harm in this. No one imagines that,
because a man is accused, he must therefore, of course, be tried.
Public prosecutions are not devised for the purpose of indemnifying
the wrongs of individuals, still less of retaliating them."
Many other decisions by the Circuit and District Courts to the
same purport are to be found, among them the following:
Ex
parte Robinson, 6 McLean 355, 4 Amer.Law Register 617;
Roberts v. Jailor of Fayette Co., 2 U. S.
265;
In re Ramsey, 2 Flippin 451;
In re
Neill, 8 Blatchford 156;
Ex parte Bridges, 2 Woods
428;
Ex parte Royall, 117 U. S. 241.
Similar language was used by Mr. Choate in the Senate of the
United States upon the passage of the act of 1842. He said:
"If you have the power to interpose after judgment, you have the
power to do so before. If you can reverse a judgment, you can
anticipate its rendition. If, within the Constitution, your
judicial power extends to these cases or these controversies,
whether you take hold of the case or controversy at one stage or
another is totally immaterial. The single question submitted to the
national tribunal, the question whether, under the statute adopting
the law of nations, the prisoner is entitled to the exemption or
immunity he claims, may as well be extracted from the entire case,
and presented and decided in those tribunals before any judgment in
the state court, as for it to be revised afterwards on a writ of
error. Either way, they pass on no other question. Either
Page 135 U. S. 75
way, they do not administer the criminal law of a state. In the
one case as much as in the other, and no more, do they interfere
with state judicial power."
The same answer is given in the present case. To the objection,
made in argument, that the prisoner is discharged by this writ from
the power of the state court to try him for the whole offense, the
reply is that if the prisoner is held in the state court to answer
for an act which he was authorized to do by the law of the United
States, which it was his duty to do as marshal of the United
States, and if, in doing that act, he did no more than what was
necessary and proper for him to do, he
cannot be guilty of
a crime under the law of the state of California. When these things
are shown, it is established that he is innocent of any crime
against the laws of the state, or of any other authority whatever.
There is no occasion for any further trial in the state court, or
in any court. The Circuit court of the United States was as
competent to ascertain these facts as any other tribunal, and it
was not at all necessary that a jury should be impaneled to render
a verdict on them. It is the exercise of a power common under all
systems of criminal jurisprudence. There must always be a
preliminary examination by a committing magistrate, or some similar
authority, as to whether there is an offense to be submitted to a
jury, and, if this is submitted in the first instance to a grand
jury, that is still not the right of trial by jury which is
insisted on in the present argument.
We have thus given, in this case, a most attentive consideration
to all the questions of law and fact which we have thought to be
properly involved in it. We have felt it to be our duty to examine
into the facts with a completeness justified by the importance of
the case, as well as from the duty imposed upon us by the statute,
which we think requires of us to place ourselves, as far as
possible, in the place of the circuit court, and to examine the
testimony and the arguments in it, and to dispose of the party as
law and justice require. The result at which we have arrived upon
this examination is that, in the protection of the person and the
life of Mr. Justice Field while in the discharge of his official
duties,
Page 135 U. S. 76
Neagle was authorized to resist the attack of Terry upon him;
that Neagle was correct in the belief that, without prompt action
on his part, the assault of Terry upon the judge would have ended
in the death of the latter; that, such being his well founded
belief, he was justified in taking the life of Terry as the only
means of preventing the death of the man who was intended to be his
victim; that, in taking the life of Terry, under the circumstances,
he was acting under the authority of the law of the United States,
and was justified in so doing; and that he is not liable to answer
in the courts of California on account of his part in that
transaction.
We therefore affirm the judgment of the circuit court
authorizing his discharge from the custody of the sheriff of San
Joaquin county.
FIELD, J., did not sit at the hearing of this case, and took no
part in its decision.
The docket title of this case is "
Thomas Cunningham, Sheriff
of the County of San Joaquin, California, Appellant v. David
Neagle."
** The Governor of California, on learning that a warrant had
been issued for the arrest of Mr. Justice Field, promptly wrote to
the Attorney General of the State, urging "the propriety of at once
instructing the District Attorney of San Joaquin County to dismiss
the unwarranted proceeding against him," as his arrest would be a
burning disgrace to the State unless disavowed." The Attorney
General as promptly responded by advising the District Attorney
that there was "no evidence to implicate Justice Field in said
shooting," and that public justice demands that the charge against
him be dismissed," which was accordingly done.
MR. JUSTICE LAMAR (with whom concurred MR. CHIEF JUSTICE FULLER)
dissenting.
The chief justice and myself are unable to assent to the
conclusion reached by the majority of the court.
Our dissent is not based on any conviction as to the guilt or
innocence of the appellee. The view which we take renders that
question immaterial to the inquiry presented by this appeal. That
inquiry is whether the appellee, Neagle, shall in this
ex
parte proceeding be discharged and delivered from any trial or
further inquiry in any court, state or federal, for what he has
been accused of in the forms prescribed by the Constitution and
laws of the state in which the act in question was committed. Upon
that issue, we hold to the principle announced by this court in the
case of
Ex parte Crouch, 112 U. S. 178,
112 U. S. 180,
in which Mr. Chief Justice Waite, delivering the opinion of the
court, said:
"It is elementary learning that, if a prisoner is in the custody
of a state court of competent jurisdiction, not illegally asserted,
he cannot be taken from that jurisdiction and discharged on habeas
corpus issued by a court of the United States simply because he is
not guilty of the offense for which he is held. All questions which
may arise in the orderly course of the proceeding against him are
to
Page 135 U. S. 77
be determined by the court to whose jurisdiction he has been
subjected, and no other court is authorized to interfere to prevent
it. Here the right of the prisoner to a discharge depends alone on
the sufficiency of his defense to the information under which he is
held. Whether his defense is sufficient or not is for the court
which tries him to determine. If, in this determination, errors are
committed, they can only be corrected in an appropriate form of
proceeding for that purpose. The office of a writ of habeas corpus
is neither to correct such errors nor to take the prisoner away
from the court which holds him for trial, for fear, if he remains,
they may be committed. Authorities to this effect in our reports
are numerous.
Ex parte Watkins, 3 Pet.
202;
Ex
parte Lange, 18 Wall. 163,
85 U. S.
166;
Ex parte Parks, 93 U. S. 18,
93 U. S. 23;
Ex parte
Siebold, 100 U. S. 371,
100 U. S.
374;
Ex parte Virginia, 100 U. S.
339,
100 U. S. 343;
Ex parte
Rowland, 104 U. S. 604,
104 U. S.
612;
Ex parte Curtis, 106 U. S.
371,
106 U. S. 375;
Ex parte
Yarbrough, 110 U. S. 651,
110 U. S.
653."
Many of the propositions advanced in behalf of the appellee, and
urged with impressive force, we do not challenge. We do not
question, for instance, the soundness of the elaborate discussion
of the history of the office and function of the writ of habeas
corpus, its operation under and by virtue of section 753 of the
Revised Statutes, or the propriety of its use in the manner and for
the purposes for which it has been used in any case where the
prisoner is under arrest by a state for an act done "in pursuance
of a law of the United States." Nor do we contend that any
objection arises to such use of the writ, and based merely on that
fact, in cases where no provision is made by the federal law for
the trial and conviction of the accused. Nor do we question the
general propositions that the federal government established by the
Constitution is absolutely sovereign over every foot of soil and
over every person within the national territory, within the sphere
of action assigned to it, and that, within that sphere, its
Constitution and laws are the supreme law of the land, and its
proper instrumentalities of government can be subjected to no
restraint, and can be held to no accountability whatever. Nor,
again, do we dispute the proposition that whatever is necessarily
implied
Page 135 U. S. 78
in the Constitution and laws of the United States is as much a
part of them as if it were actually expressed. All these questions
we pretermit.
The recognition by this court, including ourselves, of their
soundness does not in the least elucidate the case, for they lie
outside of the true controversy. The ground on which we dissent,
and which in and by itself, seems to be fatal to the case of the
appellee, is this: that, in treating section 753 of the Revised
Statutes as an act of authority for this particular use of the
writ, a wholly inadmissible construction is placed on the word
"law" as used in that statute, and a wholly inadmissible
application is made of the clause "in custody in violation of the
Constitution . . . of the United States."
It will not be necessary to consider these two propositions
separately, for they are called into this case as practically
one.
The section referred to is as follows:
"The writ of habeas corpus shall in no case extend to a prisoner
in jail, unless where he is in custody under or by color of the
authority of the United States, or is committed for trial before
some court thereof; or is in custody for an act done or omitted in
pursuance of a law of the United States, or of an order, process,
or decree of a court or judge thereof; or is in custody in
violation of the Constitution or of a law or treaty of the United
States,"
etc.
It is not contended in behalf of the appellee that the writ of
habeas corpus could be used, as here it is, in any case without
authority of a statute. In
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 94, Chief
Justice Marshall said: "The power to award the writ [of habeas
corpus] by any of the courts of the United States must be given by
written law." It is not contended that there is any statute other
than those now found in the Revised Statutes of the United States.
Nor is it contended that in those statutes there is any authority
for the use here made of the writ other than what is embraced in
the clauses above quoted. The issue, as stated above, is thus
narrowed to the proper force to be attributed to those clauses.
It is stated as the vital position in appellee's case that it is
not
Page 135 U. S. 79
supposed that any special act of Congress exists which
authorizes the marshals or deputy marshal of the United States, in
express terms, to accompany the judges of the supreme court through
their circuits and act as a bodyguard to them, to defend them
against malicious assaults against their persons; that, in the view
taken of the Constitution of the United States, any obligation
fairly and properly inferable from that instrument, or any duty of
the marshal to be derived from the general scope of his duties
under the laws of the United States, is a "law" within the meaning
of this phrase; and that it would be a great reproach to the system
of government of the United States, declared to be within its
sphere sovereign and supreme, if there was to be found within the
domain of its powers no means of protecting the judges, in the
conscientious and faithful discharge of their duties, from the
malice and hatred of those upon whom their judgments might operate
unfavorably. In considering this position, it is indispensable to
observe carefully the distinction between the individual man,
Neagle, and the same person in his official capacity as a deputy
marshal of the United States, and also the individual man whose
life he defended and the same person in his official capacity of a
circuit justice of the United States.
The practical importance of the distinction between the rights
and liabilities of a person in his private character and the
authority and immunity of the same person in his official capacity
is clearly pointed out and illustrated in
United
States v. Kirby, 7 Wall. 482,
74 U. S. 486,
in which the court says:
"No officer or employe of the United States is placed by his
position, or the services he is called to perform, above
responsibility to the legal tribunals of the country, and to the
ordinary processes for his arrest and detention, when accused of
felony, in the forms prescribed by the Constitution and laws."
And the court adds:
"Indeed, it may be doubted whether it is competent for Congress
to exempt the employes of the United States from arrest on criminal
process from the state courts when the crimes charged against them
are not merely
mala prohibita, but are
mala in
se. But whether legislation of that character be
Constitutional or not, no intention to extend such
Page 135 U. S. 80
exemption should be attributed to Congress unless clearly
manifested by its language."
Now we agree, taking the facts of the case as they are shown by
the record, that the personal protection of Mr. Justice Field as a
private citizen, even to the death of Terry, was not only the
right, but was also the duty, of Neagle, and of any other
bystander, and we maintain that for the exercise of that right or
duty he is answerable to the courts of the state of California, and
to them alone. But we deny that, upon the facts of this record, he,
as Deputy-Marshal Neagle, or as Private Citizen Neagle, had any
duty imposed on him by the laws of the United States growing out of
the official character of Judge Field as a circuit justice. We deny
that anywhere in this transaction, accepting throughout the
appellee's version of the facts, he occupied in law any position
other than what would have been occupied by any other person who
should have interfered in the same manner, in any other assault of
the same character, between any two other persons in that room. In
short, we think that there was nothing whatever, in fact, of an
official character in the transaction, whatever may have been the
appellee's view of his alleged official duties and powers, and
therefore we think that the courts of the United States have, in
the present state of our legislation, no jurisdiction whatever in
the premises, and that the appellee should have been remanded to
the custody of the sheriff.
The contention of the appellee, however, is that it was his
official duty, as United States marshal, to protect the justice;
and that, for so doing, in discharge of this duty, "which could
only arise under the laws of the United States," his detention by
the state courts brings the case within section 753 of the Revised
Statutes, as aforesaid.
We shall therefore address ourselves, as briefly as is
consistent with the gravity of the question involved, to a
consideration of the justice of that claim. We must, however, call
attention again to the formal and deliberate admission that it is
not pretended that there is any
single specific statute
making it, in so many words, Neagle's duty to protect the justice.
The position assumed is, and is wholly, that the authority
Page 135 U. S. 81
and duty to protect the justice did arise directly and
necessarily out of the Constitution and positive Congressional
enactments.
The Attorney General of the United States has appeared in this
case for the appellee, in behalf of the government, and, in order
that the grounds upon which the government relies in support of its
claim against the state of California, that Neagle should be
discharged on this writ, may fully appear, it is proper to give
some of his most important propositions in his own language. He
maintains that
"it was the duty of the judiciary, having been thus protected by
the executive department, to sit in judgment upon and to vindicate
the officer of the executive department, if innocent, in the
discharge of his duty, because such authority in the federal
judiciary is essential, in principle, to the existence of the
nation. . . . We insist that, by the Constitution of the United
States, a government was created possessed of all the powers
necessary to existence as an independent nation; that these powers
were distributed in three great Constitutional departments; and
that each of these departments is by that Constitution invested
with all of those governmental powers naturally belonging to such
department which have not been expressly withheld by the terms of
the Constitution. In other words, that Congress is invested not
only with expressed, but with implied, legislative powers; that the
judiciary is invested not only with express powers granted in the
Constitution as its share of the government, but with all the
judicial powers which have not been expressly withheld from it; and
that the President, in like manner, by the very fact that he is
made the chief executive of the nation, and is charged to protect,
preserve, and defend the Constitution, and to take care that the
laws are faithfully executed, is invested with necessary and
implied executive powers which neither of the other branches of the
government can either take away or abridge; that many of these
powers, pertaining to each branch of the government, are
self-executing, and in no way dependent, except as to the ways and
means, upon legislation."
"The Constitution provides that, before the President enters
Page 135 U. S. 82
upon the execution of his office, he shall take an oath:"
"I do solemnly swear that I will faithfully execute the office
of President of the United States, and will, to the best of my
ability,
preserve, protect, and defend the Constitution of
the United States."
And he asks:
"Has this clause no significance? Does it not, by necessary
implication, invest the President with self-executing powers, that
is, powers independent of statute?"
In reply to these propositions, we have this to say: we
recognize that the powers of the government, "within its sphere,"
as defined by the Constitution and interpreted by the well-settled
principles which have resulted from a century of wise and patriotic
analysis, are supreme; that these supreme powers extend to the
protection of itself and all of its agencies, as well as to the
preservation and the perpetuation of its usefulness; and that these
powers may be found not only in the express authorities conferred
by the Constitution, but also in necessary and proper implications.
But, while that is all true, it is also true that the powers must
be exercised not only by the organs, but also in conformity with
the modes, prescribed by the Constitution itself. These great
federal powers, whose existence in all their plenitude and energy
is incontestable, are not autocratic and lawless. They are
organized powers committed by the people to the hands of their
servants for their own government and distributed among the
legislative, executive, and judicial departments. They are not
extra the Constitution, for, in and by that Constitution,
and in and by it alone, the United States, as a great, democratic,
federal republic, was called into existence, and finds its
continued existence possible. In that instrument is found not only
the answer to the general line of argument pursued in this case,
but also to the specific question propounded by the attorney
general in respect to the President's oath and its
implications.
The President is sworn to "preserve, protect, and defend the
Constitution." That oath
has great significance. The
sections which follow that prescribing the oath (sections 2 and 3
of article 2) prescribe the duties and fix the powers of the
President. But one very prominent feature of the Constitution
Page 135 U. S. 83
which he is sworn to preserve, and which the whole body of the
judiciary are bound to enforce, is the closing paragraph of section
8, art. 1, in which it is declared that
"the Congress shall have power . . . to make all laws which
shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution
in the government of the United States, or in any department or
officer thereof."
This clause is that which contains the germ of all the
implication of powers under the Constitution. It is that which has
built up the Congress of the United States into the most august and
imposing legislative assembly in the world, and which has secured
vigor to the practical operations of the government, and at the
same time tended largely to preserve the equilibrium of its various
powers among its coordinate departments, as partitioned by that
instrument. And that clause alone conclusively refutes the
assertion of the attorney general that it was
"the duty of the executive department of the United States to
guard and protect at any hazard the life of Mr. Justice Field in
the discharge of his duty, because such protection is essential to
the existence of the government."
Waiving the question of the essentiality of any such protection
to the existence of the government, the manifest answer is that the
protection needed and to be given must proceed not from the
President, but primarily from Congress. Again, while it is the
President's duty to take care that the laws be faithfully executed,
it is not his duty to make laws or a law of the United States. The
laws he is to see executed are manifestly those contained in the
Constitution and those enacted by Congress, whose duty it is to
make all laws necessary and proper for carrying into execution the
powers of those tribunals. In fact, for the President to have
undertaken to make any law of the United States pertinent to this
matter would have been to invade the domain of power expressly
committed by the Constitution exclusively to Congress. That body
was perfectly able to pass such laws as it should deem expedient in
reference to such matter. Indeed, it has passed such laws in
reference to
Page 135 U. S. 84
elections, expressly directing the United States Marshals to
attend places of election, to act as peace officers, to arrest with
and without process, and to protect the supervisors of election in
the discharge of their duties; and there was not the slightest
legal necessity out of which to imply any such power in the
President. For these reasons, the letters of the attorney general
to Marshal Franks, granting that they did import what is claimed,
and granting that the attorney general was to all intents and
purposes,
pro hac vice, the President, invested Neagle
with no special powers whatever. They were, if so construed,
without authority of law; and Neagle was then and there a simple
deputy marshal, no more and no less.
To illustrate the large sphere of powers self-executing and
independent of statutes claimed to be vested in the executive,
reference is made to the continually recurring cases of the
President's interference for the protection of our foreign born and
naturalized citizens on a visit to their native country, and we are
cited, as a striking instance of the exercise of such power, to the
case of Martin Kozsta, who, though not fully a naturalized citizen
of the United States, had in due form of law made his declaration
of intention to become a citizen, and who, while at Smyrna, was
seized by order of an Austrian official and confined on board an
Austrian vessel, and who, being afterwards delivered up to Capt.
Ingraham, commanding an American war vessel, in compliance with a
demand backed by a demonstration of force on the part of that
officer, was placed in the hands of a French consul subject to
negotiations between the American and Austrian governments,
resulting in the famous correspondence between the American
secretary of state, Mr. Marcy, and the Chevalier Hulseman,
representing the Austrian government, and the restoration of Kozsta
to freedom. We are asked upon what express statute of Congress then
existing can this act of the government be justified?
We answer that such action of the government was justified
because it pertained to the foreign relations of the United States,
in respect to which the federal government is the exclusive
Page 135 U. S. 85
representative and embodiment of the entire sovereignty of the
nation, in its united character; for to foreign nations, and in our
intercourse with them, states and state governments, and even the
internal adjustment of federal power, with its complex system of
checks and balances, are unknown, and the only authority those
nations are permitted to deal with is the authority of the nation
as a unit.
That authority the Constitution vests expressly and conclusively
in the treaty-making power, the President and Senate, by one simple
and comprehensive grant:
"He [the President] shall have power, by and with the advice and
consent of the Senate, to make treaties, provided two-thirds of the
senators present concur."
This broad grant makes enumeration of particular powers
unnecessary. All other delegations of powers in reference to the
international relations of this country are carefully and
specifically enumerated and assigned, one by one, to their
designated departments. In reply, therefore, to the question, what
law expressly justifies such action, we answer, the organic law,
the Constitution, which expressly commits all matters pertaining to
our diplomatic negotiations to the treaty-making power.
Other cases are referred to in illustration of the same point;
but the one which it is alleged presents that principle in the most
imposing form is that of
United States v. San Jacinto Tin
Co., 125 U. S. 273. In
that case a suit was brought in the name of the United States, by
order of the attorney general, to set aside a patent which had been
issued for a large body of land on the ground that it had been
obtained from the government by fraud and deceit practiced upon its
officers. There are, it is true, some expressions in the opinion
delivered in that case which seem to admit that there is no
specific act of Congress expressly authorizing the attorney general
to bring suit for the annulment of a patent procured by fraud from
the government, but a close examination of the doctrine of the
court shows that it goes no further than the assertion that the
authority of the attorney general arises, by implication, directly
and immediately, out of the express law of Congress. The opinion
quotes the clause of the Constitution
Page 135 U. S. 86
which declares that the judicial power shall extend to all cases
to which the United States shall be a party, and says that this
means mainly where it is a party plaintiff. It then refers to the
statute of Congress which expressly directs the United States
district attorneys to bring suits in behalf of the government, and
that the suits thus brought by them are to be under the immediate
superintendence and control of the attorney general. The utmost
extent to which the court goes is that, while admitting there is no
express authority in the attorney general to institute the suit,
yet such authority is directly and necessarily involved in the
express provisions of the statute vesting him with the entire
control and superintendence of such suits, and the provision and
control of the district attorneys in their conduct of them.
Equally conclusive is the answer which the Constitution makes to
the assertion that by the Constitution the judiciary is invested
not only with the express powers granted in the Constitution as its
share of the government, but with all the judicial powers which
have not been expressly withheld from it. It may be found in the
clause which declares that "the Congress shall have power . . . to
constitute tribunals inferior to the supreme court," and in that
which declares it shall make all laws necessary and proper for
carrying into execution the powers of those tribunals. The
correlation between those clauses is manifest and unmistakable. If
Congress can and must, by the very terms of the Constitution, make
all laws proper for carrying into execution all the powers of any
department of the government, and if it can create the Circuit
Court, expand its powers, abridge them, and abolish the court at
will, how can it be that that court, at the least, shall have any
implied powers derived from the Constitution and independent of the
statutes? And yet, in this transaction, it must be remembered that
Mr. Justice Field is only claimed to be the representative of that
court.
Not only do the foregoing views seem to us to be the logical and
unavoidable results of original and independent studies of the
Constitution, but they are also sustained and enforced by a long
series of judicial recognitions and assertions.
Page 135 U. S. 87
In
United States v.
Fisher, 2 Cranch 358,
6 U. S. 396,
Chief Justice Marshall, in delivering the opinion of the Court,
said of the clause above relied on:
"In construing this clause, it would be incorrect, and would
produce endless difficulties, if the opinion should be maintained
that no law was authorized which was not indispensable necessary to
give effect to a specified power. Where various systems might be
adopted for that purpose, it might be said with respect to each
that it was not necessary, because the end might be obtained by
other means. Congress must possess the choice of means, and must be
empowered to use any means which are in fact conducive to the
exercise of a power granted by the Constitution."
In
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 420,
17 U. S. 421,
Chief Justice Marshall, for the court, delivered one of those
opinions which are among the chief ornaments of American
jurisprudence. It is largely devoted to an exhaustive analysis of
the constitutional clause in question. Among other things, he
says:
"The result of the most careful and attentive consideration
bestowed upon this clause is that, if it does not enlarge, it
cannot be construed to restrain, the powers of Congress or to
impair the right of the legislature to exercise its best judgment
in the selection of measures to carry into execution the
constitutional powers of the government. If no other motive for its
insertion can be suggested, a sufficient one is found in the desire
to remove all doubts respecting the right to legislate on that vast
mass of incidental powers which must be involved in the
Constitution, if that instrument be not a splendid bauble. We
admit, as all must admit, that the powers of the government are
limited, and that its limits are not to be transcended. But we
think the sound construction of the Constitution must allow to the
national legislature that discretion with respect to the means by
which the powers it confers are to be carried into execution which
will enable that body to perform the high duties assigned to it in
the manner most beneficial to the people."
In
United States v. Reese, 92 U. S.
214,
92 U. S. 217,
Chief Justice Waite delivering the opinion of the court, said:
"Rights and immunities created by or dependent upon the
Constitution of
Page 135 U. S. 88
the United States can be protected by Congress. The form and the
manner of the protection may be such as Congress, in the legitimate
exercise of its legislative discretion, shall provide. These may be
varied to meet the necessities of the particular right to be
protected."
In
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S. 310,
the court says:
"A right or an immunity, whether created by the Constitution or
only guarantied by it, even without any express delegation of
power, may be protected by Congress."
Cooley, in his work on constitutional Limitations, collates from
the numerous adjudications of this court cited by him the following
principles:
"So far as that instrument [the Constitution] apportions powers
to the national judiciary, it must be understood, for the most
part, as simply authorizing Congress to pass the necessary
legislation for the exercise of those powers by the federal courts,
and not as directly, of its own force, vesting them with that
authority. The Constitution does not, of its own force, give to
national courts jurisdiction of the several cases which it
enumerates; but an act of Congress is essential, first, to create
courts, and afterwards to apportion the jurisdiction among them.
The exceptions are of those few cases of which the Constitution
confers jurisdiction upon the supreme court by name. And, although
the courts of the United States administer the common law in many
cases, they do not derive authority from the common law to take
cognizance of and punish offenses against the government. Offenses
against the nation are defined, and their punishment prescribed, by
acts of Congress."
In a note to this paragraph, he says:
"Demurrer to an indictment for libel upon the President and
Congress. By the court: 'The only question which this case presents
is whether the circuit courts can exercise a common law
jurisdiction in criminal cases. . . . The general acquiescence of
legal men shows the prevalence of opinion in favor of the negative
of the proposition. The course of reasoning which leads to this
conclusion is simple, obvious, and admits of but little
illustration. The powers of the general government are made up of
concessions from the several states. Whatever is not expressly
given to
Page 135 U. S. 89
the former, the latter expressly reserve. . . . It is not
necessary to inquire whether the general government, in any and to
what extent, possesses the power of conferring on its courts a
jurisdiction in cases similar to the present. It is enough that
such jurisdiction has not been conferred by any legislative act, if
it does not result to those courts as a consequence of their
creation.'
United States v. Hudson, 7
Cranch 32.
See United States v. Coolidge, 1 Wheat. 415.
'It is clear there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent states, each of which may have its local usages,
customs, and common law. There is no principle which pervades the
Union, and has the authority of law, that is not embodied in the
Constitution or laws of the Union. The common law could be made a
part of our federal system only by legislative adoption.' Per
McLean, J.,
Wheaton v. Peters, 8
Pet. 658;"
and citing many other authorities. In
Tennessee v.
Davis, 100 U. S. 257,
100 U. S. 267,
referring to the judiciary act of 1789, the court said:
"It [the Constitution] did not attempt to confer upon the
federal courts all the judicial power vested in the government.
Additional grants have from time to time been made. Congress has
authorized more and more fully, as occasion has required,"
etc.
It would seem plain, therefore, that if the Constitution means
anything, and if these judicial utterances, extending, as they do,
over a period of 80 years, and embracing a variety of interests,
mean anything, they mean that the power to provide and prescribe
the laws necessary to effectuate the governmental and official
powers of the United States and its officers is vested in
Congress.
The gravamen of this case is in the assertion that Neagle slew
Terry in pursuance
of a law of the United States. He who
claims to have committed a homicide by authority must show the
authority. If he claims the authority of law, then what law? And if
a law, how came it to be a law? Somehow and somewhere it must have
had an origin. Is it a law because of the existence of a special
and private authority issued from one of the executive departments?
So, in almost these words,
Page 135 U. S. 90
it is claimed in this case. Is it a law because of some
constitutional investiture of sovereignty in the persons of judges,
who carry that sovereignty with them wherever they may go? Because
of some power inherent in the judiciary to create for others a rule
or law of conduct outside of legislation, which shall extend to the
death penalty? So also in this case,
in totidem verbis, it
is claimed. We dissent from both these claims. There can be no such
law from either of those sources. The right claimed must be traced
to legislation of Congress, else it cannot exist.
If it be said that Congress has the power to make such laws,
yet, in the absence of statutes from that source, other departments
may act in the premises; or if it be said that the possession of
that power by the government does not negative the existence of
similar powers in other departments of the government, the response
that these powers are plainly not concurrent, but are exclusive,
can be made in the language of Mr. Justice Story, in
Prigg v
Pennsylvania, 16 Pet. 539,
41 U. S. 617.
Speaking of the fugitive slave law of 1793, he says:
"If Congress have a constitutional power to regulate a
particular subject, and they do actually regulate it in a given
manner and in a certain form, . . . in such a case, the legislation
of Congress, in what it does prescribe, manifestly indicates that
it does not intend that there shall be any further legislation to
act upon the subject matter. Its silence as to what it does not do
is as expressive of what its intention is as the direct provisions
made by it."
If it be said that that case had reference to the interference
of a state with Congressional powers, while, in the case at bar, no
such question is involved, the answer is that the difference is
favorable, and not adverse, to the theory of this opinion. The
principle is the same, and, if that principle can be applied, as
applied it was, to the denial to a state legislature of the powers
previously enjoyed over matters originally appertaining to it,
a multo fortiori will it apply to the exclusion of two
co-ordinate departments of the same government from powers which
they never possessed.
As before stated, if the killing of Terry was done "in
pursuance
Page 135 U. S. 91
of a law of the United States," that law had somewhere an
origin. There are, under the general government, only two possible
sources of law. The common law never existed in our federal system.
The legislative power possessed by the United States must be found
either exercised in the Constitution as fundamental law or by some
body or person to whom it was delegated by the Constitution. It has
already been pointed out that the Constitution does not itself
create any such law as that contended for, and that it could not
have been created by any executive or judicial action or status is
made manifest, not only by the clause in section 8, Art. 1, already
cited and commented on, but also by section 1, Art. 1, and the two
paragraphs of article VI. Section 1, Art. 1, provides that
"
All legislative power herein granted shall be vested
in a Congress of the United States, which shall consist of a senate
and house of representatives."
The second paragraph of Art. VI provides that
"the laws of the United States which shall be made in pursuance
thereof, and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the
land."
Now, what is it that constitutes the supreme laws of which so
much is said in this case? How distinctly, how plainly, and how
fully the Constitution answers! The Constitution itself, the
treaties, and the laws made in pursuance of the Constitution. Made
by whom? By Congress, manifestly. The two clauses already quoted
give the power of legislation in the most sweeping terms. It alone
has power to make any law. Anything purporting to be a law not
enacted by Congress would not be "in pursuance of" any provision of
the Constitution. Thus, we are driven to look for the source of
this asserted law to some legislation of Congress, legislation made
under either its express constitutional authority or under its
properly implied authority, it is immaterial which, and there is
none of either class.
The authority is sought to be traced here through the
self-preservative power of the federal judiciary implied from the
Constitution, and then through the obligation of the executive
Page 135 U. S. 92
to protect the judges, implied from the Constitution, whereas
there is no such implication in either case, for the simple but
all-sufficient reason that, by the Constitution itself, the whole
of those functions is committed to Congress.
Since, then, the Constitution did not, by its own direct
provisions, regulate this matter, but committed it to the hands of
Congress, with full powers in the premises, it is only by the
enactment of some law of Congress that the appellee can show that
he is in custody "in violation of the Constitution." As previously
remarked, the two propositions are, as to this case, essentially
one. Turning again to the statute under which the writ issued out,
we find that the clause relied on is that which makes the writ
applicable where the person "is in custody for an act done or
omitted in pursuance of a law of the United States." The question
then arises, what sort of law? What does the expression import? Is
it not plain that it means just what the same expression all
through the Constitution imports?
If that instrument, which is the fountain of the federal power,
be consulted, it will be found that, in it and the amendments
thereto, the word "law," in either its singular form or its plural,
"laws," is used forty-two times. Of these instances of that use,
sixteen are where the word is used in reference to the
jurisprudence of the states and of the law of nations, or where
they are merely terms of description, such as "courts of law,"
"cases in law and equity," etc. Of the other instances of its use,
and which all have reference to that body of rules which constitute
the jurisprudence distinctly of the United States, there are only
three cases in which it is not manifest that the word is used as
equivalent to "statutes," "enactments of the Congress," and it is
clear, in those three instances, the word is used also as
equivalent to "statutes." The following are examples:
"The Congress may at any time,
by law, make or alter
such regulations [in regard to the election of senators and
representatives.]"
Article 1, sec. 4.
"Every bill . . . shall, before it become a
law, be
presented,"
etc. Article 1, sec. 7.
Page 135 U. S. 93
"Congress shall have power . . . to establish . . . uniform laws
on the subject of bankruptcies,"
etc. Article 1, sec. 8.
"Congress shall have power . . . to make all
laws which
shall be necessary and proper,"
etc. Article 1, sec. 8.
"No bill of attainder or
ex post facto law shall be
passed."
Article 1, sec. 9.
"Congress shall make no
law respecting an establishment
of religion."
First Amendment.
It would be tedious, and it is unnecessary, to set them all
forth. They all have the same manifest meaning of "statutes" except
three, and, in those three instances, the words do not mean
anything other than statutes. We think it plain that the
expression, "a law of the United States," as used in section 753 of
the Revised Statutes, means just what the similar expression means
all through the Constitution, and that is "a
statute of
the United States."
Tennessee v. Davis, 100
U. S. 264.
Of the decisions of this court cited as authority to sustain the
order discharging the appellee,
Ex parte Siebold,
100 U. S. 371, and
Tennessee v. Davis, supra, are relied on as having the
most direct bearing on the case. We do not consider
Ex parte
Siebold as being adverse to the proposition which we maintain.
In that case, the existence of express statutes upon which the
controversy arose was undisputed. The sole question was as to the
constitutional competency of Congress to pass certain laws which,
in the most express, explicit, and imperative words, required
marshals and deputy marshals of the United States to attend places
for the election of members of Congress, to keep the peace at the
polls, make arrests, and protect the supervising officers in the
discharge of their duties at those elections. The court decided
that the enactments of Congress in question were constitutional.
The power of Congress to pass these laws being thus settled, no
assertion as to the powers of the marshals and deputy marshals to
execute them in the states can be found in that able opinion which
do not follow as a logical consequence. We fail to see anywhere in
the decision any intimation that, independently of such
legislation,
Page 135 U. S. 94
the officers therein named could, by virtue of their office,
have exercised the same powers in obedience to the instructions of
an executive department, in the exercise of its authority implied
from the Constitution. I n
Tennessee v. Davis, the case
was removed from a state court to the circuit court of the United
States under the express provisions of section 643 of the Revised
Statutes. The homicide for which the petitioner was prosecuted was
committed by him while executing his duties as a revenue officer,
in pursuance of the express requirements of the revenue laws, and
in defense of his own life, upon a party offering unlawful
resistance. So far from running counter to the position we are
seeking to maintain, we think the principle there laid down on the
point we are now discussing is in accord with that position. The
language of the court, through Mr. Justice Strong, who delivered
its opinion, is as follows:
"Cases arising under the laws of the United States are such as
grow out of the legislation of Congress, whether they constitute
the right or privilege, or claim or protection, or defense of the
party, in whole or in part, by whom they are asserted. 2 Story,
Const., sec. 1647;
19 U. S. 6 Wheat. 379."
While it is true that the opinions in both of those cases assert
in the strongest and most impressive language the supremacy of the
government of the United States in the exercise of the powers
conferred upon it by the Constitution, we regard them also as a
vindication of Congress as the lawmaking department of the
government, as the depository of the implied and constructive
powers of the government, or, as Mr. Chief Justice Marshall
expresses it, of the power "to legislate on that vast mass of
incidental powers which must be involved in the Constitution, if
that instrument be not a splendid bauble." As the
Siebold
case and
Tennessee v. Davis have been referred to as the
most important and directly in point in support of the opposite
view, we do not deem it necessary to give an extended examination
of the series of cases decided by the circuit and district courts
cited to the same purport.
Ex parte
Jenkins, 2 Wall. 521, to which attention is more
especially called, combined in itself the main features of most
Page 135 U. S. 95
of the others, which were proceedings under the fugitive slave
law in which United States marshals were arrested while executing
process under that law by state officers acting under the authority
of the statutes of the state, the inevitable effect, if not the
avowed object, of which were to nullify the operation of the
aforesaid act of Congress.
This was so in
Ex parte Jenkins. The United States
marshal was arrested on a warrant issued by a state magistrate
while he was executing a warrant issued under said law of Congress.
He was brought before the circuit court of the United States for
the eastern district of Pennsylvania, on a writ of habeas corpus,
and was discharged upon the ground that the fugitive slave law,
having been enacted in pursuance of the Constitution of the United
States, was paramount to the law of Pennsylvania in conflict with
it, and that the marshal, being in custody for an act done in
pursuance of that law of Congress, and in execution of process
under it, was entitled to his discharge. It is so manifest that
that case was within the provision of section 753 of the Revised
Statutes that further comment is unnecessary, and the same may be
said of all of the other decisions of the circuit and district
courts. In every one of them, the party discharged was in custody
either for an act done in pursuance of an express statute of
Congress, or in the execution of a decree, order, or process of a
court, or the custody was in violation of the Constitution of the
United States.
We stated at the outset of these remarks that we raised no
question upon the discussion of the history of the legislation of
Congress upon the subject of the writ of habeas corpus. We think,
however, it is pertinent, in this connection, to inquire what was
the necessity for any such legislation at all, if the theory
contended for as to the sufficiency of the self-executing powers of
the executive and judicial departments of the government to protect
all the agencies and instrumentalities of the federal government is
correct. Why could not President Jackson, in 1833, as the head of
the executive department, invested with the power, and charged with
the duty, to take care that the laws be faithfully executed, and to
defend the Constitution,
Page 135 U. S. 96
have enforced the collection of the federal revenues in the port
of Charleston, and have protected the revenue officers of the
government against any arrest made under the pretensions of state
authority without the aid of the act of 1833? Why, in 1842, when
the third habeas corpus act was passed, could not the President of
the United States, by virtue of the same self-executing powers of
the executive, together with those of the judicial department, have
enforced the international obligations of the government without
any such act of Congress? It is a noteworthy fact in our history
that whenever the exigencies of the country, from time to time,
have required the exercise of executive and judicial power for the
enforcement of the supreme authority of the United States
government for the protection of its agencies, etc., it was found,
in every instance, necessary to invoke the interposition of the
power of the national legislature. As early as 1807, in
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 94, Chief
Justice Marshall said:
"The power to award the writ [of habeas corpus] by any of the
courts of the United States must be given by written law. . . . The
inquiry, therefore, on this motion will be whether, by any statute
compatible with the Constitution of the United States, the power to
award a writ of habeas corpus in such case as that of Erick Bollman
and Samuel Swartwout has been given to this court."
It is claimed that such a law is found in section 787 of the
Revised Statutes, which is as follows:
"It shall be the duty of the marshal of each district to attend
the district and circuit courts when sitting therein, and to
execute throughout the district all lawful precepts directed to
him, and issued under the authority of the United States, and be
shall have power to command all necessary assistance in the
execution of his duty."
It is contended that the duty imposed upon the marshal of each
district by this section is not satisfied by a mere formal
attendance upon the judges while on the bench, but that it extends
to the whole term of the courts while in session, and can fairly be
construed as requiring him to attend the judge while on his way
from one court to another to perform his
Page 135 U. S. 97
duty. It is manifest that the statute will bear no such
construction. In the first place, the judge is not the court. The
person does not embody the tribunal, nor does the tribunal follow
him in his journeys. In the second place, the direction that he
shall attend the court confers no authority or power on him of any
character. It is merely a requirement that he shall be present, in
person, at the court when sitting, in order to receive the lawful
commands of the tribunal and to discharge the duties elsewhere
imposed upon him. Great as the crime of Terry was in his assault
upon Mr. Justice Field, so far from its being a crime against the
court, it was not even a contempt of court, and could not have
received adequate punishment as such. Section 725 of the Revised
Statutes limits contempt to cases of misbehavior in the presence of
the court, or so near thereto as to obstruct the administration of
justice.
It is claimed that the law needed for appellee's case can be
found in section 788 of the Revised Statutes. That section is as
follows:
"The marshals and their deputies shall have in each state the
same powers in executing the laws of the United States as the
sheriffs and their deputies in such state may have, by law, in
executing the laws thereof."
It is then argued that, by the Code of California, the sheriff
has extensive powers as a conservator of the peace, the statutes to
that effect being quoted in extenso; that he also has certain
additional common law powers and obligations to protect the judges,
and to personally attend them on their visits to that state; that,
therefore, no statutory authority of the United States for the
attendance on Mr. Justice Field by Neagle, and for Neagle's
personal presence on the scene, was necessary, and that that
statute constituted Neagle a peace officer to keep the peace of the
United States. This line of argument seems to us wholly untenable.
By way of preliminary remark, it may be well to say that, so far as
the simple fact of Neagle's attendance on Mr. Justice Field, and
the fact of his personal presence, are concerned, no authority,
statutory or otherwise, was needed. He had a right to be there,
and, being there, no matter how or why, if it
Page 135 U. S. 98
became necessary to discharge an official duty, he would be just
as much entitled to the protection of section 753 of the Revised
Statutes as if he had been discharging an official duty in going
there. The fallacy in the use made of section 788 in the argument
just outlined is this: that section gives to the officers named the
same measure of powers when in the discharge of their duties as
those possessed by the sheriffs, it is true; but it does not alter
the duties themselves. It does not empower them to enlarge the
scope of their labors and responsibilities, but only adds to their
efficiency within that scope. They are still, by the very terms of
the statute itself, limited to the execution of "the laws of the
United States," and are not in any way, by adoption, mediate or
immediate, from the Code or the common law, authorized to execute
the laws of California. The statute, therefore, leaves the matter
just where it found it. If the act of Terry had resulted in the
death of Mr. Justice Field, would the murder of him have been a
crime against the United States? Would the government of the United
States, with all the supreme powers of which we have heard so much
in this discussion, have been competent, in the present condition
of its statutes, to prosecute in its own tribunals the murder of
its own supreme court justice, or even to inquire into the heinous
offense through its own tribunals? If yes, then the slaying of
Terry by the appellee, in the necessary prevention of such act, was
authorized by the law of the United States, and he should be
discharged, and that independently of any official character; the
situation being the same in the case of any citizen. But if no, how
stands the matter then? The killing of Terry was not by authority
of the United States, no matter by whom done, and the only
authority relied on for vindication must be that of the state, and
the slayer should be remanded to the state courts to be tried. The
question then recurs, would it have been a crime against the United
States? There can be but one answer. Murder is not an offense
against the United States except when committed on the high seas or
in some port or harbor without the jurisdiction of the state, or in
the District of Columbia, or in the territories, or at other places
where the
Page 135 U. S. 99
National Government has exclusive Jurisdiction. It is well
settled that such crime must be defined by statute, and no such
statute has yet been pointed out. The United States government
being thus powerless to try and punish a man charged with murder,
we are not prepared to affirm that it is omnipotent to discharge
from trial, and give immunity from any liability to trial where he
is accused of murder unless an express statute of Congress is
produced permitting such discharge.
We are not unmindful of the fact that, in the foregoing remarks,
we have not discussed the bearings of this decision upon the
autonomy of the states, in divesting them of what was once regarded
as their exclusive jurisdiction over crimes committed within their
own territory, against their own laws, and in enabling a federal
judge or court, by an order in a habeas corpus proceeding, to
deprive a state of its power to maintain its own public order, or
to protect the security of society and the lives of its own
citizens, whenever the amenability to its courts of a federal
officer or employe or agent is sought to be enforced. We have not
entered upon that question because, as arising here, its suggestion
is sufficient, and its consideration might involve the extent to
which legislation in that direction may constitutionally go, which
could only be properly determined when directly presented by the
record in a case before the court for adjudication.
For these reasons, as briefly stated as possible, we think the
judgment of the court below should be reversed, and the prisoner
remanded to the custody of the sheriff of San Joaquin county, Cal.,
and we are the less reluctant to express this conclusion because we
cannot permit ourselves to doubt that the authorities of the state
of California are competent and willing to do justice, and that,
even if the appellee had been indicted and had gone to trial upon
this record, God and his country would have given him a good
deliverance.
MR. JUSTICE FIELD did not sit at the hearing of this case, and
took no part in its decision.