Mr. Johnson's Argument for Appellant. Justice Field, and that he was therefore entitled to his discharge from custody "for an act done under a law of the United States." VII. The clearly ascertained fact of the case, that the petitioner was in custody of a state court for an act done in pursuance of a law of the United States, and that he was still an officer of the United States, under obligation to proceed day by day with the discharge of his official duties, shows clearly that he was "in custody in violation of the Constitution of the United States," as provided by the other clause of section 753 of the Revised Statutes, and equally entitled to his immediate discharge on that ground, in the discretion of the Circuit Court, just as much as Mr. Justice Field himself was entitled to be. Mr. G. A. Johnson, Attorney General of the State of California, for appellant. Section 754 of the Revised Statutes says that application for the writ of habeas corpus shall be made by complaint in writing, signed by the person for whose relief it is intended, and that the facts set forth in the complaint shall be verified by the oath of the person making the application. The application for this writ was not signed by the relator, nor sworn to by him. The petitioner is A. L. Farrish, and not David Neagle, and the petition is sworn to by Farrish. The amended traverse to the return was filed after the evidence was heard, and should have been stricken out. The testimony and proofs should have been stricken out, being introduced before the completion of the issues, but motions for these purposes were denied. Respondent below then filed a demurrer to the amended traverse, but the court decided the whole case without first passing on the demurrer. So much for the technical objections. As to the main question, we concede in the outset that in accordance with § 753, Rev. Stat. the writ of habeas corpus may extend to a prisoner in jail, if he is in custody for an act done or omitted in pursu Mr. Johnson's Argument for Appellant. ance 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. But what we maintain is that the word "law," as mentioned in Section 753, means statutory law and its necessary incidents. We propose now to call the court's attention to the authorities cited by Judges Sawyer and Sabin, in their opinion in the court below, discharging the relator, and will endeavor to see whether they sustain their conclusion. The great question involved is as to the proper boundary lines between national and state jurisdiction. The judges say: "We simply determine whether it (the homicide) was an act performed in pursuance of a law of the United States. Nor do we act in this matter because we have the slightest doubt as to the authority of the state courts, and their ability and disposition to, ultimately, do exact justice to the prisoner. We have not the slightest doubt or apprehension on that particular, but there is a principle involved." In the foregoing we agree with them entirely, and we are all desirous that the principle shall be definitely and permanently settled. The first case cited is Ex parte Royall, 117 U. S. 241, 249. This case illustrates how careful federal courts are, in exercising a discretionary power, to interfere with process issued under state laws; that it is not only a matter of comity, but "it is a principle of right and of law, and, therefore, of necessity"; and it is a duty to conciliate rather than alienate and dissever the federal and state tribunals, "so that they may coöperate as harmonious members" of one judicial system. This machinery of a federal government and of state governments is at once delicate and complex, and consists of balances and adjustments for all time to come, so that there may be no friction; like the harmony of our solar system, where each planet fmoves in its own orbit, without any impingement by the greater orbit which lightens all. Ex parte Royall has no application to the case at bar, for in that case there was a constitutional question involved, Mr. Johnson's Argument for Appellant. whether or not the constitutional provision against impairing the obligation of a contract was violated by the act of the General Assembly of Virginia; while the opinion of Judges Sawyer and Sabin does not claim that the statute of California against murder is unconstitutional, or that such a statute does not properly appertain to the police power of the State; so the case of Ex parte Royall and the case at bar are not parallel. Nor does the opinion claim, as we understand it, that any specific provision of the constitution of the United States has been infringed by the arrest and detention of the relator. The next case cited is Ex parte Siebold, 100 U. S. 371, 392. This case, and the other cases where indictments had been found, involved the question of the constitutionality of certain sections of Title 26 of the Revised Statutes, entitled "The Elective Franchise," to wit: Sections 2011, 2012, 2016, 2017, 2021, 2022; and also §§ 5515, and 5522, under the title "Crimes." These sections relate to elections of members of the House of Representatives, and were an assertion on the part of Congress of a power to pass laws for regulating and superintending said elections. The question involved was the constitutional power of Congress to make such regulations, and this court sustained such power. In that case there was an act of Congress against obstructing the supervisors of elections and the marshals, and giving them power to keep the peace. In the case at bar there is no act of Congress, as we contend, nor, if we understand the opinion of the court below, is it contended that there is an act of Congress giving jurisdiction to the federal court of this case of alleged murder. The next case cited by Judge Sawyer is that of Tennessee v. Davis, 100 U. S. 257. But that case and this are entirely different. That case was removed from the state court into the federal court because of an express act of Congress bearing on the subject (Section 643, Rev. Stat.). The case was transferred to the Circuit Court under the provisions of the foregoing act. A motion was made in the Circuit Court by the Attorney General to remand the case to the state court, on the ground that the federal court had no jurisdiction. VOL. CXXXV-3 Mr. Johnson's Argument for Appellant. The case went up to the Supreme Court on a certificate of division of opinion between the judges, and yet even in such a case as that, where there was an express act of Congress, two of the judges dissented, Mr. Justice Clifford and Mr. Justice Field. The majority in their opinion say: "A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the const uction of either. 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 defence of the party, in whole or in part, by whom they are asserted." p. 264. Here there is no statute of the United States which expressly or by necessary implication gave any authority for the relator to commit the homicide in question, so that his act could become a matter of federal cognizance. The next case cited by the judges in their opinion is that of Ex parte Jenkins et al., 2 Wall. Jr. 521. That case can have no significance here on this inquiry. That was a case, where, as is said, Jenkins and other deputy United States marshals were arrested on the warrant of a justice of the peace in Pennsylvania for shooting and wounding a negro, who resisted an arrest attempted by them under a warrant issued by the United States Court for a fugitive slave, in which case the justice of the United States Circuit Court took jurisdiction, and discharged them on a writ of habeas corpus. But in this case there was a law of the United States, to wit: the Fugitive Slave Law of 1850, and a writ had been issued to the marshal by a United States judge under that law; hence, Mr. Justice Grier well says: "In conclusion, as we find that the prisoners are officers of the United States, in confinement for acts done in pursuance of a law of the United States, and under a process from a judge of the same, therefore, the order of the court is, that the prisoner be discharged." The next case referred to in the opinion we are reviewing is Ex parte Robinson, 6 McLean, 355. A petition and affi Mr. Johnson's Argument for Appellant. davit of Hiram H. Robinson, marshal of the United States, stated that he was imprisoned under the order of the Honorable Judge Parker, one of the judges of the court of common pleas for the county of Hamilton, for the performance of his duty as marshal, under process signed by a commissioner of the United States, and prayed for a writ of habeas corpus. He was discharged by Judge McLean, because what he did was authorized by the Fugitive Slave Act of 1850. The next case cited in the opinion of Judges Sawyer and Sabin is United States ex rel. Roberts v. Jailor of Fayette County, 2 Abb. (U.S.) 265, 279. This is a case where a deputy marshal was assisted by Roberts in endeavoring to serve process upon one Call, who was charged with crimes under the internal revenue laws, and who was killed by Roberts. Says the judge: "I disclaim all right and power to discharge the relator on any such ground as that the proof shows he acted in self-defence. A jury would probably acquit him on such ground, independent of the process under which he acted, but I have nothing to do with such an inquiry. It belongs only to the state court. I have only to inquire whether what he did was done in pursuance of a law and process of the United States, and so justified, not excused, by that law and process." The next case cited in the opinion of the lower court is In re Ramsey, 2 Flippin, 451. The prisoner, while in the discharge of his duty as deputy United States marshal, killed one Joseph Lightfoot. For that he was arrested and held by the state officers. The officer had in his possession a warrant for the arrest of Lightfoot at the time of the homicide; Lightfoot had declared that he would not submit to an arrest; had reason to know that the officer came there to arrest him, and had a warrant; and his conduct was such as to imperil the life of the officer. Judge Ballard discharged the marshal. The next case cited is In re Neill, 8 Blatchford, 167, which involved certain statutes, whereby the power of discharging from service in the army of the United States minors under the age of eighteen years is taken away from the courts, and is confided wholly to the Secretary of War. The petitioner, General Neill, refused to produce the body of an enlisted sol |