Statement of the Case. 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: "In the Justice's Court of Stockton Township. "STATE OF CALIFORNIA, County of San Joaquin, S 88: "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 wilfully, 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. Field1 and David Neagle and bring them before me, at my office, in the city of Stockton, or, in 1 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. Statement of the Case. 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 15, 1889. H. V. 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 Neagle 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 Statement of the Case. 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. 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 Mr. Montgomery's Argument for Appellant. 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. Mr. Z. Montgomery, for appellant, argued mainly on the facts, maintaining that they showed that Terry had no purpose of seriously injuring Mr. Justice Field, and that therefore the killing was without excuse. He also presented in his brief the following questions of law: Section 753 of the Revised Statutes provides "That the writ (of habeas corpus) shall not extend to a prisoner in jail unless he is in custody for an act done or committed in pursuance of a law of the United States, or of an order, process, or Mr. Montgomery's Argument for Appellant. decree of a court thereof, or in custody in violation of the Constitution, or of a law or treaty of the United States." If, in killing Terry, Neagle was acting "in pursuance of a law of the United States," and if it appears that he was in custody in violation of the Constitution or a law of the United States, construing the word "law" as the law-making power intended it should be construed, then the writ of habeas corpus was properly issued; otherwise not. What, then, is the meaning of the word "law" as used in said section ? The Circuit Court, in rendering the decision now under review, by way of defining the word "law," used this language: "It will be observed that the language of the provision of section 753 is an act done in pursuance of a law of the United States, not in pursuance of a statute of the United States." The court seems to have assumed that there is such a thing as "a common law" of the United States. But this court has said there is no such thing. "It is clear that 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." Wheaton v. Peters, 8 Pet. 591, 658. In the case of Tennessee v. Davis, 100 U. S. 257, a case strongly relied upon by the Circuit Court as a sustaining authority for its decision in this case, the Supreme Court, in determining what is meant by the words "laws of the United States," as employed in the second section of the third article of the Federal Constitution, said: "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. This, it will be observed, is a judicial construction by our highest court placed upon the words "laws of the United |