صور الصفحة
PDF
النشر الإلكتروني

[74

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 pursuence of a law of the United States, it wou 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. Jr. 531. 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. Jr. 543): "It has been urged that my order, if it shall withdraw the relators from the prosecution pending against them [in the 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 upon 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 Am. L. Reg. 617; United States v. Jailer of Fayette County, 2 Abb. U. S. 265; Re Ramsey, 2 Flipp. 451; Re Neill, 8 Blatchf. 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 Laws 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 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.

n

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, 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

[75]

[76]

[77]

to answer in the courts of California on ac- | for which it has been used, in any case where
count 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. Mr. Justice Field did not sit at the hearing of this case, and took no part in its decision. 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.

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 objec-
tion arises to such use of the writ, and based
vision is made by the federal law for the
merely on that fact, in cases where no pro-
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 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 it-
self seems to be fatal to the case of the ap-
pellee, 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."

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 appel-
lee, Neagle, shall in this ex parte proceeding
be discharged and delivered from any trial
or further inquiry in any court, state or fed-
eral, 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, 180
[28: 690, 691], in which Mr. Chief Justice
Waite, delivering the opinion of the court,
said: "It is elementary learning that, if a
prisoner is in 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
be determined by the court to whose juris-
diction 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 or is in custody for an act done or omitted
office of a writ of habeas corpus is neither in pursuance of a law of the United States,
to correct such errors, nor to take the prisoner or of an order, process or decree of a court or
away from the court which holds him for judge thereof; or is in custody in violation
trial, for fear, if he remains, they may be of the Constitution or of a law or treaty of

committed. Authorities to this effect in our
reports are numerous. Ex parte Watkins, 28
U. S. 3 Pet. 202 [7: 653]; Ex parte Lange,
85 U. S. 18 Wall. 163, 166 [21: 872, 875];
Ex parte Parks, 93 U. S. 18, 23 [23: 787, 788];
Ex parte Siebold, 100 U. S. 371, 374 [25: 717,
718]; Ex parte Virginia, Id. 339, 343 [676,
678]; Ex parte Rowland, 104 U. S. 604,
612 [26: 861, 864]; Ex parte Curtis, 106 U.
S. 371, 375 [27: 232, 235]; Ex parte Yar-
brough, 110 U. S. 651, 653 [28: 274]."

Many of the propositions advanced in be-
half of the appellee and urged with impres-
sive 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

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;

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, 8 U. S. 4 Cranch, 75, 94 [2: 554, 561], 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 appel

[78

[78]

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.

lee's case, that it is not supposed that any | cepting throughout the appellee's version of
special Act of Congress exists which au- the facts, he occupied in law any position
thorizes the marshals or deputy marshals of
the United States in express terms to accom-
pany the judges of the supreme court
through their circuits and act as a body
guard to them to defend them against mali-
cious 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 govern-
ment 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 care-
fully the distinction between the individual
man Neagle, and the same person in his offi-
cial 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, 74 U. S. 7 Wall. 482, 486 [19: 278, 280], in which the court says: "No officer or employé 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 employés 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 [80] or not, no intention to extend such 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, ac

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 mak. ing it, in so many words, Neagle's duty to protect the justice. The position assumed is, and is wholly, that the authority 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 gov. ernment 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 govermental 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 expressed 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

(82)

(83]

"The Constitution provides that before the President enters 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?"

Executive of the nation, and is charged to the government of the United States, or in
protect, preserve and defend the Constitution any department or officer thereof."
and to take care that the laws are faithfully This clause is that which contains the germ
executed, is invested with necessary and im- of all the implication of powers under the
plied executive powers which neither of the Constitution. It is that which has built up
other branches of the government can either the Congress of the United States into the
take away or abridge; that my of these most august and imposing legislative as-
powers pertaining to each branch of the gov-sembly in the world; and which has secured
ernment are self-executing, and in no way vigor to the practical operations of the gov.
dependent, except as to the ways and means, ernment, and at the same time tended largely
upon legislation."
to preserve the equilibrium of its various
powers among its co-ordinate departments,
as partitioned by that instrument. And that
clause alone conclusively refutes the asser-
tion of the Attorney-General, that it was
"the duty of the Executive Department of the
United States to guard and protect, at any haz-
ard, the life of Mr. Justice Field in the dis-
charge 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 pro-
ceed, not from the President, but primarily
from Congress. Again, while it is the Presi-
dent'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 per-
tinent to this matter would have been to in-
vade the domain of power expressly com-
mitted 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 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.

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 ex-
tend 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 Consti-
tution, but also in necessary and proper im-
plications. 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 Constitu-
tion itself. These great federal powers, whose
existence in all their plenitude and energy
is incontestable, are not autocratic and law
less; 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 Judi-
cial Departments; they are not extra the Con-
stitution, 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, pro-
tect and defend the Constitution." That oath
has great significance. The sections which
follow that prescribing the oath (secs. 2 and
3 of art. 2) prescribe the duties and fix the
powers of the President. But one very
prominent feature of the Constitution which
he is sworn to preserve, and which the whole
body of the judiciary are bound to enforce,
is the closing paragraph of sec. 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

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 Koszta, 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, whilst at Smyrna,

[84]

[85]

was seized by order of an Austrian official | ion quotes the clause of the Constitution
and confined on board an Austrian vessel, and which declares that the judicial power shall
who, being afterwards delivered up to Cap-extend to all cases to which the United States
tain Ingraham, commanding an American shall be a party, and says that this means,
war vessel, in compliance with a demand, mainly, where it is a party plaintiff. It then
backed by a demonstration of force, on the refers to the Statute of Congress which ex-
part of that officer, was placed in the hands pressly directs the United States district at-
of a French consul subject to negotiations torneys to bring suits in behalf of the govern
between the American and Austrian government; and that the suits thus brought by
ments, resulting in the famous correspondence them are to be under the immediate superin-
between the American Secretary of State, Mr. tendence and control of the Attorney-Gen.
Marcy, and the Chevalier Hulsemann, repre- eral. The utmost extent to which the court
senting the Austrian government, and the goes is, that whilst admitting there is no ex-
restoration of Koszta to freedom. We are press authority in the Attorney-General to
asked, Upon what express statute of Congress institute the suit, yet such authority is di-
then existing can this act of the government rectly and necessarily involved in the express
be justified?
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.

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 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 adjust ment 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.

[ocr errors]

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 govern
ment, 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
That authority the Constitution vests ex- court;" and in that which declares it shall
pressly and conclusively in the treaty-mak- make all laws necessary and proper for carry-
ing power-the President and Senate-by ing into execution the powers of those tribu-
one simple and comprehensive grant: "He nals. The correlation between those clauses
[the President] shall have power, by and is manifest and unmistakable. If Congress
with the advice and consent of the Senate, can and must, by the very terms of the Con-
to make treaties, provided two thirds of the stitution, make all laws proper for carrying
Senators present concur. This broad grant | into execution all the powers of any depart-
makes enumeration of particular powers ment of the government, and if it can create
unnecessary. All other delegations of powers the circuit court, expand its powers, abridge
in reference to the international relations of them, and abolish the court at will, how can
this country are carefully and specifically it be that that court, at the least, shall have
enumerated and assigned, one by one, to any implied powers derived from the Con-
their designated departments. In reply, stitution and independent of the statutes?
therefore, to the question, What law expressly And yet, in this transaction, it must be re-
justifies such action? we answer, The Organic membered that Mr. Justice Field is only
Law, the Constitution, which expressly com- claimed to be the representative of that
mits all matters pertaining to our diplomatic court.
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 [31: 747].
In that case a suit was brought in the name In United States v. Fisher, 6 U. S. 2 Cranch,
of the United States, by order of the At- 358, 396 [2: 304, 316], Chief Justice Marshall,
torney-General, to set aside a patent which in delivering the opinion of the court, said
had been issued for a large body of land, on of the clause above relied on: "In construing
the ground that it had been obtained from this clause it would be acorrect, and would
the government by fraud and deceit practiced produce endless difficulties, if the opinion
upon its officers. There are, it is true, some should be maintained that no law was author-
expressions in the opinion delivered in that ized which was not indispensably necessary
case which seem to admit that there is no to give effect to a specified power. Where
specific Act of Congress expressly authoriz- various systems might be adopted for that
ing the Attorney-General to bring suit for purpose, it might be said with respect to
the annulment of a patent procured by fraud each that it was not necessary, because_the
from the government; but a close exami-end might be obtained by other means.
nation of the doctrine of the court shows that
it goes no farther than the assertion that the
authority of the Attorney-General arises by
implication, directly and immediately, out
of the express law of Congress. The opin-

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 ecog. nitions and assertions.

Con

gress 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, 17 U. S. 4 Wheat.

[86].

[87]

« السابقةمتابعة »