[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 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 The recognition by this court, including Our dissent is not based on any conviction committed. Authorities to this effect in our Many of the propositions advanced in be- 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 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 In reply to these propositions, we have this The President is sworn to "preserve, pro- 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 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. Equally conclusive is the answer which 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 In McCulloch v. Maryland, 17 U. S. 4 Wheat. [86]. [87] |