|In re Neagle [*]
[ Miller ]
[ Lamar ]
In re Neagle [*]
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, 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 [p77] 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, 166; Ex parte Parks, 93 U.S. 18, 23; Ex parte Siebold, 100 U.S. 371, 374; Ex parte Virginia, 100 U.S. 339, 343; Ex parte Rowland, 104 U.S. 604, 612; Ex parte Curtis, 106 U.S. 371, 375; Ex parte Yarbrough, 110 U.S. 651, 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 [p78] 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,
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, 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 [p79] 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, 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 [p80] 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 [p81] 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 [p82] 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 [p83] 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 [p84] 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 [p85] 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 [p86] 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. [p87]
In United States v. Fisher, 2 Cranch 358, 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, 420, 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, 217, Chief Justice Waite delivering the opinion of the court, said:
Rights and immunities created by or dependent upon the Constitution of [p88] 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, 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 [p89] 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, 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,
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, [p90] 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, 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 [p91] 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 [p92] 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. [p93]
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.
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, [p94] 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; 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 [p95] 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, [p96] 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, 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 [p97] 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 [p98] 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 [p99] 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.