testifying is an offense against the public of the United States, and within the exclusive jurisdiction of the courts of the United States."

§ 70. The Neagle Case.

The leading case, however, and, in some respects, the most extreme, in upholding the power of the federal courts in the matter of the issuance of writs of habeas corpus to state authorities is that of Re Neagle." In that case it was held that without express statutory authorization, the general authority of the President to see that the laws of the Union are faithfully exe cuted empowered him to appoint a deputy marshal to protect a federal judge whose life was threatened; and that upon such deputy being arrested and brought to trial in a state court upon the charge of murder for a homicide committed while acting within the line of the duty thus assigned him, he was entitled to release on habeas corpus issued by a federal judge. In this case the objection was raised that inasmuch as there was no federal statute expressly authorizing such protection as Neagle had been instructed to give, he could not be said, in the language of the act of 1867, to be "in custody for an act done or omitted in pursuance of a law of the United States." To this Justice Miller, who rendered the majority opinion of the Supreme Court, replied: "In the view we take 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. 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 is 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 may operate unfavorably. We do not believe that the government of the United States is thus ineffi

9135 U. S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55.

cient, or that its Constitution and laws have left the high officers of the government so defenseless and unprotected." 10

§ 71. Writ Issued Only when Imperative.

The Supreme Court of the United States, though uniformly affirming the doctrine that the federal courts have power, by writ of habeas corpus, to inquire into the cause of the restraint of the liberty of any person by a State when the justification of federal authorization or immunity is set up for the act complained of, has, however, repeatedly, and of recent years with increasing emphasis, laid down the doctrine that the federal courts should not, except in cases of peculiar urgency, exercise that power, but should leave such persons to pursue their remedy by writ of error to the federal Supreme Court, after the adjudication of their cases in the States' highest courts.

In Ex parte Royall," decided in 1886, the Supreme Court of the United States, while upholding the constitutional power of Congress to grant to the federal courts jurisdiction to issue writs of habeas corpus in all cases where persons, in alleged violation of the Constitution, are in custody of a state court, took pains to emphasize the fact that the jurisdiction is to be exercised at the discretion of the court, and, in the case at bar, sustained the

10 Chief Justice Fuller and Justice Lamar dissented from the judgment in the Neagle case upon the ground that the President had had no constitutional power, in the absence of congressional authority, to provide, through the Attorney-General, a guard for Justice Field. Why, they asked, if the President had this power, had it been necessary to pass various habeas corpus acts! "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, 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 the state authority with 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-existing 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?"

1 117 U. S. 241; 6 Sup. Ct. Rep. 734; 29 L. ed. 868.

"We are of

refusal of the Circuit Court to issue the writ. opinion," said the court, "that while the Circuit Court has the power to do so, and may discharge the accused in advance of his trial if he is restrained of his liberty in violation of the National Constitution it is not bound in every case to exercise such a power immediately upon application for the writ. We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The injunction to hear the case summarily and thereupon to dispose of the party as law and justice require does not deprive the court of discretion as to the time and the mode in which it will exercise the powers conferred upon it. That discretion should be exercised in the light of the relations existing under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to regard and protect rights secured by the Constitution."

From the quotations which have just been made it is apparent that in the issuance of the writ, a distinction is made between those cases in which its issuance is necessary to protect the General Government in the execution of its functions, and those in which the question is merely one of the petitioner's right to liberty. In this latter class of cases, "if," the court say, "it is apparent upon the petition that the writ, if issued, ought not, on principles of law and justice, to result in the immediate discharge of the accused from custody, the court is not bound to, award it as soon as the application is made." The federal courts. the opinion goes on to declare, are to assume that the state courts. will neither do injustice nor disregard the settled principles of federal constitutional law. If, however, they should do so, the petitioner still has the privilege of taking his case by writ of

error from the highest state court to the Supreme Court of the United States.12

The act of 1867 provides that, upon return of the writ of habeas corpus, "the court or justice, or judge, shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." 13

It would not appear to be certainly settled just what is the facts to be determined and just what the action is to be taken by the federal court in all cases where the party suing out the writ claims that the act charged against him in the state court was done under the authority of the United States or in pursuance of a process of its courts. When, by means of the writ, the federal court has brought the accused under its control, is it its duty in all cases to determine whether the accused was an officer of the United States and further whether he had acted in good faith, and within the scope of his federal authority, and therefore entitled to a discharge; and, if not, to impose such penalty as the law and facts require? Or is it the duty of the federal court, where the question is not as to the federal authority which is set up, but whether in fact that authority has been overstepped, and there is conflicting evidence as to this, is it the duty of the federal court to remand the party to the state court for the determination of the question?

12 For later refusals of the federal courts to issue the writ of habeas corpus to persons in the custody of state courts in alleged violation of the Constitution, see Tinsley v. Anderson (171 U. S. 101; 18 Sup. Ct. Rep. 805; 43 L. ed. 91) and United States ex rel. Drury v. Lewis (200 U. S. 1; 26 Sup. Ct. Rep. 229; 50 L. ed. 343). In the first of those cases the Supreme Court reversed the judgment of the lower court, and dismissed the writ of habeas corpus which it had issued, and remanded the accused to the custody of the state authorities. In Ex parte Wood (155 Fed. 190), decided in 1907, habeas corpus was granted by a federal court for the release of one who was charged in a state court with a violation of a state law, the enforcement of which had previously been enjoined by a federal court because unconstitu tional.

13 Rev. St., Sec. 761.

The opinions in the Ableman and Tarble cases, and the reasoning of the court in Tennessee v. Davis, would seem to indicate that the former action is the correct one, namely, that the federal court should not remand the accused to the state court, but itself determine the fact whether he has acted in excess of his federal authority. In United States ex rel. Drury v. Lewis,1 however, the court accepted the alternative doctrine, and remanded the accused for trial to the state court, the evidence being conflicting as to whether or not in fact he had exceeded his federal authority.

The court, quoting from Baker v. Grice1 say; "It is an exceedingly delicate jurisdiction given to the federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody. of the officers of the State, and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued." 16 In the case at bar, however, the court find that there were not present the exceptional circumstances justifying this federal intervention, and that the evidence was conflicting as to whether the act charged was done in performance of a federal authority. This being so, the court declare, it is the proper province of the state court and not of the federal tribunal to determine this question.

The court in this case, in the position which it assumed, cites no prior cases exactly in point. It does indeed refer to earlier adjudications, but none of these had reference to instances in which persons in custody of state authorities sought release upon the claim that the acts charged against them were done in the course of official duty. In each instance the petitioners based their claim to release upon the ground that the imprisonment by the state authorities was in violation of their individual rights under the Constitution, laws or treaties of the United

14 200 U. S. 1; 26 Sup. Ct. Rep. 229; 50 L. ed. 343. 15 169 U. S. 284; 18 Sup. Ct. Rep. 323; 42 L. ed. 748.

16 Citing Re Loney (134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949); Re Neagle (135 U. S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55).