The "Force" Act of 1833 gave to the federal courts the power to issue writs of habeas corpus "in all cases of a prisoner or prisoners in jail or confinement where he or they shall be committed or confined, on or by any authority or law for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court. thereof."

In 1842 this authority of the federal courts was further broadened by the provision that the writ might issue when a subject or citizen of a foreign State, domiciled therein, is in custody because of an act done or omitted under an alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign State, or under color thereof, the validity or effect of which is dependent upon the law of nations.

This act of 1842 grew out of the McLeod case. McLeod, a British subject, was arrested and indicted for murder in New York, alleged to have been committed by him while one of a force of British troops which, during the Canadian rebellion of 1837, made an attack upon the steamer "Caroline" while moored in New York waters. The British government avowed itself responsible for the act, as a necessary act of war, the steamer being engaged in carrying munitions of war to the Canadian insurgent forces, and demanded of the United States Government McLeod's immediate release. This the Federal Government requested of the New York authorities, but was met with a refusal, and found itself unable to proceed further because of the lack of jurisdiction of the federal courts to issue the necessary writ of habeas

corpus.

In 1867 the jurisdiction of the federal courts was still further widened by the provision that the writ might issue "in all cases where any person may be restrained of his or her liberty in violation of the Constitution or any treaty or law of the United States."

997

People v. McLeod (1 Hill, 377).

The federal courts also have authority to issue the writ where it is necessary to bring a person into court to testify, or where a person is in custody

Armed with the authority thus given, especially by the act of 1867, the federal courts have repeatedly taken from the custody of the States persons charged therein with offenses against state law. Even the lowest of the federal courts have not hesitated to exercise the power as to persons held for trial before the highest courts of the United States.

In the case of Thomas v. Loney the Supreme Court sustained the action of the lower federal court in releasing from custody by habeas corpus a prisoner who had been arrested by state authority for alleged perjury committed before a notary public of the State in the case of a contested election of a member of the House of Representatives of the United States. "The power of punishing a witness," said the Supreme Court, "for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had. It is essential to the impartial and efficient administration of justice in the tribunals of the nation that witnesses should be able to testify freely before them, unrestrained by legislation of the State, or by fear of punishment in the state courts. The administration of justice in the national tribunals would be greatly embarrassed and impeded if a witness testifying before a court of the United States or upon a contested election of a member of Congress, were liable to prosecution and punishment in the courts of a State upon a charge of perjury preferred by a disappointed suitor or contestant, or instigated by local passion or prejudice. A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United States, whether he testifies in the presence of that tribunal, or before any magistrate or officer (either of the nation or of the State) designated by Act of Congress for the purpose, is accountable for the truth of his testimony to the United States only; and perjury committed in so under or by color of the authority of the United States, or is committed for trial before some court thereof.

8 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949.

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 executed 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

135 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,11 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 varicus 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?

11 117 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