rounded the bend as has been described. Then she changed direction. The bark, following, approached the opposite bank, and when she had approached sufficiently near she got orders from the tug to change direction, and was put on the course obliquely across the creek. When the tug got within between 15 and 20 feet of the bank it straightened out on the course parallel to the bank, going to the landing. The bark pursued her oblique course without change, and approached the marsh within 15 feet. The tug-master, observing this, called out: "Where are you going? Have you no rudder on that bark? Port." Attempting to obey this order, the bark found herself aground. The tug, not being able to pull her off, proceeded to the landing and procured two lighters, which she towed along-side the bark. She then left for Charleston, and never came back. The bark, fearing a careen, put out four lines, which parted. The next afternoon, at high water, she got off with her own appliances, having been ashore 24 hours. She reached the landing, and discharged cargo. Neither the master of the bark nor his interpreter had ever been up the creek. The tug-master knew it well. This action is for damages. sustained by reason of the negligence of the tug-master. The contract was between the Etiwan Company and the tug. The action is not on the contract. It proceeds upon the duty imposed by law upon the tug not to cause injury to her tow. The M. J. Cummings, 18 Fed. Rep. 178. The responsibility of a tug to her tow cannot be better expressed than in the language used by the supreme court in The Margaret, 94 U. S. 494: "The tug was not a common carrier; she was not an insurer. The highest possible degree of skill and care were not required of her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work until it was accomplished. * ** * The tug was the dominant mind and will in the adventure. It was the duty of the brig to follow her guidance, to keep as far as possible in her wake, and to conform to her directions. The exercise of reasonable skill and care within this sphere was incumbent on the tow."

*

That is to say, both the tug and the tow must exercise reasonable care and skill. The former dominates,, guides, and directs. The latter follows her guidance, keeps in her wake, and conforms to her directions. When the tug and tow had rounded the bend, the former gave the order which changed the direction of the bark obliquely across the creek. She followed this direction, and kept it, notwithstanding that it carried her certainly into the bank. She could see that the tug had straightened her course parallel to the bank. She was under specific directions to follow in the wake of the tug. She was not a barge not manned, blindly following the impulse of the tow-line. She had an intelligent master, mate, and an experienced crew. She steered well. While the tug was bound to exercise reasonable skill and care, she had the right to expect corresponding care and skill on the part of the tow. She was not bound to repeat positive orders; nor, when they were in the open creek, past the bends, was she bound to exercise unnecessary vigilance to see that the tow was in her wake. The tow did not follow this direction. In consequence of her negligence in this regard she took the bank. The libel is dismissed.

In re NEAGLE.

(Circuit Court, N. D. California. September 16, 1889.)

1. UNITED STATES COURTS-JURISDICTION-HABEAS CORPUS.

Under the provisions of sections 751-753. Rev. St., the courts of the United States and their judges have jurisdiction, upon a writ of habeas corpus, to inquire into the cause of the imprisonment of the petitioner; and if, upon such inquiry, he is found to be "in custody for an act done or omitted, in pursuance of a law of the United States," he is entitled to be discharged, no matter from whom or under what authority, the process under which he is held may have issued; the constitution, and laws of the United States made in pursuance thereof, being the supreme law of the land.

2. SAME.

In the exercise of this jurisdiction, there is no conflict of authority between the state and the United States. The laws of the United States being the su preme law of the land, the authority of the state, in such cases, is subordinate, and that of the United States paramount.

8. CONSTITUTIONAL LAW-STATE LAWS.

A state law which contravenes a valid law of the United States is void. In legal contemplation, there can no more be two valid conflicting laws, operating upon the same subject-matter, at the same time, than, in physics, two bodies can occupy the same space at the same time.

4 SAME-LAWS OBSTRUCTING UNITED STATES OFFICER.

The United States is a government, with authority extending over the whole territory of the Union, acting upon the states, and the people of the states. While limited in the number of its powers, it is, so far as its sovereignty extends, supreme. No state can exclude it from exercising those powers, obstruct its authorized officers, against its will, or withhold from it the cognizance of any subject which the constitution has committed to it. 5. SAME.

The constitution and laws of the United States, as to those matters wherein they are supreme, extend over every foot of the territories of the United States, and the jurisdiction of its courts to enforce rights derived thereunder is as extensive as the territory to which they are applicable.

6. SAME-RIGHT OF NATIONAL GOVERNMENT TO PRESERVE ORDER.

The national government has power to command obedience to its laws, to preserve order, and to keep the peace, in matters affecting national interests, and no person or power in the land has a right to resist or question its authority, so long as it keeps within the bounds of its jurisdiction.

7. SAME-PROTECTION OF Judges.

It is within the power of the government of the United States to protect all the agencies and instrumentalities necessary to accomplish the objects and purposes of that government. It is therefore empowered to protect the lives of the judges of its courts from assault and assassination, on account of their judicial decisions, by desperate, disappointed litigants, not only while actually holding court, but while such judges are traveling through their cir cuits for the purpose of holding courts at the different places therein ap pointed by law for that purpose.

8. POWERS OF UNITED STATES MARSHAL.

An assault upon, or an assassination of, a judge of the United States court, while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the United States, and within the jurisdiction and power of the United States marshal or his deputies to prevent, as a peace officer of the national government. 9. SAME.

By section 788, Rev. St., and the several provisions of the statutes of California prescribing the duties of sheriffs, by that section made applicable to v.39F.no.15-53

marshals. the United States marshal is made a peace-officer, and, as such, he is authorized to preserve the peace so far as a breach of the peace affects the authority of the United States, and obstructs the operations of the government and its various departments. The courts of the United States must be enabled fully to perform all the functions imposed upon them by the constitution and laws, without hindrance or obstruction, and they have the inherent power to protect themselves by and through their executive officers, under the direction and supervision of the attorney general and the president, against obstruction and hindrance in the performance of their judicial duties. 10. SAME-HOMICIDE BY MARSHAL-HABEAS CORPUS-JURISDICTION.

Where a deputy United States marshal, acting under instructions from his superior officers,-the United States marshal and the attorney general,-in protecting the life and person of a justice of the supreme court of the United States from a murderous assault, made on account of his judicial decisions, at the hands of a dissatisfied litigant, finds it necessary to take the life of the assailant, and is arrested by the state authorities, and held upon a charge of murder for such act, the United States circuit court may. upon habeas corpus, discharge such United States officer from the custody of the state authorities, upon it being shown that the homicide was necessary, or that it was reasonably apparent to the mind of the deputy-marshal, at the time and under the circumstances surrounding him. that the killing was necessary in order to protect and defend the justice from great bodily injury, or to save his life. 11. SAME.

The homicide in such case, if an offense at all, is an offense under the laws of the state, and only the state can deal with it, in that aspect. It is not claimed to be a crime punishable under the laws of the United States. But the homicide, when necessarily committed by a deputy-marshal in the performance of his duty, in protecting the life and person of a justice of the United States supreme court from assault and violence because of his judicial decisions, is an "act done in pursuance of a law of the United States," and is not and cannot, therefore, be an offense against the laws of the state, no matter what the statute of the state may be; the laws of the United States being the supreme law of the land.

18. SAME.

It is the exclusive province of the United States courts to ultimately and conclusively determine any question of right, civil or criminal, arising under the laws of the United States. It is therefore the prerogative of the national courts to construe the national statutes, and determine, upon habeas corpus, whether a homicide for which the petitioner is charged with murder by the state authorities was the result of an "act done in pursuance of a law of the United States;" and, when that question has been determined in the affirma tive, the prisoner will be discharged, and the state has nothing more to do with the matter.

18. IMPLIED POWERS OF THE NATIONAL GOVERNMENT.

All the law of the United States is not specifically expressed in statutory enactments. Many powers are necessarily inherent in the various departments of the government, without which the government could not perform functions necessary to its existence. The exercise of such powers is, nevertheless, in pursuance of the laws of the United States.

14. SAME-STATUTES-CONSTRUCTION

When statutes confer powers, impose duties, and provide for the accomplishment of various objects, they are necessarily couched in general terms, but they carry with them, by implication, all the powers, duties, and exemp tions necessary to accomplish the objects thereby sought to be attained. 15. ACTS OF HEADS OF GOVERNMENTAL DEPARTMENTS.

The acts of the heads of departments of the United States government, in the line of their duties, are, in contemplation of law, the acts of the president himself.

16. HOMICIDE-KILLING IN DEFENSE OF ANOTHER.

A party resisting a murderous assault, where several lives are in danger, being in the best position to judge as to the dangers and requirements of the occasion, is the one to determine when the proper moment has arrived, in self-defense, to slay his assailant, in order to be justified by the law; and if he acts in good faith, with reasonable judgment and discretion, the law will

justify him, even though he errs. Where several lives are in danger from the assault of a powerful, infuriated, desperate man, common prudence would dictate that the party assailed should fire a second or two too soon, rather than a fraction of a second too late.

Habeas Corpus.

This is an application for the discharge of David Neagle upon a writ of habeas corpus. It arises out of the following facts: On the third of September, 1888, certain cases were pending in the circuit court of the United States for the Northern district of California, between Frederick W. Sharon, as executor, against David S. Terry and Sarah Althea Terry, his wife, and between Francis G. Newlands, as trustee, and others, against the same parties, on demurrers to bills to revive and carry into execution the final decree of the court in the suit of William Sharon v. Sarah Althea Hill, and were decided on that day. That suit was brought to have an alleged marriage contract between the parties adjudged to be a forgery, and obtain its surrender and cancellation. The decree rendered adjudged the alleged marriage contract to be a forgery, and ordered it to be surrendered and canceled. The decree was rendered after the death of William Sharon, and was therefore entered as of the day when the case was submitted to the court. By reason of the death of Sharon, it was necessary, in order to execute the decree, that the suit should be revived. Two bills were filed,-one by the executor of the estate of Sharon; and the other, a bill of revivor and supplemental by Newlands, as trustee, for that purpose. In deciding the cases, the court gave an elaborate opinion upon the questions involved, and, while it was being read, certain disorderly proceedings took place, for which the defendants, David S. Terry and his wife, were adjudged guilty of contempt, and ordered to be imprisoned. The following is an accurate statement of those proceedings, slightly condensed from the opinion of the court delivered on the subsequent application of David S. Terry to have the order of commit ment revoked. For the whole proceeding, see In re Terry, 36 Fed. Rep. 419.

Shortly before the court opened, the defendants came into the courtroom, and took their seats within the bar at the table next to the clerk's desk, and almost immediately in front of the judges; the defendant David S. Terry being at the time armed with a bowie-knife, concealed on his person, and the defendant Sarah Althea, his wife, carrying in her hand a small satchel, which contained a revolver of six chambers, five of which were loaded. The court at the time was held by the justice of the supreme court of the United States allotted to this circuit, who was presiding, the United States circuit judge of this circuit, and the United States district judge of the district of Nevada, called to this district to assist in holding the circuit court. Almost immediately after the opening of the court, the presiding justice commenced reading its opinion in the cases mentioned, but had not read more than one-fourth of it when the defendant Sarah Althea Terry arose from her seat, and asked him, in an excited manner, whether he was going to order her to give up the marriage contract to be canceled. The presiding justice replied:

"Be seated, madam." She repeated the question, and was again told to be seated. She then cried out, in a violent manner, that the justice had been bought, and wanted to know the price he held himself at; that he had got Newlands' money for his decision, and everybody knew it,-or words to that effect. It is impossible to give her exact language. The judges and parties present differed as to the precise words used, but all concurred as to their being of an exceedingly vituperative and insulting character. The presiding justice then directed the marshal to remove her from the court-room. She immediately exclaimed that she would not go from the room, and that no one could take her from it, or words to that effect. The marshal thereupon proceeded towards her to carry out the order for her removal, and compel her to leave, when the defendant David S. Terry rose from his seat, evidently under great excitement, exclaiming, among other things, that "no living man shall touch my wife," or words of that import, and dealt the marshal a violent blow in his face. He then unbuttoned his coat, and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. The marshal then removed Mrs. Terry from the court-room. Soon afterwards Mr. Terry was allowed to rise, and was accompanied by officers to the door leading to the corridor on which was the marshal's office. As he was about leaving the room, or immediately after stepping out of it, he succeeded in drawing his knife, when his arms were seized by a deputy-marshal and others present, to prevent him from using it, and they were able to take it from him only after a violent struggle. The petitioner, Neagle, wrenched the knife from his hand, while four other persons held on to the arms and body of Terry, one of whom presented a pistol to his head, threatening at the same time to shoot him if he did not give up the knife. To these threats Terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. Mr. Cross, a prominent attorney, who on that accasion sat next to Mrs. Terry, a little to her left and rear, testifies that, just before she arose to interrupt Justice Field, she nervously worked at the clasp of a small satchel about nine inches long, and tried to open it; and not succeeding, in consequence of her excitement, she hastily sprang to her feet, and interrupted the justice, as herein before stated. Knowing that she had before drawn a pistol from a similar satchel in the master's room, he concluded at this time that she was trying to get her pistol out, and he consequently held himself in readiness to seize her arm as soon as it should appear, and endeavor to prevent its use until he could get assistance, his right arm being partially disabled. For one occasion in the master's office, see Sharon v. Hill, 11 Sawy. 123, 24 Fed. Rep. 726. At this time Mrs. Terry sat directly in front of Justice Field and the circuit judge, less than four yards from either. A loaded revolver was afterwards taken from this satchel by the marshal. For their conduct and resistance to the execution of the order of the court, the defendants, Sarah Althes Terry and David S. Terry, were adjudged guilty