G. A. Johnson, Atty. Gen., J. P. Langhorne, and Avery C. White, Dist. Atty., for respondent.

Before SAWYER, Circuit Judge, and SABIN, District Judge.

SAWYER, J., (SABIN, D. J., concurring.) The petitioner has sued out a writ of habeas corpus, returnable before the court, alleging that he is unlawfully deprived of his liberty and imprisoned by virtue of a warrant issued by a justice of the peace of San Joaquin county, in this state, charging him with a felonious homicide, while the act thus characterized was a lawful act performed in the discharge of his duties as an officer of the United States; and the first question presented is whether this court has jurisdiction to inquire into the truth of that allegation.

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Upon the question of jurisdiction, section 751, Rev. St., provides that "the supreme court and the circuit and district courts shall have power to issue writs of habeas corpus;" and section 752 further provides that "the several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty." There is no limit in these provisions to the jurisdiction of these courts and judges to inquire into the restraint of liberty of any person. But section 753 prescribes some limitations, among which is "that the writ shall not extend to a prisoner in jail, unless he 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 thereof, or in custody in violation of the constitution, or of a law or treaty of the United States," and this legislation, in the language of the chief justice, in McCardle's Case, 6 Wall. 325, 326, in commenting upon the same provisions in a prior act, "is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court, and of every judge, every possible case of privation of liberty, contrary to the national constitution, treaties or laws. It is impossible to widen this jurisdiction." And again, in Ex parte Royall, 117 U. S. 249, 6 Sup. Ct. Rep. 734, the supreme court says:

"As the judicial power of the nation extends to all cases arising under the constitution, the laws and treaties of the United States; as the privilege of the writ of habeas corpus cannot be suspended unless when in cases of rebellion or invasion, the public safety may require it; and as congress has power to pass all laws necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof; no doubt can exist as to the power of congress thus to enlarge the jurisdiction of the courts of the union, and of their justices and judges. That the petitioner is held under the authority of a state cannot af fect the question of the power or jurisdiction of the circuit court, to inquire into the cause of his commitment, and to discharge him if he be restrained of his liberty in violation of the constitution. The grand jurors who found the indictment, the court into which it was returned and by whose order he was arrested, and the officer who holds him in custody, are all equally with individual citizens, under a duty, from the discharge of which the state could not release them, to respect and obey the supreme law of the land; anything in the constitution and laws of any state to the contrary notwithstanding,' and that equal power does not belong to the courts and judges of the several states;

that they cannot under any authority conferred by the states, discharge from custody persons held by authority of the courts of the United States, or of commissioners of such courts, or by officers of the general government acting under its laws, results from the supremacy of the constitution and laws of the United States. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544. We are, therefore, of opinion that the circuit court has jurisdiction upon writ of habeas corpus to inquire into the cause of appellant's commitment, and to discharge him, if he be held in custody in violation of the constitution.'

In the exercise of this jurisdiction there is no conflict between the authority of the state and of the United States. The state in such cases is subordinate, and the national government paramount. "The constitution and laws of the United States are the supreme law of the land, and to these every citizen of every state owes obedience, whether in his individual or official capacity." Siebold's Case, 100 U. S. 392. See, also, Tennessee v. Davis, Id. 257, 258. The exclusive authority of the state to determine whether an offense has been committed against the laws of the state is now earnestly pressed upon our attention. In Sicbold's Case the court says:

"It seems to be often overlooked that a national constitution has been adopted in this country, establishing a real government therein, operating upon persons and territory and things; and which, moreover, is, or should be, as dear to every American citizen as his state government is. Whenever the true conception of the nature of this government is once conceded, no real difficulty will arise in the just interpretation of its powers. But if we allow ourselves to regard it as a hostile organization, opposed to the proper sovereignty and dignity of the state governments, we shall continue to be vexed with difficulties as to its jurisdiction and authority. No greater jealously is required to be exercised towards this government in reference to the preservation of our liberties than is proper to be exercised towards the state governments. Its powers are limited in number, and clearly defined, and its action within the scope of those powers is restrained by a sufficiently rigid bill of rights for the protection of its citizens from oppression. The true interest of the people of this country requires that both the national and state governments shall be allowed, without jealous interference on either side, to exercise all the powers which respectively belong to them according to a fair and practical construction of the constitution. State rights and the rights of the United States should be equally respected. Both are essential to the preservation of our liberties and the perpetuity of our institutions. But, in endeavoring to vindicate the one, we should not allow our zeal to nullify or impair the other." 100 U. S. 394. See Id. 266, 267.

This court, then, has jurisdiction to inquire upon this writ 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," then he is in custody in violation of the constitution and laws of the United States, and 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.

The homicide in question, if an offense at all, is, it must be conceded, an offense under the laws of the state of California, and the state, only,

can deal with it, as such, or in that aspect. It is not claimed to be an of fense under the laws of the United States. But if the killing of Terry by Neagle, was an "act done * * * in pursuance of a law of the United States," within the powers of the national government, then it is not, and it cannot be, an offense against the laws of the state of California, no matter what the statute of the state may be, the laws of the United States being the supreme law of the land. A state law, which contravenes a valid law of the United States, is, in the nature of things, necessarily void-a nullity. It must give place to the "supreme law of the land." In legal contemplation, there can no more be two valid laws, which are in conflict, operating upon the same subject-matter, at the same time, than, in physics, two bodies can occupy the same space at the same time. But, as we have seen by the authorities cited, it is the exclusive province of the judiciary of the United States, 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, conclusively, construe the national statutes, and determine, whether the homicide in question, 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 affirmative, the petitioner must be discharged, and the state has nothing more to do with the matter. All we claim, is, the right to determine the question, was the homicide the result of "an act done in pursuance of a law of the United States?" and if so, discharge the petitioner. As incidental to, and involved in, that question, it is necessary to inquire, whether the act of the petitioner, was performed under such circumstances as to justify it. If it was, then, he was in the line of his duty. If not, then, he acted outside his duty. We do not make the inquiry, at all, for the purpose of determining, whether the act was an offense, or justifiable under the statutes of the state. We do not assume to consider the case, in that aspect, at all. We simply determine, whether it was an act, performed in pursuance of a law of the United States. Nor do we act, in this matter, because we have the slightest doubt, as to the impartiality of the state courts, and their ability, and disposition, to, ultimately, do exact justice to the petitioner. We have not the slightest doubt, or apprehension in that particular; but. there is a principle involved. The question, is, has the petitioner a right to have his acts adjudged, and, if found to have been performed in the strict line of his authority, and duty, a further right, to be protected, by that sovereignty, whose servant he is, and whose laws he was executing? If he has that right, then, there is no encroachment upon the state jurisdiction, and this court must, necessarily, entertain his petition, and determine his rights under it, and under the laws of the United States. It has no discretion. It cannot decline to hear him without an utter disregard of one of the most important duties imposed upon it by the constitution, and laws of the United States. What the state tribunals might, or might not, do, in this particular instance, is not a matter for a moment's consideration.

The question, is, what are the rights of the petitioner, as to having his case heard, and disposed of, in the courts of the sovereignty, whose

servant he is, and whose laws he was employed in executing. If he has a right to be heard in this court, then, we must hear him, willing, or unwilling. There is no alternative. Whether the writ should issue, in this case, was not a question of "expediency," and whether the petitioner shall be discharged, or remanded, is not a question of "policy," or "comity," as suggested in some quarters. It is a question of personal right, and personal liberty, arising under the constitution, and laws of the United States, which the court cannot ignore. There is a class of cases, of which Ex parte Royall is an example, in which the court may exercise a discretion, as to the time of interference, but, in our opinion, this is not one of them. Ex parte Royall, 117 U. S. 251, 6 Sup. Rep. 734. But, if it rests in our discretion to discharge, or remand, the petitioner to the state courts, to be, there, first tried for an offense against the state, while we are satisfied, that he is entitled to be discharged, to what useful end would he be sent back, since, upon being tried, and convicted, he would still be discharged by the national courts on habeas corpus, if the act should appear to them to have been performed in pursuance of a law of the United States? This would be, but to put the state to great, useless expense, and subject the petitioner, if guilty of no offense, to unjust imprisonment, in violation of his legal rights, until his trial could be had, and his writ of habeas corpus afterwards, again, sued out, heard and decided, when the result, in all probability, would, at last, be the same. Evidently, public justice demands, that the case should be "summarily decided, now, as required by section 761, Rev. St. The court has no right to trifle with the petitioner's constitutional rights by, unnecessarily, subjecting him to unjust imprisonment, great expense, and vexatious delays. In case of a remand, and conviction, the national courts must hear and decide the case, at last. Far better for all concerned, that they should decide it, now, and, forever, end it. We have no desire to usurp a jurisdiction, that does not belong to us. We have enough to do, in exercising the admitted jurisdiction conferred upon us, without seeking to enlarge it in the smallest particular, but we must perform our duty, as we understand it, be the consequences, what they may.

The statutes of the United States, also make, ample provision for giving full effect to the jurisdiction of this court, in cases where the petitioner alleges, that he is restrained of his liberty, in violation of the constitution, or of a law of the United States, in section 766, which reads as follows, to-wit:

"Pending the proceedings or appeal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his liberty, in any state court, or by or under the authority of any state, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void."

It is, therefore, only necessary, in order to dispose of the case, to inquire, and ascertain, whether the petitioner is in custody for an act done. in pursuance of a law of the United States.

As we have seen from the statement of facts, Mr. Justice Field, of the United States supreme court, allotted to the Ninth circuit, was traveling, officially, from one part of his circuit to another, in pursuance of the requirements of the statutes of the United States, for the purpose of holding a circuit court. By reason of threats against his life, made by dissatisfied litigants, generally, known, and published in the newspapers, and brought to the knowledge of the United States marshal for the northern district of California, and by him called to the attention of the attorney general of the United States, that officer directed the marshal to furnish the justice with protection, while thus engaged in the performance of his judicial duties, on the circuit. The marshal, deeming it proper, furnished the necessary protection, by assigning that duty to the petitioner, who was a United States deputy-marshal. The claim, is, that the petitioner, as such deputy-marshal, was affording the only protection practicable to Justice Field, in the lawful discharge of his duty, when the homicide was committed, and that the killing was necessary for the preservation of the lives of both Justice Field, and himself, at the time the fatal shot was fired. The homicide was committed at Lathrop, and not upon land purchased by the United States with the consent of the state for the needful uses of the United States, in pursuance of article 1, § 8, of the constitution. Conceding the points to be as stated, do they present a case of an act performed in pursuance of a law of the United States, subject to their jurisdiction and to the jurisdiction of this court, and, is the petitioner held under an arrest on a charge of murder by the state, "in custody in violation of the constitution or laws of the United States," within the meaning of the statute?

It is urged, that, since the homicide was committed in the state at large, and not in the court-house, or upon land within the exclusive jurisdiction of the United States, the question, as to whether the homicide is murder, is a question arising, exclusively, under the laws of the state, and, that it can be investigated, and determined by the state courts, alone. It is admitted on the part of the state, that the United States have exclusive jurisdiction over the custom-house block, and, "over all places purchased by the consent of the legislature of the state, in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," in pursuance of section 8, art. 1, of the national constitution, and that, the state has no jurisdiction, whatever, of any offense committed in such places. But it is contended, that the United States have no jurisdiction of offenses committed outside the lands so purchased, in other portions of the state, but, that, in the state at large, the jurisdiction of the state is exclusive. This proposition, like most others urged by those, who insist on extreme state rights doctrines, wholly ignores the principle, that there can be no legal conflict, or inconsistency, in matters wherein the state is subordinate, and the United States are paramount-where the constitution, and laws of the United States, are the supreme law of the land. We have, already, seen, that, although in certain cases, the courts of the United States have jurisdiction to discharge on habeas corpus, prisoners held in custody by the state