CHAPTER VIII.

MAINTENANCE OF FEDERAL SUPREMACY BY HABEAS CORPUS TO STATE AUTHORITIES.

§ 68. State Courts may not Interfere with Federal Authorities.

During the ante bellum period the Federal Government often made use of state tribunals and officers for the execution of its laws. Thus state justices of the peace acted as examining magistrates in criminal cases for the federal courts, state judges officiated in the execution of extradition treaties with foreign countries, aliens were naturalized in state courts, and state jails and penitentiaries were used for the incarceration of federal criminals. Both because of this admixture of federal and state judicial agencies, and because the principle of the absolute independence of the Federal Government from state control was not clearly recognized and admitted, the state courts early assumed the right, by the issuance of writs of habeas corpus, to determine whether a fugitive from the justice of a foreign country and fugitive slaves should be surrendered; whether persons in the federal army were properly held to military service; and even whether persons in the military service of a foreign State should be tried for acts done as belligerents and under the authority of their sovereigns in conformity with the laws of nations.1

It was not until 1859 that it was authoritatively established by the United States Supreme Court in the case of Ableman v. Booth that the state courts were without the constitutional power to interfere in any way with the process of federal courts, or, in fact, with any agencies of the National Government. Notwithstanding this decision, however, a number of the state courts still claimed and exercised the right to discharge enlisted soldiers and sailors of the United States from the custody of their

1 People v. McLeod (1 Hill, 377). See especially the paper of Seymour D. Thompson before the American Bar Association at its annual meeting in 1884. entitled Abuses of the Writ of Habeas Corpus.

221 How. 506; 16 L. ed. 169.

3 See ante, p. 84.

officers, and this practice was not stopped until 1872 when, in Tarble's case, the federal Supreme Court held this to be beyond their power. In the opinion which he rendered in this case, Justice Field, after pointing out the distinct and independent character of the government of the United States, proceeds: "Such being the distinct and independent character of the two governments within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, in the regulation of which neither can interfere with the other. Now among the powers assigned to the National Government is the power to raise and support armies, and the power to provide for the government and regulation of the land and naval forces. No interference with the execution of this power of the National Government in the formation, organization and government of the armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. State judges and state courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused."

4U. S. v. Tarble (13 Wall. 397; 20 L. ed. 597).

5 Chief Justice Chase dissented in this case. In the course of his opinion he said: "I have no doubt of the right of a State to inquire into the jurisdiction of a federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a

Here again, as in the Davis case, the point at issue narrowed itself down to the question whether or not state agencies should be recognized to have a power which might, should the States see fit, be so exercised as seriously to embarrass the National Government in the performance of its constitutional duties. The strict application of the doctrine of a divided sovereignty would have led in both cases to a constitutional impasse. But in these as in other cases the federal Supreme Court compelled the States in the exercise of their powers to subordinate themselves to the requirements of national convenience and necessity.

This case settled once for all the principle that it is a sufficient return to a writ of habeas corpus issued by a state court that the party is in custody under claim or color of federal authority derived from either a statute or judicial process.

§ 69. Issuance of the Writ by Federal Courts.

Instead of submitting to interference by the States with the exercise of their powers, the federal courts have, especially of recent years, again and again, on writs of habeas corpus, removed from state custody persons charged with offenses against the peace of the States.

The Judiciary Act of 1789 gave to the federal court authority to issue the writ of habeas corpus only as to persons in jail under or by color of authority of the United States. No provision was thus made for the release by federal courts of persons in custody by order of the authorities of a State.

court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry. I have still less doubt, if possible, that a writ of habeas corpus may issue from a state court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the United States. . . To deny the right of state courts to issue the writ, or what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases, and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed or the people who adopted the Constitution. That instrument expressly declares that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

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.

6

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."7

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. Loneys 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 govern ment 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.