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The Albany Law Journal.

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ALBANY, MAY 31, 1890.

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CURRENT TOPICS.

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E find our taste for definitions and our fondness for animals gratified in Regina v. Brown, 24 Q. B. Div. 357, where Lord Coleridge, C. J., Pollock, B., and Field, Manisty, Cave, Day and Grantham, JJ., sat upon the grave question whether a duck is an animal. We rejoice to find our impression of some years' standing confirmed by the decision of the court that a duck is an animal. This speaks well for the judgment of the judges, for according to the senior Mr. Weller, "the man as can form a ackerate judgment of a animal, can form a ackerate judgment of anythin'." The more important question however was as to the definition of an "attempt." The conviction was of an attempt to commit an unnatural offense with domestic fowls, including, we infer, a duck, and the point was raised, that as the offense was impossible of commission, there could be no "attempt " to commit it. In other words, that there can be no attempt to do the impossible. The court unanimously denied that reasoning, disapproving Reg. v. Collins and Reg. v. Dodd, in which it was held that where one put his hand into another person's empty pocket he could not be convicted of an attempt to steal. This accords with our views, and two American cases Com. v. McDonald, 5 Cush. 365, and People v. Jones, 46 Mich. 441 hold precisely the same doctrine; and Rogers v. Com., 5 S. & R. 462; State v. Wilson, 30 Conn. 500; Kunkle v. State, 32 Ind. 520; Hamilton v. State, 36 id. 280; State v. Beal, 37 Ohio St. 108, hold the like doctrine in respect to acts with intent to do a particular thing. Mr. Bishop is of the same opinion. But the Supreme Court of this State, in People v. Moran, 54 Hun, 279, hold the contrary of an attempt to pick a pocket which was empty, Van Brunt. P. J., and Barrett, J., being of that opinion, but Daniels, J., dissenting. The court had not the last English case before them. Judge Barrett distinguishes between "attempt "intent "an act done with a particular intent and an attempt to commit a specific offense," and he is "surprised at Mr. Bishop's difficulty in reconciling the cases. Mr. Jerome's illustrations are apt and plausible, but hardly convincing. I agree that if we throw a stone at a piece of plate-glass, and fail to break it because the glass was too strong, there is an attempt to break plate-glass. The act tended to break it, and failed. If however the stone were thrown at what appeared to be plateglass, but was not, the wrong-doer might be guilty of throwing with intent to break plate-glass, but no matter what was in his mind, he could not be guilty of an attempt to break any thing save the shining object which he mistook for glass. So as to the scare-crow illustration, a man does not in a VOL. 41- No. 22.

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legal sense attempt to commit murder, when passing through a field in the dusk, he shoots at a dummy, believing it to be his enemy. He shoots with intent to kill his enemy, but that is not the crime of an attempt to commit murder." This seems to us too fine, although it is very ingenious. Suppose that a man wrongfully shoots at another man, and hits him, but the latter is clad in underwear of impenetrable steel. Will Judge Barrett tell us that there is no attempt to commit murder? To attempt means to try, and that is all there is of the dispute. There is no distinction in law or logic or usage between "attempt " and "intent." A man may attempt" to jump over a fence ten feet high, although it is impossible, and his endeavor is not simply an "intent to attempt" to jump over the The intent is involved in the attempt. The matter is reduced to absolute common sense in the Rogers case, where it is said: "The intention of the person was to pick the pocket of Earle of whatever he found in it, and although there might be nothing in the pocket, the intention to steal is the For "intention" read "attempt," and the law and sense are just as good. And forcibly and more elaborately the same idea is expressed in Com. v. Jacobs, 9 Allen, 274: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking that step with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance." Judge Barrett is right in saying that "an attempt to commit larceny necessarily contemplates an act tending to effect the felonious taking of specific property." He is wrong, we think, in supposing that the specific property must be present so that it can be taken. Suppose it were a pocket-book, and the pickpocket got hold of it, but could not remove it because it was firmly fastened to the bottom of the pocket. Would there not still have been an attempt to take it? This case is not different from the case of the

same."

empty pocket. Bishop says, very exquisitely: "The means must be adapted to the end, but the adaptation need only be apparent."

As we predicted, the Supreme Court refused to interfere in Kemmler's case, but they considered the question whether the punishment is cruel. They concede that the provision of the eighth amendment to the Federal Constitution as to cruel and unusual punishments applies only to the Federal government, but they discuss the question whether the case is not covered by the fourteenth amendment. Chief Justice Fuller says:

"It is not contended that the eighth amendment has any application whatever to the States, but it is urged that the provisions of the fourteenth amendment which forbids a State to make or enforce any law which shall abridge the privileges or immunities of citizens of

the United States is a prohibition on the State from the imposition of cruel and unusual punishments, and that such punishments are also prohibited by inclusion in the term due process of law.' The provision in reference to cruel and unusual punishments originated in the well-known act of Parliament of 1688. This declaration of rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question as used in the Constitution of the State of New York was intended particularly to operate upon the Legislature of the State, to whose control the punishment of crime was almost wholly confiued. So that if the punishment prescribed were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, disembowelling or hanging in chains, it would be the duty of the courts to adjudge such penalties to be within the constitutional inhibition. And we think this equally true of the eighth amendment in its application to Congress. * * * Punishments are cruel because they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere causing of dissolution."

As to "due process of law" the chief justice observes, that in the fourteenth, as in the fifteenth amendment,

"The same words refer to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Undoubtedly the amendment forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights, and in the administration of criminal justice requires that no different or higher punishment shall be imposed upon one than such as is prescribed for all for like offenses. But it was not designed to interfere with the power of the State to protect the lives, liberties and property of its citizens, and to promote their health, peace, morals, education and good order. The enactment of this statute was in itself within the legitimate sphere of the legislative power of the State, and the Legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the State has thereby abridged the privileges or immunities of the petitioner or deprived him of due process of law." Now will Judge Wallace be moved to quash his writ, or will Kemmler have to drag out his wretched existence until the return day? Perhaps he will, independent of that writ, for there is still to be considered that deep question of the indefeasible right of the sheriff to do the taking-off. It is rather ungracious in so determined a Democrat as Mr. Cockran to try to fix this burden on the sheriff, when Mr. Cleveland has been so seriously denounced for having shouldered it in one case when he was sheriff.

Our Legislature enacted a very important measure in providing that corporations shall pay their em ployees once a week. Why steam surface-railroad companies should have been excepted we do not understand, unless it was through the persuasive power of pecuniary arguments. There can be no doubt of the legislative power to enact the measure

as a regulation of bodies of their creation, if the power of regulation is reserved in their charters. But we find it impossible to yield to the doctrine of Hancock v. Yaden, in the Indiana Supreme Court, upholding a similar law, embracing individuals as well as corporations, engaged in mining or manufacturing. There is no analogy between this enact ment and the statute of frauds, because the latter is a mere rule of evidence, and under it the contract is not invalid, but is good after performance, and after part performance completion may be enforced in equity. We regard the Indiana legislation as an unconstitutional interference with private rights. What constitutional authority has the Legislature to enact that one must pay his cook every week? Would anybody pretend that they have power to enact that she must take her pay every week? In other words, what warrant has the Legislature to interfere with a detail of a contract of service? If they have this right, they may enact that the individual master must engage his cook for not less than a year, and give her leave to go out every night, and to have all the "followers" she wishes. The Central Law Journal, in commenting on this enactment and the decision upon it, disapproves of the decision of our Court of Appeals in People v. Budd, in reference to elevator charges. But elevator service is of a more public character than the operations of an individual miner or manufacturer, and is a factor in the transportation of great products on public waters, which the shipper cannot avoid using. And yet we cannot say that we have given our adherence to the doctrine of the majority in the Budd case. Judge Peckham's dissenting opinion contains some very weighty arguments to the contrary. The Indiana enactment gains no force from considerations of police or policy. There is nothing immoral or impolitic in master and servant making their own contracts as to time of payment. The Central cites the case of West Virginia v. Fire Creek Co., 6 Lawy. Rep. 359, where it was held that a statute which prohibits persons and corporations engaged in mining and manufacturing, and interested in selling merchandise and supplies to the employees at a greater per cent of profit than they sell to others not employed by them, is unconstitutional and void, because it is class legislation, and an unjust interference with private contracts and business. It seems to us that the fraternal hand of government is growing much too heavy in this interference with the right of individual citizens to make their own contracts. It is noticeably a very modern tendeney. When we published a little manual on Domestic Relations, for the use of students, in 1883, we wrote: "The master may contract beforehand with the servant for release from liability for injury by his own or his employee's neglect," citing Western R. Co. v. Bishop, 50 Ga. 465; contra, Rosener v. Herman, 8 Fed. Rep. 782. But in a new edition this year we have had to insert "not" after "may," citing Lake Shore, etc., R. Co. v. Spangler, 44 Ohio St. 571; S. C., 58 Am. Rep. 833; Kansas Pac. Ry. Co. v. Peavey, 29 Kans. 169; S. C., 44 Am. Rep. 630; Little Rock, etc., R. Co. v. Eu

banks, 48 Ark. 460, in addition to the Rosener case, leaving the Georgia case alone contra. Some of these cases were in respect to a statutory liability, but there seems to be no difference in principle.

Mr. Eugene D. Hawkins favors us with a copy of his essay on Rights of Minority Stockholders,"

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which took the prize of 1889 from the New York State Bar Association. Copies can doubtless procured from him at New York city.

We have received two or three anonymous parodies on our quatrain about Mrs. Ottendorfer's feet, both very bad the parodies, not the feet. We are inclined to suspect that they are written by our abusive brethren of the New York Law Journal and the Washington Law Reporter.

Some of the intemperate temperance people have been finding fault with Mr. Justice Miller on account of his opinion in the original-package case, because it is not according to their notions of morals. Probably these are the same people who reported that Mr. Justice Brewer was put into the

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NOTES OF CASES.

N Moore v. Francis, Court of Appeals of New York, April 15, 1890, it was held that a newspaper report which states that plaintiff, while acting in the capacity of bank teller, became mentally deranged by reason of overwork, and that while in that condition he made injurious statements regardbeing the bank's affairs, which caused it trouble, is libellous per se. Andrews, J., said: "The authorities tend to support the proposition that spoken words imputing insanity are actionable per se when spoken of one in his trade or occupation, but not otherwise without proof of special damage. Morgan v. Lingen, 8 Law T. (N. S.) 800; Joannes v. Burt, 6 Allen, 236. The imputation of insanity in a written or printed publication is a fortiori libellous where it would constitute slander if the words were spoken. Written words are libellous in all cases where, if spoken, they would be actionable; but they may be libellous where they would not support an action for oral slander. There are many definitions of 'libel.' The one by Hamilton in his argument in People v. Croswell, 3 Johns. Cas. 354, viz., ‘a censorious or ridiculing writing, picture or sign, made with mischievous and malicious intent toward government, magistrates or individuals,' has often been referred to with approval. But unless the word 'censorious' is given a much broader signification than strictly belongs to it, the definition would not seem to comprehend all cases of libellous words. The word libel,' as expounded in the cases, is not limited to written or printed words which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or censure him. In the case before referred to, words affecting a man injuriously in his trade or occupation may be libellous although they convey no imputation upon his character, Words, says Starkie, are libellous if they affect a person in his profession, trade or business, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness, or want of any necessary qualification in the exercise thereof.' Stark. Sland., § 188. The cases of libel founded upon the imputation of insanity are few. The declaration in Morgan v. Lingen, supra, contained a count for libel, and also for verbal slander. The alleged libel was a letter written by the defendant in which he states that 'he had no doubt that the plaintiff's mind was affected, and that seriously,' and also that she had a delusion,' etc. It appeared that the defendant had also orally stated, in substance, the same thing. It was claimed that the writing was justified. The plaintiff was a governess. Martin, B., in summing up to the jury, said that a statement in writing that a lady's mind is affected, and that seriously, is, without explanation, prima facie a libel. In respect to the slander, he said he thought there was no evidence of any special damage. The jury must therefore 'consider whether the defendant ever intended to use the expressions he did with reference to the plaintiff's profession of governess.' In Perkins v. Mitchell, 31 Barb. 465, it was held to be libellous to

court in the interest of the rumsellers on account of his opinion in the Mugler case, and who probably are very much disappointed because he dissented in the original-package case, thus disproving their gossip and their prophecies. There are many sensible and moderate religious and temperate people we are one of that class-but when there is a combination of religion and prohibition and foolishness in the same person it is a hopeless case. Such people countenance nothing that stands in the way of their wishes. They take no account of the laws, and demand that judges shall be as unscrupulous as they themselves would be if they were judges. Mr. Justice Miller has deemed it worth his while to write an explanatory and expostulatory letter on this subject to a personal friend, a Methodist clergyman, whom we take to be one of the class possessing this trinity of attributes, in which he says he has followed the doctrine of the court established sixty years ago by Chief Justice Marshall, and concludes as follows:

"Many people, like you, I think, have the idea that the Supreme Court is oath-bound in its decisions by the views they have of abstract moral right. But we are as much sworn to decide according to the Constitution of the United States as you are bound by your conscience to a faith in the Bible. If my views of the true meaning of the Constitution of the United States in a question brought before me as a judge of one of the courts of the country should compel me to differ from the whole world, I should do it courageously, as I have no doubt you would stand by any doctrine which you believe to be taught by the Holy Bible. This is the only letter I have attempted to answer on this subject, and however my friends may think I have erred on this subject, I must bear their censure."

Mr. Justice Miller stands in as little need of apologizing for his opinions as Chief Justice Marshall stood. Many people have to learn that sentiment is not necessarily law.

publish of another' that he is insane, and a fit person to be sent to the lunatic asylum;' Emott, J., saying: Upon this point the case is clear.' Rex v. Harvey, 2 Barn. & C. 257, was an information for libel for publishing in a newspaper that the king 'labored under mental insanity, and it stated that the writer communicated the fact from authority.' The judge charged that the publication was a libel, and the charge was held to be correct. The foregoing are the only cases we have noticed upon the point whether a written imputation of insanity constitutes a libel. Several of the text-writers state that to charge in writing that a man is insane is libellous. Add. Torts, 168; Townsh. Sland. & Lib., § 177; Stark. Sland., § 164; Ogder Sland. & Lib., p. 23. The publication now in question is not simply an assertion that the plaintiff is or has been affected with 'mental derangement,' disconnected with any special circumstances. The assertion was made to account for the trouble to which the bank had been subjected by reason of injurious statements made by the plaintiff while in its employment. Words, to be actionable on the ground that they affect a man in his trade or occupation, must, as is said, touch him in such trade or occupation; that is, they must be shown, directly or by inference, to have been spoken of him in relation thereto, and to be such as would tend to prejudice him therein. Sanderson v. Caldwell, 45 N. Y. 405, and cases cited. The publication did, we think, touch the plaintiff with respect to his occupation as bank teller. It imputed mental derangement while engaged in his business as teller which affected him in the discharge of his duties. The words conveyed no imputation upon the plaintiff's honesty, fidelity or general capacity. They attributed to him a misfortune brought upon him by an over-zealous application in his employment. While the statement was calculated to excite sympathy, and even respect, for the plaintiff, it nevertheless was calculated also to injure him in his character and employment as a teller. On common understanding, mental derangement has usually a much more serious significance than mere physical disease. There can be no doubt that the imputation of insanity against a man employed in a position of trust and confidence, such as that of a bank teller, whether the insanity is temporary or not, although accompanied by the explanation that it was induced by overwork, is calculated to injure and prejudice him in that employment, and especially where the statement is added, that in consequence of his conduct in that condition the bank has been involved in trouble. The directors of a bank would naturally hesitate to employ a person as teller whose mind had once given way under stress of similar duties, and run the risk of a recurrence of the malady. The publication was, we think, defamatory, in a legal sense, although it imputed no crime, and subjected the plaintiff to no disgrace, reproach or obloquy, for the reason that its tendency was to subject the plaintiff to temporal loss, and deprive him of those advantages and opportunities as a member of the community which are open to those who have both a sound mind and a sound body."

In Re Berridge; Berridge v. Turner, Chancery Division, 62 L. T. Rep. (N. S.) 365, a bequest in trust "for the advancement and propagation of education in economic and sanitary science in Great Britain," was held a valid charitable bequest. The testator declared that if he gave no further direc tions as to the manner in which this charitable gift was to be carried out, his trustees might settle a scheme for the purpose at their discretion, and such scheme, if approved by the attorney-general for the time being, should be valid and binding in all respects. Counsel cited Wicker v. Hume, 1 De G., M. & G. 506, where the gift was for the benefit, advancement and propagation of education and learning in every part of the world as far as circumstances would permit, and it was held that that was a valid charitable bequest. Stirling, J., said: "In my opinion this is a perfectly valid charitable bequest; it is for the purpose of education of a particular kind, and I feel no doubt as to its being a valid gift. A scheme for the more definite application of the fund will have to be settled. I make a declaration that this legacy is a valid charitable bequest. The trustees must forthwith settle a scheme with the attorney-general for the application of the leg. acy, although it may not perhaps be possible to carry it out at once."

In Ash v. Baltimore & O. R. Co., Court of Appeals of Maryland, March 18, 1890, it was held that the Code of Maryland, article 67, section 1, provides that an action for the death of a person caused by the wrongful act or neglect of another shall be brought by the wife, husband, parent or child of the deceased, to be prosecuted in the name of the State for the use of the persons entitled. Code of West Virginia, page 709, section 6, provides that "every such action shall be brought in the name of the personal representative of such deceased person." Held, that an administrator appointed in Maryland could not sue in Maryland under the West Virginia statute for the death of his intestate caused by negligence in West Virginia. The court said: "We are aware that there is some diversity of opinion upon this subject; but we are not aware that there is any well-considered case that holds that the action may be maintained in a State other than that in which the accident occurred, on the same state of facts, as here presented, and where there existed in the statutes of the two States upon this subject such dissimilarity of provisions as we find to exist in the statutes of West Virginia and Maryland. In Leonard v. Navigation Co., 84 N. Y. 48, it was held that an administrator appointed in the State of New York might maintain an action for the death of his intestate occasioned by a negligent injury inflicted by the defendant in another State, having a statute substantially like the New York statute, allowing an action of damages for death by negligence to be prosecuted by the personal representative of the deceased; and in the case of Dennick v. Railroad Co., 103 U. S. 11, brought up from a Circuit Court sitting in New York, the same rule of decision is maintained as that laid down in Leonard v. Naviga

tion Co., supra.

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This case in 103 U. S. 11, is much relied on by the plaintiff, but the facts of that case are not similar to the facts of the present case. In that case the death occurred in New Jersey, and the action was brought by an administratrix appointed in New York; and in delivering the opinion the Supreme Court said 'that a statute of New York, just like the New Jersey law, provides for bringing the action by the personal representative, and for distribution to the same parties, and [that] an administrator appointed under the law of that State would be held to have recovered to the same uses, and subject to the remedies, in her fiduciary character, which both statutes require.' The court also said that the questions growing out of these statutes are new and many of them unsettled. Each State court will construe its own statute on the subject, and differences are to be expected.' clear therefore that the decision in the case reported in 103 U. S. does not apply to this case. But even the qualified decisions of the Court of Appeals of New York and of the Supreme Court of the United States upon this subject have not met with general approval, and have not been generally followed by subsequent State court decisions. In the recent case of Davis v. Railroad Co., 143 Mass. 301, it was held by the Supreme Court of Massachusetts that an action by an administrator could not be maintained in that State for the death of a person caused by the negligence of the defendant in another State, the remedies provided in the two States not being alike, and the court expressly declined to depart from its own previous decision in Richardson v. Railroad Co., 98 Mass. 85, and follow the general doctrine laid down in Dennick v. Railroad Co., 103 U. S. 11. And so in case of Vawter v. Railroad Co., 84 Mo. 679, where it was held by the Supreme Court of Missouri that an administrator appointed in that State could not maintain an action there for the death of his intestate by negligence of the defendant in Kansas; such action being allowed by the statute of Kansas, but not by that of Missouri. There also the case of Dennick v. Railroad Co. and Leonard v. Navigation Co., supra, were pressed upon the court for the general doctrine there laid down; but the Supreme Court of Missouri declined to adopt or follow those cases, and decided in accordance with what was taken to be the well-established general principle of inter-State law in such cases. And even in New York, in the recent case of Debroise v. Railroad Co., 98 N. Y. 377, it was held that an action by an administrator for damages for the death of his intestate, caused by the negligence of the defendant in another State, could not be maintained in the courts of New York without proof of the existence of a like statute to that of New York in the State where the accident occurred, thus showing that the right of action given by statute for the death of an individual is not transitory, like the common-law right of action for personal injuries, but the operation and force of such statute must be confined to the State enacting it, except where it can be extended by comity. And whether an action would be sustained by the courts

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LAMAR, J. The chief justice and myself are unable to assent to the conclusion reached by the majority of the court.

Our dissent is not based on any conviction as to the guilt or innocence of the appellee. The view which we take renders that question immaterial to the inquiry presented by this appeal. That inquiry is, whether the appellee, Neagle, shall in this ex parte proceeding be discharged and delivered from any trial or further inquiry in any court, State or Federal, for what he has been accused of in the forms prescribed by the Constitution and laws of the State in which the act in question was committed. Upon that issue we hold to the principle announced by this court in the case of Ex parte Crouch, 112 U. S. 178, 180, in which Mr. Chief Justice Waite, delivering the opinion of the court, said: "It is elementary learning that, if a prisoner is in custody of a State court of competent jurisdiction, not illegally asserted, he cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of the United States, simply because he is not guilty of the offense for which he is held. All questions which may arise in the orderly course of the proceeding against him are to be determined by the court to whose jurisdiction he has been subjected, and no other court is authorized to interfere to prevent it. Here the right of the prisoner to a discharge depends alone on the sufficiency of his defense to the information under which he is held. Whether his defense is sufficient or not is for the court which tries him to determine. If, in this determination, errors are committed, they can only be corrected in an appropriate form of proceeding for that purpose. The office of a writ of habeas corpus is neither to correct such errors, nor to take the prisoner away from the court which holds him for trial, for fear, if he remains, they may be committed. Authorities to this effect in our reports are numerous. Ex parte Watkins, 3 Pet. 202; Ex parte Lunge, 18 Wall. 163, 166; Ex parte Parks, 92 U. S. 18, 23; Ex parte Siebold, 100 id. 371, 374; Ex parte Virginia, id. 339, 343; Ex parte Rowland, 104 U. S. 604, 612; Ex parte Curtis, 106 id. 371, 375; Ex parte Yarbrough, 110 id. 651, 653."

Many of the propositions advanced in behalf of the appellee and urged with impressive force we do not challenge. We do not question, for instance, the soundness of the elaborate discussion of the history of the office and function of the writ of habeas corpus, its operation under and by virtue of section 753 of the Revised Statutes, or the propriety of its use in the manner and for the purposes for which it has been used, in any case where the prisoner is under arrest by a State for an act done "in pursuance of a law of the United States." Nor do we contend that any objection arises to such use of the writ, and based merely on that fact, in cases where no provision is made by the Federal law for the trial and conviction of the accused. Nor do we question the general propositions, that the Fed

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