LECTURE LVI. -- Persons held ministerially by a Federal officer under an unconstitutional Command or Statute of the United States might formerly be liberated by a Habeas Corpus from a State Tribunal. It is now a conclusive Answer to such a Writ that the Petitioner is "Confined under the Authority or Claim or Color of the Authority of the United States by an officer of that Government." The return to the Habeas Corpus must nevertheless set forth enough to show distinctly that the Imprisonment is under the Authority of the United States and to exclude the idea of Imposition or Oppression. A State Court cannot restrain an officer of the United States in the Performance of a Duty imposed by Congress, whether the act be or be not Constitutional. - Although a Habeas Corpus or Replevin may not be issued by a State Court for Things or Persons wrongfully taken or held for the United States, the officer may be made Personally Answerable in Trover or Trespass. Distinction between proceedings in rem, which are a Justification against all the World, and a Foreign Attachment, or Fieri facias, which only binds the Defendant's Interest in the Goods. The Sheriff or Marshal will not ordinarily be enjoined from selling the Goods of one man under a Writ against another, and the Remedy is an Act against him or the Purchaser. —A State Court cannot enjoin Proceedings in the Federal Courts, and the Federal Courts are forbidden to issue an Injunction to the State Courts. A State cannot punish an offence against the Laws of the United States. A false Oath in a State Court in the Administration of a Law of the United States may be Punished by the State. - Acts which are prejudicial to a State and the United States may be Punished by both Governments. A Penal Law of the United States may be adopted by a State, and will then be Indictable in its Courts. THE jurisdiction of the State courts to liberate persons taken or held ministerially, in the illegal or undue exercise of a power conferred by Congress, was asserted at an early period in the history of the government, and though questioned in Ferguson's Case,1 has been repeatedly exercised for the discharge of minors mustered into the military service of the United States without the consent of their parents, contrary to the regulation made by Congress.2 19 Johnson, 239. 2 State v. Rutter; State v. Brearly, 2 Southard, 555; Commonwealth v. Harrison, 11 Mass. 63; State v. Dimick, 12 N. H. 194; In the Mat 1210 CAN A STATE COURT LIBERATE The jurisdiction was vindicated in these instances, and in Lockington's Case,1 on the ground that an invasion of the right of personal liberty is prima facie a violation of the laws of the State where the wrong is done, which may be remedied by the State courts through a habeas corpus or other appropriate writ. That an act of Congress is relied on as a justification does not vary the case, because it is an established principle that jurisdiction once acquired extends to the determination of every question which may arise in the consideration of the cause under the statutes of the same or another government. Such was the view taken in Lockington's Case, where Tilghman, Ch.-J., observed that the authority of the State courts in cases of habeas corpus emanated from the several States, and not from the United States. In order to defeat this right it was necessary to show that Congress not only possessed, but had exercised, the power to take away the jurisdiction which those courts possessed anterior to the adoption of the Constitution. It was as important to the citizen to be released from an unlawful restraint under color of an authority derived from the United States, as from an illegal restraint imposed in any other way. It might be doubted whether any part of this power had been surrendered by the States; but if it had, the State courts might still exercise it until the jurisdiction of the federal judiciary was made exclusive. A like view was taken by the Supreme Court of New York in Charlton's Case, and the argument would seem to be conclusive unless an answer can be found in the political considerations which were relied on in Tarble's Case.2 ter of Stacy, 10 Johnson, 328; Charlton's Case, 7 Cowen, 471; Commonwealth v. Wright, 3 Grant, 437; Commonwealth v. Gane, Id. 447; Commonwealth v. Fox, 7 Pa. 336; Kneedler v. Lane, 45 Id. 238, 337. See The United States v. Wyngall, 5 Hill, 16, where the government was so far from questioning the jurisdiction that it brought the question whether an alien could be mustered into the service of the United States by a certiorari before the Supreme Court of New York, which refused to discharge the recruit because he had bound himself, and the government might waive the objection. 1 Charlton's Case, 7 Cowen, 471; Wharton's Digest, title Habeas Corpus. 213 Wallace, 397, 411. PERSONS HELD FOR THE UNITED STATES? 1211 These decisions, like the cognate question arising under the writ of replevin, have been qualified if not overruled; and it is now so established, that a State court cannot issue any process tending to suspend the execution of an act of Congress, or take goods or persons that have been seized by a federal officer under an authority from the General Government.1 In Tarble's Case a minor was mustered into the service of the United States, contrary to the acts of Congress for the regulation of the service; and it was held that the question whether he could be lawfully detained could not be tested by a writ of habeas corpus from a State tribunal. The material inquiry was said to be, "Have the State courts power to discharge persons held under the authority, or claim, or color of authority from the United States, by an officer of that government?" This question admitted of but one reply, in view of the object of the Constitution, which, as defined by Chief-Justice Taney in Ableman v. Booth, was not only to guard against danger from abroad, but to secure union and harmony at home, by such a subordination of the States as would prevent a conflict of jurisdiction that would prove fatal to both governments. The United States were empowered by the Constitution to raise and support armies, and to provide for rules for the government of the land and naval forces; and those powers would be hampered and rendered inefficient if soldiers could be taken from the army of the United States, and perhaps discharged, on a writ of habeas corpus by any judge of the numerous State courts authorized to issue such writs who thought the enlistment invalid, or questioned the constitutionality of the act of Congress.2 1 Freeman v. Howe, 24 Howard, 450; Tarble's Case, 13 Wallace, 397; Covell v. Hayman, 111 U. S. 178; Patterson, The United States and The States, p. 237. 2 The Constitution was not framed merely to guard the States against danger from abroad, but chiefly to secure union and harmony at home; and to accomplish this end it was deemed necessary, when the Constitution was framed, that many of the rights of sovereignty which the States then possessed should be ceded to the General Government; and that in the sphere of action assigned to it it should be supreme, and VOL. II.- -36 1212 CAN A STATE COURT LIBERATE The principle, as the judgment in Tarble's Case indicates, is affected by considerations which are not always the same, strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And the judicial power conferred extends to all cases arising under the Constitution, and thus embraces every legislative act of Congress, whether passed in pursuance of it or in disregard of its provisions. The Constitution is under the view of the tribunals of the United States when any act of Congress is brought before them for consideration." Ableman v. Booth, 21 Howard, 506. "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, and in the regulation of which neither can interfere with the other. 66 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.' The execution of these powers falls within the line of its duties, and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offences, and prescribe their punishment. No interference with the execution of this power of the national government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency of, if it did not utterly destroy, this branch of the public service. Probably in every county and city in the several States there are one or more officers authorized by law to issue writs of habeas corpus on behalf of persons alleged to be illegally restrained of their liberty; and if soldiers could be taken from the army of the United States, and the validity of their enlistment inquired into by any one of these officers, such proceeding could be taken by all of them, and no movement could be made by the national troops without their commanders being subjected to constant annoyance and embarrassment PERSONS HELD FOR THE UNITED STATES? 1213 and cannot readily be stated. Seen in one aspect, it is a rule of policy intended to secure the government of the from this source. The experience of the late Rebellion has shown us that in times of great popular excitement there may be found in every State large numbers ready and anxious to embarrass the operations of the government, and easily persuaded to believe every step taken for the enforcement of its authority illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service, in the hands of parties thus disposed, might be used, and often would be used, to the great detriment of the public service. In many exigencies the measures of the national government might in this way be entirely bereft of their efficacy and value. An appeal in such cases to this court, to correct the erroneous action of these officers, would afford no adequate remedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a State officer, through the highest tribunal of the State, to this court for review would necessarily occupy years, and in the meantime, where the soldier was discharged, the mischief would be accomplished. It is manifest that the powers of the national government could not be exercised with energy and efficiency at all times if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty. It is true similar embarrassment might sometimes be occasioned, though in a less degree, by the exercise of the authority to issue the writ possessed by judicial officers of the United States, but the ability to provide a speedy remedy for any inconvenience following from this source would always exist with the national legislature. "State judges and State courts, authorized by laws of their States to issue the writ 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. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders under which the prisoner is held should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer in good faith, under the authority, or |