\ 
 
 V 
 
OPINION 
 
 OF 
 
 Cf|t Chtuil Court of lf|e lll]itc[l 
 
 FOR THE 
 
 NORTHERN DISTRICT OF CALIFORNIA, 
 
 IN THE 
 
 Matter of DAVID NEAGLE 
 
 UPON HABEAS CORPUS. 
 
 Delivered at San Francisco, September 16, 1889, 
 
 BY 
 
 HON. LORENZO SAWYER , 
 
 U. S. Circuit Judge. 
 
lit tf\e Circuit Court 
 
 OF THE 
 
 UNITED STATES. 
 
 Ninth Judicial Circuit, 
 
 NORTHERN DISTRICT OF CALIFORNIA. 
 
 In the Matter op j 
 
 DAVID NEAGLE No. 10,469. 
 
 On Habeas Corpus. I 
 
 1 . Under the provisions of Sections 751, 752 and 753 of the 
 Revised Statutes, the Courts of the United States and their 
 Judges have jurisdiction upon a writ of habeas corpus, to in¬ 
 quire into the cause of the imprisonment of the petitioner, and 
 if, upon such inquii' 3 % 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 laud. 
 
 2. 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 ‘‘Supreme law of the land,” the authority of 
 the State, in such cases, is subordinate, and that of the United States, 
 paramount. 
 
 3. A State law which contravenes a valid law of the United States 
 is void. In legal contemplation, there can no more be two valid con¬ 
 flicting laws, operating upon the same subject-matter, at the same 
 
2 
 
 time, than in physics, two bodies can occupy the same space at the 
 same time. 
 
 4. 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. 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. The Natioual 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. It is within the power of the Government of the United States 
 to protect all the agencies and instrumentalities necessary to accom¬ 
 plish the objects and purpose 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, 
 dissapointed litigants, not only while actually holding Court, but 
 while such Judges are travelling through their Circuits for the pur¬ 
 pose of holding Courts at the different places therein appointed by law 
 for that purpose. 
 
 8. 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 withiu the juris¬ 
 diction and power of the United States Marshal or his deputies to 
 prevent, as a peace officer of the national government. 
 
 9. By Section 788 R. S., and the several provisions of the Statutes 
 of California prescribing the duties of Sheriffs by that section made 
 applicable to 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 depart¬ 
 ments. The Courts of the United States must be enabled fully to 
 
3 
 
 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 aud hindrance in the performance of 
 their judicial duties. 
 
 10. Where a Deputy United States Marshal, acting under instruc 
 tions 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 Deouty Marshal, 
 at the time and under the circumstances surrounding him, that the 
 killing was necessary in order to protect aud defend the Justice from 
 great bodily injury, or to save his life. 
 
 11. 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 
 law's of the United States. But the homicide, when necessarily done 
 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 aud violence because of his judicial decisions, is an “ act done 
 in pursuance of a law of the United States,” aud 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 beiug 
 the supreme law of the land. 
 
 12. 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 aud 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. 
 
 13. All the law of the United States is not specifically expressed in 
 statutory enactments. Many powers are necessarily inherent in the 
 
4 
 
 v.irions departments of the Government, without which the Govern¬ 
 ment 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. 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 exemptions, necessary to accomplish the objects 
 thereby sought to be attaiued. 
 
 15. The acts of the heads of departments of tli6 United States 
 Government in the line of their duties, are in contemplation of law, 
 the acts of the President himself. 
 
 16. 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 the fraction of a second too late. 
 
 Before Sawyer, Circuit Judge, and Sabin, Dist. Judge. 
 
 STATEMENT OF FACTS. 
 
 This is au application for the discharge of David 
 Neagle upon a writ of habeas corpus. It arises out of 
 the following facts: 
 
 On the 3d of September, 188S, certain cases were 
 pending in the Circuit Court of the United States for 
 the Northern District of California, between Frederick 
 W. Sharon, as executor, vs. David S. Terry and Sarah 
 Althea Terry, his wife, and between Francis G. New- 
 lands, as trustee, and others against the same parties, 
 on demurrers to bills to revive and carry into execu¬ 
 tion the final decree of the court in the suit of William 
 Sharon vs. Sarah Althea Hill, and were decided on 
 that day. That suit was brought to have an alleged 
 
5 
 
 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 sur¬ 
 rendered 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 ;md supplemental by Newlands as trustee 
 for that purpose. 
 
 In deciding the cases, the Court gave an elaborate 
 opinion upon the questions involved, and whilst 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 ap¬ 
 plication of David S. Terry to have the order of com¬ 
 mitment revoked. For the whole proceeding, see In 
 re Terry, 36 Fed. Rep., 419. 
 
 Shortly before the court opened, the defendants came 
 into the com’troom, and took their seats within the bar 
 at the table next to the clerk’s desk, and almost imme¬ 
 diately 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 Al¬ 
 thea, 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 
 
6 
 
 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 man¬ 
 ner, 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 Newland’s 
 money for his decision, and everybody knew it, or 
 w r ords 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 ex¬ 
 claimed 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, 
 wdieu 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 tlie court-room. Soon afterward 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 lie was about leaving the 
 room, or immediately after stepping out of it, he suc¬ 
 ceeded 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, whilst 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, actu¬ 
 ally passing it during the struggle from one hand to 
 another. 
 
 Mr. Cross, a prominent attorney, who on that occa¬ 
 sion 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 hereinbefore 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 dis¬ 
 abled. For one occasion in the Master’s office see 
 (Sharon vs. Hill, 11 Sawyer, 123.) 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 
 
8 
 
 by the Marshal. For their conduct and resistance to 
 the execution of the order of the Court, the defendants, 
 Sarah Althea Terry and David S. Terry, were adjudged 
 guilty of contempt and ordered to be imprisoned, the 
 former for thirty days and the latter for six months. 
 
 In consequence of the imprisonment which fol¬ 
 lowed, various threats of personal violence to Justice 
 Field and the Circuit Judge were made by 
 Terry and his wife. Those threats were that they 
 would take the lives of both of those Judges; those 
 against Justice Field were sometimes that they would 
 take his life directly, at other times that they would 
 subject him to great personal indignities and humili¬ 
 ations, and if he resented it they would kill him. 
 
 These threats were not made in ambiguous terms, 
 but openly and repeatedly, not to one person, but to 
 many persons, until they became the subject of con¬ 
 versation throughout the State and of notice in the 
 public journals. Reports of these threats through 
 the press and through reports of the United States 
 Marshal and United States Attorney reached Washing¬ 
 ton, and in consequence of them the Attorney-General 
 thought proper to give instructions to the Marshal of 
 the United States for the Northern District of Cali¬ 
 fornia to take proper measures to protect the persons 
 of those judges from violence at the hands of Terry 
 and his wife. On the return of Justice Field from 
 Washington to attend his circuit in June last, the 
 probability of an attack by Judge Terry upon him 
 was the subject of conversation throughout the State 
 and of notices in some of the journals in the city of 
 San Francisco. It was the general expectation that if 
 Judge Terry met Justice Field violence would be 
 attempted upon the latter. 
 
 In consequence of this general belief and expecta¬ 
 tion, and the fact that the Attorney-General of the 
 
9 
 
 United States had given instructions to the Marshal 
 to see that the persons of Justice Field and of the 
 Circuit Judge should be protected from violence, the 
 Marshal of the Northern district appointed the peti¬ 
 tioner in this case, David Neagle, to accompany Mr. 
 Justice Field whilst engaged in the performance of 
 his duties aod whilst passing from one district to 
 another within his circuit, so as to guard him against 
 the tln’eatened attacks. He was specially commis¬ 
 sioned as a deputy by Mr. Franks, whose instructions 
 to him were that he should protect Justice Field at all 
 hazards, and knowing the violent and desperate char¬ 
 acter of Terry, that he should be active and 
 alert, and be fully prepared for any emergency, but 
 not to be rash; and in case any violence was attempted 
 from anyone, to call upon the assailant to stop, and 
 to inform him that he was an officer of the United 
 States. 
 
 Judge Terry was a man of great size and strength, 
 who had the reputation of being always armed with a 
 bowie-knife, in the use of which he was specially 
 skilled, and of showing great readiness to draw and 
 use it upon persons towaixls whom he entertained an} 7 
 enmity or had any grievance, real or fancied. 
 
 On the 8th of August, 1889, Justice Field left San 
 Francisco for Los Angeles in order to hear a habeas 
 corpus case which was returnable before him at that 
 city on the 10th of August, and also to be present at 
 the opening of the court on the 12th. He was accom¬ 
 panied by Deputy Marshal Neagle, the petitioner. 
 Justice Field heard the habeas corpus case on the 10th 
 of August. On the 12th of August he opened the Cir¬ 
 cuit Court, Judge Ross sitting with him, and he deliv¬ 
 ered on the latter day an opinion in an important land 
 case, and also an opinion in the habeas corpus case. On 
 the following day the Court heard an application for 
 
10 
 
 an injunction in an important water case from San 
 Diego County. No other cases being ready for hear¬ 
 ing before the Circuit Court, he took the train on 
 Tuesday, the 13th, at 1 :30 o’clock in the afternoon, for 
 San Francisco, where he was expected to hear a case 
 then awaiting his arrival immediately upon his 
 return, being accompanied on his return by 
 Deputy Marshal Neagle. On the morning of the 
 14th, between the hours of seven and eight, the train 
 arrived at Lathrop, in San Joaquin County, which is 
 in the Northern District of California, a station at 
 which the train stopped for breakfast. Justice Field 
 and the Deputy Marshal at once entered the dining¬ 
 room there to take their breakfast, and took their seats 
 at the third table in the middle row of tables. Justice 
 Field seated himself at the extreme end, on the side 
 looking toward the door. The Deputy Marshal took 
 the next seat on the left of the Justice. What subse- 
 quently occurred is thus stated in the testimony of 
 Justice Field: 
 
 “ A few minutes afterward Judge Terry and his wife 
 came in. When Mrs. Terry saw me, which she did 
 directly she got diagonally opposite me, she wheeled 
 around suddenly and went out in great haste. I after¬ 
 wards understood, as you heard here, that she went for 
 her satchel. Judge Terry walked past, opposite to me, 
 and took his seat at the second table below. The only 
 remark I made to Mr. Neagle was, 4 There is Judge 
 Terry and his wife.’ He remarked, 4 1 see him.’ Not 
 another word was said. I commenced eating my break¬ 
 fast. 1 saw Judge Terry take his seat. In a moment 
 or two afterwards I looked round and saw Judge Terry 
 rise from his seat. I supposed at the time he was go¬ 
 ing out to meet his wife, as she had not returned, so I 
 went on with my breakfast. It seems, however, that 
 he came round back of me — I did not see him—and he 
 
11 
 
 struck me a violent blow in the face, followed instan¬ 
 taneously by another blow. Coming so immediately 
 together, the two blows seemed like one assault. I 
 heard ‘ Stop, stop,’ cried by Neagle. Of course I was 
 for a moment dazed by the blows. I turned my head 
 round and I saw that great form of 'berry’s, with his arm 
 raised and his fists clenched to strike me. I felt that 
 a terrific blow was coming, and his arm was descending- 
 in a curved way, as though to strike the side of my 
 temple, when I heard Neagle cry out, “Stop, stop, I 
 am an officer.’ Inst°ntly two shots followed. I can 
 only explain the second shot from the fact that he did 
 not fall instantly. I did not get up from my seat, 
 although it is proper for me to say that a fi’iend of 
 mine thinks that I did; but I did not. I looked around 
 and saw Terry on the floor. I looked at him and saw 
 that peculiar movement of the eyes that indicates the 
 presence of death. Of course it was a great shock to 
 me. It is impossible for anyone to see a man in the 
 full vigor of life, with all those faculties that consti¬ 
 tute life, instantly extinguished, without being affected, 
 and I was. I looked at him for a moment, then rose 
 from my seat, went around and looked at him again, 
 and passed on. Great excitement followed. A gentle¬ 
 man came to me whom I did not know, but I think it 
 was Mr. Lidgerwood, who lias been examined as a wit¬ 
 ness in this case, and said : ‘ What is this V ’ I said : 
 
 ‘ I am a Justice of the Supreme Court of the United 
 States. My name is Judge Field. Judge Terry threat¬ 
 ened my life, and attacked me, and the Deputy Marshal 
 has shot him.’ The Deputy Marshal was perfectly cool 
 and collected, and stated : “I am a Deputy Marshal 
 and I have shot him to protect the life of Judge Field.’ 
 I cannot give you the exact words, but I give them to 
 you as near as I can remember them. A few moments 
 afterwards the Deputy Marshal said to me: ‘Judge, I 
 
12 
 
 think you had better go to the car.’ I said, ‘Very 
 well.’ Then this gentleman. Mr. Lidgenvood, said: ‘ T 
 think you had better.’ And with the two I went to the car. 
 I asked Mr. Lidgerwood to go back and get my hat and 
 cane, which he did. The Marshal went with me.remained 
 for some time and then left his seat in the car, and 
 as I thought went back to the dining-room. (This is, 
 however, I am told, a mistake, and that he only went 
 to the end of the car). He returned, and either he or 
 someone else stated that there was great excitement, 
 that Mrs. Terry was calling for some violent proceed¬ 
 ings. I must say here that, dreadful as it is to take 
 life, it was only a question of seconds whether my life 
 or Judge Terry’s life should be taken. I am firmly con¬ 
 vinced that had the Marshal delayed two seconds both 
 he and myself would have been the victims of Terry.’ 
 
 In answer to a question whether he had a pistol or 
 other weapon on the occasion of the homicide, Justice 
 Field replied: “No, Sir. I have never had on my 
 person, or used a weapon since I went on the bench of 
 the Supreme Court of the State, on October 13, 1857, 
 except once.” That was on an occasion when he cross¬ 
 ed the Sierra Nevada Mountains, in 1862. “With that 
 exception, I have not had on my person, or used a 
 pistol or other deadly weapon.” 
 
 Mr. Neagle in his testimony stated that before the 
 train arrived at Fresno, lie got up and went out on the 
 platform, leaving the train, and there saw Judge 
 Terry and his wfife get on the cars; that when the 
 train arrived at Merced he spoke to the conductor. 
 Woodward, and informed him that he was a Deputy 
 United States Marshal; that Judge Field was on the 
 train, and also Judge Terry and his wife, and that he 
 was apprehensive that when the train arrived at 
 Lathrop there would be trouble between those parties, 
 and inquired whether there was any officer at that 
 
13 
 
 station, and was informed in reply that there was a 
 constable there; that he then requested the conductor 
 to send word to the officer to be at Lathrop on the 
 arrival of the train, and that he also applied to other- 
 parties to induce them to endeavor to secure assistance 
 for him at that place in case it should be needed. The 
 Deputy Marshal further stated that when the train 
 arrived at Lathrop Justice Field went into the dining¬ 
 room, he accompanying the Justice; that they took 
 seats at a table, that shortly after they were seated, 
 Judge Terry and his wife entered the dining-room, 
 his wife following him several feet in the rear; that 
 when the wife reached a point nearly opposite Justice 
 Field, she turned around and went out rapidly from 
 the room, and, as appeared from what afterward fol¬ 
 lowed, she went to the car to get her satchel. 
 When she returned from the car, the satchel was taken 
 from her, and it was found to contain a pistol—revol¬ 
 ver—containing six chambers, all of which were 
 loaded with ball. This pistol lay on the top of the 
 other articles in the satchel. The witness further stated 
 that Judge Terry passed down opposite Justice Field, 
 to a table below where they were sitting; that in a 
 few minutes, whilst Justice Field was eating, Judge 
 Terry rose from his seat, went around behind him—the 
 Justice not seeing him at the time—and struck him 
 two blows, one on the side and the other on the back 
 of the head; that the second blow followed the other 
 immediately; that one was given with the right hand 
 and the other with the left; that Judge Terry then 
 drew back his hand, with his fist clenched, apparently 
 to give the Justice a violent blow on the side 
 of his head, when he, Neagle, sprang to his feet, 
 calling out to Terry, “Stop! Stop! I am an officer:” 
 that Terry bore at the time on his face an expression 
 of intense hate and passion, the most malignant the 
 
14 
 
 witness had ever seen in his life, and that he had seen 
 a great man) 7 men in his time in such situations, and 
 that the expression meant life or death for one or the 
 other; that as he cried out those words, “Stop! Stop 1 
 I am an officer,” he jumped between Terry and Justice 
 Field, and at that moment Judge Terry appeared to 
 recognize him, and instantly, with a growl, moved his 
 right hand to his left breast, to the position whei'e he 
 usually carried his bowie-knife; that, as his hand got 
 there, the Deputy Marshal raised his pistol and shot 
 twice in rapid succession, killing him almost instantly. 
 He further stated that the position of Judge Field was 
 such—his legs being at the time under the table, and 
 he sitting—that it would have been impossible for him 
 to have done anything even if he had been armed, 
 and that Judge Terry had a very furious expression, 
 which was characterized by the witness as that of an 
 infuriated giant. He also added, that his cry to him 
 to stop was so loud that it could be heard throughout 
 the whole room, and that he believed that a delay in 
 shooting of two seconds would have been fatal both to 
 himself and Justice Field. 
 
 The facts thus stated in the testimony of Justice 
 Field and the petitioner, were corroborated by the 
 testimony of all the witnesses to the transaction. The 
 petitioner soon afterwards accompanied Justice Field 
 to the car, and whilst in the car he was arrested by a 
 constable, and at the station below Lathrop was taken 
 by that officer from the car to Stockton, the county seat 
 of San Joaquin County, where he was lodged in the 
 county jail. Mr. Justice Field was obliged to con¬ 
 tinue on to San Francisco without the protection of any 
 officer. On the evening of that day Mrs. Terry, who 
 did not see the transaction, but was at the time out¬ 
 side of the dining-room, made an affidavit that the 
 killing of Judge Terry was murder, and charged Justice 
 
15 
 
 Field and Deputy Marshal Neagle with the commis¬ 
 sion of the crime. Upon this affidavit, a warrant was 
 issued by a Justice of the Peace at Stockton against 
 Neagle and also against Justice Field. Subsequently, 
 after the arrest of Justice Field, and after his being 
 released by the United States Circuit Court on habeas 
 corpus upon his own recognizance, the proceeding 
 against him before the Justice of the Peace was dis¬ 
 missed, the Governor of the State having written a 
 letter to the Attorney-General of the State, declaring 
 that the proceeding, if persisted in. would be a burn¬ 
 ing disgrace to the State, and the Attorney-General 
 having advised the District Attorney of San Joaquin 
 County to dismiss it. There was no other testimony 
 whatever before the Justice of the Peace except the 
 affidavit of Sarah Althea Terry upon which the war¬ 
 rant was issued. 
 
 In the suit of William Sharon against Mrs. Terry in 
 the Circuit Court of the United States, it was adjudged 
 that the alleged marriage contract between her and 
 Sharon, produced by her, was a forgery, and it was 
 held that she had attempted to support it by perjury 
 and subornation of perjury. She had also made threats 
 during the past year, and up to the time of the shoot¬ 
 ing of Judge Terry, that she would kill the Circuit 
 Judge and Justice Field, and she repeated that threat 
 up to the time she made her affidavit for the arrest of 
 Justice Field and Neagle; and that she had made such 
 threats was a notorious fact in Stockton and through¬ 
 out the State. 
 
 The petition was accordingly presented, on behalf of 
 Neagle, to the Circuit Court of the United States for a 
 writ of habeas corpus in this case, alleging, among other 
 things, that he was arrested and confined in prison 
 for an act done by him in the performance of his duty, 
 namely, the protection of Mr. Justice Field, and taken 
 
16 
 
 away from the further protection which he was or¬ 
 dered to give to him. The writ was issued, and upon 
 its return, the Sheriff of San Joaquin County produced 
 a copy of the warrant issued by the Justice of the 
 Peace of that county, and of the affidavit of Sarah Al¬ 
 thea Terry upon which it was issued. A traverse to 
 that return was then tiled in this case, presenting vari¬ 
 ous grounds wiry the petitioner should not be held, 
 the most important of which were, that an officer of 
 the United States, specially charged with a particular 
 duty, that of protecting one of the Justices of the Su¬ 
 preme Court of the United States whilst engaged in 
 the performance of his duty, could not, for an act con¬ 
 stituting the very performance of that duty, be taken 
 from the further discharge of his duty and imprisoned 
 by the State authorities, and that when an officer of 
 the United States in the discharge of his duties is 
 charged with an offense consisting in the performance 
 of those duties, and is sought to be arrested, and taken 
 from the further performance of them, he can be 
 brought before the tribunals of the nation of which he 
 is an officer, and the fact then inquired into. The At¬ 
 torney-General of the State appeared with the District 
 Attorney of San Joaquin County, and contended that 
 the offense of which the petitioner is charged could 
 only be inquired into before the tribunals of the State. 
 
 The question of the jurisdiction of the national tribu¬ 
 nal to interfere in the matter was elaborately argued by 
 counsel, the Attorney-General of the State and Mr. 
 Langhorne appearing with the District Attorney of 
 San Joaquin county on behalf of the State, and Mi’. 
 Care}’, United States Attorney, and Messrs. Herrin, 
 Mesick and Wilson appearing on behalf of the peti¬ 
 tioner. The latter did not pretend that any person in 
 this State, high or low, who committed a crime, might 
 not be tried by the local authorities if it were a crime 
 
17 
 
 against the State, but that when in the performance of 
 his duties that alleged crime consisted in an act which 
 is deemed a part of the performance of a duty de¬ 
 volved upon him by the laws of the United States, it 
 was within the competency of the national tribunals to 
 determine in the first instance whether that act was a 
 duty devolving upon him, and if it was a duty devolv¬ 
 ing upon him the officer had committed no offense 
 against the State and w r as entitled to be discharged. 
 
 John T. Carey, United States Attorney; Richard S. 
 Mesick, Samuel M. Wilson, Wm. F. Herrin, W. L. 
 Dudley, C. L. Ackerman, J. C. Campbell, H. C. 
 McPike, for the Petitioner. 
 
 G. A. Johnson, Attorney-General, State of California; 
 J. P. Langhorne; Avery C. White, District At¬ 
 torney, San Joaquin County, Cal., for the Re¬ 
 spondent. 
 
 OPINION OF THE COURT. 
 
 By the Court, Sawyer, Circuit Judge: 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, 
 whilst the act thus characterized was a lawful act per¬ 
 formed 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. 
 
 Upon the question of jurisdiction, Section 751, R. 
 S., 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 
 
18 
 
 “the several justices and judges of the said courts, with¬ 
 in their respective jurisdictions, shall have power to 
 grant writs of habeas corpus for the purpose of an in¬ 
 quiry 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., 325-6), in 
 commenting upon the same provision 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., 219, the Su¬ 
 preme 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 pow r er to 
 pass all laws necessary and proper to carry into execu¬ 
 tion the powers vested by the Constitution in the Gov¬ 
 ernment of the United States, or in any department or 
 officer thereof; no doubt can exist as to the powrnr 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 effect the question of the power or jurisdiction 
 
19 
 
 of the Circuit Court, to inquire into the cause of his 
 commitment, and to discharge him if he he restrained 
 of his liberty in violation of the Constitution. The 
 Grand Jurors who found the indictment, the Court in¬ 
 to which it was returned and by whose order he was 
 arrested, and the officer who holds him in custody, 
 are all equally with citizens, under a duty, from the dis¬ 
 charge of which the State could not release them, to 
 respect and obey the supreme law of the land, ‘any¬ 
 thing 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 State, 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 x s. Booth, 21 How., 506; 
 Tarble’s Case, 13 Wall., 397; Bohh vs. Connolly, 111 U. 
 S., 624. 
 
 “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 dis¬ 
 charge him, if he be held in custody in violation of 
 the Constitution.” 
 
 In the exercise of this jurisdiction there is no con¬ 
 flict between the authority of the State and of the 
 United States. The State in such cases is subordinate, 
 and the National Government paramount. “The Con¬ 
 stitution 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 vs. Davis, (100 U. S.. 257-8). The 
 exclusive authority of the State to determine 
 
20 
 
 ■whether an offense lias been committed against 
 the laws of the State is now earnestly pressed 
 upon our attention. In Siebold’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 inter¬ 
 pretation 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 govern¬ 
 ments, we shall continue to be vexed with difficulties 
 as to its jurisdiction and authority. No greater jeal¬ 
 ousy is required to be exercised toward this govern¬ 
 ment in reference to the preservation of our liberties 
 than is proper to be exercised toward the State govern¬ 
 ments. 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 oppres¬ 
 sion. The true interest of the people of this country 
 requires that both the National and State Govern¬ 
 ments shall be allowed, without jealous interference 
 on either side, to exercise all the powers which respect¬ 
 ively 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 res¬ 
 pected. 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., *2(56-7. 
 
21 
 
 This Court, theu, 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 committed in pur¬ 
 suance of a law of the United States,” then he is in 
 custody in violation of the Constiution 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 Consti¬ 
 tution and laws of the United States made in pursu¬ 
 ance 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 only the State can deal with 
 it as such or in that aspect. It is not claimed to be 
 an offense 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 Judiciaiy of the 
 United States to ultimately and conclusively de¬ 
 termine 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 
 
22 
 
 conclusively construe the National Statutes and de¬ 
 termine whether the homicide in question was the re¬ 
 sult of an “ act done in pursuance of a law of the 
 United States,” and when that question has been de¬ 
 termined 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 peti¬ 
 tioner was performed under such circumstances as to 
 justify it. If it was, then he was in the line of his 
 duty. If not, then it was outside his duty. We do 
 not make the inquiry at all for the purpose of 
 determining whether the act was an offense, or justi¬ 
 fiable 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 abil¬ 
 ity and disposition to, ultimately, do exact justice to the 
 petitioner. We have not the slightest doubt or appre¬ 
 hension in that particular; but there is a principle in¬ 
 volved. 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 
 
23 
 
 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. Exparte Royall, 117 U. S., 251. Butifitrests 
 in our discretion to discharge or remand the petitioner 
 to the State Courts, to be there first tried for an of¬ 
 fense 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 compus, 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 701, 11. S. The Court has no 
 right to trifle with the petitioner’s constitutional 
 rights by unnecessarily subjecting him to unjust im¬ 
 prisonment, 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 en¬ 
 large it in the smallest particular, but we must per¬ 
 form our duty as we understand it, be the conse¬ 
 quences 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 Con¬ 
 stitution 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 im¬ 
 prisoned 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 necessaiy, in order to dispose 
 of the case, to inquire and ascertain whether the peti¬ 
 tioner is in custody for an act done in pursuance of a 
 law of the United States. 
 
25 
 
 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 neces¬ 
 sary protection by assigning that duty to the petitioner, 
 wffio was a United States Deputy Marshal. The claim 
 is that the petitioner, as such Deputy Marshal, was 
 affording the ouly protection practicable to Justice 
 Field, in the lawful discharge of his duty, when the 
 homicide was committed, and that the killing was neces¬ 
 sary 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 Batlirop, 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, Section 8, of the Constitu¬ 
 tion. 
 
 Conceding the points to be as stated, do they pre¬ 
 sent 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 ? 
 
26 
 
 It is urged that since the homicide was committed 
 in the State at large, and not in the Courthouse 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 lias 
 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, dock¬ 
 yards, and other needful buildings,” in pursuance of 
 Section 8, Article I. of the National Constitution, and 
 that the State has no jurisdiction whatever of any 
 offense committed in such places. But it is contend¬ 
 ed that the United States has no jurisdiction 
 of offenders 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 in¬ 
 consistency in matters wherein the State is subordi¬ 
 nate, and the United States 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 courts in 
 violation of the Constitution and laws of the United 
 States, yet that the State courts 1 ‘cannot under any 
 authority conferred by the State, 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 
 
27 
 
 such laws,” and that this “ results from the supremacy 
 of the Constitution and laws of the United States.” 
 This principle, established in the Booth and Tarble 
 cases, was recently properly recognized by the 
 Supreme Court of California, when upon the return of 
 the writ of habeas corpus in Terry’s case, it appearing, 
 that he was in custody by virtue of a judgment of the 
 United States Circuit Court, it declined to require the 
 Sheriff to produce his body. As the powers and 
 duties of the State and National courts are by no 
 means reciprocal, in this class of cases, so they are not 
 reciprocal in the matter of territorial jurisdiction 
 mentioned, as claimed on the part of the State. 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. 
 
 In Siebold’s case, the Supreme Court, in reply to an 
 argument in favor of a wide extension of State rights, 
 uses the following language, peculiarly applicable to 
 the point now under consideration: “ Somewhat akin 
 to the argument which has been considered is the objec¬ 
 tion , that the Deputy Marshals authorized by the Act of 
 Congress to be created and to attend the elections are 
 authorized to keep the peace; and that this is a duty 
 which belongs to the State authorities alone. It is 
 argued that the preservation of 'peace and good order in 
 society is not within the powers confided to the Government 
 of the United States, but belongs exclusively to the States. 
 Here, again, we are met with the theory that the Gov¬ 
 ernment of the United States does not rest upon the 
 soil and territory of the country. We think that this 
 theory is founded on an entire misconception of the 
 nature and powers of that Government. We hold it 
 
28 
 
 to be an incontrovertible principle, that the Govern¬ 
 ment of the United States may, by means of physical 
 force, exercised through its official agents, execute on 
 every foot of American soil the powers and functions 
 that belong to it. This necessarily involves the power 
 to command obedience to its laws, and hence the 
 power to keep the peace to that - extent.” 
 
 “This power to enforce its laws and to execute its 
 functions in all places does not derogate from the power 
 of the State to execute its laws at the same time and 
 in the same places. The one does not exclude the 
 other, except where both cannot be executed at the 
 same time. In that case the words of the Constitution 
 itself show which is to yield. ‘ This Constitution, and 
 all laws which shall be made in pursuance thereof, 
 shall * * * be the supreme law of the land.”’ 
 
 (100 U. S., 394-5). And again, “ The argument is 
 based on a strained and impracticable view of the nature 
 and powers of the National Government. It must execute 
 its powers or it is no government. It must execute them on 
 the land as ivell as on the sea, on things as ivell as on per¬ 
 sons. And, to do this, it must necessarily have the power 
 to command obedience, to preserve order and keep the peace-, 
 and no person or power in this land has the right to resist 
 or question its authority, so long as it keeps within the 
 bounds of its jurisdiction." (Id. 396). The power to 
 keep the peace is a police power, and the United States 
 has the power to keep the peace in matters affecting 
 their sovereignty. 
 
 There can be no doubt, then, that the jurisdiction of 
 the United States is not affected by reason of the place 
 —the locality—where the homicide occurred. If the 
 locality is a necessary element of jurisdiction, a majority 
 of the offenses created by the statutes would be out of 
 their jurisdiction, and the statutes creating such offenses 
 would be nullities, and practically useless. 
 
29 
 
 For example, for a quarter of a century the United 
 States Courts in this State were held in rented build¬ 
 ings, owned by private parties. They had no jurisdic¬ 
 tion over them under the provision of Section 8, Arti¬ 
 cle I, of the National Constitution; and no jurisdic¬ 
 tion other than that had over other portions of the 
 country to which the Constitution and its laws ex¬ 
 tended. Had an assault been committed in open Court 
 upon the Judge, in one of these buildings, and the as¬ 
 sailing party been slain by the Marshal in protecting 
 the Judge, under circumstances excusing or justifying 
 the homicide, would it be pretended that the Court 
 would have no jurisdiction to protect him from inter¬ 
 ference by the State Government? Or have the 
 United States and their courts no jurisdiction over the 
 offense of resisting a United States Marshal in the law¬ 
 ful execution of the process of the courts? or over the 
 crime of counterfeiting the coin or forging the bonds 
 or other securities of the United States, or other of¬ 
 fenses against the law's, unless the offense is com¬ 
 mitted in a place under the exclusive jurisdiction 
 of the United States? Such a claim would be 
 preposterous. 
 
 In the case of Tennessee vs. Davis, the defendant was 
 indicted for murder in killing one Haynes, while he 
 was engaged in discharging his duties as a Deputy Col¬ 
 lector of Internal Revenue of the United States, and 
 wdiicli killing Davis claimed was in self-defense. The 
 case was removed to the Circuit Court of the United 
 States under Section 643, R. S. It was contended that 
 this act v r as an encroachment upon State rights, 
 since it took away the right of the State to determine 
 and execute its own criminal laws; and was, therefore, 
 unconstitutional. The Supreme Court sustained the 
 act. It was held “that the United States is a govern¬ 
 ment with authority extending over all the territory of 
 
30 
 
 the Union, acting upon the State and the people of the 
 State.” In deciding the case the Court said: “As was 
 said in Martin vs. Hunter, (1 Wheat. 363), the ‘gen¬ 
 eral government must cease to exist whenever it loses 
 the power of protecting itself in the exercise of its 
 constitutional powers.’ It can act only through its of¬ 
 ficers and agents, and they must act within the States. 
 If, when thus acting, and within the scope of their 
 authority, those officers can be arrested and brought 
 to trial in a State court, for an alleged offense against 
 the laws of the State, yet warranted by the Fedeial 
 authority they possess, and if the general govern¬ 
 ment is powerless to interfere at once for their protec¬ 
 tion; if their protection must be left to the action of 
 the State court—the operations of the general gov¬ 
 ernment may at any time be arrested at the will of 
 one of its members. The legislation of a State may be 
 unfriendly. It may affix penalties to acts done under 
 the immediate direction of the national government, 
 and in obedience to its laws. It may deny the author¬ 
 ity conferred by those laws. The State court may ad¬ 
 minister not only the laws of the State, but equally 
 Federal law, in such a manner as to paralyze the opera¬ 
 tions of the government. And even if, after trial and 
 final judgment in the State court, a case can be 
 brought into the United States court for review, the 
 officer is withdrawn from the discharge of his duty during 
 the pendency of the prosecution, and the exercise of ac¬ 
 knowledged Federal power arrested.’' 
 
 “We do not think such an element of weakness is 
 to be found in the Constitution. The United States 
 is a government with authority extending over the 
 whole territory of the Union, acting upon the States 
 and upon the people of the States. AYhile it is lim¬ 
 ited in the number of its powers, so far as its sover¬ 
 eignty extends it is supreme. No State government 
 
31 
 
 can exclude it from the exercise of any authority con¬ 
 ferred upon it by the Constitution, obstruct its author¬ 
 ized officers against its will, or withhold from it, for a 
 moment, the cognizance of any subject which that in¬ 
 strument has committed to it.’ 7 Tennessee vs. Davis, 
 100 U. S., 262-3. 
 
 These expositions of the territorial extent of the 
 jurisdiction of the General Government are authori¬ 
 tative and conclusive, and the result is that wherever 
 the Constitution and laws of the United States oper¬ 
 ate at all, the State laws in conflict with them are 
 subordinate, and those of the United States are 
 supreme and paramount. 
 
 Numerous cases are reported in the books, where¬ 
 in parties arrested for offenses under the State 
 laws, for acts performed in the discharge of duties 
 imposed by the laws of the United States, have been 
 discharged from imprisonment on habeas corpus by the 
 United States courts, in consonance with these prin¬ 
 ciples, now autlioratively established by the Supreme 
 Court of the United States, in the cases cited, and 
 others in the same line. 
 
 Thus, in ex parte Jenkins, and others, Deputy United 
 States Marshals, who were arrested on the warrant of 
 a justice of the peace in Pennsylvania, for shooting 
 aud wounding a negro, who resisted an arrest attempted 
 under a warrant issued by the United States Court for 
 a fugitive slave, Mr. Justice Grier of the United 
 States Circuit Court, took jurisdiction and dis¬ 
 charged the petitioners, under the Act of 1835, since 
 carried into the Revised Statues, as part of section 
 753, under which this case arises. After their dis¬ 
 charge, they were arrested again, in a suit by the 
 negro for tresspass, upon a warrant issued by a judge 
 of the Supreme Court of Pennsylvania, and again 
 discharged on habeas corpus by the United States Cir- 
 
32 
 
 cuit Court. After this they were indicted for the shooting 
 and wounding of the negro by the grand jury of Lu¬ 
 zerne County, and a third time released on habeas 
 corpus. Ex parte Jenkins, 2 Wall., Jr. p. 521, et seq. 
 In the first of these cases Mr. Justice Grier observes, 
 “What then have we power to do on the return of 
 the writ?” 
 
 “The writ of habeas corpus is a high prerogative 
 writ known to the common law: the great object of 
 which is the liberation of those who may be in prison 
 without sufficient cause. It is in the nature of a writ 
 of error, to examine the legality of the commitment. 
 It brings the body of the prisoner up, together with 
 the cause of his commitment. The Court can, un¬ 
 doubtedly, inquire into the sufficiency of that cause.” 
 * * * “Warrants of arrest issued on the 
 
 application of private informers, may show on their 
 face a prima facie charge sufficient to give jurisdiction 
 to the justice; but it may be founded on mistake, 
 ignorance, malice, or perjury. To prrt a case very 
 similar to the present—A tells B that he has seen C 
 kill D. B runs ofi'to a justice, swears to the murder 
 boldly, without any knowledge of the facts, and takes 
 out a warrant for C, who is arrested and imprisoned 
 in consequence thereof. C prays a habeas corpus, 
 and shows that he was the sheriff of the county, 
 and hanged D in pursuance of a legal warrant. If a 
 court could not discharge a prisoner in such a case 
 because the warrant was regular on its face the writ of 
 habeas corpus is of little use.” 
 
 “The authority confen-ed on the judges of the 
 United States by this Act of Congress gives them all 
 the power that any other court could exercise under 
 the writ of habeas corpus, or gives them none at all. 
 If under such a writ they may not discharge their 
 officer, when imprisoned 1 by any authority, ’ for an act 
 
33 
 
 clone in pursuance of a law of the United States, it 
 would be impossible to discover for what useful pur¬ 
 pose the act was passed. Is the prisoner to be 
 brought before them only that they may acknowledge 
 their utter impotence to protect him ?” * * * 
 
 In ex parte Robinson Mr. Justice McLean held that 
 “a writ of habeas corpus may issue to relieve an 
 officer of the Federal Government who has been im¬ 
 prisoned under State Authority for the perform¬ 
 ance of his duty.” (6 McLean, 355.) In the course 
 ot' the decision the learned Justice observes: “It 
 is a general principle of law, to which I know of 
 no exception, that the laws of every government 
 shall be construed by itself; and such construction 
 is acted upon by ‘the judiciary of all other countries. 
 By the Federal Constitution the judicial power of 
 the United States is declared to be vested in one 
 Supreme Court, and in such inferior courts as the 
 Congress may from time to time order and estab¬ 
 lish.’ Under this provision the judiciary of the 
 Union gives a construction to the laws which is 
 obligatory on the State tribunals. The Constitution 
 again declares, ‘the Constitution and laws of the 
 United States which shall be made in pursuance 
 thereof, and all treaties made or which shall be made 
 under the authority of the United States, shall be the 
 supreme law of the land; and the judges in every 
 State shall be bound thereby, anything in the Consti¬ 
 tution or laws of any State to the contrary notwith¬ 
 standing.’ ” (Id. 362.) Thus, it is the exclusive pre¬ 
 rogative of the National Courts to finally determine 
 whether an act performed by one of the officers of the 
 United States, and especially an officer of the Court 
 itself, is done in pursuance of a law of the United 
 States, or whether, when under arrest for acts per- 
 
34 
 
 formed in connection with Ins office, he is “ in custody 
 in violation of the Constitution or of a law of the 
 United States. 
 
 In the case of Huberts vs. Jailer of Fayette County, 
 Kentucky, 2 Abb.,365, a special Deputy United States 
 Marshal was arrested,under tire State laws, on a charge of 
 murder, for a homicide committed by him in attempting 
 to arrest one Cull upon a warrant issued by a Commis¬ 
 sioner of the United States Circuit Court, for offenses 
 charged to have been committed under the internal 
 revenue laws. Upon the hearing, the United States 
 Circuit Court found that the homicide was committed 
 in the performance of “an act done in pursuance of a 
 law of the United States, or of a process of a court or 
 judge of the same,” and discharged the petitioner. 
 The question of the jurisdiction of the Court, and the 
 facts, were elaborately discussed. 
 
 So, In re Ramsey, 2 Flippin, 451, the prisoner was a 
 Deputy United States Marshal, in custody by order of 
 a State Court, on a charge of murder, the homicide 
 having been committed in an attempt to arrest, upon 
 a warrant issued by the United States courts, the 
 party slain. The Court found that the act was done in 
 pursuance of a law of the United States; that petitioner 
 was justified in the act which he performed, and dis¬ 
 charged him. See, also, to the same effect, In re 
 Neill, 8 Blatch, 167. In re Farrand, 1 Abb., 140• 
 Electoral College of South Carolina, 1 Hughes, 571: 
 In re Hurst, 2 Flip. 510, and cases collected in vol. 
 20 Myers, Fed. Decisions, 698. Thus it appears to be 
 settle!, beyond controversy, that, where a party is 
 in custody by State authority, for an act done, or 
 omitted to be done, in pursuance of any specific pro¬ 
 vision of a statute of the United States, imposing a 
 duty upon him, or for an act performed justifiable by 
 the circumstances of th ; case, in order to enable him 
 
35 
 
 to perform that duty, or in the execution of any order, 
 or process, or decree, of a Court of the United States, 
 or of a judge thereof, the courts of the United States 
 have jurisdiction to discharge him on habeas corpus, 
 under Section 753 of the Revised Statutes. In such a 
 case, the laws of the United States are supreme, and 
 the act cannot be an offense against the laws of the 
 State, and as we have before seen, whether an act is 
 performed in pursuance of a law of the United States, 
 is a question exclusively for the United States Courts 
 to authoritatively and conclusively determine. They 
 must interpret finally the laws of the United States. 
 With their decision the State cannot interfere. When 
 the United States Courts have spoken on the subject, 
 the State has nothing more to do with it. 
 
 The only remaining questions to determine are: 
 
 1. Was the homicide now in question, committed by 
 petitioner, while acting in discharge of a duty imposed 
 upon him by the Constitution or laws of the United 
 States, within the meaning of Section 753 of the Re¬ 
 vised Statutes? 
 
 2. Was the homicide necessary, or was it reason¬ 
 ably apparent to the mind of the petitioner, at the 
 time, and under the circumstances then existing, that 
 the killing was necessary in order to a full and com¬ 
 plete discharge of such duty? 
 
 It is urged that there is no statute, which, specific¬ 
 ally, makes it the duty of a Marshal, or a Deputy ' 
 Marshal, to protect the Judges of the United States 
 Courts while out of the court-room, traveling from one 
 point to another in the Circuit, on official business, 
 from the violence of litigants, who have become offended 
 at adverse decisions made by such judges in the 
 performance of their judicial duties, and that 
 
3G 
 
 Marshals, or deputies, so engaged, are not within the 
 provisions of Section 753 of the Revised Statutes. 
 
 It will he observed that the language of tbe provis¬ 
 ion of Section 753 is “an act done * * * in pur¬ 
 suance of a late of the United States,” not in pursuance 
 of a statute of the United States. 
 
 The statutes of Congress, in their express provisions, 
 do not present all the law of the United States. Their 
 incidents and implications are as much a part of the law 
 as their expi’ess provisions. When they prescribe du¬ 
 ties, provide for the accomplishment of certain desig¬ 
 nated objects, or confer authority in general terms, they 
 carry with them all the powers essential to effect the 
 ends designed. 
 
 Says the Supreme Court in Tennessee vs. Davis, 100 
 U. S., 264, quoting with approbation from Chief Justice 
 Marshall: 
 
 “ ‘ It is not unusual for a legislative act to involve 
 consequences which are not expressed. An officer, for 
 example, is ordered to arrest an individual. It is not 
 necessary, nor is it usual, to sa} r that he shall not be pun¬ 
 ished for obeying this order. His security is implied 
 in the order itself. It is no unusual tiling for an Act 
 of Congress to imply, without expressing, this very ex¬ 
 emption from State control.” * * * “ The collectors 
 of the revenue, the carriers of the mail, the mint es¬ 
 tablishment, and all those institutions which are public 
 in their nature, are examples in point. It has never been 
 doubted that all who are employed in them are protected 
 while in the line of their duty; and yet this protection is 
 
37 
 
 not expressed in any Act of Congress. It is incidental 
 to, and is implied, in tlie several acts by which those 
 institutions are created; and is secured to the individ¬ 
 uals employed in them by the judicial power alone— 
 that is, the judicial power is the instrument employed 
 b} T the government in administering this security.’ ” 
 
 If the officers referred to in the preceding passage are 
 to be protected while in the line of their duty, without 
 any special law or statute requiring such protection, 
 are not the judges of the courts—the principal officers 
 in a department of the government second to no other 
 —also to be protected, and are not their executive 
 subordinates—the marshals and their deputies—to be 
 shielded from harm by the national laws, while 
 honestly engaged in protecting the heads of the 
 courts from assassination? When it was argued 
 in Siebold’s case that it was not in the power 
 of the United States to authorize the United 
 States Marshals to 1 ‘keep the peace ” at Congressional 
 elections, “that the preservation of peace and good order 
 in society is not within the powers confided to the Govern¬ 
 ment of the United States, but belonged exclusively to the 
 State," we have seen the answer of the Supreme 
 Court to that argument, in cases where the rights and 
 interests of the United States Government were involved 
 in the matter of keeping the peace. “We hold it to be 
 an incontrovertible principle,” said the Court, “that 
 the government of the United States may, by means 
 of physical force, exercised through its official agents, 
 execute on every foot of American soil the powers 
 and functions that belong to it. This necessarily in¬ 
 volves the power to command obedience to its laws, and 
 hence the power to keep the peace to that extent. And again, 
 “Why do we have marshals at all if they cannot 
 physically lay their hands on persons and things in the 
 performance of their proper duties? What functions can 
 
38 
 
 they perform, if they cannot use force? In executing 
 the processes of the courts, must they call upon the 
 nearest constable for protection? Must they rely 
 upon him to use the requisite compulsion, and to keep 
 the peace whilst they are soliciting and entreating the 
 parties and bystanders to allow the law to take its 
 course? This is the necessary consequence of the 
 positions that are assumed. If we indulge in such im¬ 
 practicable views as these, and keep on refining and 
 re-refining, we shall drive the national government out 
 of the United States, and relegate it to the District of 
 Columbia, or perhaps some foreign soil. We shall 
 bring it back to a condition of greater helplessness 
 than that of the old confederation.” 100 U. S., 
 395-6. 
 
 In this particular ease the petitioner, long before 
 he reached Lathrop, endeavored through the con¬ 
 ductor and the proprietor of the eating-house at that 
 place, to have “a constable" in readiness, on the arrival 
 of the train, to keep the peace, but without success. 
 When too late to prevent the tragedy the constable 
 appeared and arrested the petitioner, for perform¬ 
 ing the duty which it is now claimed devolved 
 exclusively upon himself, or some other peace officer 
 of the State. 
 
 Had the United States in this instance relied upon 
 another government—the State of California—to keep 
 the peace as to one of their most venerable and dis¬ 
 tinguished officers—one of the Judges of their highest 
 court—in relation to matters concerning the perform¬ 
 ance of his official duties, they would have leaned upon 
 a broken reed, and there would now in all probability 
 be a vacancy on the bench of one of the most august 
 judicial tribunals in the world, and the deceased—the 
 would-be assassin—might, perhaps, be a tenant of the 
 Stockton jail, to be disposed of by another govern- 
 
39 
 
 ment. The case affords a striking illustration of the 
 necessity for the United States to protect their own 
 officers while in the discharge of their duties, and by 
 such protection protect the nation itself. 
 
 The result was, that instead of arresting the conspi¬ 
 rator in the contemplated murder—the wife of the de¬ 
 ceased, armed with a loaded revolver till relieved of it 
 by a citizen—threatening death to Justice Field, call¬ 
 ing upon the bystanders to aid her, and attempting to 
 enter the car, with the avowed purpose of compassing 
 his death, the officer of the United States assigned by 
 his government to the special duty of protecting the jus¬ 
 tice’s life against these very parties, while in the actual 
 performance of the duties so assigned him, was, him¬ 
 self, arrested, without warrant, and disarmed by an 
 inferior officer of the State, and interrupted in the dis¬ 
 charge of those momentous duties, thereby leaving his 
 charge helpless, and without the protection provided 
 by the government he was serving at a time when such 
 protection seemed most needed. 
 
 Had Neagle been a Deputy Sheriff of San Joaquin 
 County assigned by his superior to this very duty of 
 protecting the life of Justice Field, under the State 
 laws, and in the performance of his duties committed the 
 homicide in all other respects under precisely the same 
 circumstances, would he have been arrested by the con¬ 
 stable of Lathrop, without a warrant, and disarmed 
 with such inconsiderate haste, and thereby prevented 
 from further performing his duty to protect the life and 
 person of Justice Field, leaving him to pursue the 
 remainder of his journey without protection? Yet 
 the constable was informed that Neagle was acting as a 
 Deputy United States Marshal, under the orders of 
 his superiors, for the protection of the life and person 
 of a Justice of the Supreme Court of the United 
 States. 
 
40 
 
 We do not -wish to be regarded as now calmly and 
 deliberately looking back upon the scene, and sitting 
 in judgment upon the action of the constable or as 
 passing censure upon his zeal. He, doubtless, in the 
 emergency, where time for consideration was short, and 
 the facts not fully appreciated, acted according to the 
 best dictates of his judgment necessarily hastily formed. 
 But when the State now comes in after an arrest upon a 
 warrant issued upon such flimsy testimony as that pre¬ 
 sented, and deliberately claims the exclusive right to 
 sit in judgment upon the acts of the United States 
 Deputy Marshal, performed not upon his own interpre¬ 
 tation of the law, but upon that of the Attorney- 
 General of the United States, who may be presumed 
 to possess some knowledge of his powers and duties, it 
 is well to consider the circumstances from a standpoint 
 presenting a view of both sides of the question. 
 
 In matters of the public peace, in which the Na¬ 
 tional Government is concerned, the Marshals and 
 Deputy^ Marshals, within the scope of their authority, 
 are national peace officers, with all the statutory and 
 common law powers appertaining to peace officers. Is 
 not the national public peace involved, when a deadly 
 assault is unexpectedly made upon a Judge in open 
 v Court, in which the Marshal, and his deputies, seeing 
 the assault, are both authorized and bound on their 
 own motion, without any previous order or command, 
 to interpose, and use sufficient force to quell the dis¬ 
 turbance, and subdue the parties making it? Yet 
 where is there any specific provision of the statute im¬ 
 posing that duty upon them ? The Marshal is required 
 to attend Court, but it is not provided what he shall 
 do in Court. To what end shall he be in Court if not 
 to keep order, and if necessary, to protect the Judges 
 from violence, by 7 force, or any practicable means ? 
 But there is no statute requiring it in terms. 
 
41 
 
 The general duties of marshals are provided for in 
 Section 787, which reads as follows: “ It shall be the 
 duty of the marshal of each district to attend the 
 District and Circuit Courts when sitting therein, and 
 execute throughout the district, all lawful precepts 
 directed to him, and issued under the authority 
 of the United States; and he shall have power 
 to command all necessary assistance in the exe¬ 
 cution of his duty.” There is no more authority 
 specifically conferred upon the Marshal by this section 
 to protect the Judge from assassination, in open Court, 
 without a specific order or command, than there is to 
 protect him out of Court, when on the way from one 
 Court to another, in the discharge of his official duties. 
 And the assassination in Court, as well as out of it, might 
 well be accomplished before the Judge would be aware 
 of his danger, and before it would be possible to give 
 a command or order to the Marshal for his protection. 
 The authority exists in the one case, as in the other, 
 from the nature of the office, and the powers arising 
 under the common law, recognized and in use in the 
 country, and in the nature of things, inherent in the 
 office. The very idea of a government composed of 
 executive, legislative and judicial departments, neces¬ 
 sarily comprehends the power to do all things through ^ 
 its appropriate officers and agents, within the scope of 
 its general governmental purposes and powers re¬ 
 quisite to preserve its existence, protect it and its 
 ministers and give it complete efficiency in all its 
 parts. It necessarily and inherently includes power 
 in its executive department to enforce the laws, keep 
 the national peace with regard to its officers while in 
 the line of their duty, and protect by its all-powerful 
 arm all the other departments and the officers and in¬ 
 strumentalities necessary to their efficiency while en¬ 
 gaged in the discharge of their duties. 
 
42 
 
 In language attributed to Mr. ex-Secretary Bayard, 
 used with reference to this very case, which we quote, 
 not as a controlling judicial authority, but for its 
 intrinsic, sound, common sense: “The robust 
 
 and essential principle must be recognized and pro¬ 
 claimed, that the inherent powers of every government 
 which is sufficient to authorize and enforce the judg¬ 
 ment of its Courts, are, equally, and at all times, and 
 in all places, sufficient to protect the individual Judge 
 who, fearlessly and conscientiously in the discharge of 
 his duty, pronounces those judgments.” 
 
 Our jurisprudence is derived from and founded 
 upon that of England, and our Judges and officers are 
 substantially the same. They have corresponding 
 duties imposed upon them, and inherently possess 
 corresponding executive powers, to enable them to 
 effectively perform their duties. From the foundation 
 of our Government, many of their common law duties 
 have been performed, and common law powers exercised 
 without specific or statutory direction, and without 
 question; and the common law principles governing 
 them, except so far as inapplicable, or modified by 
 statute, still remain in force. 
 
 The observation of the Supreme Court of California, 
 in the estate of Apple, 66 Cal. 434, in which State a 
 Code has been adopted with respect to the common law 
 not abrogated or modified by the Code, is applicable 
 here. Said the Court: “The code establishes the 
 law of this state respecting the subjects to which it re¬ 
 lates; but this, of course, does not mean that there is 
 no law with respect to such subjects except that em¬ 
 bodied in the code. When the code speaks, its pro¬ 
 visions are controlling, and they are to be liberally 
 construed, with a view to effect its objects and pro¬ 
 mote justice — the rule of the common law that statutes 
 in derogation thereof are to be strictly construed hav- 
 
43 
 
 ing been abolished here; but where the code is silent, 
 the common law governs.” So here, wiiere the duties 
 of the Marshal are not limited, or specifically defined, 
 by the statute, we must look to the powers and duties 
 of Sheriffs at common law for them so far as those 
 duties come within the purposes and powers of the 
 national Government. 
 
 There are many acts and duties daily performed by 
 the Marshals and by other officers that are not specif¬ 
 ically pointed out or defined by the statute. The Mar¬ 
 shals are in daily attendance upon the Judges, and 
 performing official duties in their chambers. Yet no 
 statute specifically points out those duties or requires 
 their performance. Indeed, no such places as chambers 
 for the Circuit Judges or Circuit Justices are men¬ 
 tioned at all in the statutes. The Judges’ chambers do 
 not appear to have any ‘‘local habitation.” The Jus¬ 
 tices of the Supreme Court at Washington have, in 
 fact, no chambers otherwise than as they study and do 
 their work out of Court, at a room in their own resi¬ 
 dences. We have in the San Francisco courthouse rooms 
 that we call chambers, in which the work of the Judges 
 out of Court is in part, but not wholly, performed. 
 I apprehend that the Marshal would as clearly be au¬ 
 thorized to protect the Judges here in chambers as in 
 the courtroom. All business done out of Court by 
 the Judge is called chamber business. But it is not 
 necessary to be done in what is usually called cham¬ 
 bers. Chamber business may be done, and often is 
 done, on the street, in the Judge’s own house, at the 
 hotel where he stops, when absent from home, or it 
 may be done in transitu, on the cars in going from one 
 place to another within the proper jurisdiction to hold 
 court. Mr. Justice Field could, as well, and as author¬ 
 itatively, issue a temporary injunction, grant a writ of 
 habeas corpus, an order to show cause, or do any other 
 
44 
 
 chamber business for the district in the dining-room 
 at Lathrop, or in the cars, as at his chambers in San 
 Francisco, or in the courtroom. He could have made 
 a writ of habeas corpus returnable before himself on the 
 car, and lawfully heard and decided the case while on 
 his passage to San Francisco. The chambers of the 
 Judge, where chambers are provided, are not an ele¬ 
 ment of jurisdiction, but are a convenience to the 
 Judge, and to suitors—places, where the Judge at 
 proper times can be readily found, and the business 
 conveniently transacted. But the chambers of the 
 Judge, as a legal entity, is something of a myth. For 
 the purposes of jurisdiction, the chambers of the Judge 
 are wherever he happens to be in his circuit, or dis¬ 
 trict, when the exigencies of the case call for the 
 transaction of chamber business, and a Judge is as 
 clearly engaged in the discharge of the duties of his 
 office, when going from one place of holding court to 
 another, for the purpose of holding court, and just as 
 much entitled to protection from his own Government 
 against murderous or other assaults, from desperate 
 suitors, on account of his judicial action, as when ac¬ 
 tually engaged in business at chambers, or in holding 
 court. In England, whence we derive our jurispru¬ 
 dence, the High Sheriff of the shire was the keeper of 
 the King’s peace-that is to say. the keeper of the 
 peace of the sovereignty which the King represents. 
 So here, I take it, under the authorities cited, the 
 Marshal is the keeper of the peace of the Government 
 of the sovereignty he serves, within the scope of the 
 supreme powers of that Government. In England, in 
 early days, it was the duty in every shire of the Sher¬ 
 iffs not only to attend the courts, but to attend the 
 Judges through their circuits. They met the Judges 
 at the border of the shire, and attended them until 
 they left it at the border of another. Dalton, on the 
 
45 
 
 Office and Authority of Sheriffs, chapter 98, p. 369, 
 published in 1682. See also 40 All). Law Journal, 161. 
 Such is also understood to have been the practice in 
 early days in a number of the States. From the ad¬ 
 vancing state of civilization this practice has, doubt¬ 
 less, generally become unnecessary for the safety of 
 the Judges, and it has fallen into desuetude. But it 
 does not follow that the power to thus protect them 
 has been abolished or become extinguished. It simply 
 remains latent or dormant, ready to be called into ac¬ 
 tion whenever the exigencies of the case or times re¬ 
 quire it. And how could there possibly be a more 
 urgent occasion for reviving the practice and calling it 
 into action, than the recent journey of Justice Field to 
 Los Angeles and return on official business ? 
 
 Upon general, immutable principles, the power must 
 necessarily be inherent in the executive department of 
 any government worthy the name of government, to pro¬ 
 tect itself in all matters to which its authority extends, 
 and this necessarily involves the power to protect all 
 the agencies and instrumentalities necessary to accom¬ 
 plish the objects and purposes of that government. In 
 the National Government of the United States the 
 judiciary constitutes one of its most important branches. 
 Unlike the judiciary of other nations it is invested 
 with the jurisdiction to pass, finally and conclusively, 
 upon the powers of the legislative and executive de¬ 
 partments of the Government, and to confine them 
 within their constitutional limits. It is, therefore, the 
 balance wheel of the National Government, that keeps 
 it running regularly and smoothly within its proper do¬ 
 main. Impotent, indeed, must be the executive branch 
 of the government, if it is not empowered to protect 
 the lives of the Judges of the highest branch of its 
 judiciary, from assault and assassination, on account 
 of their judicial decisions, by desperate disappointed 
 
40 
 
 litigants, while passing from point to point within 
 their territorial jurisdiction in the discharge of their 
 high functions and duties. We cannot think the power 
 can be wanting, even if there were no constitutional 
 or statutory provision governing the case. It seems 
 impossible that the National Government should be left 
 to the mercy, good will, or complacency of the State, 
 to afford that protection to its Judges that the United 
 States, if worthy to be called a nation, are bound them¬ 
 selves to furnish. 
 
 As a further example of laws, not ordained by specific 
 statutory enactments, see those respecting punish¬ 
 ment for contempts. For forty years after the organ¬ 
 ization of the National Government, down to 1831, 
 there was no Statute which specifically defined 
 contempts of court. Ex parte Robinson, 19 Wal., 510; 
 ex parte Terry, 128 U. S , 302-3; ex parte Savin, 
 131 U. S., 275. But the courts, nevertheless, 
 exercised the power, necessarily, from the nature of 
 things inherent in every court, to protect itself, its 
 dignity and its officers, by the punishment of many 
 acts as contempts of its authority. The first specific 
 Act upon the subject passed by Congress was not an 
 Act enlarging the power of the court, but it was, on 
 the contrary, a restriction of the powers already exer¬ 
 cised within certain defiued limits. The act was 
 passed at the instance of Senator Buchannan, to limit 
 the power of the court theretofore exercised, to punish 
 for contempts, as a sequel to the impeachment of a 
 United States Judge for the District of Missouri. 
 The Act was passed March 2, 1831, and is en¬ 
 titled, “An Act declaratory of the law concerning 
 contempts of Court.” 4 U. S. Stat. at Large, 487. 
 The first section does not grant the power to punish 
 for contempts, but expressly recognizes the existing 
 power, and, in express terms thereafter, limits the 
 
47 
 
 power to certain enumerated cases. In order that 
 those who were before subject to punishment for con¬ 
 tempt should not escape the penalties due their acts, 
 section 2 of the statute makes certain acts, before 
 punishable as contempts, offenses against the laws of 
 the United States, punishable by the less summary 
 and more deliberate proceeding on indictment and 
 trial by a jury. Many of the acts under that Act, 
 recognized as punishable as contempts, as being 
 necessary to the prompt and summary vindication of 
 the authority of the court, are also indictable offenses 
 under other statutes. 
 
 This Statute of 1831 has been carried into the Re¬ 
 vised Statutes, Section 1 of that Act having been re¬ 
 enacted in Section 725 of the Revised Statutes, giving 
 it a granting, as well as a restricting, form, but in no 
 sense changing its purpose or meaning. And Section 
 2 is now found in Section 5399 of the Revised Statutes, 
 as a part of the criminal code of the nation. 
 
 Did anybody ever doubt, or does anybody now 
 doubt, that the power of the United States Courts to 
 punish contempts, from the organization of the gov¬ 
 ernment down to 1831, was just as ample, and that it 
 was just as much a part of the law of the United 
 States, inherently, vested in the courts, as it was after 
 the passage of the Act of 1831, or as it is now under 
 the same provisions carried into the Revised Statutes ? 
 
 Yet, there was no specific provision of the statutes 
 defining contempts. It was a power, however 
 necessarily, inherent in the courts. It is in¬ 
 volved in the very idea of a court, having power to 
 administer the laws of the land. It would be impos¬ 
 sible for courts to perform their functions and admin¬ 
 ister the laws without it. And as so inherent, the 
 power to punish various acts not mentioned for 
 contempt was as much a part of the law of 
 
4S 
 
 the United States as if ordained Ivy a spe¬ 
 cific provision of the Statute of the United States, 
 and the authority of the Marshal to protect the Judges 
 is a cognate power, also, necessarily, inherent in the 
 office he holds. Thus there is much law of the United 
 States not now found in terms in the statutes, but as 
 valid and binding upon the people and upon the States 
 as if it were specifically and definitely therein ex¬ 
 pressed. See U. S. vs. Hudson, 7 Cr., 32-4. Matter of 
 Meador, 1 Abb., 324. In re Buckley, 69 Cal., 18. 
 
 But we are not without constitutional and statutory 
 provisions, broad enough and specific enough, as we 
 think, to cover the case. The National Constitution, 
 providing a government for sixty-five millions of 
 people, covers but a very few pages, but it seems to be 
 amply sufficient for the purposes intended. In jrre- 
 scribing the duties of the President, in the terse but 
 comprehensive language of section 3, article II, it 
 provides that “he shall take care that the laws be 
 faithfully executed.” This makes him the executive 
 head of the nation, and gives him all the authority 
 necessary to accomplish the purposes intended—all 
 the authority necessarily inherent in the office, not 
 otherwise limited. Congress, in pursuance of powers 
 vested in it, has provided for seven departments, as 
 subordinate to the President, to aid him in perform¬ 
 ing the executive functions conferred upon him. Sec¬ 
 tion 346, R. S., provides that, “one of the executive 
 departments shall be known as the Department 
 of Justice,” and that there shall be “ an Attor¬ 
 ney-General, who shall be the head thereof.” 
 He has general supervision of the executive branch 
 of the National Judiciary, and section 362 provides as 
 a portion of his powers and duties, that “the Attorney- 
 General shall exercise general superintendence and 
 direction over the attorneys and marshals of all the 
 
49 
 
 districts of the United States and Territories as to 
 tiie manner of discharging tlieir respective duties; and 
 the several district attorneys and marshals are 
 required to report to the Attorney-General an account 
 of their official proceedings, and of the state and 
 condition of their respective offices, in such time and 
 manner as the Attorney-General may direct.” Sec¬ 
 tion 788, R. S., provides that “The marshals and their 
 deputies shall have, in each State, the same powers in 
 executing the laws of the United States, as the sher¬ 
 iffs and their deputies in such State may have, by law, 
 in executing the laws thereof.” By section 817 of the 
 Penal Code of this State, the Sheriff is a “peace officer.” 
 By section 4176, Pol. Code, he is “to preserve the 
 peace” and “prevent and suppress breaches of the 
 peace.” The Marshal is, therefore, in accordance with 
 the decision of the Supreme Court already referred to, 
 and under the provisions of the statute above cited, 
 “a peace officer,” so far as keeping the peace in any 
 matter wherein the national powers of the United 
 States are concerned, and as to such matters he has all 
 the powers of the sheriff, as a peace officer under the 
 laws of the State. He is, in such matters, “to pre¬ 
 serve the peace” and “prevent and suppress breaches 
 of the peace.” An assault upon or an assassination of 
 a judge of a 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 Marshal or his deputies to prevent as a peace 
 officer of the national government. Such an assault is 
 not merely an assault upon the person of the 
 judge, as a man. It is an assault upon the na¬ 
 tional judiciary, which he represents, and through 
 
50 
 
 it an assault upon the authority of the nation it¬ 
 self. It is, necessarily, a breach of the national 
 peace. As a national peace officer, under the con¬ 
 ditions indicated, it is the duty of the Marshal and his 
 deputies to prevent a breach of the national peace by 
 an assault upon the authority of the United States, in 
 the person of a judge of its highest court, while in the 
 discharge of his duty. If this be not so, in the 
 language ol the Supreme Court before cited, “Why do 
 we have Marshals at all ?” What useful functions can 
 they perforin in the economy of the national govern¬ 
 ment ? 
 
 The Constitution of the United States provides for 
 a Supreme Court, with jurisdiction more extensive in 
 some particulars than that conferred on any other 
 national judicial tribunal. If the Executive Depart¬ 
 ment of the government cannot protect one of these 
 Judges while in the discharge of his duty, from as¬ 
 sassination, by dissatisfied suitors, on account of his 
 judicial action, then it cannot protect airy of them, and 
 all the members of the Court may be killed, and 
 the Court itself exterminated, and the laws 
 of the nation b} r reason thereof, remain unad- 
 ministered and unexecuted. The power and duty im¬ 
 posed on the President to ‘ ‘ take care that the laws are 
 faithfully executed,” necessarily carries with it. all 
 power and authority necessary to accomplish the object 
 sought to be attained, and, certainly, the power and 
 duty to protect from the deadly assaults of desperate 
 suitors, the lives of the Judges of the highest Court 
 in the nation, while engaged in the lawful discharge 
 of their duties. 
 
 As we have before seen, neither Constitution nor 
 statutes can, or do, anticipate and point out, specifi¬ 
 cally, every possible right or duty to be covered and 
 secured. They must, necessarily, be general. In the 
 
51 
 
 passage already cited from Tennessee vs. Davis, the Su¬ 
 preme Court, in speaking of certain officers, says: “It 
 has never been doubted, that all who are employed in 
 them are protected while in the line of their duty; and 
 yet this protection is not expressed in any act of Con¬ 
 gress. It is incidental to, and is implied in, the several 
 acts by which those institutions are created; and is se¬ 
 cured to the individuals employed in them by the judi¬ 
 cial power alone; that is, the judicial power is the in¬ 
 strument employed by the government in administering 
 this security.” (100 U S., 265). And in United States 
 vs. Macdaniel, 7 Pet., 11, similar views were expressed. 
 Said the Court: “ A practical knowledge of the action 
 of any oue of the great departments of the government 
 must convince every person that the head of a depart¬ 
 ment, in the distribution of its duties and respon¬ 
 sibilities, is often compelled to exercise his discretion. 
 He is limited in the exercise of his powers by law; but 
 it does not follow that he must show a statutory provis¬ 
 ion for every thing he does. No government could be ad¬ 
 ministered on such principles. * * * lliere are 
 
 numberless things which must be done, that can neither be 
 anti ipated nor defined, and which are essential to the 
 proper action of the government .” These observations 
 are especially, and forcibly applicable to the terse but 
 very comprehensive provisions of the Constitution and 
 of the several statutes cited, as to the powers and duties 
 of the President, the Attorney-General and Marshals. 
 
 The act of the Attorney General in directing the 
 United States Marshal to protect the life of Mr. Jus¬ 
 tice Field against the assaults of the deceased and his 
 wife, is in legal contemplation the act of the President. 
 The President speaks and acts through the heads of 
 the several executive departments in relation to subjects 
 which appertain to their respective duties. They are 
 but the subordinates of the President, wielding his 
 
power. (Wilcox vs. Jackson, 13 Pet., 513; United 
 States vs. Cutter, 2 Curtis, 617). In the former case, 
 relating to a reservation of land by the Secretary of 
 War, the court said, “Now although the immediate 
 agent in requiring this reservation was the Secretary 
 of War, yet we feel justified in presuming that it was 
 done by the approbation and direction of the President. 
 The President speaks and acts through the heads of 
 the several departments in relation to subjects which 
 appertain to their respective duties.” See also 7 
 Attorney General’s Opinions, 480-1, id. 433-479. Con¬ 
 fiscation cases, 20 Wal., 108-9, United States \ s. Elia- 1 
 son, 16 Pet., 291. 
 
 By Section 788 K. S., and the several provisions of 
 the Statutes of California herein cited, the United States 
 Marshal is made a peace officer and as such he is au¬ 
 thorized 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 must, from the nature 
 of things, be enabled fully to perform all their functions 
 imposed upon them by the Constitution and laws with¬ 
 out hindrance or obstruction, and the}* must have the 
 inherent power to protect themselves b}q and through 
 their executive officers, under the direction and super¬ 
 vision of the Attorney-General and the President, 
 against obstruction and hindrance in the performance 
 of their judicial duties. An assault upon a Judge in 
 Court, or a Judge out of Court, while in the perform¬ 
 ance of his duty, induced by his judicial action, and 
 intended or calculated to obstruct him in, or deter him 
 from, a free and full discharge of liis duty, is a breach 
 of the national peace affecting the sovereignty of the 
 nation, and tending to obstruct and impair the opera¬ 
 tions and efficiency of one of the most important 
 departments of the government. As such, it is the 
 
53 
 
 duty of the United States Marshal, under the police 
 powers of the nation so conferred upon him, bv the 
 statutes cited, and as a national peace officer, to pre¬ 
 vent such breach of the peace. Under the State laws 
 deputy sheriffs, when occasion requires, constables and 
 police officers of cities are assigned to certain districts 
 to watch over the safety of the citizens and to guard and 
 protect their persons and property from assault, de¬ 
 struction or injury, hi short to prevent the commission of 
 crimes, etc. These officers in cities are found every¬ 
 where, night and day, guarding the citizen and his 
 property from injury. So the Attorney-General, under 
 the provisions of the statute cited, and the President 
 under the provisions of the Constitution, requiring 
 him to see that the laws are faithfully executed, are 
 authorized and empowered to direct the assignment by 
 the marshal, of any deputy to perform any special 
 national police duty within his jurisdiction, arising out 
 of the statutes, whether by express provision or neces¬ 
 sary implication, and under any power, necessarily in¬ 
 herent in the President and government, in order to 
 give full effect and efficiency to the government, or any 
 of its departments. It has never, so far as we are ad¬ 
 vised, been doubted that a Marshal or Deputy Mar¬ 
 shal is authorized to protect a Judge, and preserve order 
 in open court, even by the use of force, without any 
 special order or command, as a part of the duties nec¬ 
 essarily inherent in his office; yet, as we have already 
 seen, there is no more specific statutory authority for 
 so preserving order, and protecting the Judge iu court, 
 than for performing the same duty, under proper con¬ 
 ditions, for a Judge engaged in performing his duties, 
 of whatever nature out of court. 
 
 It is argued by one of the counsel on behalf of the 
 State that these matters pertain exclusively to the 
 peace of the State, and that the State has not only 
 
54 
 
 power to preserve the public peace, but that it is 
 amply capable of performing this service, that it is its 
 duty to do it; that the threats of the deceased were 
 matters of public notoriety; and that bv calling the 
 powers of the State into action, Justice Field’s life 
 might have been protected by the State, and there 
 would have been no necessity whatever for what is 
 called on the part of the State, the illegal action of the 
 Uiuted States Marshal. It may be conceded, and it is 
 undoubtedly true, that it was an imperative duty of the 
 State to preserve the public peace, and to amply pro¬ 
 tect the life of Mr. Justice Field, but it did not do it. 
 Where would Mr. Justice Field have been to-day, had 
 he relied solely upon the State to perform her conceded 
 imperative duty? 
 
 Not having performed that obligation while on his 
 journey in discharge of his judicial duties, does a 
 complaint now come with a good grace from the State 
 against the United States for performing it for her, as 
 well as for the National Government, by protecting 
 one of their most distinguished judicial functionaries 
 through one of their own officers; in the only manner 
 in which it could have been effectively performed? 
 
 In the present case, and on this official journey, 
 there was a necessity for the kind of protection afforded 
 Mr. Justice Field, for no other kind would have been 
 adequate. The occasion required a preventive 
 remedy. 
 
 The use of the State police force would have been 
 impracticable, as the powers oi the Sheriff would have 
 ended at the borders of his county, and of other town¬ 
 ship and city peace officers, at the boundaries of their 
 respective townships and cities. Only a United States 
 Marshal, or his deputy, could exercise these official 
 functions throughout the United States judicial dis¬ 
 trict, and as we have seen, the powers exercised concern 
 
matters affecting the peace of the National Govern¬ 
 ment, and if the National Government has no author¬ 
 ity to act in the premises it certainly ought to have 
 such power. 
 
 The only remedy suggested on the part of the State 
 was to arrest the deceased and hold him to bail to keep 
 the peace under Section 706 of the Penal Code, the 
 highest limit of the amount of bail being $5000. But 
 although the threats are conceded to have been pub¬ 
 licly known in the State, no State officer took any 
 means to provide this flimsy safeguard. 
 
 Perhaps counsel intended to intimate that it was not 
 the duty of the State, but of Mr. .Justice Field him¬ 
 self to set in motion proceedings under the law fur¬ 
 nished by the State, to put the decedent under bonds 
 to keep the peace. Has it come to this, then, that a 
 .Justice of the Supreme Court of the United States, 
 when in obedience to the behests of the law, he comes 
 to California to perform his judicial duties, 
 must submit to the humiliation of immediately upon his 
 arrival, stealing away to some justice of the peace and 
 instituting proceedings to bind over to keep the peace 
 vindictive and dangerous litigants who have threat¬ 
 ened his life? But what security to Mr. Justice Field 
 would a bond of $5000 afford against resolute, violent 
 and desperate parties, for whom the penalties for mur¬ 
 der have no deterring power? The United States 
 Marshal, the United States Attorney for the District 
 of California, the Attorney-General of the United 
 States at Washington, and the mass of the people of 
 California thought that the exigencies of the occasion 
 required something more, and the result fully justified 
 their view of the matter. 
 
 Although no adequate means of protection were 
 afforded bv the State on his late official journey, and 
 Mr. Justice Field would, in all probability, not now 
 
56 
 
 be among the living had not the petitioner, bj the 
 wise forethought of the Attorney-General, been de¬ 
 tailed to protect his life, yet the fact of the failure of 
 the State to perform its duty, does not afford anv 
 reason for taking the petitioner out of the custody of the 
 State, unless, in committing the homicide, he was en¬ 
 gaged in the performance of ‘ ‘ an act done * * * 
 
 in pursuance of a law of the United States,” and the 
 killing was justifiable. The failure to perform its 
 duty would not, alone, oust the jurisdiction of 
 the State, if it be exclusive. But since the 
 possible remedy mentioned under the State law 
 was alluded to by counsel as ample, we refer 
 to it as illustrating the necessity for a speedy 
 amendment of the laws of the United States, if they 
 are now so defective as to afford no protection to the 
 United States Judges in the performance of their high 
 functions. 
 
 It is apparent to us, if he is not now so pro¬ 
 tected, that the distinguished Justice allotted to the 
 Ninth Circuit, and also his associates, should have 
 thrown over them the protecting a?gis of the laws of 
 that government which he has so long, faithfully and 
 efficiently served. 
 
 After mature consideration, we have reached the 
 conclusion that the homicide in question was com¬ 
 mitted by petitioner while acting in the discharge of a 
 duty imposed upon him by the Constitution and laws 
 of the United States, within the meaning of the pro¬ 
 visions of Section 753 of the Revised Statutes. 
 
 It only remains to inquire, secondly, was the homi¬ 
 cide necessary, or was it reasonably apparent to the 
 mind of the petitioner, at the time and under the cir¬ 
 cumstances then existing, that the killing was neces¬ 
 sary in order to a full and complete discharge of such 
 duty? 
 
57 
 
 The answer to this proposition is really included in 
 the answer to tire last, but we desire to make some ob¬ 
 servations bearing especially upon it. 
 
 The Attorney-General and counsel for the State 
 declined to discuss the question as to whether the 
 homicide was justifiable, because, in their view, this 
 is a question solely for the State Court, the case, as 
 claimed by them, not being within the provisions of 
 section 753 of the Revised Statutes, and, therefore, 
 not within the jurisdiction of this Court. Holding, 
 as we do, that the case falls within those provisions, 
 so far as the petitioner was authorized to act, by the 
 Constitution and laws of the United States, it becomes 
 necessary to determine whether the homicide was 
 justifiable. For, if it was malicious, wanton or reck¬ 
 less, without any reasonable apparent necessity in 
 order to fully and properly perform his duty of pro¬ 
 tecting Justice Field, then it was an act performed 
 beyond and outside his duty, and he is amenable to 
 the State Courts. 
 
 The facts set forth in the petition, and in the traverse 
 to the return of the Sheriff, are fully and satisfactorily 
 proved by the testimony, and whether we determine 
 the case upon demurrer to the traverse, or upon the 
 whole case, as presented in the record and evidence, 
 the result must be the same. 
 
 Were the question of justification to be determined 
 by the laws of the State of California, or in the State 
 Court, there could be no ground for doubt. Says the 
 Penal Code: “Homicide is also justifiable when com¬ 
 mitted by any person when resisting any attempt to 
 murder any person, * * * or to do some great 
 
 bodily injury upon any person.’' (Sec. 197, Penal Code.) 
 But we shall consider the question without reference 
 to the statute of California. 
 
58 
 
 It is unnecessary to repeat the facts in full. When 
 the deceased left his seat, some thirty feet distaut, 
 walked stealthily down the passage in the rear of Jus¬ 
 tice Field and dealt the unsuspecting jurist two pre¬ 
 liminary blows, doubtless by way of reminding him 
 that the. time for vengeance had at last come, Justice 
 Field was already at the traditional “wall” of the law. 
 He was sitting quietl} 7 at a table, back to the assailant, 
 eating his breakfast, the side opposite being occupied 
 by other passengers, some of whom were women, 
 similarly engaged. When, in a dazed condition, he 
 awoke to the reality of the situation and saw 
 the stalwart form of the deceased with arm drawn 
 back for a final mortal blow, there was no time to get 
 under or over the table, had the law. under any 
 circumstances, required such an act for his 
 justification. Neagle could not seek a “wall” to justify 
 his acts without abandoning his charge to certain 
 death. When, therefore, he sprang to his feet and 
 cried, “Stop ! I am an officer,’’ and saw the powerful 
 arm of the deceased drawn back for the final deadly 
 stroke instantly change its direction to his left breast, 
 apparently seeking his favorite weapon, the knife; and 
 at the same time heard the half-suppressed disappointed 
 growl of recognition of the man who, with the aid of 
 half a dozen others, had finally succeeded in disarming 
 him of his knife at the courtroom a year before, the 
 supreme moment had come, or, at least, with abundant 
 reason, he thought so, and fired the fatal shot. The 
 testimony all concurs in showing this to be the state of 
 facts, aud the almost universal consensus of public 
 opinion of the United States seems to justify the act. 
 On that occasion, a second, or two seconds, signified, 
 at least, two valuable lives, and a reasonable degree of 
 prudence would justify a shot one or two seconds too 
 soon, rather than a fraction of a second too late. Upon 
 
our minds the evidence leaves no doubt whatever that 
 the homicide was fully justified by the circumstances. 
 
 We have seen in an eastern law journal, but with its 
 disapproval, some adverse criticism upon the action 
 of the petitioner, attributed to a quarter ordinarily 
 entitled to great consideration and respect. But it is 
 not for scholarly gentlemen of humane and peaceful in¬ 
 stincts—gentlemen, who, in all probability, never in 
 their lives, saw a desperate man of stalwart frame and 
 great strength in murderous action—it is not for them 
 sitting securely in their libraries, 3000 miles away, 
 looking backward over the scene, to determine the ex¬ 
 act point of time when a man in IS!eagle’s situation 
 should fire at his assailant, in order to be justified by 
 the law. It is not for them to say that the proper time 
 had not yet come. To such, in all probability, the 
 proper time would never come. Neagle on the scene 
 of action, facing the party making a murderous assault, 
 knowing by personal experience his physical powers, 
 and his desperate character; and by general reputation, 
 his life-long habit of carrying arms, his readiness to 
 use them, and his angry, murderous threats, and see¬ 
 ing his demoniac looks, his stealthy assault upon 
 Justice Field from behind, and, remembering the sa¬ 
 cred trust committed to his charge—Neagle, in these 
 trying circumstances, was the party to determine when 
 the supreme moment for action had come, and if he, 
 honestly, acted with reasonable judgment and discre¬ 
 tion, the law justifies him, even if he erred. But who 
 will have the courage to stand up in the presence of 
 the facts developed by the testimony in this case, and 
 say that he fired the smallest fraction of a second too 
 soon ? 
 
 In our judgment he acted, under the trying circum¬ 
 stances surrounding him, in good faith and with con¬ 
 summate courage, judgment and discretion. The 
 
60 
 
 homicide was, in our opinion, clearly justifiable in 
 law, and in the forum of sound, practical common 
 sense—commendable. This being so, and the act hav¬ 
 ing been ‘ ‘ done * * * in pursuance of a law of 
 
 the United States,” as we have already seen, it cannot 
 be an offense against, and lie is not amenable to, the 
 laws of the State. 
 
 Let the petitioner be discharged. 
 
 Sawyer, Circuit Judge. 
 
 Sabin, District Judge. 
 
 September 16th, 1889.