Argument for Moffitt and Fields. all the features of a felony, and we are authorized to apply to it the felony procedure which justifies an arrest without a special warrant in cases where the statute is the warrant. On this question, the State is not and cannot be neutral. The deserter is not a citizen, and the State can give him no asylum. The crime he has committed is not against a foreign government, but against a sovereignty whose dominion extends to every foot of territory which any State can claim. All State officers, under article 20, § 3, Constitution of California, are enlisted on the side of the Federal government. The defendants not only had the power, but it was highly proper for them, to make this arrest. In re Lafonte, 2 Rob. La. 498. In arresting a deserter the power and authority of the State is not exercised. The State legislature could not prohibit or punish the arrest of a deserter from the United States army, because any such law would interfere with the powers of the national government. The rule of the police department is of no more force than if it were an act of the legislature, and as an act of the legislature it would be unconstitutional, being contrary to the supreme law of the land. Tape v. Hurley, 5 West Coast Reporter, 692. Desiring to present all that may aid the court in the solution of the question, we also refer to the following State decisions: (1852.) Hutchings v. Van Bokkelen, 34 Maine, 126. The action was replevin for the person. The deserter was remanded, and it was held that no special warrant was required for the arrest of a deserter. (1863.) Trask v. Payne, 43 Barb. 569. The action was for damages which were given against a deputy sheriff. This case is cited by the plaintiff. We remark that the order of July 31, 1862, cited in that case, has been superseded by the act of Congress of March 3, 1863, § 7 of which made it “the duty of the provost marshals to arrest all deserters and send them to the nearest military post." The same act (26) authorized the President to issue a proclamation in regard to deserters. The President accordingly did “call on all good citizens to aid in restoring absent soldiers to their regiments." See Gen. Order 325, 1863, Army Reg. 1863, § 156-7; Army Reg. 1881, p. 28, § 214. (1866.) Huber v. Opinion of the Court. Riley, 53 Penn. St. 119. The action was for damages for not allowing plaintiff to vote. Defence that he was a deserter. Damages given in the sum of $1. (1869.) Hickey v. Huse, 56 Maine, 497. The action was for damages for arresting the plaintiff as a deserter. No damages given. (1869.) State v. Symonds, 57 Maine, 148, 150. Defendant was indicted for illegal voting. The State claimed that he was a deserter. Judgment reversed. MR. JUSTICE GRAY delivered the opinion of the court. After stating the facts in the language reported above, he continued: The first question to be considered is whether this case was rightly remanded to the State court, or should have been retained and decided in the Circuit Court of the United States, into which it had been removed on a petition filed under the act of March 3, 1875, ch. 137, § 2. In order to justify the removal of a case from a State court into the Circuit Court under this act, it is not enough that it arises under the Constitution and laws of the United States, or that it is between citizens of different States, but it must be a "suit of a civil nature, at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars." 18 Stat. 470. A writ of habeas corpus, sued out by one arrested for crime, is a civil suit or proceeding, brought by him to assert the civil right of personal liberty, against those who are holding him in custody as a criminal. Ex parte Tom Tong, 108 U. S. 556. To assist in determining whether it is, within the meaning of the act of 1875, a "suit at law or in equity where the matter in dispute exceeds the sum or value of five hundred dollars," it will be convenient to refer to the use and the interpretation of like words in earlier acts defining the jurisdiction of the national courts. The Judiciary Act of September 24, 1789, ch. 20, § 22, authorized "final judgments and decrees in civil actions and suits in equity in a Circuit Court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs," to be revised by this court on writ of error or appeal. Opinion of the Court. 1 Stat. 84. The act of April 2, 1816, ch. 39, § 1, provided that no cause should be brought to this court by appeal or writ of error from the Circuit Court for the District of Columbia “unless the matter in dispute in such cause shall be of the value of one thousand dollars or upwards, exclusive of costs." 3 Stat. 261. In Lee v. Lee, 8 Pet. 44, decided in 1834, a petition to the Circuit Court for the District of Columbia set forth that the petitioners were entitled to their freedom, and were held in slavery by the defendant; he pleaded that they were not entitled to their freedom as they had alleged; upon that plea issue was joined, and a verdict and judgment rendered for the defendant; and the petitioners sued out a writ of error. A preliminary objection to the jurisdiction of this court was overruled, and the judgment below considered on the merits and reversed. The ground of the decision upon the question of jurisdiction appears to have been that the single matter in dispute between the parties was the freedom or slavery of the petitioners to the petitioners, the value of their freedom, not to be estimated in money; to the defendant, claiming to be their owner, the pecuniary value of the slaves as property, which, if he had been the plaintiff in error, might have been ascertained by affidavits. 8 Pet. 48. In Barry v. Mercein, 5 How. 103, decided in 1847, this court dismissed for want of jurisdiction a writ of error to reverse a judgment of the Circuit Court for the Southern District of New York, refusing to grant to a father a writ of habeas corpus to take his child out of the custody of his wife who was living apart from him. Chief Justice Taney, in delivering the opinion, after quoting the 22d section of the Judiciary Act of 1789, said: "In order, therefore, to give us appellate power under this section, the matter in dispute must be money, or some right, the value of which in money can be estimated and ascertained." "The words of the act of Congress are plain and unambiguous. They give the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calculated, in the ordinary mode of Opinion of the Court. a business transaction. There are no words in the law, which by any just interpretation can be held to extend the appellate jurisdiction beyond those limits, and authorize us to take cognizance of cases to which no test of money value can be applied. Nor indeed is this limitation upon the appellate power of this court confined to cases like the one before us. It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the Circuit Court. And since this court can exercise no appellate power unless it is conferred by act of Congress, the writ of error in this case must be dismissed." 5 How. 120, 121. In Pratt v. Fitzhugh, 1 Black, 271, decided in 1861, this court dismissed for want of jurisdiction a writ of error to reverse a judgment of the Circuit Court for the Northern District of New York, discharging on habeas corpus persons imprisoned upon an execution issued by that court directing the marshal to levy the amount of a decree for $21,581.28 out of their goods and chattels, and, for want thereof, to arrest and keep them until the moneys were paid. Mr. Justice Nelson, in delivering the opinion, said that the 22d section of the Judiciary Act had always been held to mean a property value; and he distinguished the case of Holmes v. Jennison, 14 Pet. 540, (which was a writ of error to reverse a judgment of the Supreme Court of Vermont on habeas corpus, remanding to custody a prisoner under a warrant of extradition from the Governor of that State,) upon the ground that it was brought up from a State court under the 25th section of the Judiciary Act, in which case no value was required. In De Krafft v. Barney, 2 Black, 704, decided in 1862, an appeal was taken from a decree of the Circuit Court for the District of Columbia, awarding the custody of a child to the father as against the divorced mother; and Lee v. Lee, above cited, was referred to as supporting the right of appeal. But this court dismissed the appeal for want of jurisdiction, Chief Justice Taney saying that the case was not distinguishable from Barry v. Mercein, above cited, and in that case it was held "that in order to give this court jurisdiction under the 22d section of the Judiciary Act of 1789, the matter in dispute must Opinion of the Court. be money, or some right, the value of which could be calculated and ascertained in money." The act of February 5, 1867, ch. 28, § 1, conferring power upon the judges of the national courts to issue writs of habeas corpus in cases of persons restrained of their liberty in violation of the Constitution, or of any treaty or law of the United States, expressly gave an appeal to this court from the judgment of a Circuit Court in such cases. 14 Stat. 385. Shortly after the passage of this act, Mr. Justice Nelson refused to allow an appeal from a judgment of the Circuit Court for the Southern District of New York upon a writ of habeas corpus issued under the 14th section of the Judiciary Act of 1789, because no appeal was provided by law in the case of a habeas corpus issued under that act, and the appeal given by the act of 1867 was confined to cases begun under it. In re Heinrich, 5 Blatchford, 414, 427. And within two years afterwards it was determined by this court that, independently of the act of 1867 (which was repealed by the act of March 27, 1868, ch. 34, 15 Stat. 44,) this court (except in a small class of cases of commitments for acts done or omitted under alleged authority of a foreign government, as to which provision was made by the act of August 29, 1842, ch. 257, 5 Stat. 539,) had no jurisdiction by direct appeal to revise the judgments of inferior courts in cases of habeas corpus, but could only do so by itself issuing writs of habeas corpus and certiorari under the general powers conferred by the Judiciary Act of 1789. Ex parte McCardle, 6 Wall. 318, and 7 Wall. 506; Ex parte Yerger, 8 Wall. 85. See also Ex parte Royall, 112 U. S. 181; Wales v. Whitney, 114 U. S. 564. Section 1909 of the Revised Statutes, substantially re-enacting provisions of earlier acts, and providing that writs of error and appeals from the final decisions of the Supreme Courts of certain Territories shall be allowed to this court in the same manner and under the same regulations as from the Circuit Courts of the United States, "where the value of the property or the amount in controversy exceeds one thousand dollars, except that a writ of error or appeal shall be allowed" to this court from the decisions of the courts or judges of the Territory VOL. CXV-32 |