Ex parte Hill, in re Armistead v. Confederate States. made in the non-slaveholding States by the judges who were endeavoring to maintain the supremacy of the constitution and laws of the United States, opposed and resisted with a boldness and ingenuity without a parallel in the history of the country. Judge Nelson, of the supreme court of the United States, in the charge to the grand jury already referred to, used the following language: "There have been different opinions entertained by the judges of the States, as to their power under this writ [the writ of habeas corpus] to decide upon the validity of a commitment or detainer by the authority of the United States. But those who have been inclined to entertain this jurisdiction admit that it can not be upheld, where it appears from the return that the proceedings belonged exclusively to the cognizance of the general government. This necessarily results from the vesting of the judicial power of the Union in the Federal courts and officers, and from the fourth article of the constitution, which declares that "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, any thing in the constitution or laws of any State to the contrary notwithstanding." If the exclusive power to execute the law is in the Federal judiciary, and the act is to be regarded as the supreme law of the land, and to be obeyed as such, it is difficult to see by what right or authority its execution can be interfered with, through the agency of this writ, by State authorities. Any such interference would seem to be a direct infraction of the constitution. It is proper to say, in order to guard against misconstruction, that I do not claim that the mere fact of the commitment or detainer of a prisoner by an officer of the Federal government bars the issuing of the writ, or the exercise of power under it. Far from that. Those officers may be guilty of illegal restraints of the liberty of the citizen, the same as others. The right of the State authorities to inquire into such restraints is not doubted; and it is Ex parte Hill, in re Armistead v. Confederate States. the duty of the officer to obey the authority by making a return. All that is claimed or contended for is, that when it is shown that the commitment or detainer is under the constitution, or a law of the United States, or a treaty, the power of the State authority is at an end, and any other proceeding under the writ is coram non judice and void. In such a case-that is, when the prisoner is in fact held under process issued from a Federal tribunal, under the constitution, or a law of the United States, or a treaty-it is the duty of the officer not to give him up or allow him to pass from his hands at any stage of the proceedings." Judge McLean, one of the judges of the supreme court of the United States, in reference to a case where a Kentuckian, the owner of slaves, seized then in Michigan without a warrant, held, that the owner having a warrant issued by a commissioner, or having seized his slaves in the absence of a warrant without a breach of the peace, upon the return of either of those facts, the authority of the State court under a writ of habeas corpus would cease, because it would then appear that the prisoner was held under the authority of the constitution and laws of the United States. Norris v. Newton, 5 McLean, 82. A case is reported in 5th Am. Law Reg. 659, September, 1857, (Ex parte Sifford Marshall, et al.,) which was decided in an able opinion by Judge Leavitt in the district court of Ohio. In that case, some persons had resisted the marshal in the arrest of a fugitive slave. Those persons were arrested under a warrant upon the charge of resisting the officer. An attempt was made to take the prisoners out of the custody of the marshal by virtue of a writ of habeas corpus issued by a State judge. For an assault and battery committed in resisting this attempt, the marshal and his posse were arrested under a warrant issued by a justice of the peace. A habeas corpus was obtained from the district judge; and he, in passing upon the power of a State court to interfere with the custody of prisoners held by the marshal under a warrant, used the following language: "The doctrine seems now to be settled, that a State judge has no jurisdic Ex parte Hill, in re Armistead v. Confederate States. tion to issue a writ of habeas corpus for a prisoner in the custody of an officer of the United States, if the fact of such custody is known to him before issuing the writ. And it it well settled, that if, upon the return of the writ, it appears the prisoner is in custody under the authority of the United States, the jurisdiction of the State judge is at an end, and all further proceedings by him are void." The same judge, in an opinion of great ability in another case, in 1856, after examining the authorities, held as follows: "If judicial decisions are entitled to any consideration, it is clearly established that, though it may be competent for a State judge to issue the writ of habeas corpus in a case of imprisonment under the authority of the law of the United States, when the fact is made known to him his jurisdiction ceases, and all subsequent proceedings by him are void."-Ex parte Robinson, Am. Law Reg. for August, 1856, vol. 4, p. 617; Ex parte Robinson, 6 McLean, 35. In the celebrated Sims case, (7 Cush. 285,) the supreme court of Massachusetts declined to issue a writ of habeas corpus for a fugitive slave, claimed in the petition to be free, who had been arrested under a warrant issued by a commissioner. The court, in an opinion delivered by Chief-Justice Shaw, while admitting the general proposition, that a State court "can not issue a writ of habeas corpus to bring in a party held under color of process from the courts of the United States, or whose services and the custody of whose person are claimed under authority derived from the laws of the United States," denies the universality of the proposition, and instances the cases of soldiers and sailors held by military and naval officers under enlistments complained of as illegal and void, as exceptions. The distinction intimated can only be maintained upon the supposition, that the principle involved would yield at the judicial will to suit the wants of the case. Finally, the subject was presented to the supreme court of the United States, in the two cases of Ableman v. Booth, and The United States v. Booth, in which Chief-Justice Taney delivered the opinion of the court, which is reported Ex parte Hill, in re Armistead v. Confederate States. in 21 Howard. In one of those cases, the Wisconsin court discharged Booth from imprisonment under a commitment by a commissioner for resisting the execution of the fugitive-slave law. In the other, the court of the same State discharged the same person from imprisonment under a judicial conviction for the same offense. The supreme court of the United States, as will be seen by reference to pp. 523-524, placed its decision upon the ground, that a State court can not interfere with the custody of one held under the authority of the United States. After conceding the right of a State court to ascertain by what authority a prisoner within the confines of its territorial jurisdiction is held, the court uses the following emphatic language : "But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him, and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known by a proper return the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court, upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the Ex parte Hill, in re Armistead v. Confederate States. authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal, or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." It has been objected to the authority of this opinion, first, that the court and the great jurist who delivered it did not really mean what is said; and secondly, that it must at all events be treated as an obiter dictum—as the opinion of an able lawyer on a question not presented by the facts before the court. In reply to the former objection, I have only to say, that when the case of Ableman v. Booth was decided, the supreme court of the United States, with its nine judges, in the high qualities of lofty integrity and profound learning, had no superior, if it had an equal; and it is inconceivable that the language of so important an opinion should have obtained the unanimous sanction of such a tribunal, unless it afforded a true index to its opinions. The second objection is as groundless as the first. The decision of the case in which there had been a conviction and a sentence, might have been put upon the principle, that the judgments of judicial tribunals, within the area of their jurisdiction, are conclusive. In the other case, where there was simply an arrest and commitment by authority of a commissioner, that proposition would not have decided the case; for the authorities hereinbefore cited show, that it is now the established doctrine, however much it may have been controverted in the past, that the commitment of one to answer before a court for an offense does not involve the exercise of judicial power. Although an offender may have been committed by a commissioner, to answer a charge, the truth of |
