[79] lee's case, that it is not supposed that any special Act of Congress exists which authorizes the marshals or deputy marshals of the United States in express terms to accompany the judges of the supreme court through their circuits and act as a body guard to them to defend them against malicious assaults against their persons; that in the view taken of the Constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is "a law" within the meaning of this phrase; and that it would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there was to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments might operate unfavorably. In considering this position, it is indispensable to observe carefully the distinction between the individual man Neagle, and the same person in his official capacity as a deputy marshal of the United States; and also the individual man whose life he defended, and the same person in his official capacity of a circuit justice of the United States.

[80]

The practical importance of the distinction between the rights and liabilities of a person in his private character, and the authority and immunity of the same person in his official capacity, is clearly pointed out and illustrated in United States v. Kirby, 74 U. S. 7 Wall. 482, 486 [19: 278, 280], in which the court says: "No officer or employé of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the Constitution and laws." And the court adds: "Indeed, it may be doubted whether it is competent for Congress to exempt the employés of the United States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language.

cepting throughout the appellee's version of
the facts, he occupied in law any position
other than what would have been occupied
by any other person who should have inter-
fered in the same manner, in any other as-
sault of the same character, between any two
other persons in that room. In short, we
think that there was nothing whatever in
fact of an official character in the transaction,
whatever may have been the appellee's view
of his alleged official duties and powers; and
therefore we think that the courts of the
United States have in the present state of our
legislation no jurisdiction whatever in the
premises, and that the appellee should have
been remanded to the custody of the sheriff.

The contention of the appellee, however,
is that it was his official duty as United'
States marshal to protect the justice; and
that for so doing in discharge of this duty,
"which could only arise under the laws of
the United States," his detention by the state
courts brings the case within section 753 of
the Revised Statutes, as aforesaid.

We shall therefore address ourselves as briefly as is consistent with the gravity of the question involved, to a consideration of the justice of that claim. We must, however, call attention again to the formal and deliberate admission that it is not pretended that there is any single specific statute making it, in so many words, Neagle's duty to protect the justice. The position assumed is, and is wholly, that the authority and duty to protect the justice did arise directly and necessarily out of the Constitution and positive congressional enactments.

The Attorney-General of the United States has appeared in this case for the appellee, in behalf of the government; and in order that the grounds upon which the government relies in support of its claim against the State of California that Neagle should be discharged on this writ may fully appear, it is proper to give some of his most important propositions in his own language. He maintains that "it was the duty of the judiciary, having been thus protected by the Executive Department, to sit in judgment upon and to vindicate the officer of the Executive Department, if innocent, in the discharge of his duty, because such authority in the federal judiciary is essential in principle to the existence of the nation." "We insist that, by the Constitution of the United States, a government was created possessed of all the powers necessary to existence as an independNow, we agree, taking the facts of the ent nation; that these powers were distribcase as they are shown by the record, that the uted in three great constitutional departpersonal protection of Mr. Justice Field, as ments, and that each of these departments is, a private citizen, even to the death of Terry, by that Constitution, invested with all of was not only the right, but was also the those govermental powers naturally belongduty of Neagle and of any other bystander. ing to such department which have not been And we maintain that for the exercise of expressly withheld by the terms of the Constithat right or duty he is answerable to the tution. In other words, that Congress is incourts of the State of California, and to them vested not only with expressed but with imalone. But we deny that upon the facts of plied legislative powers; that the judiciary this record, he, as Deputy Marshal Neagle, is invested not only with expressed powers or as private citizen Neagle, had any duty granted in the Constitution as its share of the imposed on him by the laws of the United government, but with all the judicial powers States growing out of the official character which have not been expressly withheld from of Judge Field as a circuit justice. We it; and that the President, in like manner, deny that anywhere in this transaction, ac-by the very fact that he is made the Chief

"

[81]

[82]

[83]

"The Constitution provides that before the President enters upon the execution of his office he shall take an oath-'I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States. "" And he asks: "Has this clause no significance? Does it not, by necessary implication, invest the President with self-executing powers; that is, powers independent of statute?"

the government of the United States, or in
any department or officer thereof."

Executive of the nation, and is charged to
protect, preserve and defend the Constitution
and to take care that the laws are faithfully This clause is that which contains the germ
executed, is invested with necessary and im- of all the implication of powers under the
plied executive powers which neither of the Constitution. It is that which has built up
other branches of the government can either the Congress of the United States into the
take away or abridge; that my of these most august and imposing legislative as-
powers pertaining to each branch of the gov-sembly in the world; and which has secured
ernment are self-executing, and in no way vigor to the practical operations of the gov-
dependent, except as to the ways and means, ernment, and at the same time tended largely
upon legislation.”
to preserve the equilibrium of its various
powers among its co-ordinate departments,
as partitioned by that instrument. And that
clause alone conclusively refutes the asser-
tion of the Attorney-General, that it was
"the duty of the Executive Department of the
United States to guard and protect, at any haz-
ard, the life of Mr. Justice Field in the dis-
charge of his duty, because such protection is
essential to the existence of the government."
Waiving the question of the essentiality of
any such protection to the existence of the
government, the manifest answer is, that the
In reply to these propositions, we have this protection needed and to be given must pro-
to say: We recognize that the powers of the ceed, not from the President, but primarily
government "within its sphere," as defined from Congress. Again, while it is the Presi-
by the Constitution, and interpreted by the dent's duty to take care that the laws be
well-settled principles which have resulted faithfully executed, it is not his duty to make
from a century of wise and patriotic analysis, laws or a law of the United States. The
are supreme; that these supreme powers ex- laws he is to see executed are manifestly
tend to the protection of itself and all of its those contained in the Constitution, and those
agencies, as well as to the preservation and enacted by Congress, whose duty it is to make
the perpetuation of its usefulness; and that all laws necessary and proper for carrying
these powers may be found not only in the into execution the powers of those tribunals.
express authorities conferred by the Consti- In fact, for the President to have undertaken
tution, but also in necessary and proper im- to make any law of the United States per-
plications. But while that is all true, it is tinent to this matter would have been to in-
also true that the powers must be exercised, vade the domain of power expressly com-
not only by the organs, but also in conformity mitted by the Constitution exclusively to
with the modes, prescribed by the Constitu- Congress. That body was perfectly able to
tion itself. These great federal powers, whose pass such laws as it should deem expedient
existence in all their plenitude and energy in reference to such matter; indeed, it has
is incontestable, are not autocratic and law- passed such laws in reference to elections,
less; they are organized powers, committed expressly directing the United States marshals
by the people to the hands of their servants to attend places of election to act as peace
for their own government, and distributed officers, to arrest with and without process,
among the Legislative, Executive and Judi-and to protect the supervisors of election in
cial Departments; they are not extra the Con- the discharge of their duties; and there was
stitution, for, in and by that Constitution, not the slightest legal necessity out of which
and in and by it alone, the United States, as to imply any such power in the President.
a great democratic federal republic, was
called into existence, and finds its continued
existence possible. In that instrument is
found not only the answer to the general line
of argument pursued in this case, but also
to the specific question propounded by the
Attorney-General in respect to the President's
oath, and its implications.

The President is sworn to "preserve, pro-
tect and defend the Constitution." That oath
has great significance. The sections which
follow that prescribing the oath (secs. 2 and
3 of art. 2) prescribe the duties and fix the
powers of the President. But one very
prominent feature of the Constitution which
he is sworn to preserve, and which the whole
body of the judiciary are bound to enforce,
is the closing paragraph of sec. 8, art. 1, in
which it is declared that "the Congress shall
have power
to make all laws which
shall be necessary and proper for carrying
into execution the foregoing powers, and all
other powers vested by this Constitution in

For these reasons the letters of the Attorney-General to Marshal Franks, granting that they did import what is claimed, and granting that the Attorney-General was to all intents and purposes, pro hac vice, the President, invested Neagle with no special powers whatever. They were, if so construed, without authority of law, and Neagle was then and there a simple deputy marshal-no more and no less.

To illustrate the large sphere of powers self-executing and independent of statutes claimed to be vested in the Executive reference is made to the continually recurring cases of the President's interference for the protection of our foreign-born and naturalized citizens on a visit to their native country; and we are cited, as a striking instance of the exercise of such power, to the case of Martin Koszta, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen, and who, whilst at Smyrna,

[84]

[85]

was seized by order of an Austrian official|ion quotes the clause of the Constitution
and confined on board an Austrian vessel, and which declares that the judicial power shall
who, being afterwards delivered up to Cap-extend to all cases to which the United States
tain Ingraham, commanding an American shall be a party, and says that this means,
war vessel, in compliance with a demand, mainly, where it is a party plaintiff. It then
backed by a demonstration of force, on the refers to the Statute of Congress which ex-
part of that officer, was placed in the hands pressly directs the United States district at-
of a French consul subject to negotiations torneys to bring suits in behalf of the govern-
between the American and Austrian government; and that the suits thus brought by
ments, resulting in the famous correspondence them are to be under the immediate superin-
between the American Secretary of State, Mr. tendence and control of the Attorney-Gen-
Marcy, and the Chevalier Hulsemann, repre- eral. The utmost extent to which the court
senting the Austrian government, and the goes is, that whilst admitting there is no ex-
restoration of Koszta to freedom. We are press authority in the Attorney-General to
asked, Upon what express statute of Congress institute the suit, yet such authority is di-
then existing can this act of the government rectly and necessarily involved in the express
be justified?
provisions of the Statute vesting him with
the entire control and superintendence of
such suits, and the provision and control of
the district attorneys in their conduct of
them.

We answer, that such action of the government was justified because it pertained to the foreign relations of the United States in respect to which the federal government is the exclusive representative and embodiment of the entire sovereignty of the nation, in its united character; for to foreign nations, and in our intercourse with them, States and state governments, and even the internal adjustment of federal power, with its complex system of checks and balances, are unknown, and the only authority those nations are permitted to deal with is the authority of the

nation as a unit.

Equally conclusive is the answer which
the Constitution makes to the assertion that
by the Constitution the judiciary is invested,
not only with the express powers granted in
the Constitution as its share of the govern-
ment, but with all the judicial powers which
have not been expressly withheld from it.
It may be found in the clause which declares
that "the Congress shall have power
to constitute tribunals inferior to the supreme
That authority the Constitution vests ex-court;" and in that which declares it shall
pressly and conclusively in the treaty-mak- make all laws necessary and proper for carry.
ing power-the President and Senate-by ing into execution the powers of those tribu-
one simple and comprehensive grant: "He nals. The correlation between those clauses
[the President] shall have power, by and is manifest and unmistakable. If Congress
with the advice and consent of the Senate, can and must, by the very terms of the Con-
to make treaties, provided two thirds of the stitution, make all laws proper for carrying
Senators present concur." This broad grant | into execution all the powers of any depart-
makes enumeration of particular powers ment of the government, and if it can create
unnecessary. All other delegations of powers the circuit court, expand its powers, abridge
in reference to the international relations of them, and abolish the court at will, how can
this country are carefully and specifically it be that that court, at the least, shall have
enumerated and assigned, one by one, to any implied powers derived from the Con-
their designated departments. In reply, stitution and independent of the statutes?
therefore, to the question, What law expressly And yet, in this transaction, it must be re-
justifies such action? we answer, The Organic membered that Mr. Justice Field is only
Law, the Constitution, which expressly com- claimed to be the representative of that
mits all matters pertaining to our diplomatic court.
negotiations to the treaty-making power.

Not only do the foregoing views seem to
Other cases are referred to in illustration us to be the logical and unavoidable results
of the same point; but the one which it is of original and independent studies of the
alleged presents that principle in the most Constitution, but they are also sustained and
imposing form is that of United States v. enforced by a long series of judicial recog-
San Jacinto Tin Co., 125 U. S. 273 [31: 747].nitions and assertions.
In that case a suit was brought in the name In United States v. Fisher, 6 U. S. 2 Cranch,
of the United States, by order of the At-358, 396 [2: 304, 316], Chief Justice Marshall,
torney-General, to set aside a patent which in delivering the opinion of the court, said
had been issued for a large body of land, on of the clause above relied on: "In construing
the ground that it had been obtained from this clause it would be incorrect, and would
the government by fraud and deceit practiced produce endless difficulties, if the opinion
upon its officers. There are, it is true, some should be maintained that no law was author-
expressions in the opinion delivered in that ized which was not indispensably necessary
case which seem to admit that there is no to give effect to a specified power. Where
specific Act of Congress expressly authoriz- various systems might be adopted for that
ing the Attorney-General to bring suit for purpose, it might be said with respect to
the annulment of a patent procured by fraud each that it was not necessary, because the
from the government; but a close exami-end might be obtained by other means. Con-
nation of the doctrine of the court shows that
it goes no farther than the assertion that the
authority of the Attorney-General arises by
implication, directly and immediately, out
of the express law of Congress. The opin-

gress must possess the choice of means, and
must be empowered to use any means which
are in fact conducive to the exercise of a
power granted by the Constitution."

In McCulloch v. Maryland, 17 U. S. 4 Wheat.

[86]

[87]

[88]

In a note to

316, 420, 421 [4: 579, 605], Chief Justice | scribed by Acts of Congress."
Marshall, for the court, delivered one of those this paragraph he says: Demurrer to an in-
opinions which are among the chief orna- dictment for a libel upon the President and
ments of American jurisprudence. It is Congress. By the court: 'The only question
largely devoted to an exhaustive analysis of which this case presents is, whether the cir-
the constitutional clause in question. Among cuit courts can exercise a common-law juris-
other things he says: "The result of the diction in criminal cases.
The gen-
most careful and attentive consideration be-eral acquiescence of legal men shows the
stowed upon this clause is, that if it does prevalence of opinion in favor of the negative
not enlarge, it cannot be construed to re- of the proposition. The course of reasoning
strain, the powers of Congress, or to impair which leads to this conclusion is simple, ob-
the right of the Legislature to exercise its vious, and admits of but little illustration.
best judgment in the selection of measures to The powers of the general government are
carry into execution the constitutional powers made up of concessions from the several
of the government. If no other motive for States; whatever is not expressly given to the
its insertion can be suggested, a sufficient one former the latter expressly reserve.
is found in the desire to remove all doubts It is not necessary to inquire whether the
respecting the right to legislate on that vast general government, in any and what extent,
mass of incidental powers which must be possesses the power of conferring on its courts
involved in the Constitution, if that instru- a jurisdiction in cases similar to the present;
ment be not a splendid bauble. We admit, it is enough that such jurisdiction has not
as all must admit, that the powers of the been conferred by any legislative Act, if it
government are limited, and that its limits does not result to those courts as a conse-
are not to be transcended. But we think the quence of their creation.' United States v.
sound construction of the Constitution must Hudson, 11 U. S. 7 Cranch, 32 [3: 259]; see
allow to the National Legislature that dis- United States v. Coolidge, 14 U. S. 1 Wheat.
cretion, with respect to the means by which 415 [4: 124]. 'It is clear there can be no
the powers it confers are to be carried into common law of the United States. The fed-
execution, which will enable that body to eral government is composed of twenty-four
perform the high duties assigned to it in sovereign and independent States, each of
the manner most beneficial to the people." which may have its local usages, customs and
common law. There is no principle which
pervades the Union, and has the authority of
law, that is not embodied in the Constitution
or laws of the Union. The common law
could be made a part of our federal system
only by legislative adoption.' Per McLean,
J., Wheaton v. Peters, 33 U. S. 8 Pet. 658 [8:
1079],"-and citing many other authorities.

In United States v. Reese, 92 U. S. 214, 217 [23: 563, 564], Chief Justice Waite, delivering the opinion of the court, said: "Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected."

In Strauder v. West Virginia, 100 U. S. 303, 310 [25: 664, 666], the court says: "A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress.

Cooley in his work on Constitutional Limitations" collates from the numerous adjudications of this court, cited by him, the following principles: "So far as that instrument [the Constitution] apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an Act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction upon the supreme court by name. And although the courts of the United States administer the common law in many cases, they do not derive authority from the common law to take cognizance of and punish offenses against the government. Offenses against the nation are defined and their punishment pre

In Tennessee v. Davis, 100 U. S. 257, 267 [25: 648, 651], referring to the Judiciary Act of 1789, the court said: "It [the Constitution] did not attempt to confer upon the federal courts all the judiciary power vested in the government. Additional grants have from time to time been made. Congress has authorized more and more fully, as occasion has required," etc.

It would seem plain, therefore, that if the Constitution means anything, and if these judicial utterances, extending as they do over a period of eighty years, and embracing a variety of interests, mean anything, they mean that the power to provide and prescribe the laws necessary to effectuate the govern mental and official powers of the United States and its officers is vested in Congress.

The gravamen of this case is in the assertion that Neagle slew Terry in pursuance of a law of the United States. He who claims to have committed a homicide by authority must show the authority. If he claims the authority of law, then what law? And if a law, how came it to be a law? Somehow and somewhere it must have had an origin. Is it a law because of the existence of a special and private authority issued from one of the executive departments? So in almost these words it is claimed in this case. Is it a law because of some constitutional investiture of sovereignty in the persons of judges who carry that sovereignty with them wherever they may go? Because of some power inher

[89]

[90]

[91]

ent in the judiciary to create for others ader the authority of the United States, shall
rule or law of conduct outside of legislation be the supreme law of the land." Now, what
which shall extend to the death penalty? is it that constitutes the supreme laws of which
So also, in this case, in totidem verbis, it is so much is said in this case? How distinctly,
claimed. We dissent from both these claims. how plainly and how fully the Constitu
There can be no such law from either of those tion answers. The Constitution itself, the
sources. The right claimed must be traced treaties and the laws made in pursuance of
to legislation of Congress, else it cannot ex- the Constitution. Made by whom? By Con-
ist.
gress, manifestly. The two clauses already
If it be said that Congress has the power quoted give the power of legislation in the
to make such laws, yet in the absence of most sweeping terms. It alone has power
statutes from that source other departments to make any law. Anything purporting to
may act in the premises; or if it be said be a law not enacted by Congress would not
that the possession of that power by the gov-be in pursuance of" any provision of the
ernment does not negative the existence of Constitution.
similar powers in other departments of the Thus we are driven to look for the source
government, the response that these powers
are plainly not concurrent, but are exclu-
sive, can be made in the language of Mr.
Justice Story, in Prigg v. Pennsylvania, 41
U. S. 16 Pet. 539, 617 [10: 1060, 1089].
Speaking of the Fugitive Slave Law of 1793,
he says:
"If Congress have a constitutional
power to regulate a particular subject, and
they do actually regulate it in a given man-
ner, and in a certain form,
in such
a case the legislation of Congress, in what
it does prescribe, manifestly indicates that
it does not intend that there shall be any
farther legislation to act upon the subject
matter. Its silence as to what it does not
do is as expressive of what its intention is
as the direct provisions made by it.

"

of this asserted law to some legislation of
Congress-legislation made under either its
express constitutional authority, or under its
properly implied authority, it is immaterial
which; and there is none of either class.

The authority is sought to be traced here
through the self-preservative power of the
federal judiciary implied from the Constitu-
tion; and then through the obligation of
the Executive to protect the judges, implied [92]
from the Constitution, whereas there is no
such implication in either case, for the sim-
ple but all-sufficient reason that by the Con-
stitution itself the whole of those functions
is committed to Congress.

Since then the Constitution did not, by its own direct provisions, regulate this matter, but committed it to the hands of Congress with full powers in the premises, it is only by the enactment of some law of Congress that the appellee can show that he is in custody "in violation of the Constitution." As previously remarked, the two propositions are, as to this case, essentially one. Turning again to the Statute under which the writ is sued out, we find that the clause relied on is that which makes the writ applicable where the person “is in custody for an act done or omitted in pursuance of a law of the United States." The question then arises, What sort of law? What does the expression import? Is it not plain that it means just what the same expression all through the Constitution imports?

If it be said that that case had reference to
the interference of a State with congressional
powers, whilst in the case at bar no such ques-
tion is involved, the answer is that the differ-
ence is favorable and not adverse to the theory
of this opinion. The principle is the same;
and if that principle can be applied, as ap-
plied it was, to the denial to a State Legis-
fature of the powers previously enjoyed over
matters originally appertaining to it, a
multo fortiori will it apply to the exclusion
of two co-ordinate departments of the same
government from powers which they never
possessed. As before stated, if the killing
of Terry was done “in pursuance of a law of
the United States," that law had somewhere
an origin. There are under the general gov-
ernment only two possible sources of law. If that instrument, which is the fountain
The common law never existed in our federal of the federal power, be consulted, it will
system. The legislative power possessed by be found that in it and the Amendments
the United States must be found either ex- thereto the word "law," in either its singu-
ercised in the Constitution as fundamental lar form or its plural, “laws," is used forty-
law, or by some body or person to whom it two times. Of these instances of that use
was delegated by the Constitution. It has sixteen are where the word is used in refer-
already been pointed out that the Consti-ence to the jurisprudence of the States, and
tution does not itself create any such law as
that contended for; and that it could not
have been created by any executive or judi-
cial action or status is made manifest, not only
by the clause in sec. 8, art. I., already cited
and commented on, but also by sec. 1, art.
I., and the two paragraphs of art. VI.

Sec. 1, art. I., provides that, "all legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The second paragraph of art. VI. provides that "the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, un

of the Law of Nations, or where they are
merely terms of description-such as "courts
of law," "cases in law and equity," etc. Of
the other instances of its use, and which all
have reference to that body of rules which
constitute the jurisprudence distinctly of the
United States, there are only three cases in
which it is not manifest that the word is
used as equivalent to "statutes," "enact-
ments of the Congress;" and it is clear in
those three instances the word is used also as
equivalent to "statutes." The following
are examples:

"The Congress may, at any time, by law,
make or alter such regulations [in regard to