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Vol. II.)

BROWN v. UNITED STATES.

(No. 10.

marshal was instructed to take Bridges into his custody during the pendency of these proceedings.

The following opinion was delivered by

ERSKINE, J. From the earliest period of the common law, no freeman could be detained in prison except upon a criminal charge, or civil action. In the former case, it was always in his power to demand of the supreme court of criminal jurisdiction in the kingdom a habeas corpus, commanding the party restraining him to produce the body before the court, with the cause of detention, that it might inquire into its sufficiency, and either remand, bail, or discharge the prisoner. The ancient barrier against oppression was, at Runnymede, built into that portion of the wall of the great charter which protects the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation. As is well established in legal history, this statute was confirmed many times by parliament. And it was tersely said by Sir Edward Coke, during the debate in the House of Commons on the petition of right, “ Magna Charta is such a fellow that he will have no sovereign.” The very essence of the 29th chapter of the charter is, among other immunities from oppression, incorporated into the fifth article of amendment of the National Constitution.

The framers of the Constitution, actively mindful of the value of this remedy, guaranteed its permanence by a provision in that instrument, that its privilege shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. The Judiciary Act of 1789 provided that each of the several national courts, as well as either of the justices of the supreme court and district judges, should have power to grant the writ of habeas corpus, with the proviso, however, that it “ shall, in no case, extend to persons in jail, unless where they are in custody under or by color of authority of the United States, or committed for trial before a court thereof, or are necessary to be brought into court to testify." And by the terms of the 7th section of the Act of March 12, 1833, it

may be granted, in all cases of a prisoner in jail, when he shall be committed on or by any authority of law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof. This was followed by the Act of August 29, 1842, which concerns international law. To give greater vitality to the writ, and to extend its efficacy, Congress passed the Act of February 5, 1867. The first section enacts : “ That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty, to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing, &c. . . . . and the said justice or judge, to

. ... whom such application shall be made, shall forth with award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the Constitution or laws of the United States. The said court or judge shall proceed

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Vol. II.]

BROWN v. UNITED STATES.

(No. 10.

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in a summary way to determine the facts of the case by hearing testimony and the arguments of the parties interested ; and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the Constitution or laws of the United States, he or she shall forth with be discharged and set at liberty,” &c. See United States Revised Statutes, sects. 751-766, where the various habeas corpus acts are grouped.

The question for consideration is, to me, one of original impression, and it might have been determined elsewhere, and probably before now, had a different course been pursued in the state court; had the petitioner Bridges, on his arraignment there, demurred for want of jurisdiction appearing upon the record, — that the offence charged was committed beyond the jurisdiction of that or any other court of this state, and within the jurisdiction of another government; or shown these facts in evidence under the plea of not guilty; or, on return of the verdict, moved in arrest of judginent; and if in any of these instances, or on the overruling of his motion for a new trial, the decision was adverse to him, he could have carried his case to the state supreme court, a tribunal presided over by judges of distinguished ability, and if that court affirmed the judgment of the lower tribunal, still he had the privilege to sue out a writ of error from the supreme court of the United States, and have the question reexamined there; but as a duty has presented itself, and as this duty has devolved upon me, it will be performed - performed, I trust, without marring the harmony, or weakening the ties of comity between the state and national authorities.

The judiciary power of every government can look beyond its own municipal laws in civil cases, and take cognizance of all subjects of litigation between parties within its territorial limits and jurisdiction, though the controversy relate to the laws of a foreign country. But, as regards crime, the rule is otherwise ; for the courts of one state or nation will not hold cognizance of, nor enforce the criminal laws of another. And as to crimes made so by legislative enactments, the government of the United States stands in the same relation to the government of this state as any foreign power. Mr. Justice Story, in giving the opinion of the supreme court in Martin v. Hunter, 1 Wheat. 304, said: “No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to state tribunals."

Thus it is manifest, that the state courts cannot hold criminal jurisdiction over offences exclusively existing as offences against the United States; for every criminal prosecution must charge the crime to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose authority can pardon him.

In Commonwealth v. Tenny, 97 Mass. 50, the supreme judicial court of Massachusetts held that the offence of embezzlement, by a person in the employment of a national bank located in that state, of the property of individuals deposited in such bank, not being punishable under any existing law of the United States, the state courts had jurisdiction thereof, under the state statutes. The court said: “ There is no view of the relation of the concurrent power of the two governments which affects the decision in the present case ; for all courts and jurists agree that stato sovereignty remains unabridged for the punishment of all crimes committed

Vol. II.)

BROWN v. UNITED STATES.

[No. 10.

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with the limits of a state, except so far as they have been brought within the sphere of federal jurisdiction, by the penal laws of the United States."

The language of the court in that case admits neither of doubt nor comment. It indicates, in terms too significant to be misunderstood, that, had Congress declared the act a crime, the state tribunals would have been altogether without jurisdiction over the offender.

In The State v. Adams, 4 Blackf. 146, the defendant was indicted for making a false affidavit of his being an actual settler on the public lands under the Act of Congress of April 5th 1832. The court below quashed the indictment for want of jurisdiction, and, on error, the state supreme court affirmed the judgment. Said Blackford, J., in delivering the opinion of the court: “We have a statute saying that any person, who shall wilfully and falsely make an affidavit, &c., shall be deemed guilty of perjury. Revised Code, 1831, p. 186. And it is contended for the prosecution that the indictment before us is sustainable under that statute. But this doctrine cannot be supported. The affidavit was made under an act of Congress relative to the sale of public land, and if the party making it committed perjury, he must be punished under the act of Congress prohibiting the offence. The state courts have no jurisdiction." In the case of The State v. Pike, 15 N. H. 83, the prisoner was indicted

, for perjury alleged to have been committed before a commissioner in bankruptcy, appointed by the district court of the United States under the Bankrupt Act of 1841. On demurrer to the indictment, the supreme court of judicature gave judgment sustaining the demurrer. Parker, C. J., nouncing the decision, said: “ Here is another government whose laws are operative, to a certain extent, over the territory of the state, and having tribunals here competent to punish any offences committed against its laws, or in the course of any of its proceedings. The commissioners in bankruptcy not only derive no authority from this state, but they cannot be regarded as having exercised their offices by any permission, tacit or otherwise, from it. They derive their authority from a paramount law, and the state could not object to the exercise by them of the duties of their office within its limits, if it had the disposition so to do. The offence, if committed as alleged, is clearly a crime under the laws of the United States."

Similar in almost every respect to the preceding and former cases, is the recent one of the People v. Kelley, 38 Cal. 145 (1869). Kelley was indicted in a county court for perjury, committed by swearing falsely as to a settlement and cultivation of a tract of land, - part of the public domain of the United States. The prisoner demurred, on the ground that the state court had no jurisdiction of the offence, because it was not committed in any court of the state. The demurrer was overruled, and the prisoner convicted. On appeal to the supreme court, it was there held that the demurrer should have been sustained. In giving the opinion of the court, Sawyer, C. J., said: “ The state tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offence against the laws of both, and it is only as an offence against the state laws that it can be punished by the state in any event.

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BROWN v. UNITED STATES.

[No. 10.

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The supreme court of New York, in The People v. Sweetman, 3 Park. Crim. R. 358, on certiorari to the court of oyer and terminer, decided, reversing the conviction, that false swearing by a person in giving testimony in a proceeding of naturalization before a state court, is an offence against the United States, and is not punishable by a state court ; because the state court acted as the agent of the government, and was, pro hac vice, a tribunal of the United States."

In direct conflict with The People v. Sweetman, is Rump v. Commonwealth, 30 Pa. St. 475. Rump was convicted before the quarter sessions of Philadelphia, for having falsely and corruptly sworn before the district court of the city and county of Philadelphia, on an application of a party to become a citizen of the United States. On error to the quarter sessions, the supreme court of Pennsylvania affirmed the judgment.

The Act of Congress of April 14, 1802, 3 Stats. 153, empowers not only the circuit and district courts of the United States, and the territorial courts, but also state courts of record having common law jurisdiction, a seal and clerk, to admit aliens to national citizenship. Congress has, under the eighth section of the first article of the Constitution, plenary power to pass naturalization laws, and to bestow, if it chooses, upon state tribunals, authority, concurrent with the federal courts, to admit aliens to citizenship, in pursuance of the laws of Congress; and when the state courts, under sanction of state authority (for they are under no obligation to furnish tribunals for administering those laws), act upon the delegated authority, they, by the positive law, perform judicial functions. Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 608.

Adverting for a moment to the cases of The State v. Adams, The State v. Pike, The People v. Kelly, The People v. Sweetman, and Rump v. Commonwealth (supra), it will be seen that in the first three, the alleged offences were committed before United States officers empowered by Congress to administer oaths, and those state tribunals decided that they had no jurisdiction to punish the defendants. In the fourth case, the corrupt oath was made before a state tribunal in a naturalization case and on certiorari to the criminal court, the supreme court of New York reversed the conviction, holding that the United States were the only tribunals that could punish the delinquent. Whether that case, or Rump v. Commonwealth, is in consonance with the nature and genius of our form of government, in unison with those principles of state and national criminal jurisprudence which accompany our complex and seemingly, but not really, permissible system of polity, need not be resolved; for it is not a point in judgment. And for like reason, it is unnecessary, and indeed would be too curious, to inquire whether there could be a second punishment of the defendant in the Pennsylvania case for the same identical act, first by the state laws and afterwards by the United States laws. Moore v. Illinois, 14 How. 13; Ex parte Lange, 18 Wall. 163. And see Mr. Bishop's learned and accurate Commentaries on Criminal Law, vol. 1, 5th ed. SS 178, 179, 984-989; *Ib. vol. 2, $ 1023.

Within the territorial limits of the individual states, there exists two distinct and separate governments, each restricted in its sphere of action, and each independent of the other, except in one particular. “That particular," said Mr. Justice Field, in Tarble's Case, 13 Wall. 397, “ consists of

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Vol. II.)

BROWN v. UNITED STATES.

(No. 10.

V.

the supremacy of the authority of the United States, when any conflict arises between the two governments. The Constitution, and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every state are bound thereby, * anything in the constitution or laws of any state to the contrary notwithstanding.'

And after making a quotation from Ableman Booth, 21 How. 506, which concludes thus : “ And that in the sphere of action assigned to it (the general government), it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a state or from state authorities," he adds: “And the judicial power conferred extends to all cases arising under the Constitution, and thus embraces every legislative act of Congress, whether passed in pursuance of it or in disregard of its provisions. The Constitution is under the view of the tribunals of the United States when any act of Congress is brought before them for consideration."

Indeed, it is essential to the very existence of the national government that its courts of justice should be wholly independent of state power to carry into effect its own laws.

The indictment charges the petitioner with having committed the crime of perjury against the laws of the State of Georgia, before L. A. Guild, a commissioner of the United States, lawfully authorized to administer an oath, in a preliminary investigation, on an accusation made against one Kinney, who was arrested by United States deputy marshal, on a warrant charging him with the offence of violating the enforcement act passed by Congress, by making an attempt to prevent the petitioner from voting at an election for a member of the legislature of said state.

By sect. 5392 of the Revised Statutes of the United States, it is provided that every person having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify truly, who wilfully and contrary to such an oath states any material matter which he does not believe to be true, is guilty of perjury.

As already mentioned, the petitioner is charged with having committed the alleged offence before a United States officer, in a proceeding then pending before him, being an examination into an accusation against a party for the violation of the fourth and fifth sections of the Act of Congress of May 31st, 1870, 16 Stats. 141, commonly called the “Enforcement Act.” It is entitled, “ An act to enforce the rights of citizens of the United States to vote in the several states of this Union, and for other purposes.” By the eighth section it is declared that the United States courts “shall have, exclusively of the courts of the several states, cognizance of all crimes and offences committed against the provisions of this act." See also 9th and 11th sects. of the Judiciary Act of 1789; Revised Statutes, sect. 712.

Sect. 4460 of the Code of this state declares that “perjury shall con-sist in wilfully, knowingly, absolutely, and falsely swearing affirming in a manner material to the issue, or point in question, in some judicial proceeding, by a person to whom a lawful oath or affirmation has been administered;" and sect. 4461 prescribes the punishment. To my

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