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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., announcing 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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Vol. II.)

Brown v. UNITED States.

(No. 10.

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. $$ 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 Vol. II.]

BROWN v. UNITED STATES.

(No. 10.

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 v. 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 consist in wilfully, knowingly, absolutely, and falsely swearing .... or 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

Vol. II.]

Brown v. UNITED STATES.

[No. 10.

mind, it is clear that the words “judicial proceeding,” as here used, refer solely to judicial proceedings under the laws of the state and its own tribunals of justice; no other meaning can be assigned to them. To extend their signification beyond this, would be an endeavor to empower state courts to invade the judicial authority of a distinct and separate government, and to punish persons for offences committed by them against the laws of another sovereign. The People v. Kelley, supra. The provision in the Code, defining the offence and naming the punishment, is a general law of the state. Now, keeping in view the complex character of our government — the dual relation which the individual states and the nation bear to each other — surely the texture of any argument must prove to be too frail, which would attempt to uphold the proposition that a crime committed in a judicial proceeding before an officer of the United States is a transgression of the criminal laws of a state. And, as not impertinent to what has been remarked, it may be asserted, with entire confidence in its correctness, that no justice or judge of a court of the United States, nor a commissioner of the circuit court of the United States, can, as such officer, administer an oath for state purposes, or issue a process to arrest a party for a violation of state laws, or inquire into his guilt or innocence. Nor do these familiar acts of Congress, which have deputed state chancellors, judges, and other magistrates to administer oaths, take acknowledgments, &c., in certain specified cases, in anywise affect what has just been said in regard to federal officers as such.

Pausing to observe the facts developed here, and the principles of law which arise from them, it may now be inquired whether a proceeding by habeas corpus, even under the provisions of the Act of February 5, 1867,- which empowers the several federal courts, and either of the justices or judges of such courts, to award the writ in all cases where a party is in custody in violation of the Constitution, or of any law of the United States, — is a suitable and legal remedy to test the validity of the imprisonment of the petitioner, and to release him, if restrained of his liberty in contravention of the Constitution or laws of the United States. It will not be questioned that, upon a cursory glance at this cause, which is a civil suit, although it be before a judge instead of a court (EX parte Milligan, 4 Wall. 1; and see Revised Stats. sect. 763), — even the legal mind might be impressed with a doubt as to the appropriateness and legal soundness of this summary interposition. For (it may be said) thus to attempt to review a final judgment of a state tribunal of the highest original jurisdiction in civil and criminal causes, by a mode of procedure not conformable to the ancient and regular course heretofore used in the administration of justice between state courts and those of the Union, would be to authorize a federal judge to employ this writ as if it were a writ of error from a superior to an inferior tribunal. Such views may be plausible, but they do not convince; for it is obvious from the language and spirit of the act that it was not in the mind of Congress to give it the effect assumed, — to have done so would have been to clothe a judge of a federal court with a power hitherto unheard of in national legislation. If, however, it be a legal fact that the superior court of Randolph County had jurisdiction of the offence and the offender, although the course of the court may have been irregular, and

em the facts developegard to federal Citid cases, in any

Vol. II.)

BROWN v. UNITED STATES.

(No. 10.

the conviction and judgment erroneous, the errors could not be corrected by a federal judge in a proceeding in habeas corpus, or, by such officer, in any other way known to our jurisprudence.

But if the state court did not have jurisdiction of the case, its judgment is utterly void, and the petitioner is restrained of his liberty in violation of the Constitution, and the Act of 1867 affords a proper and legal remedy to administer relief. If he committed the crime, as charged by the state in the indictment, the act was done within the authority and exclusive jurisdiction of the national courts; and as they are the sole tribunals that could try him, so they alone could punish him. It follows, necessarily, from what has now been stated, that every person who infringes the criminal or penal laws of a particular government, can be tried and punished by that government only. And it is not too strong an expression to assert that it is a fundamental right of every citizen of, or person commorant within, the United States, to be tried by the tribunals of justice of that sovereign power whose criminal code he has transgressed; and the complement of this rule or axiom is, immunity or exemption from trial or punishment for that offence by any other government or sovereignty. The disregarding of this immunity has deprived the petitioner of his liberty in contravention of the “ law of the land;” he was proceded against and condemned without “due process of law.” The fifth article of amendment of the Constitution declares, among other immunities from arbitrary oppression, that no “person shall be deprived of life, liberty, or property, without due process of law.” This bulwark against invasion from the general government is extended by the fourteenth article of amendment, which forbids “any state” to “deprive any person of life, liberty, or property, without due process of law.” Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235, in speaking of the phrase “ law of the land,” which means the same as "due process of law” (Cooley on Constitutional Limitations 353), said that these words from Magna Charta were “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principle of private rights and distributive justice ; " an exposition which has received the unqualified approval of a jurist of the highest eminence. Ib. 355.

As collaterally illustrative of the constitutional question as just presented, the fifteenth chapter of title thirteen of the Revised Statutes, passim, and sections 1778 to 1785 of Story on the Constitution, may be referred to.

As the crime is alleged to have been committed before a United States circuit court commissioner, at a place within the Southern Judicial District of this state, I am of the decided opinion that the federal courts for that district are the only tribunals that have cognizance of the offence and jurisdiction to try the party offending.

There is another provision in the Constitution directly pertinent to the question involved in this investigation, and which may be treated either as a distinct proposition or as a corollary to those already invoked. A little more than a year anterior to the passage of the amendatory Habeas Corpus Act of 1867, the thirteenth article of amendment of the Constitution was ratified. It ordains that “neither slavery nor involuntary servi

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