Tennessee v. Davis, the case was removed from a state court to the circuit court of the United States under the express provisions of section 643 of the Revised Statutes. The homicide for which the petitioner was prosecuted was committed by him while executing his duties as a revenue officer, in pursuance of the express requirements of the revenue laws, and in defense of his own life, upon a party offering unlawful resistance. So far from running counter to the position we are seeking to maintain, we think the principle there laid down on the point we are now discussing is in accord with that position. The language of the court, through Mr. Justice STRONG, Who delivered its opinion, is as follows: "Cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. 2Story, Const. §1647; [Cohens v. Virginia,] 6 Wheat. 379." While it is true that the opinions in both of those cases assert in the strongest and most impressive language the supremacy of the government of the United States in the exercise of the powers conferred upon it by the constitution, we regard them, also, as a vindication of congress as the law-making department of the government, as the depository of the implied and constructive powers of the government, or, as Mr. Chief Justice MARSHALL expresses it, of the power "to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble." As the Siebold Case and Tennessee v. Davis have been referred to as the most important and directly in point in support of the opposite view, we do not deem it necessary to give an extended examination of the series of cases decided by the circuit and district courts cited to the same purport. Ex parte Jenkins, 2 Wall. Jr. 521, to which attention is more especially called, combined in itself the main features of most of the others, which were proceedings under the fugitive slave law, in which United States marshals were arrested while executing process under that law by state officers acting under the authority of the statutes of the state, the inevitable effect, if not the avowed object, of which were to nullify the operation of the aforesaid act of congress. This was so in Ex parte Jenkins. The United States marshal was arrested on a warrant issued by a state magistrate while he was executing a warrant issued under said law of congress. He was brought before the circuit court of the United States for the eastern district of Pennsylvania, on a writ of habeas corpus, and was discharged upon the ground that the fugitive slave law, having been enacted in pursuance of the constitution of the United States, was paramount to the law of Pennsylvania in conflict with it, and that the marshal, being in custody for an act done in pursuance of that law of congress, and in execution of process under it, was entitled to his discharge. It is so manifest that that case was within the provision of section 753 of the Revised Statutes that further comment is unnecessary, and the same may be said of all of the other decisions of the circuit and district courts. In every one of them the party discharged was in custody either for an act done in pursuance of an express statute of congress, or in the execution of a decree, order, or process of a court, or the custody was in violation of the constitution of the United States. We stated at the outset of these remarks that we raised no question upon the discussion of the history of the legislation of congress upon the subject of the writ of habeas corpus. We think, however, it is pertinent, in this connection, to inquire what was the necessity for any such legislation at all, if the theory contended for as to the sufficiency of the self-executing powers of the executive and judicial departments of the government to protect all the agencies and instrumentalities of the federal government is correct. Why could not President Jackson, in 1833, as the head of the executive department, invested with the power, and charged with the duty, to take care that the laws be faith-g fully executed, and to defend the *con-* stitution, have enforced the collection of the federal revenues in the port of Charleston, and have protected the revenue officers of the government against any arrest. made under the pretensions of state authority, without the aid of the act of 1833? Why, in 1842, when the third habeas corpus act was passed, could not the president of the United States, by virtue of the same self-executing powers of the executive, together with those of the judicial de partment, have enforced the international obligations of the government without any such act of congress? It is a noteworthy fact in our history that whenever the exigencies of the country, from time to time, have required the exercise of executive and judicial power for the enforcement of the supreme authority of the United States government for the protection of its agencies, etc., it was found, in every instance, necessary to invoke the interposition of the power of the national legislature. As early as 1807, in Ex parte Bollman, 4 Cranch, 75, 94, Chief Justice MARSHALL said: "The power to award the writ [of habeas corpus] by any of the courts of the United States must be given by written law. The inquiry, therefore, on this motion, will be whether, by any statute compatible with the constitution of the United States, the power to award a writ of habeas corpus in such case as that of Erick Bollman and Samuel Swartwout has been given to this court. It is claimed that such a law is found in section 787 of the Revised Statutes, which is as follows: "It shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty." It is contended that the duty imposed upon the marshal of each district by this section is not satisfied by a mere formal attendance upon the judges while on the bench; but that it extends to the whole term of the courts while in session, and can fairly be construed as requiring him to attend the judge while on his way from one court to another, to perform his duty. It is manifest that the statute will bear no such construction. In the first place, the judge is not the court. The person does not embody the tribunal, nor does the tribunal follow him in his journeys. In the second place, the direction that he shall attend the court confers no authority or power on him of any character. It is merely a requirement that he shall be present, in person, at the court when sitting, in order to receive the lawful commands of the tribunal, and to discharge the duties elsewhere imposed upon him. Great as the crime of Terry was in his assault upon Mr. Justice FIELD, so far from its being a crime against the court, it was not even a contempt of court, and could not have received adequate punishment as such. Section 725 of the Revised Statutes limits contempt to cases of misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice. It is claimed that the law needed for appellee's case can be found in section 788 of the Revised Statutes. That section is as follows: "The marshals and their deputies shall have in each state the same powers in executing the laws of the United States as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." It is then argued that by the Code of California the sheriff has extensive powers as a conservator of the peace, the statutes to that effect being quoted in extenso; that he also has certain additional common-law powers and obligations to protect the judges, and to personally attend them on their visits to that state; that, therefore, no statutory authority of the United States for the attendance on Mr. Justice FIELD by Neagle, and for Neagle's personal presence on the scene, was necessary; and that that statute constituted Neagle a peaceofficer to keep the peace of the United States. This line of argument seems to us wholly untenable. By way of preliminary remark, it may be well to say that, so far as the simple fact of Neagle's attendance on Mr. Justice FIELD, and the fact of his personal presence, are concerned, no authority, statutory or otherwise, was needed. He had a right to be there; and, being there, no matter how or why, if it became necessary to discharge an official duty, he would be just as much entitled to the protection of section 753 of the Revised Statutes as if he had been discharging an official duty in going there. The fallacy in the use made of section 788 in the argument just outlined is this: That section gives to the officers named the same measure of powers when in the discharge of their duties as those possessed by the sheriffs, it is true; but it does not alter the duties themselves. It does not empower them to enlarge the scope of their labors and responsibilities, but only adds to their efficiency within that scope. They are still, by the very terms of the statute itself, limited to the execution of "the laws of the United States," and are not in any way, by adoption, mediate or immediate, from the Code or the common law, authorized to execute the laws of California. The statute, therefore, leaves the matter just where it found it. If the act of Terry had resulted in the death of Mr. Justice FIELD, would the murder of him have been a crime against the United States? Would the government of the United States, with all the supreme powers of which we have heard so much in this discussion, have been competent, in the present condition of its statutes, to prosecute in its own tribunals the murder of its own supreme court justice, or even to inquire into the heinous offense through its own tribunals? If yes, then the slaying of Terry by the appellee, in the necessary prevention of such act, was authorized by the law of the United States, and he should be discharged, and that independently of any official character; the situation being the same in the case of any citizen. But if no, how stands the matter then? The killing of Terry was not by authority of the United States, no matter by whom done, and the only authority relied on for vindication must be that of the state, and the slayer should be remanded to the state courts to be tried. The question then recurs, would it have been a crime against the United States? There can be but one answer. Murder is not an offense against the United States except when committed on the high seas or in some port or harbor without the jurisdiction of the state, or in the District of Columbia, or in the territories, or at other places where the national government has exclusive jurisdiction. It is well settled that such crime must be defined by statute, and no such statute has yet been pointed out. The United States government being thus powerless to try and punish a man charged with murder, we are not prepared to affirm that it is omnipotent to discharge from trial, and give immunity from any liability to trial, where he is accused of murder, unless an express statute of congress is produced permitting such discharge. We are not unmindful of the fact that in the foregoing remarks we have not discussed the bearings of this decision upon the autonomy of the states, in divesting them of what was once regarded as their exclusive jurisdiction over crimes committed within their own territory, against their own laws, and in enabling a federal judge or court, by an order in a habeas corpus proceeding, to deprive a state of its power to maintain its own public order, or to protect the security of society and the lives of its own citizens, whenever the amenability to its courts of a federal officer or employe or agent is sought to be enforced. We have not entered upon that question because, as arising here, its suggestion is sufficient, and its consideration might involve the extent to which legislation in that direction may constitutionally go, which could only be properly determined when directly presented by the record in a case before the court for adjudication. For these reasons, as briefly stated as possible, we think the judgment of the court below should be reversed, and the 86* prisoner remanded to the custody of the sheriff of San Joaquin county, Cal.; and we are the less reluctant to express this conclusion because we cannot permit ourselves to doubt that the authorities of the state of California are competent and willing to do justice, and that, even if the appellee had been indicted and had gone to trial upon this record, God and his country would have given him a good deliver ance. FULLER, C. J., concurred. (135 U. S. 100) LEISY et al. v. HARDIN.1 INTOXICATING LIQUORS-SALE IN ORIGINAL PACK- MERCE. Laws Iowa 1888, c. 71, which in sections 1-3 prohibits the sale of intoxicating liquors within the state, except by a registered pharmacist holding a permit to sell for certain specified purposes, and in section 20 repeals Code Iowa, § 1524, which allowed importers of foreign liquors to sell the same in the original packages in which they were imported, is void, in so far as it prohibits the sale of liquors by a foreign or non-resident importer in the packages in which they are brought from another state, being in conflict with the provision of the constitution vesting in congress the power to regulate commerce between the states. GRAY, HARLAN, and BREWER, JJ., dissenting. In error to the supreme court of the state of Iowa. Christiana Leisy, Edward Leisy, Lena and Albert Leisy, composing the firm of Gus. Leisy & Co., citizens of Illinois, brought their action of replevin against A. J. Hardin, the duly elected and qualified marshal of the city of Keokuk, Iowa, and ex officio constable of Jackson township, Lee county, Iowa, in the superior court of Keokuk, in said county, to recover 122 one-quarter barrels of beer, 171 one-eighth barrels of beer, and 11 sealed cases of beer, which had been seized by him in a proceeding on behalf of the state of Iowa against said defendants, under certain provisions of the Code of the state of Iowa: and upon issue joined, a jury having been duly waived by the parties, the case was submitted to the court for trial, and. having been tried, the court, after having taken the case under advisement, finally "rendered and filed in said cause its findings of fact and conclusions of law in words and figures following, to-wit: "(1) That plaintiffs, Gus. Leisy & Co., are a firm of that name and style, residing in the state of Illinois, with principal place of business at Peoria, Ill.; that said firm is composed wholly of citizens of Illinois; that said firm is engaged as brewers in the manufacture of beer in the said city of Peoria, Ill., selling same in the states of Illinois and Iowa. at Peoria, Ill.; that each of said kegs was sealed and had placed upon it, over the plug in the opening of each keg, a United States internal revenue stamp of the district in which Peoria is situated; that said cases were substantially made of wood, each one of them containing 24 quart bottles of beer, each bottle of beer corked, and the cork fastened in with a metallic cap, sealed and covered with tin foil, and each case was sealed with a metallic seal; that said beer in all of said kegs and cases was manufactured and put up into said kegs and cases as aforesaid by the manufacturers, to-wit, Gus. Leisy & Co., plaintiffs in this suit, and to open said cases the metallic seals had to be broken. "(3) That the property herein described was transported by said Gus. Leisy & Co. from Peoria, Ill., by means of railways, to Keokuk, Iowa, in said sealed kegs and cases, as same was manufactured and put up by them in the city of Peoria, Ill. (4) That said property was sold and offered for sale in Keokuk, Iowa, by John Leisy, a resident of Keokuk, Iowa, who is agent for said Gus. Leisy & Co.; that the only sales and offers to sell of said beer was in the original keg and sealed case as manufactured and put up by said Gus. Leisy & Co., and imported by them into the state of Iowa; that no kegs or cases sold or offered for sale were broken or opened on the premises; that as soon as same was purchased it was removed from the premises occupied by Gus. Leisy & Co., which said premises are owned by Christiana Leisy, a member of the firm of Gus. Leisy & Co., residing in and being a citizen of Peoria, Ill.; that none of such sales or offers to sell were made to minors or persons in the habit of becoming intoxicated. (5) That on the 30th day of June, 1888, the defendant, as *constable of Jackson township, Lee county, Iowa, by virtue of a search-warrant issued by J. G. Garrettson, an acting justice of the peace of said Jackson township, upon an information filed charging that in premises occupied by said John Leisy there were certain intoxicating liquors, etc., seized the property therein described, and took same into his custody. "(6) And the court finds that said intoxicating liquors thus seized by the defendant in his official capacity as constable were kept for sale in the premises described in the search-warrant in Keokuk, Lee county, Iowa, and occupied by Gus. Leisy & Co. for the purpose of being sold, in violation of the provisions of the laws of Iowa, but which laws, the court holds, are unconstitutional and void, as herein stated. “(7) That on the 2d day of July, 1888, plaintiffs filed in this court their petition, alleging, among other things, that they were the owners and entitled to the possession of said property, and that the law under which said warrant was issued was unconstitutional and void, being in violation of section 8 of article 1 of the constitution of the United States, and having filed a proper bond a writ of replevin issued, and the possession of said property was given to plaintiffs. *103 embraced in chapter 6, tit. 11, Code 1873, and the amendments thereto, as prohibits such sales of beer in the state of Iowa, was unconstitutional, being in contravention of section 8, art. 1, of the constitution of the United States. (5) The court erred in rendering a judgment for plaintiffs, and awarding them the intoxicating liquors in question, and damages and costs against defendant. (6) The court erred in overruling the defendant's motion for a new trial." "From the foregoing facts the court | so much of the law of the state of Iowa finds the following conclusions: That plaintiffs are the sole and unqualified owners of said property, and entitled to the possession of same, and judgment for $1.00 damages for their detention, and costs of suit; that so much of chapter 6, tit. 11, Code 1873, and the amendments thereto, as prohibits such sales by plaintiffs as were made by plaintiffs, is unconstitutional, being in contravention of section 8 of article 1 of the constitution of the United States; that said law has been held unconstitutional in a like case heretofore tried and determined by this court, involving the same question, in the case of Collins v. Hills, decided prior to the commencement of this suit, and prior to the seizure of said property by defendant; to all of which the defendant at the time excepted." Judgment was thereupon rendered as follows: "This cause coming on for hearing, plaintiffs appearing by Anderson & Davis, their attorneys, and the defendant by H. Scott Howell & Son and Wm. B. Collins, his attorneys, and the cause coming on for final hearing on the pleadings on file and the evidence introduced, the court makes the special finding of facts and law herewith ordered to be made of record, and finds that plaintiffs are the sole and unqualified owners and entitled to possession of the following described personal property, to-wit: 122 one-quarter (4) barrels of beer, of the value of $300.00; 171 one-eighth (%) barrels of beer, of the value of $215.00; and eleven (11) sealed cases of beer, of the value of $25.00. That, paintiffs being in possession of said prop erty by virtue of a bond heretofore given, said possession in plaintiffs is confirmed. The court further finds that the writ issued by J. G. Garrettson, a justice of the peace, under which defendant held possession of said property and seized same, is void, same having been issued under sections of the law of Iowa that are unconstitutional and void. That plaintiff is entitled to one dollar damages for the wrongful detention of said property. It is therefore ordered and considered by the court that the plaintiffs have and recover of defendant the sum of one dollar damages, and costs of this action, taxed at To which findings, order, and judgment of court the defendant at the time excepts, and asks until the 31st day of October, 1888, to prepare and file his bill of exceptions, which request is granted, and order hereby made. $ A motion for new trial was made and overruled, and the cause taken to the supreme court of Iowa by appeal, and errors therein assigned as follows: "(1) The court erred in finding that the plaintiffs were the sole and unqualified owners, and were entitled to the possession of the intoxicating liquors seized and held by appellant. (2) In finding that the plaintiffs were entitled to one dollar damages for their detention, and for costs of suit. The court erred in holding that the sales of beer in 'original packages,' by the keg and case, as made by John Leisy, agent of plaintiffs, were lawful. (4) The court erred in its conclusions and finding that (3) The supreme court reversed the judgment of the superior court, and entered judgment against the plaintiffs and their sureties on the relevin bond in the amount of the value of the property, with costs. The judgment thus concluded: "And it is further certified by this court, and hereby made a part of the record, that in the decision of this suit there is drawn in question the validity of certain statutes of the state of Iowa, namely, chapter 6 of title 11 of the Code of Iowa of 1873 and the amendments thereto, on the ground of their being repugnant to and in contravention of section 8 of article 1 of the constitution of the United States, said appellees, Gus. Leisy & Co., claiming such statutes of the state of Iowa are invalid, and the decision in this cause is in favor of the validity of said statutes of the state of Iowa. To review this judgment, a writ of error was sued out from this court. The opinion of the supreme court, not yet reported in the official series, will be found in 43 N. W. Rep. 188. The seizure of the beer in question by the constable was made under the provisions of chapter 6, tit. 11, Code 1873, and amendments thereto. Code 1873, p. 279; Laws 1884, c. 8, p. 8; c. 143, p. 146; Laws 1888, c. 71, p. 91; 1 McClain, Ann. Code, §§ 2359-2431, p. 603. Section 1523 of the Code is as follows: "No person shall manufacture or sell, by himself, his clerk, steward, or agent, directly or indirectly, any intoxicating liquors, except as hereinafter provided. And the keeping of intoxicating liquor, with the intent on the part of the owner thereof, or any person acting under his author-* ity, or by his permission, to sell the same within this state, contrary to the provisions of this chapter, is hereby prohibited, and the intoxicating liquor so kept, together with the vessels in which it is contained, is declared a nuisance, and shall be forfeited and dealt with as hereinafer provided. Chapter 71, Laws 22d Gen. Assem., is an act approved April 12, 1888, (Laws Iowa 1888, p. 91,) of which the first section is as follows: "That after this act takes effect no person shall manufacture for sale, sell, keep for sale, give away, exchange, barter, or dispense any intoxicating liquor, for any purpose whatever, otherwise than as provided in this act. Persons holding permits as herein provided shall be authorized to sell and dispense intoxicating liquors for pharmaceutical and medicinal pur poses, and alcohol for specified chemical purposes, and wine for sacramental purposes, but for no other purposes whatever; and all permits must be procured as here *104 inafter provided from the district court of the proper county at any term thereof after this act takes effect, and a permit to buy and sell intoxicating liquors when so procured shall continue in force for one year from date of its issue, unlesss revoked according to law, or until application for renewal is disposed of, if such application is made before the year expires: provided, that renewals of permits may be annually granted upon written application by permit holders who show to the satisfaction of the court or judge that they have, during the preceding year, complied with the provisions of this act, and execute a new bond as in this act required to be originally given, but parties may appear and resist renewals the same as in applications for permits. Section 2 provides for notice of application for permit, and section 3 reads thus: Applications for permits shall be made by petition signed and sworn to by the applicant, and filed in the office of the clerk of the district court of the proper county at least ten days before the first day of the term; which petition shall state the applicant's name, place of residence, in what business he is then engaged, and in what business he has been engaged for two years previous to filing petition; the place, particularly describing it, where the business of buying and selling liquor is to be conducted; that he is a citizen of the United States and of the state of Iowa; that he is a registered pharmacist, and now is, and for the last six months has been, lawfully conducting a pharmacy in the township or town wherein he proposes to sell intoxicating liquors under the permit applied for, and, as the proprietor of such pharmacy, that he has not been adjudged guilty of violating the law relating to intoxicating liquors within the last two years next preceding his application; and is not the keeper of a hotel, eating-house, saloon, restaurant, or place of public amusement; that he is not addicted to the use of intoxicating liquors as a beverage, and has not, within the last two years next preceding his application, been directly or indirectly engaged, employed, or interested in the unlawful manufacture, sale, or keeping for sale, of intoxicating liquors; and that he desires a permit to purchase, keep, and sell such liquors for lawful purposes only." Various sections follow, relating to giving bond; petition as to the good moral character of applicant; hearing on the application; oath upon the issuing of permit; keeping of record; punishment by fine, imprisonment, etc. By section 20, sections 1524, 1526, and other sections of the Code, were, in terms, repealed. The Code provided for the seizure of intoxicating liquors unlawfully offered for sale, and no question in reference to that arises here, if the law in controversy be valid. By section 1, c. 8, Laws 1884, p. 8, ale, beer, wine, spirituous, vinous, and malt liquors are defined to be intoxicating liq uors. Section 1524, Code 1873, p. 279, was as follows: "Nothing in this chapter shall be construed to forbid the sale, by the importer thereof, of foreign intoxicating liq- | | uor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: provided, that the said liquor, at the time of said sale by said importer, remains in the original casks or packages in which it was by him imported, and in quantites *not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages, and in said quantities only; an nothing contained in this law shall prevent any persons from manufacturing in this state liquors for the purpose of being sold according to the provisions of this chapter, to be used for mechanical, medicinal, culinary, or sacramental purposes. This section is substantially identical with section 2 of chapter 45 of the Acts of the Fifth General Assembly of Iowa, approved January 22, 1855, (Laws Iowa 1854-55, p. 58;) and it was carried into the revision of 1860 as section 1560, (Revision 1860, c. 64, p. 259.) It was repealed by section 20 of the act of April 12, 1888, as before stated. Section 1553 of the Code, as amended by the act of April 5, 1886, (Laws Iowa, 1886, p. 83,) forbade any common carrier to bring within the state of Iowa, for any person or persons or corporation, any intoxicating liquors from any other state or territory of the United States, without first having been furnished with a certificate, under the seal of the county auditor of the county to which said liquor was to be transported, or was consigned for transportation, certifying that the consignee, or person to whom such liquor was to be transported, conveyed, or delivered, was authorized to sell intoxicating liquors in such county. This was held to be in contravention of the federal constitution, in Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062. James C. Davis, for plaintiffs in error. H. Scott Howell, Wm. B. Collins, and John Y. Stone, for defendant in error. Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court. *The power rested in congress "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the constitution. It is co-extensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior, and must be capable of authorizng the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419. And while, by virtue of its jurisdiction over persons and property within its limits, a state may provide for the security of the lives, limbs, health, and comfort of persons and the protection of property so situated, yet a subject-matter which has been confided |