have power to grant writs of habeas corpus, in all cases of a prisoner or prisoners in jail or confinement, where ae or they shall be committed or confined, on or by any authority or 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, anything in any act of Congress to the contrary notwithstanding. And if any person or persons to whom such writ of habeas corpus may be directed, shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall on conviction before any court of competent jurisdiction, be punished by fine, not exceeding one thousand *dollars, and by imprisonment not exceeding six [156 months, or either, according to the nature and aggravation of the case."

The immediate occasion of the passage of the act containing the foregoing section, was the rebellious attitude of South Carolina on the tariff laws.

It having been demonstrated in the matter of Alexander McLeod, that further legislation on the part of Congress was necessary to enable the government of the United States to discharge its duty to foreign governments under the law of nations, in certain cases; by the "Act to provide further remedial justice in the courts of the United States," passed August 29, 1842,' power was given to the justices of the Supreme Court and judges of the District Courts to "grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, when he, she or they, being subjects or citizens of a foreign state, and domiciled therein, shall be committed or confined, or in custody, under or by any authority or law, or process founded thereon, of the United States, or of any of them, for or on account

1 U. S. Stat. at Large, 539.

of any act done or omitted under any alleged right, title, authority, privilege, protection or exemption, set up or claimed under the commission or order, or sanction of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof," &c.

By the 3d section of the "Act for the government and regulation of seamen in the merchant service," passed 157] July 20, 1790,' it is *provided that refractory seamen in certain cases shall not be discharged on "habeas corpus or otherwise."

We have now adverted to all the acts of Congress relating to the writ of habeas corpus.

An interesting class of cases has lately arisen under the fugitive slave act of 1850, involving the question of power vested in the "justices of the Supreme Court and judges of the District Courts" of the United States, under the 7th section of the act of Congress of March 2, 1833, above cited. These cases present some of the most serious and exciting questions which have ever arisen in the judicial history of the country; serious, because they involve the constitutional powers of Congress, and exciting, because they are connected with the prominent political topics of the day.

The leading case in the United States Courts on the construction of the 7th section of the act of March 22, 1833, is Ex parte Jenkins,' decided in the Circuit Court of the Eastern District of Pennsylvania, at the October Term, 1853. The relators were deputy marshals of the United States, who, in attempting to execute a warrant to arrest William Thomas, a fugitive slave, had a "violent and bloody encounter" with him at Wilkes-Barrè, in which the negro was successful, and afterwards escaped.

1st Case. The marshals were arrested on a warrant of a justice of the peace, charged with an assault and

11 U. S. Stat. at Large, 131.

22 Wall. 521.

battery with intent to kill Thomas. The acts of violence complained of were those committed in the encounter above mentioned. They were discharged on habeas corpus by the Circuit Court.

*2d Case. Soon after their discharge they [158 were again arrested on a capias ad respondendum at the suit of Thomas, brought in the Supreme Court of Pennsylvania, the same acts of violence being the predicate of the action. They were also discharged on habeas corpus on this arrest by the same court.

3d Case. Soon after their second discharge they were again arrested under a bench warrant of outlawry from the Court of Quarter Sessions of Luzerne county, based on an indictment found there by the grand jury, charging them with riot, assault and battery, and assault with intent to kill; but not setting forth that the parties indicted were officers of the United States, nor that the alleged crimes had been committed while they were acting or professing to act in pursuance of a law of the United States, or under some order, process or decree of some judge or court thereof.

They were again discharged by the same court. Mr. Justice Grier being absent on the hearing of the last two cases they were decided by Judge Kane.

In all the cases it was held that the returns to the writs of habeas corpus were not conclusive, and that evidence would be received of the actual state of the facts complained of in the prosecutions in the criminal cases and relied on in the civil action; that it was the imperative and peculiar duty of that court under the 7th section of the act, March 2d, 1833, to determine under the writ of habeas corpus the matter of fact whether the acts complained of were done in pursuance of a law of the United States or any order, process or decree of any judge or court thereof; and that in *committing [159 the acts complained of the marshals "did not exceed the exigency of the process under which they acted."

A remarkable instance of the use of the writ of habeas corpus and of the power claimed and exercised under the acts of Congress of 1833 and 1850, occurred before the judge of the District Court for the Southern District of Ohio, in April, 1856, in the matter of Gaines' slaves.

One of the slaves just before she was arrested in Cincinnati, under the warrant of the U. S. commissioner, murdered one of her children, also a slave, to prevent its capture, as she was reported to have said. Being brought before the commissioner of the Circuit Court, he decided in favor of Gaines, the claimant, and granted his certificate thereof. She was indicted in the Court of Common Pleas of Hamilton county, for the murder of her child, and while in the custody of the marshal under the warrant of the commissioner, was arrested by the sheriff of the county under process of the state court, issued upon the indictment and taken out of the custody of the marshal.

The marshal petitioned for a writ of habeas corpus, which was granted by the judge of the U. S. District Court. The points determined by him are thus stated in his letter to A. Harlon and others, April 26, 1856: "The only point raised for my decision was on the return to a writ of habeas corpus, granted on the petition of the marshal for the Southern District of Ohio, in which it was set forth under oath, that the fugitives were 160] lawfully in the *custody of that officer, under a warrant from the commissioner, and while so in custody were seized by the sheriff of Hamilton county, by process from a state court, on an indictment charging them with crime. The question was whether the fugitives, while thus held by the marshal, could be taken, forcibly or otherwise, from his custody. I held that, the process being first served by that officer under a law of the United States, which made him responsible for the safe keeping of the fugitives, and which expressly prohibited state interference in any manner or under any circum

stances, the sheriff could not take them from his custody by any state process.

971

The United States District Court of Wisconsin also adopted and applied the doctrine of the case, Ex parte Jenkins in the case of the United States ex rel. Garland v. Morris.'

And so did the Circuit Court, for the Southern District of Ohio, in the case, Ex parte H. H. Robinson,' where a marshal of the United States was discharged, on habeas corpus, from imprisonment commanded by a state judge for contempt in rearresting a slave discharged from his custody which he held under a warrant from a U. S. commissioner; the complaint for which the warrant issued, being, at the time of the issuing of the habeas corpus and the order of discharge by the state judge, pending, and undetermined by the commissioner.

The Supreme Court of Pennsylvania, however, has taken strong ground against the construction given to the 7th section of the act of March 22, 1833, by the U. S. Circuit Court in Ex parte Jenkins.

*After the lapse of nine months from the time of [161 the discharge of Jenkins and others, on habeas corpus, from the custody of the sheriff of Philadelphia county, under the capias ad respondendum in the civil action brought by Thomas against them, in the Supreme Court of Pennsylvania, stated ante, a motion was made in said court at nisi prius for an attachment against the

1 Ex parte Gifford, 5 Am. Law Reg. 659. Where a writ of habeas corpus had issued for a United States marshal, who had been imprisoned by the order of a state judge as for contempt in not producing the bodies of certain persons named in another writ issued by such state judge, and it appeared from the evidence that such persons were legally in the custody of the marshal, pursuant to the provisions of the Fugitive Slave Act, and that his refusal to produce them before the state judge was a paramount duty by the terms of that act, it was held that the marshal was entitled to his discharge. Ex parte Robinson, 1 Bond, 39.