Concurring opinion filed January 16, 1864, by
Bead, J.Upon the present motions heard before us at Nisi Prius, several questions were discussed at length by the counsel for the complainants. Upon the one, whieh was essential in any' aspect to entitle them to ask for the interference of this court, the alleged unconstitutionality of the act of Congress of the 3d March, 1863, I have not changed my views, as already expressed in my opinion delivered at Pittsburg, on the 9th November last. Upon a calm and dispassionate reconsideration of the question, I am firmly of opinion that this act is a perfectly constitutional exercise of the power vested in Congress by the Constitution, and binding upon us as judges ■of the Supreme judicial tribunal of the'State, and upon all the people of the United States. Upon this point I shall say nothing more.
Another question urged upon usr by one of the counsel, was our power to prohibit and restrain by injunction officers of the United States, acting under the authority and in strict conformity to an act of Congress, from performing their official duties, and thus practically nullifying it within the State of Pennsylvania. For such a position no authority was or could be cited. No State court before the filing of these bills had ever been asked to exercise such a power against the General *530government, unless a precedent is to be found in the conduct of South Carolina in the days of President Jackson.
It was, however, argued that as a power to discharge these individuals from the custody of the officers of the United States by the writ of habeas corpus issued by this court, existed before the suspension of that writ by the President, under the act of Congress, therefore, this proceeding might be resorted to in order to attain the same end, and thus defeat the intention of the Legislature of the United States. If this can be done by a State court, then the suspension of the habeas corpus by Congress, when in cases of rebellion or invasion the public safety requires it, is evaded and practically nullified. Such cannot be the law of the land.
The habeas corpus operates upon a person in custody; the present injunctions go a step further — they prohibit the individuals from being taken into custody, and. if they are legally operative, then the officers of the United States never can have them in their custody. Now the courts of the United States have no authority to grant the writ of habeas corpus for the purpose of inquiring into the cause of the imprisonment, where the prisoner is in the custody of State officers acting solely under State laws, unless under special provisions intended to provide for the effectual execution of acts of Congress, or for the protection of citizens or subjects of a foreign state under -certain circumstances. I think the converse of the proposition is true without any exception, that no State tribunal can issue a writ of habeas corpus, and under it discharge a person in the custody of an United States officer acting in strict conformity to an act of' Congress, and holding him by virtue of the authority thus vested in him. In such a case the writ can only be issued by the courts and judges of the United States, who are the only tribunals to decide upon the legality and validity » of the imprisonment. This arises from the nature of the State and General governments, so well described by Chief Justice Taney in Ableman v. Booth, which really rules the present question. The origin and extent of this decision will be better understood>by referring to the opinions of two of the judges of the Supreme Court of the United States who sat in that case, delivered some years before it was decided. Justice Nelson, in his charge to the Grand Jury in 1851, 1 Blatchford’s C. C. Rep. 635 to 640, on the subject of the fugitive slave law, uses this language:—
“Another subject,” says the learned judge, “arising out of the provisions of this law, and which has a material bearing upon its execution, it is proper should be noticed. By the second section of the third article of the Constitution, it is declared that ‘the judicial power shall extend to all cases in *531law and equity arising under this Constitution, tbe laws of tbe United States and treaties made or which shall be made under t their authority.’ The power, therefore, it will be seen, to execute this act of Congress, belongs to the tribunals and authorities of the General government; and in respect to these, can be executed only by such courts or officers as are specially designated in the act for that purpose. The power, therefore, is exclusive in these courts or officers, both as it respects the tribunals of the State and others of the Federal government. Neither can act or interfere in the execution of the law, and in case of any attempt by either to interfere or exercise the authority, its acts would bg coram non judice and void. These propositions are elementary, and so obvious as* to require no further comment.
“ It seems to be supposed, however, in some quarters, that ' the State power exercised by its tribunals, under the writ of habeas corpus, forms an exception to this generally admitted doctrine; and that through the agency of this writ, the fugitive may be taken out of the hands of the federal officers, and the authority or propriety of the arrest or detainer be inquired into, and the person be discharged or remanded according to the judgment of the State magistrate. This is the exception claimed, to the exclusive power of the federal officers designated in the act.
“It is apparent, if this exception can be maintained, that there is an end of - the complete execution of the law; or, indeed, of any law of the General government, by which the party is subject to an arrest. It is not claimed that the State magistrate can under this writ administer the act and enforce its provisions, as that authority, as we have seen, is confined to the tribunals appointed by the act for the purpose. The fugitive must therefore be taken, if taken at all, out of the hands of the federal officers by force of some other law. And the question whether he or she shall be discharged or remanded, will depend upon the application of that law to the particular case. What that law is, or may be, must necessarily depend upon State regulation; and tbe rights of the claimant under the Constitution and laws of the Union will thus be determined by a law of the State.
“ The effectual abrogation of the act, by the interposition of this • writ, if admitted, will be still more apparent, when we reflect that the power exercised under it is such as the State legislature may choose to prescribe; and that the State tribunals are not only invested with that power, but if they act at all, are bound to act in obedience to and in conformity with it. There is no limit, therefore, to the extent of the powers that may be exercised under this proceeding, in respect to the *532arrest and detainer of the fugitive,,but the discretion of the State legislatures. They may confer jurisdiction upon their magistrates to re-examine and revise the acts and decisions of the federal tribunals, out of whose hands the fugitive is taken, and the State magistrate would be bound to execute the power accordingly. It is manifest that it would be impossible to uphold the due execution of the law, with the admission of any such authority.
'‘Conceding, however, the soundness of this general view, and the inability of fare State tribunals to interfere with the Federal authorities, when they are acting upon cases arising under the Constitution, laws of Congress, or treaties, still it is argued that they possess the power under this writ to inquire into the legality of the authority under which the prisoner is held, and which may involve the constitutionality of the law, and the jurisdiction of the court or officer. But it is obvious, that the existence of either on the part of the State tribunals would be fatal to the authority of the Constitution, laws, and treaties of the General government. No government could maintain the administration or the execution of its laws, civil or criminal, if their constitutionality or the jurisdiction of their judicial tribunals were subject to the determination of another.”
Having proceeded to say he considers this question settled, he says: “ There have been different opinions entertained by the judges of the States, as to their power under this writ to decide upon the validity of a commitment or detainer by the authority of the United States. But those who have been inclined to entertain this jurisdiction admit that it cannot be upheld where it appears from the return that the proceeding belonged exclusively to the cognizance of the General government.
“ These views of the paramount authority of the laws of the Federal Government in no way endanger the liberty of the citizen. The writ of habeas corpus secured to him under that government affords the appropriate and effectual remedy for any illegality in the process or want of jurisdiction in the courts, or for any unconstitutionality of the law.”
The distinction between the States and the General government upon this point was clearly pointed out by Judge Sumner in the Massachusetts Convention, called to determine whether the Constitution of the United States should be ratified or not. “Congress,”said he, “have only power to suspend the privilege to persons committed by their authority. A person committed under the authority of the States will still have a right to the writ.” 2 Elliot’s Debates, 108.
Doctrine of a similar character had been previously laid *533down by the late Mr. Justice McLean in Norris v. Newton, 5 McLean, 92, at the May Term, 1850, of the Circuit Court of the United States, for the State of Indiana; and the germ is to be found in the opinion of Judge Story in Prigg v. The Commonwealth, 16 Peters, 53. The power to raise and support armies is exclusively vested in Congress, and their legislation upon the subject is necessarily exclusive, and can be neither controlled nor limited by any State authority, whether executive, legislative, or judicial, for the legislature cannot deposit such a power in any tribunal whatever.
Upon this point, however, in addition to the high authority of the Supreme Court of Michigan, quoted in my former opinion, we have the deliberate and well-considered opinions of two able judges of the New York Supreme Courts, in the Seventh and Fifth Judicial Districts of that State.
In the matter of Jordan and others, Judge E. Darwin Smith, of the Seventh Judicial District, held that where, on a return to a writ of habeas corpus, a State judge or court is judicially apprised that the party is in custody under the authority of the United States, such judge or court can proceed no further. The prisoner is then within the dominion and exclusive jurisdiction of the United States. 2 Am. L. R. 74:9.
After speaking of .the case of Ablemam v. Booth, which he approves, the learned Judge says: “Upon this theory every citizen owes to his country a divided duty — to the National government he owes allegiance and the duty of submission and obedience to its laws, and to the State government obedience and submission to its laws; each in their proper sphere. Within the sphere of the National government its judiciary protects his rights, and vindicates his wrongs; and within the sphere of the State government its judiciary enforces his duties, protects his rights, and gives redress for the injuries he may receive in person or property.” Id. 758.
“ In many localities in this country,” says the learned Judge, “^aside from the States which have, professedly renounced the national authority, it is notorious that there are some evil-disposed persons, in sympathy with the-enemies of the country, who" are opposed to the war, and who evince a spirit of hostility to the government by hindering enlistments and volunteering; by enticing enlisted men to desert; in secreting deserters; and resisting by force their arrest and return to the army; and who by opposition to the draft, and various other modes of proceeding, are seelring to defeat the operations of the government in conducting the war. It would be surprising if such men could not find some convenient judge who would issue writs of habeas corpus, and, by this process, discharge all persons brought before him, on the ground that the laws of Congress authoriz*534ing enlistments or the draft, and arrest of deserters, and, perhaps, the war itself, were unconstitutional, and thus give the color of law to their disloyal acts and proceedings.” Id. 759.
An opinion of a similar tenor was delivered by Judge Bacon of the Fifth Judicial District, in the matter of Charles E. Hop-son, an abstract of which was furnished by the reporter, Hon. A. L. Barbour. Mr. Mitchell, one of the editors of the “Register,” kindly furnished me with the full opinion of Judge Bacon, which is a very able one. 3 Am. Law Register, N. S. 189.
I think, therefore, the argument drawn from the use of the habeas corpus by State courts, to take persons out of the custody of officers of the United States, acting under the authority of an act of Congress, fails entirely, and shows conclusively that the present mode of proceeding by injunction to effect the same object cannot be supported.
I am also of opinion that the words of our act of Assembly do not cover these cases, as I have said in my former opinion. Before the act of 1836, it is conceded that no such power was reposed in any court in this commonwealth; and can it be supposed that the legislature of that day intended to grant to any court the authority to interpose the State power to prohibit the execution of an act of Congress under the words “the prevention or restraint of the commission or continuance, of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals ?” The legislature could not give to any person or tribunal the power to stop the execution of an act of Congress. If they could not do so in direct terms, they could not do it under the cover of general, expressions; and they would not do so when the rebellious action of South Carolina in attempting to prevent the execution of the tariff laws had beeD so lately rebuked by the hero of New Orleans, whose action was sustained and approved by the people of Pennsylvania without distinction of party.
Í am also of opinion that this is not a proper subject for the jurisdiction of a court of equity; and upon all these grounds, I am in favor of dissolving these injunctions-^-which never should have been granted. No security, as required by the terms of the preliminary injunctions, has ever been entered by either of these complainants, nor have, of course, any writs of injunction been taken out in either of the cases, and no reason has been assigned for this omission to bring home to the defendants the action of this court. This gives us full possession of the case, and in the language of Chancellor Kent, “ The granting and continuing of the process (injunction) must always rest in the sound discretion of the court.” 2 John Oh. 205.
Lam also of opinion, that my brother Strong was entirely right in receiving the motions to dissolve the injunctions at *535Nisi Prius, being tbe only place in which they could be made, and in calling in his brethren to assist him in hearing the rules, and that the motions were perfectly regular, requiring no affidavits — for the whole case turned upon the bills and affidavits filed by the complainants. The views expressed by my brother Strong, as to the entire regularity of the whole proceeding, I concur in. I was, therefore, for entertaining the motions, and am now for dissolving the injunctions.
The Southern secessionists contended that their allegiance was due to the States, and overpowered any duty which they owed to the United States of America, and this mischievous heresy has led to the present causeless rebellion, and has made traitors of its blind and reckless supporters. The allegiance of every American citizen is due to his country, the United States — if a native, by his birth; if naturalized, by the very terms of the Constitution and the express words of the acts of Congress which make him a citizen of the United States. Each citizen has therefore the same common country, which he is bound to serve and defend as far as he is capable.
The mottoes of the Father of his country were, “Deeds not words" and “ For God and my country.” Sparks’ Life of Washington, 522. At his death, the Senate of the United States, in addressing President Adams, expressed to him “their deep regret for the loss their country sustains in the death of General George Washington.” And in his reply, the President said, he received with the most respectful and affectionate sentiments, in this impressive address, “ the obliging expressions of your regret for the loss our country has sustained in the death of her most esteemed, beloved, and admired citizen.”
In his Farewell Address, this great man, after expressing the debt of gratitude he owed to his beloved country for the many honors conferred upon him, uses this language to his fellow-citizens: “The unity of government, which constitutes you one people, is also now dear to you. It is justly so.” “ Citizens by birth or choice of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism, more than any appellation derived from local discriminations.”
The armies of the Union are not fighting for any single State, but they are fighting for their common country, the United States of America, as Americans; and those who have perished in this contest for the preservation of the Union have died under the National flag, which I trust will soon wave over the whole undivided territory of our glorious and once happy Union.