(with whom concurred. Mr. Chief Justice Fuller) dissenting.
The Chief J ustice and' myself are unable to assent to the conclusion reached by the majority of the court.
. Our dissent is not based, on any conviction as to the guilt or innocence of the appellee. The. view which we take renders that question immaterial to the inquiry presented by this appeal. That inquiry is, whether the appellee, Neagle, shall in this ex parte proceeding be .discharged and delivered from any trial or further inquiry in any court, state or federal, for wThat he has been accused of in the forms prescribed by the constitution and laws of the State in which the act in question was committed. Upon that issue we hold to the principle announced by this court 'in the case of Ex parte Crouch, 112 U. S., 178, 180, in which Mr. Chief Justice Waite, delivering the opinion of the court, said : “ It is elementary learning that, if a prisoner is in the custody of a state court of competent jurisdiction, not illegally asserted,' he cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of ’the United States, simply because he is not guilty.of the offence for which he is held. All questions which may arise in the orderly course of the proceeding against him are to *77be determined by the. court to whose jurisdiction he has been subjected, and no other court is authorized to interfere to prevent it. Here the right of the prisoner to a discharge depends alone on the sufficiency of his defence to the information under which he is held. Whether his defence is sufficient or. not is for the court which tries him to determine. If, in this determination, errors are committed, they can only be corrected in an appropriate form of proceeding for that purpose.^ The office of a writ of habeas corpus is neither to correct such errors, nor to take the prisoner away from the court which holds him for trial, for fear, if he remains, they may be committed. Authorities to this effect in our own reports are numerous. Ex paret Watkins, 3 Pet. 202; Ex parte Lange, 18 Wall. 163, 166; Ex parte Parks, 92 U. S. 18, 23; Ex parte Siebold, 100 U. S. 371, 374; Ex parte Virginia, 100 U. S. 339, 343 ; Ex parte Rowland, 104 U. S. 604, 612 ; Ex parte, Curtis, 106 U. S. 371, 375; Exporte Yarbrough, 110 U. S. 651, 653.”
Many of the propositions, advanced in behalf of the appellee and urged with impressive force we do not challenge. We do not question, for instance, the soundness of the elaborate discussion of the history of the office and function of the writ of habeas-corpus, its operation under and by virtue of section-753 of the Revised Statutes, or the propriety of -its use in the manner and for the purposes for which it has been used, in any case where the prisoner is under arrest by a State for an act done “in pursuance of a law of the United States.” Nor do we contend that. any objection arises to such use of the writ, and based merely on that fact, in cases where no provision is made by the federal law for the trial and conviction of the accused. Nor do we question the general propositions, that the federal government established by the Constitution is absolutely sovereign over every foot of soil, and over every personj within the national territory, within the sphere of ao-' tion assigned to it; and that within that sphere its constitution, and laws are the supreme law of the land,' and its proper instrumentalities of government can be subjected to no restraint, .and can be held to no accountability whatever. Nor, again, do we dispute the proposition that whatever is necessarily ini-. *78plied in the Constitution and laws of the United States is as much a part of them as if it were actually expressed. All • these questions we pretermit.
■ The recognition by this court, including ourselves, of their soundness does not in the least elucidate the case; for they lie outside of the true controversy. The ground on which we dissent, and which in and by itself seems to be fatal to the case of the appellee, is this; That in treating section 753 of the Revised Statutes as an act of authority for this particular use of the writ a wholly inadmissible construction is placed on the word “law,” as used in that statute, and a wholly inadmissible application is made of the clause “ in custody in violation of the Constitution ... of the United States.”
It will not be necessary to consider these two propositions separately, .for .they are called into this case as practically one.
' The section referred to is as follows:
“The Writ of habeas corpus shall in no case extend to a .prisoner in jail, unless where, he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; oris in custody in violation o£ the Constitution or of a law or treaty of the United States,” etc.
' It is not contended in behalf of the appellee that the writ of habeas corpus could be used, as here it is, in any case, without authority of a statute. In Ex parte Bollman, 4 Cranch, 75, 94, Chief Justice Marshall said: “ The power to award the Avrit [qf habSas corpus] by any of the courts of the United States .must be given by written law.”
It is not contended that there is any statute other than those now found in the Revised Statutes of the United States. Nor is it contended that in those statutes there is any authority for the- use here made of the Avrit other than what is embraced in the clauses above quoted. The issue, as stated above, is thus narrowed to the proper force to be attributed to those clauses.
It is stated as the vital position in appellee’s case, that it is not *79supposed that any special act- of Congress exists which, authorizes the marshals or deputy marshals of the United States -in express terms to accompany the judges of the Supreme Court through their circuits and act as a body guard to them 'to, defend them against malicious assaults against their persons; that ..in the view taken of the Constitution of the United: States, any obligation fairly and properly inferrible from tháfr instrument, or any duty of the marshal to be derived from the general scope of his duties under-the laws of the United, States, is “ a law ” within the meaning of. this phrase; and that' it would be a great reproach to the system of government of the United States, declared to be within its sphere^ sovereign and supreme, if there was to be found within the domain, of its powers no means of protecting the judges', in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments might operate unfavorably. In considering this position, it is indispensable to observe carefully the distinction between the individual man Neagle, and the same person in his official capacity as a deputy marshal of the United States; and also the individual man whose life he defended, and the same person in his official capacity of a Circuit Justice of the United States.
The practical importance of the distinction between the rights and liabilities of a person in his private character, and the authority and immunity of the same person, in his official capacity,-is clearly pointed out and illustrated in United States v. Kirby, 7 Wall. 482, 486, in which the court says: “ Ño officer or employé of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony,, in the forms prescribed by the Constitution and laws.” And the court adds: “ Indeed, it may be doubted whether it is competent for Congress to exempt -the employes of thevUnited States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita,:but arfe mala m se. But whether legislation of that character be constitutional or not, no intention to extend such *80exemption should be attributed to Congress unless clearly manifested by its language.”
Now, we agree, taking the facts of the case as they are shown by the record, that the personal protection of Mr. Justice Field, as a private citizen, even to the death of Terry, was .not only the right, but was also the duty of Neagle and of any other bystander. And wq maintain that for the exercise of that right or duty he is answerable to the courts of the State of California, and • to them alone. But we deny that upon the facts of this record, he, as deputy marshal Neagle, or as private citizen Neagle, had any duty imposed on him' by the laws of'the United States growing out of the official character of Judge Field'as a Circuit Justice. We deny that anywhere in this transaction, accepting throughout the hppellee’s version of the facts, he occupied in law any position other than what would have been occupied by any other person who should have interfered* in the same manner, in any other assault of the same character, between any two other persons in that room. In short, we think that there was nothing whatever in fact of an official character in the transaction, whatever may have been the appellee’s view of his alleged official duties and powers and, therefore, we think that the courts of the' United States have in the present-state of our legislation no jurisdiction whatever in the premises, and that the appellee should have been remanded to the custody.of the sheriff.
. The contention of the appellee, however, is that it was his official duty as United States marshal to protect the justice; and that for so doing, in discharge of this duty, “ which could only arise under the laws of the United States,” his detention by the state courts brings -the case within section 753 of the Revised Statutes, as aforesaid.
We shall therefore address ourselves as briefly as is consistent with the gravity of the question' involved, to a considera-' tion of the justice of that claim. We must, however, call attention again to the formal, and. deliberate admission that it is not pretended that there is any single specific statute making it, in so many words, Neagle’s-duty to protect the justice. The position assumed is, and jg, whollv. that the authority *81and duty to. protect the justice did arise directly and necessarily out of the Constitution and positive congressional enact* ments.
The Attorney General of the United States has appeared in this case for the appellee, in behalf of the government; and in order that the grounds upon which the government relies in support of its claim against the State of California that Neaglei should be discharged on this writ may fully, appear, it is proper to give some of his most important propositions in his own language. He maintains that “ it was the duty of the judiciary, having been thus protected by the executive, department, to sit in judgment upon and to vindicate the officer of the executive department, if innocent,'in the discharge of his duty, because such authority in the federal judiciary is essential in principle to the existence of the nation.” “¥e insist that, by the Constitution of the United States, .a government was created possessed of all the powers necessary to existence as an independent nation; that these powers were distributed .in three great constitutional departments, and that each of these departments is, by that Constitution, invested with all of those governmental powers naturally belonging to such department which have not been expressly withheld by the terms of the Constitution. In other words, that Congress is invested' not only with expressed but with implied legislative powers ; that the judiciary is invested not- only with, expressed powers granted in the. Constitution as its share of the government, but with all the judicial powers which have not been ex-, pressly withheld from it; and that the. President; in like manner, by the very fact that he is made the chief executive of the nation, aqd is charged to. protect, preserve, and defend' the Constitution,, and to take care that the laws are faithfully executed, is invested with necessary and implied executive powers which neither of the other branches of the government can either take away or abridge; that many .of these powers pertaining to each brah'ch of the government are self-executing, and in no way dependent, except as . to .the ways' and means, upon legislation.”
“(The Constitution provides that before- the President ;enters.; *82upon the execution of his office he shall .take an oath — I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States.” And he asks: “ Has this clause no significance ? Does it. hot,'by necessary implication, invest the President with self-executing powers; that is, powers independent of statute?”
In reply to these propositions, we have this to say: We recognize that the powers of the government, “ within. its sphere,” as defined by the Constitution, and interpreted by the .well-settled principles which have resulted from a century of wise and patriotic analysis, are supreme; that these supreme powers extend to the protection of itself and all of its agencies, as well as to the preservation and’ the perpetuation,of its usefulness ; and that these powers may be found not only in the express authorities conferred by the Constitution, but also in necessary and proper implications. But -while that is' all true, it is also true that the powers must be exercised, not only by the organs, but also in conformity with the modes, prescribed by the Constitution itself. These great federal powers, whose existence in all their, plenitude and energy is incontestable, are not autocratic. and lawless; they are organized powers, committed by the people to the hands of their servants for their own government, and .distributed among the legislative, executive, and .judicial departments; they are not •extra the Constitution, for, in and by that Constitution, and in and by it alone, the United States, as a great democratic federal republic, was called into existence, and' finds its continued existence possible. In that instrument is fdund not only the answer to .the general-line of argument pursued in this-case, but also to the, specific question propounded by the Attorney General in respect to the President’s oath, and its implications.
The President is sworn to “preserve, protect and defend the Constitution.” That oath has great significance. The sections which follow that prescribing the oath (secs. 2 and 3 of Aft. 2) prescribe the duties and fix the powers of the President. But one very prominent feature of the Constitution *83which he is sworn to preserve, and which the whole body of the judiciary are bound to enforce, is'the closing paragraph of sec. 8, Art. 1, in which it is declared that “ the Congress shall have power ... to make all laws which shall be necessary and proper- for carrying into, execution the foregoing powers, and all other powers, vested by this Constitution in the government of the United States, or in any department or officer thereof.”
- This clause is that which contains the germ of all the implication of powers under the Constitution. It'is that which has built up the Congress of the' United States into the most august and imposing legislative assembly in the world; and which has secured vigor to the practical operations of the government, and at the same time tended largely to preserve the equilibrium of its various powers among its co-ordinate departments, as partitioned by that instrument. And that clause alone, conclusively refutes the assertion of the Attorney General, that it was “the duty of the executive department of the United States to guard and protect, at any hazard, the life of Mr. Justice. Field in the discharge of his duty, because such protection is essential to the existence of the government.” Waiving the question of the essentiality "of any such protection to the existence of, the government, the manifest answer is, that the protection needed and to be given must proceed not from the President, but primarily from Congress. Again, while it is the President’s duty 4 to take care that the laws be faithfully executed, it is not his duty to make laws or a law of the. United States. The laws he is to see executed are manifestly those containéd in the Constitution, and those enacted by Congress, whose duty it is to make all laws necessary and proper for carrying into execution the powers of those tribunals. In fact, for the President to- have undertaken to make any law. of the United States pertinent to this matter would have been to. invade the domain of power expressly committed by the .Constitution exclusively to Congress. That body -was -perfectly able to pass such laws as it should deem expedient in reference to such matter; indeed, it has passed such laws in reference -to *84elections, expressly directing the United States marshals to.atr tend places of election, to act as peace officers, to arrest with and without process, and to protect the supervisors of election: in the discharge of their duties; and there was not the slight-, est legal necessity out of which to imply any such power in; the President.
For these reasons the letters of the Attorney General to Marshal Franks, granting that they did import what is. claimed, .and granting that the Attorney General was to all intents and purposes, pro hao vice, the President, invested. Néagle with no special powers whatever.. They were, if-so construed, Without authority of law, and Neagle was thep, and, there a simple deputy marshal, — no more and no less.
■ To illustrate the large sphere of powers self-executing and independent of statutes claimed to be vested in the executive, reference- is made to the continually recurring cases of the President’s interference for the protection of our foreign-born and naturalized citizens on a visit to their native country; and. we are cited, as-a striking instance of the exercise of such power, to the case of‘Martin Kozsta, who, though not fully a-naturalized citizen of -the United States, had in due form of law made his declaration of intention to become a citizen, and who, whilst at Smyrna, was • seized by order of an Austrian official arid confined on board an Austrian vessel, and who, being afterwards delivered up to Captain Ingraham, com-, manding an American war vessel, in compliance with a demand, backed by. a demonstration of force, on the part of that officer, was placed in the hands of French consul subject: to.negotiations between the .American arid Austrian govérnmerits, .resulting in the- famous correspondence between the American. Secretary of- State, Mr. Marcy, and .the Chevalier Hiilsemann, representing the Austrian government, and the restoration of Kozsta to freedom.. ¥e are asked: — Upon-what express statute of Congress then existing can this act of the government be justified ? .
¥e answer, that such action of the government was justi-i fied because it pertained to the foreign relations of the United; States, in respect to which the federal .government is' the ex-; *85¡elusive representative and embodiment of the entire: sovereignty of the nation, in its united character; for to foreign ¡nations, and in our intercourse with- them, states and state .governments, and even the internal adjustment of 'federal .■power, with its complex system of checks and balances, áre -unknown, and the only authority those nations are permitted •to deal with is the authority of the nation as a unit.
That authority the Constitution vests expressly and cónelu-, sively in the treaty-making power — the President and Senate — by one simple and comprehensive grant: “He [the president] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds ■ of the' senators present concur.” This broad grant makes enumeration of particular powers unnecessary. All other delegations of powers in reference to the international relations of this country are carefully and specifically enumerated and assigned, one by one, to their designated departments. In reply, therefore, to the question, what law expressly justifies such'' action', we answei', the organic law, the Constitution, which expressly commits all matters pertaining to our diplomatic negotiations, to the treaty-making power.
• Other cases are referred to in illustration of the same point; but the one which it is alleged presents that principle in the-most imposing form is that of United States v. San Jacinto Tin Co., 125 U. S. 273. In that case a suit was brought in 'the name of the United States, by order of the Attorney General, to set aside a patent which had been issued for a large body of land, on the ground that it had been obtained from thé government by fraud and deceit practised upon its officers. There are, it is true, some expressions in the opinion delivered in that case which seem to admit that there is no specific act of Congress expressly authorizing the Attorney General -to bring suit for the annulment of a patent procured by! fraud from the government; but a close examination of the doctrine of the court shows that it goes no farther than the assertion that the authority of the Attorney General arises by implication, directly and immediately, out of the express1 law of Congress. . The opinion quotes the clause of the Constitution *86which declares that the judicial power shall extend to all cases to which the United States shall be a party, and says that this means, mainly, where it is a party plaintiff. It then refers to the statute of Congress which expressly directs the United-States District Attorneys to bring suits in behalf of the government; and that the suits thus brought by them are to be under the immediate superintendence and control of the Attorney General. The utmost extent to which the court goes is, that whilst admitting there is no express authority in the Attorney General to institute the suit, yet such authority is directly and necessarily involved in the express provisions of the statute vesting him with the entire control and superintendence of such suits, and the provision and control of. the District Attorneys in their conduct of them.
Equally conclusive is the answer which the Constitution makes to the assertion that by .the Constitution the judiciary is invested, not only with the express powers granted in the Constitution as its share of the government, but with all the judicial powers which have not been expressly withheld, from it. It may be found in the clause which declares that “ The Congress shall have power . . •. to constitute tribunals inferior to the Supreme Court; ” and in that which declares it shall make all laws necessary and proper for carrying into -execution the powers of those tribunals. The correlation between those clauses is manifest and unmistakable. If Congress can and must, by .the very terms of the Constitution, make all laws proper for carrying into execution all the powers of any department of the government, and if it can create the Circuit Court, expand its powers, abridge them, and abolish the court at will, how can it be that that court, at the least, shall have any implied powers derived from the Constitution and independent of the statutes % And yet, in this transaction, it must be remembered that Mr. Justice Field is only claimed to be the representative of that .court.
Not only do the foregoing views seem to us to be the- logical and unavoidable results of original and independent studies of the Constitution, but they are also sustained and enforced by. a long series of judicial recognitions and assertions.
*87In United States v. Fisher, 2 Cranch, 358, 396, Chiéf Justice Marshall, in delivering the opinion of the court, said of the clause above relied on:. “ In construing this clause it would be incorrect, and would, produce endless difficulties, if the opinion should be maintained' that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the' exercise of a power granted by the Constitution.”-
In McGulloch v. Maryland, 4 Wheat. 316, 420, 421, Chief Justice Marshall, for the court, delivered .one of those opinions which are among the chief ornaments of • American jurisprudence. It is largely devoted to an exhaustive analysis of the constitutional clause in question. Among other things, he says : “ The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the-right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the' government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner -most beneficial to the people.”
In United States v. Reese, 92 U. S. 214, 217, Chief Justice Waite, delivering the.opinion of the court, said: “ Eights’and immunities created by or dependent Upon the Constitution of *88the United States can be protected by Congress. The form and the manner of the protection may be such, as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected.”
In Strauder v. West Virginia, 100 U. S. 303, 310, the court say: “ A right or an immunity, whether created by the Constitution Or only guaranteed by it, even without any express delegation of power, may be protected by Congress.”
' Cooley, in his work on “ Constitutional Limitations,” collates from .the numerous adjudications of this court, cited by-him, the following principles: “So far as that instrument [the Constitution] apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of ■those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to natiQnal courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction upon the Supreme Court by name. And although the courts of the United States administer the common law in many cases, they do not derive authority from the common law to take cognizance of and punish offences ' against the government.. Offences against the nation are defined and their punishment prescribed by acts of Congress.” In a note to this paragraph he says : “ Demurrer to an indictment for a libel upon the President and Congress. By the court: ‘ The only quéstfón which this case presents is, whether the Circuit Courts can exercise a common law jurisdiction in .criminal cases. •. -. . The general acquiescence, of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads tó this conclusion is'simple, obvious, and admits of but little illustration. The powers' of the general government are made up of concessions •'from. i/he several States; whatever is not expressly given to *89the former the latter expressly reserve. . . . It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the-present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation.’ United States v. Hudson, 7. Cranch, 32; see United States v. Coolidge, 1 Wheat. 115. ‘ It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could- be made a part of our federal system only by legislative adoption.’ Per McLean, J., Wheaton v. Peters, 8 Pet, 591. 658 ; ” and citing many other authorities.
In Tennessee v. Davis, 100 U. S. 257, 267, referring to the. judiciary act of 1789, the court said: “ It [the Constitution] did not attempt to confer upon the federal courts all the judicial power vested in the government. Additional grants have from time to time been made. Congress has authorized more and more fully, as occasion has required,” etc.
It would seem plain, therefore, that if the Constitution means anything, and if these judicial utterances, extending as they do over a period of eighty years, and embracing a variety of interests, mean anything, they mean that the power to provide and prescribe the laws necessary to effectuate the governmental and official powers of the United States and its officers is vested in Congress.
The gravamgn of this case is in the assertion tnat Neagle slew Terry in pursuance of'a law of the United States. He who claims- to have committed a homicide by authority must show the authority. If he claims the authority of law, then what law ? And if a law, how came it to be a law ? Somehbw and somewhere it must have had an origin. Is it a law because of the existence of a special and private authority issued frbm. one of the executive departments? So in. almost- these,words *90it'is claimed in this case. Is it a law because of some constitutional investiture of sovereignty in the persons of judges who carry that sovereignty with them wherever they may go % Because of some power inherent in the judiciary to create for others a rule or law of conduct outside of legislation, which shall extend to the death penalty ? ■ So, also, in this case, in totidem verbis, it' is claimed. We dissent from both these claims. There can be no such law from either of those sources. The right claimed must be .traced to legislation of Congress; else it cannot exist.
If it be said that Congress has the power to make such laws, yet in the absence of statutes from that source other departments may act in the premises ; or if it be said that the possession of that power by the government does not negative the existence of similar powers in other departments of the government; the response that these powers are plainly not concurrent, but are exclusive, can. be made in the language, of Mr. Justice Story, in Prigg v. Pennsylvania, 16 Pet. 539, 617. Speaking of the fugitive slave law of 1793, he says : “ If Congress have a constitutional power to regulate a particular subject, and they do actually , regulate it in a given manner, and in a certain form, ... in such a case jhe legislation of Congress, in what it does • prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is, as the direct provisions made by it.”
If it be said that that case had reference to the interference of a State with congressional powers, whilst in-the case -at bar- no such question is involved, the. answer is that the difference is favorable and not adverse to the theory of this opinion. The principle is the same; and if that principle can be applied, as applied it was, to the denial to a state' legislature of the powers previously enjoyed over matters originally appertaining to it, a multo fortiori will it apply to the exclusion' of two coordinate departments of the same government from powers which they never possessed.
As before stated, if the killing of Terry was done “ in pursu*91anee of a law of the United States,” that law had somewhere an origin. There are. under the general government only two possible sources of law. The common law never existed in our federal system. The legislative power possessed by. the United States must be found, either exercised in the Constitution as fundamental law, or by. some body or person to whom it was delegated by the Constitution. It has' already been pointed out that the Constitution does., not itself create any such law as that contended for; and that it could not have been created by any executive or judicial action or status is made manifest, not only by the clause in sec. 8, Art. I, already cited and commented on, but also by sec. 1, Art. I, and the two paragraphs of Art. YI.
Sec. 1, Art. I, provides that “ All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House'of Representatives.” The second paragraph of Art. YI provides that “ the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the- supreme law of the land.” Now, what is it that constitutes the supreme laws, of which so much is said in this case? How distinctly, how plainly and how fully the Constitution answers! The Constitution itself, the treaties, and the laws made in pursuance of the Constitution. Made by whom ? By Congress, manifestly. The two clauses already quoted give the power of legislation in the most sweeping terms. It alone has power to make any law. Anything purporting to be a law not enacted by Congress- would not be “in pursuance of” any provision of the Constitution.
Thus we are driven to look for the source of this asserted law to some legislation of Congress — legislation made under either its éxpress constitutional authority, or under its properly implied authority, it is immaterial which; and there is none of either class. " •
The authority is sought to be traced here through the self-preservative power of the federal judiciary implied from the Constitution; and then'through the obligation of the execu*92tive to protect the judges, implied from the Constitution, whereas there is no such implication in either case, for the simple but all-sufficient reason that by the Constitution itself the'whole of those functions is committed, to Congress.
Since then the Constitution did not, by its own direct provisions, regulate this matter, but committed it to the hands of Congress with full powers iii the premises; it is only by the enactment of some law. of Congress that the appellee can show that-he is in custody “in violation of the Constitution.” As previously remarked, the two propositions are, as to this case, essentially one. Turning again to the statute under which the writ is sued out, we find that the. clause relied on is that- which makes the writ applicable where the person “ is in custody for an act done or omitted in pursuance of a law of the United States.” The question then arises, What sort of law ? What does^the expression import ? Is it not plain that it means just what the same expression all through the Constitution imports %
' If that instrument, which is the fountain of. the federal power, be consulted, it will be found that in it and the amendments thereto the word law, in either its singular form or its plural, laws, is used forty-two times. ' Of these instances of that use sixteen are where the word is used in reference to the jurisprudence of the States, and of the law of nations, or where they' are merely terms of description — such as “ courts of law,” leases in law and equity,” etc. Of the other instances of its use, and which all have reference to that' body of rules which constitute the jurisprudence distinctly of the United States, there are only three cases in which it is not manifest that the word is used as equivalent to “statutes,” “ enactments of the Congress; ” and it is clear in those three instances the word is used also as equivalent to “statutes.” The following are examples:
“ The Congress may, at ..any time, ly law, make or alter such regulations, [in regard to the election of Senators and Representatives].” Art. I, sec. 4,
“ Every bill . . . shall, before it become a law, be presented,” etc.- ■ ■ Art.-1, sec. 1.
*93“Congress shall have power ... to establish . . uniform, laws on the subject of bankruptcies,” etc. Art. I, sec. 8.
“Congress shall have .power ... to make all laws which shall be necessary and proper,” etc. Art. I, sec! 8.
“No bill of attainder or ex post facto law shall be passed.” Art. I, sec. 9.
“ Congress shall make no law respecting an establishment of religion.” 1st Amendment.
It would be tedious, and it is unnecessary, to set them all forth. They all have the same manifest meaning of “ statutes,” except three, and in those three instances the words do not mean anything other than statutes. We think it plain that the expression, “a law of the United States,” as used in section 753 of the Revised Statutes, mean just what the similar expression means all through the Constitution, — and that is a statute of the United States. Tennessee v. Davis, 100 U. S. 257, 264.
Of the decisions of this court cited as authority to sustain the order discharging the appellee, Ex parte Siebold, 100 U. S. 371, and Tennessee v. Davis, supra, are relied on as having the most direct bearing on the case. We do not consider Exparte Siebold as being adverse to the proposition which we maintain. In that case the existence of express statutes upon which the controversy arose was undisputed. The sole question was as to the constitutional competency of Congress to pass certain laws which, in the most express, explicit, and imperative words, required marshals and deputy marshals of the United States, to attend places for the election of members of Congress,\to keep the peace at the polls, make arrests,, and protect the supervising' officers in the discharge of their duties at .those elections. The court decided that the enactments of Congress in question were constitutional. The power of Congress to pass these laws being thus settled, no assertion as to the powers of' the marshals and deputy marshals to execute them in the States can be found in that able opinion which do not follow as a logical consequence. We fail to see anywhere in the decision any intimation that, independently of such legislation, *94the officers therein named could, by virtue of their office, have exercised the same powers in obedience to the instructions of an executive department, in the exercise of its authority implied from the Constitution.
In 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 defence 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 defence of the party, in whole or in part, by whom they are asserted. Story on the Constitution, sec. 1647; 6 Wheat. 379.”
Whilst 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, w'e regard them also as a vindication of Congress as the law-making department of the government, as the depository of the implied and constructed powers of the government; or, as Mr. Chief-Justice Marshall expresses it, of tlie power to legislate upon 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 Jenlcins, 2 Wall. Jr. 521, to which attention is more especially called, combined in itself the main features of most-*95of 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, was 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 conrt, or the custody was in violation of the Constitution of the United States.
¥e 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 w:as 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, invésted with the power and charged with the duty to take care that the laws be faithfully executed and to defend the Consti- ’ *96tution, 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 department, 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 and Swartwout, 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 *97duty. 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 effeot 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 co that State; that, therefore, no statutory authority of the United States for the attendance on Mr.. Justice Field bv Neagle, and for Neagle’s personal presence on the scene Was-necessary; .and that that statute constituted'Neagle a peace officer to keep the peace of the United States. This line óf 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. th.ere ; and being there, no matter how or why, if it be*98came 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 afe 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 Avhere'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 Ave have heard so much in this discussion, have been competent, in-the present condition of its'statutes, to prosecute in its oAvn tribunals the murder of its own Supreme Court justice-, or even to inquire into the heinous offence through its own tribunals ? ■ If yes,'; then the slaying of Terry by the appellee, in the necessary prevention of' áuch act, Avas authorized by the law of the United States, and he' should be discharged; and that, independéntly 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 offence against the United States, except when committed on the high-seas or in some port or'harbor Ayithout the. jurisdiction of the State, or in' the District of Columbia, or in the Territories, br; at other places where the' *99national government lias 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 áre 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 exólusive 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 employé 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 lie properly determined when directly presented, by the recotd in a case before the court of adjudication.
For these reasons, as briefly stated as possible, we think the judgment of the court below should be reversed and the prisoner remanded to the custody of the sheriff of San Joaqum County, California; and we are the less reluctant to express this conclusion, because we cannot permit ourselves to dóuíbt ■that the authorities of the State of California are competéiit and willing-to..do justice; and that even if the appellee hhd been indicted, and had gone to trial upon this record, tffid and his country would have given him a good deliverance.
Mr. Justice Field did not sit at the hearing of this, casé, and took no part in its decision.