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Some conception of the meaning of this power may be deduced from the reasoning in the famous case of In re Neagle." The circumstances leading to the case were as follows:

There was evidence to the effect that, because of a certain judicial decision and because his court had imprisoned them for contempt of court, Justice Field was in danger of violence at the hands of one Terry and his wife. The circuit duties of the justice led him to California, where Terry lived, and the Attorney-General, knowing of the situation, instructed Neagle, a deputy marshal, to protect Field. While at breakfast, Field was attacked by Terry, who struck him two blows on the face. Just as Terry was about to draw a knife, Neagle, to save Field's life, shot Terry. Neagle was indicted in the state courts of California for murder, brought his case before the Circuit Court by suing out a writ of habeas corpus, and was ordered to be discharged by that court. The case was then appealed by the sheriff to the Supreme Court of the United States.

Because the case came up on appeal, and not on writ of error, the Court went into facts as well as the law; and on that score it concluded that the circumstances fully justified Neagle. But section 753 of the revised statutes provided for the only cases when the writ of habeas corpus should extend to a prisoner in jail; and the only two which could possibly apply to this case were when he was held in custody in violation of the Constitution or a law of the United States, or for an act done or omitted in pursuance of a law of the United States. The question on which the decision hinged, therefore, was whether Neagle was held in violation of the Constitution or a law, or for an act done or omitted in pursuance of a law of the United States.

We may analyse the reasoning of the decision with a view to criticising it in the light of the dissenting opinion. This reasoning involves the following propositions:

94 135 U. S. 1.

1. Mr. Justice Field was engaged in his official duties while traveling to the performance of his duties as much as when sitting on the bench.

2. It was the duty of the President to protect him in the exercise of such duties.

3. It was within the power of Congress to provide for the removal from the state's custody (by the writ of habeas corpus) of an officer acting under the orders of the President in protecting the justice.

4. The actual provision of the law of Congress concerning the writ was broad enough to include this case.

(1) The dissenting opinion refused to see "anything of an official character in the transaction." It distinguished between Field as a private individual and Mr. Justice Field as a federal judge. But while he does not appear to have been at that time actually in discharge of duties, it would seem that, if the President could protect him while on the bench, he should have the power to protect him while going to the discharge of his official duties, if it were known that his life was threatened for acts done while in discharge thereof. Any official of a government deserves protection from that government against those who attack him for governmental acts, if not for private acts.

(2) "The authority," said Mr. Justice Lamar, in his dissent, "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 executive to protect the judges, implied from the Constitution, whereas there is no such implication in either case, for the simple reason that by the Constitution itself the whole of these functions is committed to Congress."

The majority view was quite different. After citing cases illustrating "the principle of the supremacy of the government of the United States, in the exercise of all the powers conferred upon it by the Constitution," the Court went on to show that the judiciary could not furnish the protection to which the justice was entitled, and that the legislative branch

could only furnish it by passing laws, which the argument to be refuted assumed it had not done. It then said:

If we turn to the executive department of the government, we find a very different condition of affairs. The Constitution, section 3, Article 2, declares that the President "shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be the commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfil the duty of his great department, expressed in the phrase that "he shall take care that the laws be faithfully executed."

Is this duty limited to the enforcement of acts of Congress or treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?

We cannot doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death, and we think it clear that where this protection is to be afforded through the civil power, the Department of Justice is the proper one to set in motion the necessary measures of protection. The correspondence already recited in this opinion between the marshal of the Northern District of California, and the Attorney General, and the district attorneys of the United States for that district, although prescribing no very specific mode of affording this protection by the Attorney General, is sufficient, we think, to warrant the marshal in taking the steps which he did take, in making the provisions which he did make, for the protection and defence of Mr. Justice Field.

To this, however, the dissenting justices made the following objection: "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 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 contained in the Constitu

tion, 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 matters . . . and there was not the slightest legal necessity out of which to imply any such power in the President." And again: "The gravamen of this case is in the assertion that Neagel slew Terry in pursuance of a law of the United States. . . . Anything purporting to be a law not enacted by Congress would not be in pursuance of' any provision of the Constitution."

(3) As for the third proposition, the best argument for it, and a conclusive one, is stated by the Court. "To the objection made in the argument," it is said, "that the prisoner is discharged by this writ from the power of the state court to try him for the whole offence, the reply is, that if the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as a marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State of California.”

(4) There was no specific 'law' of Congress which authorized the deputy marshal to protect the justice while traveling to discharge his official duties. The Court, however, said: "In the view we take of the Constitution of the United States, any obligation fairly and properly inferrable from that 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." Specifically, this meant that the term 'law' as used in the statute dealing with the writ of habeas corpus did not, in the opinion of the Court, mean merely 'statute' of Congress, but that "this view of the statute is an unwarranted restriction

of the meaning of a law designed to extend in a liberal manner the benefit of the writ of habeas corpus to persons imprisoned for the performance of their duty. And we are satisfied that if it was the duty of Neagle, under the circumstances, a duty which could only arise under the laws of the United States, to defend Mr. Justice Field from a murderous attack upon him, he brings himself within the meaning of the section we have recited. This view of the subject is confirmed by the alternative provision, that he must be 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, or is in custody in violation of the Constitution or of a law or treaty of the United States."" In other words, 'law' as here used included Presidential orders issued under a constitutional obligation.

The court relied also on the argument that the deputy marshal was given by statute " 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 "; that the sheriffs in California were authorized to preserve the peace and prevent and suppress affrays; and that, therefore, the deputy had these powers in preserving the peace of the United States violated by Terry in attacking a federal judge in the discharge of his duties. This line of reasoning seems to be brought in to supplement the first argument by introducing statutory authority for the action of the deputy. But the fallacy involved in it is pointed out with exactness in the dissenting opinion of Mr. Justice Lamar, in which Mr. Chief Justice Fuller concurred. This dissent says:

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