United States ex rel. Roberts v. Jailer of Fayette County.

neither was Jenkins directed by his warrant to beat or wound Thomas. If Roberts was in State custody under a warrant issued by a State judge, for an alleged offense against the State laws, so was Jenkins when he was discharged by Judge GRIER. Nay, more, when the second and third discharges of Jenkins took place, he was in custody under process issued out of a State court, the one founded on a civil complaint, and the other on an indictment for crime; but when the writ was issued in this case, Roberts had not been indicted, he had only been committed by a county judge to await an examination. True, the warrant under which Jenkins acted was issued for an alleged "fugitive from labor," under the fugitive slave act of 1850, and the warrant under which Roberts acted was for an alleged criminal offense, under the revenue laws of 1866 and 1867. But I suppose no one will assert that the rights of masters to their slaves are higher than the rights of the government to its revenue; or that the person of an officer when seeking to arrest a fugitive slave is more sacred than when endeavoring to arrest a criminal.

I disclaim all right and power to discharge the relator on any such ground as that the proof shows he acted in self-defense.

A jury would probably acquit him on such ground, independent of the process under which he acted; but I have nothing to do with such an inquiry. It belongs only to the State court. I have only to inquire whether what he did was done in pursuance of a law and process of the United States, and so justified, not excused, by that law and process. If the relator is to be discharged by me, it is not because he is excusable, upon general principles of law, for taking the life of his assailant when it was necessary to save his own, but because he was authorized, and is justified by the law and process under which he acted, to do all that he did. If he was not authorized, and is not justified by that

United States ex rel. Roberts v. Jailer of Fayette County.

law and process in all that he did, he is not imprisoned "for an act done in pursuance of a law of the United States, or of the process of a court or judge of the same;" and I cannot discharge him, but must remand him. I can discharge only the officer who relies on the law and process of the United States as his sole authority and complete justification.

The question then arises, was the prisoner justified in killing Cull, by the law and process under which he acted? He was certainly acting under a lawful process, which (though it did not expressly command the killing of the deceased), did command his arrest; and the authorities are uniform to the effect that if one, in executing such a process, is resisted, and is obliged to take life, as in self-defense, he will be justified.

BISHOP says: "In misdemeanors and breaches of the peace, as well as in cases of felony, if the officer meet with resistance, and the offender is killed in the struggle, the killing will be justified." 2 Bish. Crim. Law, 3 ed. § 633.

Even in civil cases, "If resistance be made, the person having authority to arrest or retake may repel force with force, and need not give back; and if death unavoidably ensue in the struggle, he will be justified." Id. § 664.

Mr. EAST says: "It may be premised, generally, that when persons having authority to arrest, and using the proper means for that purpose, are resisted in so doing, and the party resisted killed in the struggle, such homicide is justifiable." 1 East P. G. 295.

WHARTON says: "Homicide in self-defense, or se defendo, . is. . excusable rather than justifiable." 1 Whart. Crim. Law, § 135. "It is justifiable, not only when the proper officer executes a criminal in strict conformity with his sentence, but also when the officer, in the legal exercise of a particular duty, kills a person

United States ex rel. Roberts v. Jailer of Fayette County.

who resists, or prevents him from executing it." Id. $$ 936, 937. "Officers of the law, when engaged in the performance of their duties, are invested with a peculiar prerogative. If resisted when so employed, and the party resisting be killed in the struggle, such homicide is justifiable. And on the other hand, if the party having such authority, and exercising it properly, happen to be killed, it will be murder, in all who take part in such resistance, though there be no malice. Id. § 1030. See, also, Bish. Crim. Pro. § 615; Fost. 273-308; Hale P. C. 457. Other authorities might also be cited, but it is not necessary, since, as I have already stated, they are absolutely uniform.

Now, the facts proven do incontestably show, that the relator was lawfully endeavoring to arrest Cull (for it is hardly necessary to say that he stands in the same attitude with the bailiff himself); that he was proceeding properly; that Cull not only suddenly set upon and violently resisted him, but actually endeavored to kill him; that he forbore to exercise his full, lawful right of immediately pressing forward and killing his assailant, if necessary, but retreated, imploring the assailant not to shoot; that the assailant continued to press forward, and he to retreat; and that not until he had been fired at four times, and his life was in instant peril, did he fire and kill his assailant. No one will be so hardy as to deny, in the light of the authorities cited, that the facts furnished a full justification for the homicide. The justification rests not on the mere fact that the relator's life was in peril, but on the law and process under which he was acting, and on which he is obliged to rely to make out his justification. But if the process justified, that is, authorized the homicide, then it is clear the relator is imprisoned for an act done in pursuance of a law of the United States, or of a process of a court or judge of the same, and must be discharged.

United States ex rel. Roberts v. Jailer of Fayette County.

It is accordingly ordered, that the prisoner be discharged. I have not been induced to arrive at this conclusion by any apprehension that the relator would not, if remanded, have a fair trial for his alleged of fense, in the county of Mercer. I have profound respect for the learning and integrity of the judge who presides in that circuit, and the argument and bearing of the able attorney for the commonwealth, before me, are sufficient assurance of his fairness and honor. If I myself were to be arraigned for any alleged offense, I know of no tribunal before which I could be tried with fuller assurance that enlightened and exact justice would be done me than in that in which these gentlemen are the chief officials. I discharge the relator from no apprehension that injustice would be done him by a trial in the State court, but because he has a right to demand his discharge at my hands under the laws of the United States, which I am bound to administer.

To avoid misapprehension, I desire to say that this court claims no general supervisory jurisdiction over State courts, nor any general power to interfere with persons or property in their custody, except in a few cases, where the Constitution and acts of Congress have given such jurisdiction and power to the courts of the the Union. Ordinarily, the Federal courts have no more authority to interfere with persons or property in custody under a process from a State court, than the State courts have to interfere with persons or property in custody under a process from a Federal court. The Federal and State courts have, in many cases, a concurrent jurisdiction over the same persons and things, and the rule is almost universal, that the officer who first gets possession under process from his court, has the preference. Therefore, the general rule is, that if a person be imprisoned under a criminal or civil process of one, the other cannot take him from such custody for any purpose whatever. It is only in virtue of

Mathews v. Springer.

the act of March 2, 1833, supra, that I have the right to interfere in this case. This act expressly empowers Federal courts and judges "to grant writs of habeas corpus in all cases of a prisoner in confinement

shall be confined on or by any author

ity or law for any act done

law of the United States, or any process of any judge or court of the same." And this act, by the express provision of the Constitution of the United States, is the "supreme law of the land . . anything in the Constitution or laws of any State to the contrary notwithstanding."

Petitioner discharged.

MATHEWS v. SPRINGER.

Circuit Court, Fifth Circuit; Southern District of Mississippi, Special January T., 1871.

EMANCIPATION.-DEVISE TO FREED SLAVES.

By the laws of Mississippi and Ohio, as they existed in 1858-59, where an owner of slaves, residing in Mississippi, voluntarily carried them to Ohio with the intent that they should thereby become free, such slaves became free. And they could not lose that status by returning, with their former master, to Mississippi for temporary purposes. A devise of proceeds of real property, in favor of negroes formerly held as slaves, but who have been emancipated, is valid. So held, under the law of Mississippi, in reference to a case where the emancipation was by the act of the owner.

One who is entitled, by the terms of a will, to a share of the proceeds