Ex parte Robinson.

the process of the probate judge? It would seem there was no intention on the part of the marshal to treat that judge with contemptuous disregard. He first appeared before him, and by his counsel exhibited all the facts as to the apprehension, custody, and disposition of the fugitives, submitting at the same time a motion for the dismissal of the writ of habeas corpus. This motion was overruled, and the marshal was required to make a return to the writ. He then presented an answer, couched in respectful terms, stating the reasons why he could not produce the bodies of the fugitives. Was this in contempt of the authority of the probate judge? The marshal states in his answer, duly sworn to, that in his conduct he was governed by what he regarded his duty under the constitution and laws of the United States. He was an officer appointed under the constitution, which he had sworn to support, and which declares that this constitution and 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, and the judges in every State shall be bound thereby, anything in the constitution and laws of any State to the contrary notwithstanding."

Now, if the marshal in good faith, and acting under what he regarded as an imperative obligation resting on him by virtue of a law of the United States, did or omitted to do the acts for which he is imprisoned by the sentence of the probate judge, is he not entitled to be discharged from imprisonment under the express provision of the act of Congress before referred to?

In the Rosetta case, before noticed, this same marshal refused to obey a writ of habeas corpus issued by a State judge, commanding him to produce the alleged fugitive before him, on the ground that such fugitive was in his custody under process from a commissioner of the United States court; and for such refusal he was arrested by a warrant issued by the judge as for a contempt. On application to

Ex parte Robinson.

Judge McLean, that learned and distinguished judge issued a habeas corpus to bring the marshal before him, and, after argument and full consideration, discharged him from the custody of the State officer, under the act of Congress already quoted. Judge McLean, in his published opinion, says: "The marshal omitted to do the act ordered to be done by the honorable Judge Parker, because it would be in express violation of his duty under an act of Congress. This is literally within the act." With the knowledge of this adjudication, in a case involving the same principle as in the habeas corpus issued by the probate judge, is it strange the marshal should have pursued the same course which had received the sanction of the eminent judge referred to? In the case decided by Judge McLean, the act omitted to be done was the bringing of the alleged fugitive before Judge Parker under a habeas corpus; and in the present case, it is the failure to produce the fugitives named in the habeas corpus before the probate judge.

The same principle had been previously settled by the decision of the learned judge, before referred to, in the case of Norris v. Newton et al., 5 McLean, 92. He says, in the opinion of the court in that case: "I have no hesitation in saying that the judicial officers of a State under its own laws, in a case where an unlawful imprisonment is shown by one or more affidavits, may issue a writ of habeas corpus, and inquire into the cause of detention. But this is a special and limited jurisdiction. If the plaintiff, in the recaption of his fugitive slaves, had proceeded under the act of Congress, and made proof of his claim before some judicial officer of Michigan, and procured the certificate which authorized him to take the fugitives to Kentucky, these facts being stated as the cause of detention would have terminated this jurisdiction of the judge under the writ. Thus it would appear that the negroes were held under the federal authority, which, in this respect, is paramount to that of the State. The cause of detention being legal, no judge could arrest and reverse the remedial proceedings of the

Ex parte Robinson.

master." Judge McLean, adds: “And the return made by the plaintiff being clearly within the provisions of the constitution, as decided in the case of Prigg v. Pennsylvania, and the facts of that return being admitted by the counsel for the negroes, the judge could exercise no further jurisdiction in the case. His power was at an end. The fugitives were in the legal custody of their master, a custody authorized by the constitution, and sanctioned by the Supreme Court of the Union." And again, in the same case, the learned judge says: "The legal custody of the fugitives by the master being admitted, as stated in the return on the habeas corpus, every step taken subsequently was against law and in violation of his rights."

There is another high authority in support of the position that in cases arising under an act of Congress the power of the federal officers is paramount to that of the States. I refer to the charge of Judge Nelson, of the Supreme Court of the United States, to the grand jury of the Circuit Court of the United States for the Southern District of New York, reported in the appendix to 1 Blatchford, 635. That learned judge, admitting the right of a State judge to issue a habeas corpus for one in custody under federal authority, adds that "when it is shown that the commitment or detainer is under the constitution or a law of the United States, or a treaty, the power of the State authority is at an end, and any further proceedings under the writ is coram non judice and void. In such case, that is, when the prisoner is in fact held under process issued from a federal tribunal under the constitution or a law of the United States, or a treaty, it is the duty of the officer not to give him up, or to allow him to pass from his hands in any stage of the proceedings. He should stand upon his process and authority; and if resisted, maintain them with all the powers conferred upon him for that purpose."

Authorities of the same import could be greatly multiplied, but it is unnecessary to adduce more. If judicial decisions are entitled to any consideration, it is clearly estab

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Ex parte Robinson.

lished that, though it may be competent for a State judge to issue the writ of habeas corpus in a case of imprisonment under the authority of a law of the United States, when the fact is made known to him, his jurisdiction ceases and all subsequent proceedings by him are void.

Is it supposable the marshal was ignorant that the law had been thus settled by some of the ablest judges of the country, and was he guilty of a willful contempt in deferring to these high authorities? He might well conclude that when the probate judge became apprised of the fact that the fugitives were in custody under a law of the United States his jurisdiction ceased, and that the obligation was imperative on him, under no circumstances to permit them to be taken from his custody.

In the case of ex parte Jenkins, before referred to, Judge Grier uses this language: "Neither can such fugitive, when in custody of the marshal, under legal process from a judge or commissioner of the United States, be delivered from such custody by means of a habeas corpus, or any other process, to answer for an offense against the State, whether felony or misdemeanor, or for any other purpose."

There is no doubt as to the result if the marshal had placed these fugitives in the custody of the probate judge, in obedience to the writ of habeas corpus. The opinion of that judge, as published, on the question of the sufficiency of the marshal's return, shows clearly what his action would have been if the marshal had produced the fugitives. In that opinion he held that the proceedings before the commissioner, by which the fugitives were held in custody of the marshal, were unconstitutional and void. Although it was decided by Judge McLean, in the Rosetta case, that it was competent for Congress to vest in commissioners appointed by the circuit courts the powers conferred on them by the act of 1850, and that they could, therefore, legally and constitutionally exercise those powers, and although the same decision had been made by several other judges of the Supreme Court, the probate judge held otherwise, and that the

Ex parte Robinson.

acts of the commissioner were mere nullities; and it would necessarily result from this decision that the process by which the fugitives had been arrested was void, and that they were illegally in the custody of the marshal. I do not refer to this with any purpose of arraigning the conduct or impeaching the motives of the probate judge, but in proof of the fact that obedience to this writ by the marshal would have resulted in the discharge of the fugitives.

In the Rosetta case, before referred to, the judge held that a State court could not interfere with the officers of the United States in the performance of their duties, under the act of 1850, and that although the fugitive in that case had been discharged by habeas corpus, such discharge was no bar to the subsequent proceedings by the commissioner.

As stated in a previous part of this opinion, I neither assert nor exercise the jurisdiction to review or reverse the action of the probate judge. The authorities to which I have referred have been cited in support of the proposition that the law of the United States, under which the marshal acted, was paramount in its obligation upon him; and that, if that officer is now in custody for obedience to that paramount law, the case is within the express terms of the act of 1833, and he is entitled to his discharge.

The Passmore Williamson case, decided by the Supreme Court of Pennsylvania, and relied upon in the argument to prove that the marshal ought not to be discharged on this application, did not present the question arising in this case, and is not, therefore, an authority in point. The facts in the case referred to were, that Williamson had been adjudged guilty of a contempt of the District Court of the United States for the Eastern District of Pennsylvania, on an allegation that he had made a false return to a writ of habeas corpus, directed to him by said court. While in confinement, under the judgment of the District Court, application was made to the Supreme Court of the State for his discharge on a habeas corpus. The ground on which the discharge was urged was, that the court by which Williamson was com