It is prescribing limits, and declaring that those limits may be passed at pleasure.

*

*

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.

The rule (for a mandamus) must be discharged.

Section 2.

THE PRESIDENT'S DIPLOMATIC AND TREATY-MAKING

POWERS.

JONES v. UNITED STATES.

137 U. S. 202. 1890.

This was an indictment, found in the District Court of the United States for the District of Maryland, alleging that Henry Jones, late of that District, on September 14, 1889, at Navassa Island, a place which then and there was under the sole and exclusive jurisdiction of the United States and out of the jurisdiction of any particular state or district of the United States, murdered one Thomas N. Foster. Navassa Island was situated in the Caribbean Sea and contained a deposit of guano. An Act of Congress relating to the discovery and occupation by citizens of the United States of guano islands not within the lawful jurisdiction of any other government, provided that the President should have the power to extend the jurisdiction of the United States over the islands so occupied. Evidence was introduced to show that the executive branch of the federal government had extended the jurisdiction of the United States to Navassa Island. The District of Maryland was the District of the United States into which Jones was first brought from Navassa Island. In the District Court, the Government sought to establish the right of the federal court to try Jones for the murder committed on the above mentioned island under the Revised Statutes of the United States, Section 1039, providing for the punishment of murder committed "within any fort, arsenal, dock-yard, magazine, or any other place or district or country under the exclusive jurisdiction of the United States." Jones questioned the validity of the Act of Congress concerning guano islands, especially the power of the President under the Act. Jones was convicted in the District Court and sentenced to death. An appeal was taken to the Supreme Court of the United States.

MR. JUSTICE GRAY delivered the opinion of the court:

By the law of nations, recognized by all civilized States, dominion of new territory may be acquired by discovery and occupation, as

well as by cession or conquest; and when citizens, or subjects of one nation, in its name, and by its authority or with its assent, take and hold actual continuous, and useful possession (although only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines) of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of Congress concerning guano islands. * * * *

Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances. * * * *

(In Williams v. Suffolk Ins. Co.) this court held that the action of the executive department, on the question to whom the sovereignty of those islands belonged, was binding and conclusive upon the courts of the United States, saying: "Can there be any doubt that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union. In the present case, as the executive in his message, and in his correspondence with the government of Buenos Ayres, has denied the jurisdiction which it has assumed to exercise over the Falkland Islands, the fact must be taken and acted on by this court as thus asserted and maintained." 13 Pet. 420.

All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings. *

In the case at bar, the indictment alleges that the Island of Navassa, on which the murder is charged to have been committed, was at the time under the sole and exclusive jurisdiction of the United States, and out of the jurisdiction of any particular State or district of the United States, and recognized and considered by the United States as containinig a deposit of guano within the meaning and terms of the laws of the United States relating to such islands,

and recognized and considered by the United States as appertaining to the United States and in the possession of the United States under those laws.

These allegations, indeed, if inconsistent with facts of which the court is bound to take judicial notice, could not be treated as conclusively supporting the verdict and judgment. But, on full consideration of the matter, we are of opinion that those facts are quite in accord with the allegations of the indictment.

The power conferred on the President of the United States by Section 1 of the Act of Congress of 1856, to determine that a guano island shall be considered as appertaining to the United States, being a strictly executive power, affecting foreign relations, and the manner in which his determination shall be made known not having been prescribed by statute, there can be no doubt that it may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President.

Conviction in the lower court is affirmed.

Section 3.

THE PRESIDENT'S EXECUTIVE POWER.

IN RE NEAGLE.

135 U. S., I. 1890.

David Neagle, a deputy marshal of the United States for the District of California, was brought by writ of habeas corpus before the United States Circuit Court upon a petition that he was being unlawfully imprisoned by the State of California upon the charge of having murdered one David S. Terry. Neagle claimed that the killing of Terry was done by him in pursuance of his duty as a deputy marshal in defending the life of Mr. Justice Field, a justice of the United States Supreme Court, while the latter was discharging his duties as circuit judge of the Ninth Circuit. The facts showed that there was a settled purpose on the part of Terry and his wife to murder Mr. Field on his official visit to California in 1889, because of some animosity due to a judicial decision rendered by him. Neagle had been appointed by the Attorney-General of the United States, actinig for the President, and the United States, to guard Mr. Field against attack. Terry met Mr. Field upon a railroad train and made a murderous attack upon him, which Neagle had reason to believe would result in his death unless he interfered, whereupon he shot and killed Terry. Neagle was arrested and imprisoned in the county jail at San Joaquin county, California, charged with murder.

The United States Circuit Court decided "that the prisoner was in custody for an act done in pursuance of a law of the United

States, and in custody in violation of the Constitution and laws of the United States," and it was therefore ordered that he be discharged from custody. An appeal was then taken to the Supreme Court of the United States by the sheriff of San Joaquin county, California, from whose custody Neagle was discharged by the order of the Circuit Court.

MR. JUSTICE MILLER ruled as follows:

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 means 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 Attorney 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.

That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California, are questions too clear to need argument to prove them. That it would be the duty of a sheriff, if one had been present at this assault by Terry upon Judge Field, to prevent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, cannot be doubted. And if, in performing this duty, it became necessary for the protection of Judge Field, or of himself, to kill Terry, in a case where, like this, it was evidently a question of the choice of who should be killed, the assailant and violator of the law and disturber of the peace, or the unoffending man who was in his power, there can be no question of the authority of the sheriff to have killed Terry. So the marshal of the United States, charged with the duty of protecting and guarding the judge of the United States Court against this special assault upon his person and his life, being present at the critical moment, when prompt action was necessary, found it to be his duty, a duty which he had no liberty to refuse to perform, to take the steps which resulted in Terry's death. This duty was imposed upon him by the section of the Revised Statutes which we have recited in connection with the powers conferred by the State of California upon its peace

officers, which become, by this statute, in proper cases, transferred as duties to the marshals of the United States.

But all these questions being conceded, it is urged against the relief sought by this writ of habeas corpus, that the question of the guilt of the prisoner of the crime of murder is a question to be determined by the laws of California, and to be decided by its courts, and that there exists no power in the government of the United States to take away the prisoner from the custody of the proper authorities of the State of California and carry him before a judge of the court of the United States, and release him without a trial by jury according to the laws of the State of California. That the statute of the United States authorizes and directs such a proceeding and such a judgment in a case where the offense charged against the prisoner consists in an act done in pursuance of a law of the United States and by virtue of its authority, and where the imprisonment of the party is in violation of the Constitution and laws of the United States, is clear by its express language.

* *

The same answer is given in the present case. To the objection made in argument, that the prisoner is discharged by this writ from the power of the State court to try him for the whole offense, 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 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. When these things are shown, it is established that he is innocent of any crime against the laws of the State, or of any other authority whatever. There is no occasion for any further trial in the State court, or in any court. The Circuit Court of the United States was as competent to ascertain these facts as any other tribunal, and it was not at all necessary that a jury should be impanelled to render a verdict on them. It is the exercise of a power common under all systems of criminal jurisprudence. There must always be a preliminary examination by a committing magistrate, or some similar authority, as to whether there is an offense to be submitted to a jury, and if this is submitted in the first instance to a grand jury, that is still not the right of trial by jury which is insisted on in the present argument.

The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of