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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 containing 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.

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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, acting 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:

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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 de 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 kabeas 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 offence 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 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 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 offence 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 Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction.

We therefore affirm the judgment of the Circuit Court author

izing his discharge from the custody of the sheriff of San Joaquin County.


Note.-There were many facts and circumstances in connection with the case of In Re Neagle which possess great interest because of the persons involved therein, and yet are of such character as would not be contained in a law report. Mr. Justice Field and David Terry both arrived in California during the days of the gold fever. They both practiced law and both entered into politics. David Terry was elected Justice of the Supreme Court of California in 1855 and resigned on September 12, 1859. Stephen J. Field was elected a Justice of the same court and became Chief Justice upon Judge Terry's resignation. The two men were associates, therefore, upon the bench during two years. Judge Terry resigned from the bench to enter the Confederate Army during the Civil War, and after the war was ended he returned to the practice of law in California. Judge Field in the meantime had been appointed by President Lincoln an Associate Justice of the United States Supreme Court. Judge Terry and his wife were interested as defendants in a bitter litigation in the United States Circuit Court in California in the years 1883 to 1888. On September 3, 1888, an opinion unfavorable to Terry and his wife was rendered by Justice Field. At its conclusion Mrs. Terry arose in the court room and cried aloud that Justice Field had been bought, and wanted to know the price he had sold himself for. Justice Field directed the marshal to remove her from the court room. Thereupon Terry attacked the marshal, and drew a bowie-knife upon him. For this conduct Terry and his wife were sentenced to imprisonment for contempt of court. From that time until his death the denunciations by Terry and his wife of Mr. Justice Field were open, frequent, and of the most vindictive and malevolent character. While being transported from San Francisco to Alameda, where they were imprisoned, Mrs. Terry repeated a number of times that she would kill Judge Field. So much impressed were the friends of Judge Field, and of public justice, both in California and in Washington, with the fear that he would fall a sacrifice to the resentment of Terry and his wife, that application was made to the Attorney-General of the United States suggesting the propriety of his furnishing some protection to the Judge while in California. This resulted in a correspondence between the Attorney-General of the United States, the District Attorney, and the marshal of the Northern District of California on that subject, the result of which was that Mr. Neagle was appointed a deputy marshal for the Northern District of California, and given special instructions to attend upon Judge Field both in court and while going from one court to another, and protect him from any assault that might be attempted upon him by Terry and wife. Accordingly, when Judge Field went from San Francisco to Los Angeles to hold the Circuit Court of the United States at that place, Mr. Neagle accompanied him, remained with him for the few days that he was engaged in the business of that court, and entered the train to return with him to San Francisco. While the sleeping car, in which were Justice Field and Mr. Neagle, stopped a moment in the early morning at Fresno, Terry and wife got on the train. The fact that they were on the train became known to Neagle, and he held a conversation with the conductor as to what peace

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