During the ante helium period the Federal Government often made use of state tribunals and officers for the execution of its laws. Thus state justices of the peace acted as examining magistrates in criminal cases for the federal courts, state judges officiated in the execution of extradition treaties with foreign countries, aliens were naturalized in state courts, and state jails and penitentiaries were used for the incarceration of federal criminals. Both because of this admixture of federal and state judicial agencies, and because the principle of the absolute independence of the Federal Government from state control was not clearly recognized and admitted, the state courts early assumed the right, by the issuance of writs of habeas corpus, to determine whether a fugitive from the justice of a foreign country and fugitive slaves should be surrendered; whether persons in the federal army were properly held to military service; and even whether persons in the military service of a foreign State should be tried for acts done as belligerents and under the authority of their sovereigns in conformity with the laws of nations.1

It was not until 1859 that it was authoritatively established by the United States Supreme Court in the case of Ableman v. Booth2 that the state courts were without the constitutional power to interfere in any way with the process of federal courts, or, in fact, with any agencies of the National Government.3 Notwithstanding this decision, however, a number of the state courts still claimed and exercised the right to discharge enlisted soldiers and sailors of the United States from the custody of their officers, and this practice was not stopped until 1872 when, in Tarble's case,4 the federal Supreme Court held this to be beyond their power. In the opinion which he rendered in this case, Justice Field, after pointing out the distinct and independent character of the government of the United States, proceeds: "Such being the distinct and independent character of the two governments within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, in the regulation of which neither can interfere with the other. Now among the powers assigned to the National Government is the power to raise and support armies, and the power to provide for the government and regulation of the land and naval forces. . . . No interference with the execution of this power of the National Government in the formation, organization and government of the armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. . . . State judges and state courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused." 5

1 People v. McLeod (1 Hill, 377). See especially the paper of Seymour D. Thompson before the American Bar Association at its annual meeting in 1884, entitled Abuses of the Writ of Habeas Corpus.

2 21 How. 506; 16 L. ed. 169.

3 See ante, p. 84.

4U. S. v. Tarble (13 Wall. 397; 20 L. ed. 597).

5 Chief Justice Chase dissented in this case. In the course of his opinion he said: "I have no doubt of the right of a State to inquire into the jurisdiction of a federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act.; net by denial of the right to make inquiry. I have still less doubt, if possible, that a writ of habeas corpus may issue from a state court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the United States. ... To deny the right of state courts to issue the writ, or what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the Tight to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases, and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed or the people who adopted the Constitution. That instrument expressly declares that the privilege of the writ of habeas corpus shall not be suspended, unless when, in ones of rebellion or invasion, the public safety may require it."

Here again, as in the Davis case, the point at issue narrowed itself down to the question whether or not state agencies should be recognized to have a power which might, should the States see fit, be so exercised as seriously to embarrass the National Government in the performance of its constitutional duties. The strict application of the doctrine of a divided sovereignty would have led in both cases to a constitutional impasse. But in these as in other cases the federal Supreme Court compelled the States in the exercise of their powers to subordinate themselves to the requirements of national convenience and necessity.

This case settled once for all the principle that it is a sufficient return to a writ of habeas corpus issued by a state court that the party is in custody under claim or color of federal authority derived from either a statute or judicial process.