PERSONS HELD BY THE UNITED STATES.

1205

by an officer or agent of the United States, acting ministerially, will not necessarily render his possession that of the government which he affects to represent, or preclude the State courts from liberating the prisoner or restoring the goods.1

Jurisdiction may nevertheless attach and be exclusive without a judicial writ or a warrant from a magistrate. Every government may provide what steps shall be requisite to bring a case within the cognizance of its tribunals, and a taking on the high seas or by a collector of the revenue may be as effectual for this end as a capias or summons. It is enough that the seizure is duly made, and will result in bringing the property before a competent tribunal for adjudication. The federal courts have by the judiciary act exclusive cognizance of all seizures under the laws of the United States, by land or water; and if the officer who has the property in his keeping fails to institute proceedings to ascertain the forfeiture, the District Court may proceed to an adjudication at the owner's instance, or that of any party in interest who is aggrieved.2

It follows that any intervention on the part of a State that will obstruct the exercise of this jurisdiction by taking the thing seized out of the officer's possession is unwarrantable, and the federal court may enforce a re-delivery by attachment or other summary process.3 Goods that have arrived in port and have not yet passed through the customhouse are within this principle, because they are constructively in the custody of the United States, and may be so held until their nature, value, and the duties can be ascertained and paid. They cannot therefore be levied on or taken in execution by the sheriff, or, as we may infer, the marshal, at the suit of an individual, or for the purpose of carrying a judgment in personam into effect.1 A merely

1 Taylor v. Carryl, 24 Pa. 299; 20 Howard, 583; Slocum v. Mayberry,

2 Wheaton, 1.

2 See post, p. 1206, note.

8 Gelston v. Hoyt, 3 Wheaton, 246, 312; Slocum v. Mayberry, 2 Id. 1. 4 Harris v. Dennie, 3 Peters, 292.

1206

DETENTION OF CARGO BY COLLECTOR

illegal seizure, as, for example, the detention of a cargo by a revenue officer, under a statute which simply authorizes the seizure of the vessel, is not within the rule, although made in good faith, under a supposed authority from Congress, and may, on the contrary, like any other breach of the local laws, be remedied through an action of replevin or for damages in a State tribunal.

In Slocum v. Mayberry, already cited, the question arose out of the detention of the cargo by the collector of the customs, under an act of Congress authorizing the seizure of the vessel, and it was held that the injured party might bring replevin, or have recourse to any other remedy that would have been open to him had the taking been an ordinary trespass, and not under color of an authority from the United States.1

1 The principles which govern in such cases are clearly stated in the following extract from the judgment in Slocum v. Mayberry, and still prevail unless they are to be regarded as overruled by the dicta in Tarble's Case:

"The judiciary act gives to the federal courts exclusive cognizance of all seizures made, on land or water. Any intervention of a State authority which, by taking the thing seized out of the possession of the officer of the United States, might obstruct the exercise of this jurisdiction, would unquestionably be a violation of the act; and the federal court having cognizance of the seizure might enforce a re-delivery of the thing by attachment or other summary process against the parties who should devest such a possession. The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question whether that forfeiture has been actually incurred belongs exclusively to the federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts whether such seizure is to be deemed rightful or tortious. If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the District Court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure. And if the seizure be finally adjudged wrongful, and without reasonable cause, he may proceed, at his election, by a suit at common law, or in the admiralty for damages for the illegal act. Yet, even in that case, any remedy which the law may afford to the party supposing

UNDER AUTHORITY TO SEIZE VESSEL.

1207

himself to be aggrieved, other than such as might be obtained in a court of admiralty, could be prosecuted only in the State court. The commonlaw tribunals of the United States are closed against such applications, were the party disposed to make them. Congress has refused to the courts of the Union the power of deciding on the conduct of their officers in the execution of their laws, in suits at common law, until the case shall have passed through the State courts, and have received the form which may there be given it. This, however, being an action which takes the thing itself out of the possession of the officer, could certainly not be maintained in a State court, if, by the act of Congress, it was seized for the purpose of being proceeded against in the federal court.

"A very brief examination of the act of Congress will be sufficient for the inquiry whether this cargo was so seized. The second section of the act, pleaded by the defendant in the original action, only withholds a clearance from a vessel which has committed the offence described in that section. This seizure was made under the eleventh section, which enacts that 'the collectors of the customs be, and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the President of the United States be had thereupon.'

"The authority given respects the vessel only. The cargo is in no manner the object of the act. It is arrested in its course to any other port by the detention of the vehicle in which it was to be carried; but no right is given to seize it specifically, or to detain it if separated from that vehicle. It remains in custody of the officer, simply because it is placed in a vessel which is in his custody; but no law forbids it to be taken out of that vessel, if such be the will of the owner. The cargoes thus arrested and detained were generally of a perishable nature, and it would have been wanton oppression to expose them to loss by unlimited detention, in a case where the owner was willing to remove all danger of exportation. . . . This being the true construction of the act of Congress, the owner has the same right to his cargo that he has to any other property, and may exercise over it every act of ownership not prohibited by law. He may, consequently, demand it from the officer in whose possession it is, that officer having no legal right to withhold it from him; and if it be withheld, he has a consequent right to appeal to the laws of his country for relief.

"To what court can this appeal be made? The common-law courts of the United States have no jurisdiction in the case. They can afford him no relief. The party might, indeed, institute a suit for redress in the District Court acting as an admiralty and revenue court; and such court might award restitution of the property unlawfully detained. But the act of Congress neither expressly nor by implication forbids the State

courts to take cognizance of suits instituted for property in possession of an officer of the United States not detained under some law of the United States; consequently, their jurisdiction remains. Had this action been brought for the vessel instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of Congress, and the jurisdiction of a State court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the State court."

LECTURE LVI.

Persons held ministerially by a Federal officer under an unconstitutional Command or Statute of the United States might formerly be liberated by a Habeas Corpus from a State Tribunal. - It is now a conclusive Answer to such a Writ that the Petitioner is "Confined under the Authority or Claim or Color of the Authority of the United States by an officer of that Government." -The return to the Habeas Corpus must nevertheless set forth enough to show distinctly that the Imprisonment is under the Authority of the United States and to exclude the idea of Imposition or Oppression. - A State Court cannot restrain an officer of the United States in the Performance of a Duty imposed by Congress, whether the act be or be not Constitutional. Although a Habeas Corpus or Replevin may not be issued by a State Court for Things or Persons wrongfully taken or held for the United States, the officer may be made Personally Answerable in Trover or Trespass. Distinction between proceedings in rem, which are a Justification against all the World, and a Foreign Attachment, or Fieri facias, which only binds the Defendant's Interest in the Goods. - The Sheriff or Marshal will not ordinarily be enjoined from selling the Goods of one man under a Writ against another, and the Remedy is an Act against him or the Purchaser. A State Court cannot enjoin Proceedings in the Federal Courts, and the Federal Courts are forbidden to issue an Injunction to the State Courts. A State cannot punish an offence against the Laws of the United States. A false Oath in a State Court in the Administration of a Law of the United States may be Punished by the State. Acts which are prejudicial to a State and the United States may be Punished by both Governments. A Penal Law of the United States may be adopted by a State, and will then be Indictable in its Courts.

THE jurisdiction of the State courts to liberate persons taken or held ministerially, in the illegal or undue exercise of a power conferred by Congress, was asserted at an early period in the history of the government, and though questioned in Ferguson's Case,1 has been repeatedly exercised for the discharge of minors mustered into the military service of the United States without the consent of their parents, contrary to the regulation made by Congress.2

19 Johnson, 239.

2 State v. Rutter; State v. Brearly, 2 Southard, 555; Commonwealth v. Harrison, 11 Mass. 63; State v. Dimick, 12 N. H. 194; In the Mat