Instead of submitting to interference by the States with the exercise of their powers, the federal courts have, especially of recent years, again and again, on writs of habeas corpus, removed from state custody persons charged with offenses against the peace of the States.

The Judiciary Act of 1789 gave to the federal court authority to issue the writ of habeas corpus only as to persons in jail under or by color of authority of the United States. No provision was thus made for the release by federal courts of persons in custody by order of the authorities of a State.

The "Force" Act of 1833 gave to the federal courts the power to issue writs of habeas corpus "in all cases of a prisoner or prisoners in jail or confinement where he or they shall be committed or contined, on or by any authority or law for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof."

In 1842 this authority of the federal courts was further broadened by the provision that the writ might issue when a subject or citizen of a foreign State, domiciled therein, is in custody because of an act done or omitted under an alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign 'state, or under color thereof, the validity or effect of which is dependent upon the law of nations.

This act of 1842 grew out of the McLeod case.6 McLeod, a British subject, was arrested and indicted for murder in New York, alleged to have been committed by him while one of a force of British troops which, during the Canadian rebellion of 1837, made an attack upon the steamer "Caroline" while moored in New York waters. The British government avowed itself responsible for the act, as a necessary act of war, the steamer being engaged in carrying munitions of war to the Canadian insurgent forces, and demanded of the United States Government McLeod's immediate release. This the Federal Government requested of the New York authorities, but was met with a refusal, and found itself unable to proceed further because of the lack of jurisdiction of the federal courts to issue the necessary writ of habeas corpus.

In 1867 the jurisdiction of the federal courts was still further widened by the provision that the writ might issue "in all cases where any person may be restrained of his or her liberty in violation of the Constitution or any treaty or law of the United States." 7

6 People v. McLeod (1 Hill. 377).

7 The federal courts also have authority to issue the writ where it is necessary to bring a person into court to testify, or where a person is in custody testifying is an offense against the public of the United States, and within the exclusive jurisdiction of the courts of the United States."

Armed with the authority thus given, especially by the act of 1867, the federal courts have repeatedly taken from the custody of the States persons charged therein with offenses against state law. Even the lowest of the federal courts have not hesitated to exercise the power as to persons held for trial before the highest courts of the United States.

In the case of Thomas v. Loney8 the Supreme Court sustained the action of the lower federal court in releasing from custody by habeas corpus a prisoner who had been arrested by state authority for alleged perjury committed before a notary public of the State in the case of a contested election of a member of the House of Representatives of the United States. "The power of punishing a witness," said the Supreme Court, " for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had. It is essential to the impartial and efficient administration of justice in the tribunals of the nation that witnesses should be able to testify freely before them, unrestrained by legislation of the State, or by fear of punishment in the state courts. The administration of justice in the national tribunals would be greatly embarrassed and impeded if a witness testifying before a court of the United. States or upon a contested election of a member of Congress, were liable to prosecution and punishment in the courts of a State upon a charge of perjury preferred by a disappointed suitor or contestant, or instigated by local passion or prejudice. A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United States, whether he testifies in the presence of that tribunal, or before any magistrate or officer (either of the nation or of the State) designated by Act of Congress for the purpose, is accountable for the truth of his testimony to the United States only; and perjury committed in so under or by color of the authority of the United States, or is committed for trial before some court thereof.

8 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949.