original demands upon the President for the surrender of military officers and soldiers, or others under his exclusive authority, in order to answer to the civil authorities of the States for alleged violations of their laws; and it resting on the discretion of the President in what cases he will exercise his military authority over the citizens composing the army, to constrain them to surrender themselves to the civil authority of the States, --I would respectfully suggest the propriety of adopting, by analogy, the principle of the constitution relative to the surrender of fugitives by the governors of the States, applying the details of the act of Congress of the 12th February, 1793, 'respecting fugitives from justice,' &c., so far as to require the demand to be made by the governor of the State or Territory to which the complainant belongs, on the copy of an indictment found, or an affidavit made specifying the particular offence, and authenticated as by that act is provided." (2 Op. Atty. Gen. 10, 12, Oct. 5, 1825. See also: 1 Op.Atty. Gen. 244, Oct. 20, 1818; 6 Op. Atty. Gen. 413, Apr. 7, 1854.)

Employment of writ of habeas corpus. - "We do not question the authority of State court, or judge, who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows, necessarily, out of the complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each within its sphere of action, prescribed by the Constitution of the United States, independent of each other. But, after the return is made, and the State judge or court judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another Government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other Government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United

States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." (Ableman v. Booth, 21 How. 506, 523-524, Dec. Term, 1858. See also Tarble's Case, 13 Wall.. 397, Dec. Term, 1871.)

"Subject to the exclusive and paramount: authority of the national government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States, or by the commissioners of such courts, or by officers of the general government, acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to inquire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal; and this, notwithstanding such illegality may arise from a violation of the Constitution or the laws of the United States." (Robb v. Connolly, 111 U.S. 624, 639, May 5, 1884.)

Arrest and punishment of persons in the service of the United States. "All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged. Process of that kind can, therefore, furnish no justification for the arrest of a carrier of the mail. The rule is different when the process is issued upon a charge of felony. No officer or employee of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the Constitution and laws. The public inconvenience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges, is far less than that which would arise from extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for Congress to exempt the employees of the United States from arrest on criminal process from the State courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language." (United States v. Kirby, 7 Wall. 482, 486, Dec. Term, 1868.)

"As was said in Martin v. Hunter (1 Wheat. 363), 'the general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers.' It can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offence against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection, --if their protection must be left to the' action of the State court, --the operations of general government may at any time be arrested at the will of one of its members. The legislation of a State may be unfriendly. It may affix penalties to acts done

under the immediate direction of the national government, and in obedience to its laws. It may deny the authority conferred by those laws. The State court may administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the government. And even if, after trial and final judgment in the State court, the case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power arrested. (Tennessee v. Davis, 100 U.S. 257, 262-263, Oct. Term, 1879.)

"Federal officers who are discharging their duties in a State and who are engaged as this appellee was engaged in superintending the internal government and management of a Federal institution, under the lawful direction of its board of managers and with the approval of Congress, are not subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal Authority." (Ohio v. Thomas, 173 U.S. 276, 283, Feb. 27, 1899.)

"Of course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment. That was decided long ago by Mr. Justice Washington in United States v. Hart, Pet. C.C. 390. 5 Ops. Atty. Gen. 554." (Johnson v. State of Maryland. 254 U.S. 51, 56, Nov. 8, 1920.)

"In the matter before us the petitioners were acting for and on behalf of the United States, under the military authority of the United States, --a subject-matter the control of which, under the constitution, is vested solely in the general government. The state cannot in any particular, either through its legislative or judicial department, regulate or circumscribe the powers of the United States in respect thereto. The wisdom, expediency, or justness of the military laws, rules, and regulations adopted and prescribed by the United States are no concern of the state. The proper enforcement of such laws, rules, and regulations cannot be measured and determined by state laws. To require the petitioners to answer for their acts to the state courts is to permit the state courts to administer the military laws of the United States; to determine in a criminal proceeding the extent of authority possessed by the soldier under those laws; to say when, and under what circumstances, the subordinate may disregard and disobey the orders and command of his superior officer; to determine the amount of force which the United States may use to apprehend one charged with a military offense; in short, to nullify the rules and regulations adopted to insure the efficiency of the military service." (In re Fair, 100 F. 149, 157158, Mar. 23, 1900.)

An officer of the United States Army, in the discharge of his duty, acting in obedience to commands by the Secretary of War, who in turn is executing an act of Congress, is not subject to arrest on a warrant or order of a state court, and such arrest is wholly illegal. (In re Turner, 119 F. 231, Dec. 1, 1902.)

"The enlisted men of the United States Army are within the state and within the city, not in accordance with their own will, but in accordance with the orders of their superior officers, to whom they are answerable, and, although temporarily off duty for a short time, they are constantly subject to the terms of their enlistment and the orders of their officers. If absent from the post without leave, they

are liable to be courtmartialed and punished for desertion; if drunk and disorderly, even while on leave, they are liable to punishment under the rules of war, although it be time of peace, and it is not considered that they should be treated and held in any detention or attempted punishment, the same as though they were answerable to no other power. Their position and the requirements of their constant duty demand, in behalf of the national government from the municipal authorities, such a recognition of its rights as would accomplish a preservation of the peace and the observance of the city ordinances as would in no way affect their duties as soldiers." (Ex parte Schlaffer, 154 F. 921, 923, May 17, 1907. See also In re Wulzen, 235 F. 362, Aug. 25, 1916.)

"The mere fact that one is an officer of the United States or of one of its courts does not exempt him from civil or criminal liability for what he does beyond the scope of his official duties and not in the discharge thereof. For a federal official to be exempt from civil or criminal liability under state law for his act it is not enough that at the time and place of such act he was present for an official purpose. The act must be done in pursuance of his official duty. The exemption from liability recognized in the case of federal officials is a means of protecting them in the performance of their official duties by keeping them from being subjected to loss or damage for doing what is included in such duties." (Isaac v. Googe, 294 F. 269, 270, Oct. 17, 1922.)

Members of a naval shore patrol arrested an enlisted man of the Navy on shore in Florida for creating a disturbance in a public place; while they were taking him out of the place they were accosted by a deputy sheriff who demanded that the offender be turned over to him; the patrol replied that they had the man in their custody, whereupon the deputy seized the man, placed him in a car, and threatened to arrest the members of the patrol if they interfered. Held: There is no legal authority for a representative of a State to assume custody of the person arrested under the above circumstances and the naval patrol may resist any such attempt on the part of State officers to such extent as may be necessary to retain control of the person concerned. (File QL/A3-1(1) (370519), Aug. 10 and 27, 1937, C. M. O. 8-1937, pp. 10-11. Accord: File JAG: D3: CS: ac, Sept. 18, 1943, C. M. O. 31943, pp. 121-124.)

"The driver of a Government truck, employed on Government business, is subject to the penalties prescribed by law for the violation of statutes and ordinances, so long as the statutes and ordinances are not in conflict with the Federal constitution and laws." (File 8011-418:3, Aug. 14, 1924.)

"Violations of local regulations render the driver of a Government vehicle liable to local law unless the nature of the Government duty on which he is engaged is of such a character as to require that Such traffic regulations be not strictly observed. cases would exist where a fleet of motor vehicles on a particular duty would be ordered to pass through traffic lights in order to avoid separation of the various vehicles, when the nature of particular military duty required the utmost urgency, or any other conditions connected with military service reasonably warranted non-observance of any particular traffic regulation. In such latter cases a driver is not authorized to operate a motor vehicle recklessly without regard to conditions of traffic but is required to exercise reasonable care not unnecessarily to interfere with other traffic. Cases of urgency or other necessity which require that traffic regulations be not observed should normally be controlled by appropriate orders of superior authority and should not be

left for determination of the driver of the Government vehicle. If acting pursuant to orders of superior authority and driver would be protected and would not be protected and would not be liable to local authority for violation of a traffic regulation where he acts reasonably under the circumstances." (File JAG: II: HJD: amp, Sept. 1, 1944, C.M.O. 2-1944, pp. 2421244.)

Interference with possession or control of property. "Quite apart from the statute, and because of the nature of the case, it is impossible, on primary grounds, to yield assent at all to the idea that any instrumentality of the Government--in this case an instrumentality of prime importance-may be taken into custody and held under any adverse authority whatever. This view applies, in my judgment, whether the adverse custody should assume to attach upon the instrumentality as a completed thing or upon one in process of creation." (24 Op. Atty. Gen. 679, 682-683, June 19, 1903.)

Requiring persons to work on public roads, A civilian employed as a teamster with the military service of the United States at an Army post is exempt from performing road duty upon order of the

CASE NOTE

In general. "The Constitution of the United States, with all the powers conferred by it on the General Government, and surrendered by the States, was the voluntary act of the people of the several States, deliberately done, for their own protection and safety against injustice from one another. And their anxiety to preserve it in full force, in all its powers, and to guard against resistence to or evasion of its authority, on the part of a State, is proved by the clause which requires that the membere of the State Legislatures, and all executive and

Ratification of Constitution.

Judicial officers of the several States, (as well as those of the General Government,) shall be bound, by oath or affirmation, te support this Constitution. This is the last and closing clause of the Constitution, and inserted when the whole frame of Government, with the powers hereinbefore specified, had been adopted by the Convention; and it was in that form, and with these powers, that the Constitution was submitted to the people of the several States, for their consideration and decision. " (Ableman v. Booth, 21 Huw. 506, 524-525, Dec. Term, 1858.)

EDITORIAL NOTE

The first ten amendments, along with two others which failed of ratification, were proposed by Congress on Sept. 25, 1789, when they passed the Senate (1 Ann. Cong. (1st Cong., 1st sess.) 901), having previously passed the House on Sept. 24, 1789. They appear officially in 1 Stat. 97. Ratification was completed on Dec. 15, 1791, when the eleventh State (Virginia) approved these amendments, there being then fourteen States in the Union.

CASE NOTES

The Bill of Rights. "But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every, convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them." (Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, 250, Jan. Term, 1833.)

"These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. " (Ex parte Milligan, 4 Wall. 2, 120, Dec. Term, 1866.)

"The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights." (Monongahela Navigation Company v. United States, 148 U.S. 312, 324, Mar. 27, 1893.)

"The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (art. 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion * * *; nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon

or by statutory enactment.. *** Nor does the pro

vision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of (witnesses who have died since the former trial." (Robertson v. Baldwin, 165 U.S. 275, 281-282, Jan. 25, 1897.)

"If any provisions of the Constituion can be singled out as requiring unqualified attachment, they are the guaranties of the Bill of Rights and especially that of freedom of thought contained in the First Amendment." (Schneiderman v. United States, 320 U.S. 118, 144, June 21, 1943.)

Freedom of religion.- "The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbiding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of