to pass, finally, and, conclusively, upon the powers of the legislative and executive departments of the government, and to confine them within their constitutional limits. It is, therefore, the balance-wheel of the national government, that keeps it running, regularly, and, smoothly, within its proper domain. Impotent, indeed, must be the executive branch of the government, if it is not empowered to protect the lives of the judges of the highest branch of its judiciary, from assault and assassination, on account of their judicial decisions, by desperate disappointed litigants, while passing from point to point within their territorial jurisdiction, in the discharge of their high functions, and duties. We cannot think the power can be wanting, even if there were no constitutional, or statutory provision, governing the case. It seems impossible, that the national government should be left to the mercy, goodwill, or complacency of the state, to afford that protection to its judges, that the United States, if worthy to be called a nation, are bound themselves to furnish.

As a further example of laws, not ordained by specific statutory enactments, see those respecting punishment for contempts. For 40 years after the organization of the national government, down to 1831, there was no statute which, specifically, defined contempts of court. Ex parte Robinson, 19 Wall. 510;. Ex parte Terry, 128 U. S. 302, 303, 9 Sup. Ct. Rep. 77; Ex parte Savin, 131 U. S. 275, 9 Sup. Ct. Rep. 699. But the courts, nevertheless, exercised the power, necessarily, from the nature of things inherent in every court, to protect itself, its dignity and its officers, by the punishment of many acts as contempts of their authority; and, they determined for themselves, what acts should constitute contempts. The first specific act upon the subject passed by congress, was not an act enlarging the power of the court, but it was, on the contrary, a restriction of the powers already exercised within certain defined limits. The act was passed at the instance of Senator Buchannan, to limit the power of the courts, theretofore, exercised, to punish for contempts, as a sequel to the impeachment of a United States judge for the district of Missouri. The act was passed March 2, 1831, and is entitled, "An act declaratory of the law concerning contempts of court." 4 U. S. St. at Large, 487. The first section does not grant the power to punish for contempts, but expressly recognizes the existing power, and, in express terms, thereafter, limits the power to certain enumerated cases. In order that those who were before subject to punishment for contempt should not escape the penalties due their acts, section 2 of the statute makes certain acts, before punishable as contempts, offenses against the laws of the United States, punishable by the less summary, and more deliberate proceeding on indictment and trial by a jury. Many of the acts under that act, still recognized as punishable as contempts, as being necessary to the prompt and summary vindication of the authority of the court, are, also, indictable offenses under other statutes. In Ex parte Robinson, 19 Wall. 510, the court expresses a doubt, as to the power of congress to thus limit the authority of the supreme court to punish for contempts which derives its jurisdiction directly from

the constitution. Yet, there is no express provision in the constitution conferring jurisdiction to punish contempts. It is treated as a power necessarily inherent in the court, requiring no express authority.

This statute of 1831 has been carried into the Revised Statutes, section 1 of that act having been re-enacted in section 725 of the Revised Statutes, giving it a granting, as well as a restricting, form, but in no sense changing its purpose or meaning. And section 2 is now found in section 5399 of the Revised Statutes, as a part of the criminal code of the nation. Did anybody ever doubt, or does anybody now doubt, that the power of the United States courts to punish contempts, without any statutory definition of contempt, from the organization of the government down to 1831, was just as ample, and that it was just as much a part of the law of the United States, inherently, vested in the courts, as it was after the passage of the act of 1831, or as it is now under the same provisions carried into the Revised Statutes? Or did anybody doubt the authority of the courts to determine what acts constituted a contempt? Yet there was no specific provision of the statutes defining contempts. It was a power, however, necessarily, inherent in the courts. It is involved in the very idea of a court, having power to administer the laws of the land. It would be impossible for courts to perform their functions and administer the laws without it. And as so inherent, the power to punish various acts not mentioned as such, for contempt, was as much a part of the law of the United States as if ordained by a specific provision of the statute of the United States, and the authority of the marshal to protect the judges, is a cognate power, also necessarily inherent in the office he holds. Thus there is much law of the United States, not now found, in terms, in the statutes, but as valid and binding upon the people, and upon the states, as if it were, specifically, and, definitely, therein expressed. See U. S. v. Hudson, 7 Cranch, 32-34; In re Meador, 1 Abb. (U. S.) 324; In re Buckley, 69 Cal. 18, 10 Pac. Rep. 69.

But we are not without constitutional, and statutory provisions, broad enough, and, specific enough, as we think, to cover the case. The national constitution, providing a government for 65,000,000 of people, covers but a very few pages, but it seems to be amply sufficient for the purposes intended. Article 2, section 1 of the national constitution, provides that, "The executive power shall be vested in a president of the Unted States of America." In prescribing the duties of the president, in the terse but comprehensive language of section 3, art. 2, it provides that "he shall take care that the laws be faithfully executed." These provisions make him the executive head of the nation, and give him all the authority necessary to accomplish the purposes intended-all the authority, necessarily, inherent in the office, not otherwise limited. Congress, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the president, to aid him in performing the executive functions conferred upon him. Section 346, Rev. St., provides that, "one of the executive departments shall be known as the Department of Justice," and, that, there shall be "an attorney general, who shall be the head thereof." He has general supervision of the executive branch of the

national judiciary, and section 362 provides as a portion of his powers and duties, that "the attorney general shall exercise general superintendence and direction over the attorneys and marshals of all the districts of the United States, and territories, as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the attorney general an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the attorney general may direct." Section 788, Rev. St., provides that "the marshals and their deputies shall have, in each state, the same powers in executing the laws of the United States, as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." By section 817 of the Penal Code of this state, the sheriff is a "peaceofficer." By section 4176, Pol. Code, he is "to preserve the peace," and, "prevent and suppress breaches of the peace." The marshal is, therefore, in accordance with the decision of the supreme court already referred to, and under the provisions of the statute above cited, "a peace-officer," so far as keeping the peace in any matter wherein the national powers of the United States are concerned, and as to such matters he has all the powers of the sheriff, as a peace-officer under the laws of the state. He is, in such matters, "to preserve the peace," and "prevent and suppress breaches of the peace." An assault upon, or an assassination of, a judge of the United States court, while engaged in any matter pertaining to his official duties, on account, or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the United States, and within the jurisdiction, and power of the marshal, or his deputies to prevent as a peace-officer of the national government. Such an assault is not merely an assault upon the person of the judge, as a man. It is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. . It is, necessarily, a breach of the national peace. As a national peace-officer, under the conditions indicated, it is the duty of the marshal, and his deputies, to prevent a breach of the national peace by an assault upon the authority of the United States, in the person of a judge of its highest court, while in the discharge of his duty. If this be not so, in the language of the supreme court, before cited, "Why do we have marshals, at all?" What useful functions can they perform in the economy of the national government?

The constitution of the United States provides for a supreme court, with jurisdiction more extensive, in some particulars, than that conferred on any other national judicial tribunal. If the executive department of the government cannot protect one of these judges, while in the discharge of his duty, from assassination, by dissatisfied suitors, on account of his judicial action, then it cannot protect any of them, and all the members of the court may be killed, and the court, itself, exterminated, and the laws of the nation by reason thereof, remain unadministered, and unexecuted. The power and duty imposed on the president to "take care that the laws are faithfully executed," necessarily, carries with it all power, and authority necessary to accomplish the ob

ject sought to be attained, and, certainly, the power and duty to protect from the deadly assaults of desperate suitors, the lives of the judges of the highest court in the nation, while engaged in the lawful discharge of their duties.

As we have before seen, neither constitution nor statutes can, or do, anticipate and point out, specifically, every possible right or duty to be covered and secured. They must, necessarily, be general. In the passage already cited from Tennessee v. Davis, the supreme court, in speaking of certain officers, says:

"It has never been doubted, that all who are employed in them are protected while in the line of their duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts by which those institutions are created; and is secured to the individuals employed in them by the judicial power alone; that is, the judicial power is the instrument employed by the government in administering this security." 100 U. S. 265.

And in U. S. v. Macdaniel, 7 Pet. 14, similar views were expressed. Said the court:

“A practical knowledge of the action of any one of the great departments of the government must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by law; but it does not follow that he must show a statutory provision for everything he does. No government could be administered on such principles. There are numberless things which must be done, that can neither be anticipated nor defined, and which are essential to the proper action of the gooernment."

These observations are especially, and forcibly applicable to the terse but very comprehensive provisions of the constitution, and of the several statutes cited, as to the powers and duties of the president, the attorney general, and marshals.

The act of the attorney general, in directing the United States marshal to protect the life of Mr. Justice Field against the assaults of the deceased, and his wife, is, in legal contemplation, the act of the president. The president speaks, and acts, through the heads of the several executive departments in relation to subjects, which appertain to their respective duties. They are but the subordinates of the president, wielding his power. Wilcox v. Jackson, 13 Pet. 513; U. S. v. Cutter, 2 Curt. 617. In the former case, relating to a reservation of land by the secretary of war, the court said:

"Now although the immediate agent in requiring this reservation was the secretary of war, yet we feel justified in presuming that it was done by the approbation and direction of the president. The president speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties."

See, also, 7 Op. Atty. Gen. 480, 481; Id. 453-479; Confiscation Cases, 20 Wall. 108, 109; U. S. v. Eliason, 16 Pet. 291.

By section 788, Rev. St., and the several provisions of the statutes of California herein cited, the United States marshal is made a peace-officer, and, as such, he is authorized to preserve the peace, so far as a. breach of the peace affects the authority of the United States, and obstructs the operations of the government, and its various departments. The courts must, from the nature of things, be enabled fully to perform. all their functions, imposed upon them by the constitution, and laws, without hindrance, or obstruction, and they must have the inherent power to protect themselves by, and through, their executive officers, under the direction, and supervision of the attorney general, and the president, against obstruction, and hindrance in the performance of their judicial duties. An assault upon a judge in court, or a judge, out of court, while in the performance of his duty, induced by his judicial action, and intended, or calculated to obstruct him in, or deter him from, a free and full discharge of his duty, is a breach of the national peace affecting the sovereignty of the nation, and tending to obstruct and impair the operations and efficiency of one of the most important departments of the government. As such, it is the duty of the United States marshal, under the police powers of the nation, so conferred upon him, by the statutes cited, and as a national peace-officer, to prevent such breach of the peace. Under the state laws deputy-sheriffs, when occasion requires, constables, and police-officers of cities, are assigned to certain districts, to watch over the safety of the citizens, and to guard, and protect their persons and property from assault, destruction or injury, in short to prevent the commission of crimes, etc. These officers, in cities, are found everywhere, night and day, guarding the citizen and his property from injury. So the attorney general, under the provisions of the statute cited, and the president under the provisions of the constitution, requiring him to see, that the laws. are faithfully executed, are authorized, and empowered, to direct the assignment by the marshal, of any deputy to perform any special national police duty, within his jurisdiction, arising out of the statutes, whether by express provision, or necessary implication, and under any power, necessarily, inherent in the president, and government, in order to give full effect and efficiency to the government, or any of its departments. It has never, so far as we are advised, been doubted, that a marshal, or deputy-marshal is authorized to protect a judge, and preserve order, in open court, even by the use of force, without any special order, or command, as a part of the duties necessarily inherent in his office; yet, as we have already seen, there is no more specific statutory authority for so preserving order, and protecting the judge, in court, than for performing the same duty, under proper conditions, for a judge engaged in performing his duties, of whatever nature out of court.

It is argued by one of the counsel on behalf of the state, that these matters pertain, exclusively, to the peace of the state, and that the state has, not only, power to preserve the public peace, but, that it is amply capable of performing this service; that it is its duty to do it; that the threats of the deceased were matters of public notoriety; and, that, by calling the powers of the state into action, Justice Field's life might have