BY REMOVAL AND _HABEAS CORPUS_

Another potential source of friction between State and federal courts is
the use of the writ of _habeas corpus_ or of removal proceedings in the
federal courts to release persons from State custody. As has already
been indicated the rule of national supremacy deprives the courts of the
States of any power to release persons held in federal custody. Recourse
to _habeas corpus_ or removal proceedings in the federal courts to
release persons in the custody of State courts is governed by statute
and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon
the federal courts to issue writs of _habeas corpus_ to release persons
in State custody only for the purpose of having them appear as witnesses
in federal proceedings. The same act also provided for the removal
before trial into a federal court of civil cases arising under the laws
of the United States. Both branches of this jurisdiction were broadened
as a result of the nullification movement in South Carolina so as to
make either removal or _habeas corpus_ available to persons held in
State custody for any act done or omitted in pursuance of the laws of
the United States.[683] These recourses were in 1842 made available to
aliens restrained by State authority in violation of their international
rights,[684] and in 1867 to all persons restrained in violation of the
Constitution, laws, or treaties of the United States.[685] In substance
all these acts still remain on the statute book.[686]

Of these provisions the most important are those governing the release
of persons held under State authority for an act done or omitted under
federal authority and persons held in violation of the Constitution,
laws, or treaties of the United States. In the leading case of Tennessee
_v._ Davis,[687] decided in 1880, the question was faced of their
constitutionality. Davis was a federal revenue officer who, in the
discharge of his duties, killed a man, and was arraigned by Tennessee
for murder. He thereupon applied for removal of his case to a federal
court under the act of 1867. To Tennessee's evocation of the doctrine of
State sovereignty, the Court rejoined with a ringing assertion of the
principle of National Supremacy. Subsequently, the same provisions have
been construed to procure the release of a deputy United States marshal
from State custody for killing a man while protecting a Justice of the
Supreme Court under a Presidential order w