it could review the question of the jurisdiction of the United States Court upon habeas corpus and could discharge the prisoners, even when the Federal Court had tried the case and passed judgment upon them.[1] The position was an extreme one and the judges recognized the fact. It meant a direct clash with the Federal Courts, but the judges did not falter. Justice Smith said in a note:
"This Court has no disposition to interfere with the criminal jurisdiction of the District Court of the United States. Unless that Court proceeds within the limits which the constitution and laws of Congress have prescribed, its acts are a nullity; its jurisdiction is always open to question and must affirmatively appear; if jurisdiction be wanting, its process, judgments and decrees are void. Were it otherwise, that Court might proceed to indict, convict and punish for common assault, libel, breaches of the peace, and so forth, imprison our citizens at its own will and pleasure, administer the whole common law code of offenses and punishments, from whose judgment there could be no appeal and whose prison doors no earthly power could unlock. Such doctrine is monstrous. We have not yet reached the point of submission."[2]
The note of defiance here rings out with unmistakeable clearness; it was magnificent, but it was not good law.
The issue was too important to rest without final decision by the Court of last resort, and writs of error were sued out of the Supreme Court of the United States by the marshal to review both judgments of the Supreme Court of Wisconsin discharging Mr. Booth. To the first writ issued in October, 1854, return was made without objection, but when the second writ was issued and served in June, 1855, the justices of the Supreme Court directed the clerk to make no return to the writ on the ground that no writ of error could run from the United States Supreme Court to the
