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strained of his liberty in violation of the Constitution of the United States." Ex parte Royall, 117 U. S. 241, 251-253; New York v. Eno, 155 U. S. 89, 93-95.

In Ex parte Royall and in New York v. Eno, it was recognized that in cases of urgency, such as those of prisoners in custody, by authority of a State, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the authority and operations of the general government, or its relations to foreign nations, the courts of the United States should interpose by writ of habeas corpus.

Such an exceptional case was In re Neagle, 135 U. S. 1, in which a deputy marshal of the United States, charged under the Constitution and laws of the United States with the duty of guarding and protecting a judge of a court of the United States, and of doing whatever might be necessary for that purpose, even to the taking of human life, was discharged on habeas corpus from custody under commitment by a magistrate of a State on a charge of homicide committed in the performance of that duty.

Such also was In re Loney, 134 U. S. 372, in which a person arrested by order of a magistrate of a State, for perjury in testimony given in the case of a contested congressional election, was discharged on habeas corpus, because a charge of such perjury was within the exclusive cognizance of the courts of the United States, and to permit it to be prosecuted in the State courts would greatly impede and embarrass the administration of justice in a national tribunal.

Such, again, was Wildenhus's Case, 120 U. S. 1, in which the question was decided on habeas corpus whether an arrest, under authority of a State, of one of the crew of a foreign merchant vessel, charged with the commission of a crime on board of her while in a port within the State, was contrary to the provisions of a treaty between the United States and the country to which the vessel belonged.

But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; In re Duncan, 139 U. S. 449; In re Wood, 140 U. S. 278; In re Jugiro, 140 U. S. 291; Cook v. Hart, 146 U. S. 183; In re Frederich, 149 U. S. 70; New York v. Eno, 155 U. S. 89; Pepke v. Cronan, 155 U. S. 100; Bergemann v. Backer, 157 U. S. 655.

[The sufficiency of the petition and the showing made thereunder is discussed.]

As to those proceedings, the opinion (consistently with the allegations of the petition, so far as anything upon the subject is distinctly and unequivocally alleged therein) not only states, as uncontro

verted facts, that the petitioner was arrested in Massachusetts and brought into Connecticut under a warrant of extradition issued by the Governor of Massachusetts, upon a requisition of the Governor of Connecticut, accompanied by a certified copy of the indictment, and by an affidavit that the petitioner was a fugitive from justice; but expressly says that it was not denied that the demand upon the executive authority of Massachusetts, and his action thereon, were proper in form.

A warrant of extradition of the governor of a State, issued upon the requisition of the governor of another State, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice; and, when the court in which the indictment was found has jurisdiction of the offence (which there is nothing in this case to impugn), is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the State, which are empowered and obliged, equally with the courts of the United States, to recognize and uphold the supremacy of the Constitution and laws of the United States. Robb v. Connolly, 111 U. S. 624; Ex parte Reggel, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80; Cook v. Hart, 146 U. S. 183; Pearce v. Texas, 155 U. S. 311.

[The return and mittimus are considered.]

There could be no better illustration than this case affords of the wisdom, if not necessity, of the rule, established by the decisions of this court, above cited, that a prisoner in custody under the authority of a State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the State to test the validity of his arrest and detention. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several States, and with the performance by this court of its appropriate duties.

Order affirmed.

e. Grants of Federal Judicial Power to State Courts or Officers.

ROBERTSON v. BALDWIN.

165 United States, 275. 1897.

[PETITIONER Robertson and others, who were seamen on board an American vessel, "the Arago," escaped therefrom, and were arrested under the provisions of Rev. Stat. §§ 4596-4599, and taken before a justice of the peace of the State of Oregon and by him committed to the United States marshal to be returned to said vessel. Being thereafter, and in pursuance of this return, detained on the vessel by its officers, they refused to work, and at San Francisco were arrested and brought before a commissioner of the United States charged with such refusal, as a violation of Rev. Stat. § 4596. Being held to answer for this offence, they sued out a writ of habeas corpus in the District Court of the United States for the Northern District of California, alleging that their arrest and return to the vessel in Oregon were without authority because of the unconstitutionality of the statutory provisions above referred to, and because the proceedings thereunder were before a justice of the peace of a State. The District Court refused to discharge them under the writ, and they appealed to this court. The facts of the case are more fully stated, and the portion of the opinion relating to another question is given, infra, p. 891.] MR. JUSTICE BROWN delivered the opinion of the court.

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1. The first proposition, that Congress has no authority under the Constitution to vest judicial power in the courts or judicial officers of the several States, originated in an observation of Mr. Justice Story in Martin v. Hunter's Lessee, 1 Wheat. 304, 330, to the effect that "Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself." This was repeated in Houston v. Moore, 5 Wheat. 1, 27; and the same general doctrine has received the approval of the courts of several of the States. United States v. Lathrop, 17 Johns. 4; Ely v. Peck, 7 Conn. 239; United States v. Campbell, 6 Hall's Law Jour. 113 [Ohio Com. Pleas]. These were all actions for penalties, however, wherein the courts held to the familiar doctrine that the courts of one sovereignty will not enforce the penal laws of another. Huntington v. Attrill, 146 U. S. 657, 672. In Commonwealth v. Feely, 1 Va. Cases, 325, it was held by the General Court of Virginia in 1813 that the State courts could not take jurisdiction of an indictment for a crime committed against an act of Congress. In Ex parte Knowles, 5 Cal. 300, it was also held that Congress had no power to confer jurisdiction upon the courts of a State to

naturalize aliens, although, if such power be recognized by the legislature of a State, it may be exercised by the courts of such State of competent jurisdiction.

In State v. Rutter, 12 Niles' Register, 115, 231, it was held in 1817, by Judges Bland and Hanson of Maryland, that Congress had no power to authorize justices of the peace to issue warrants for the apprehension of offenders against the laws of the United States. A directly contrary view, however, was taken by Judge Cheves of South Carolina in Ex parte Rhodes, 12 Niles' Reg. 264.

The general principle announced by these cases is derived from the third article of the Constitution, the first section of which declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," the judges of which courts "shall hold their offices during good behavior," &c.; and by the second. section, "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens, or subjects."

The better opinion is that the second section was intended as a constitutional definition of the judicial power (Chisholm v. Georgia, 2 Dall. 419, 475), which the Constitution intended to confine to courts created by Congress; in other words, that such power extends only to the trial and determination of "cases" in courts of record, and that Congress is still at liberty to authorize the judicial officers of the several States to exercise such power as is ordinarily given to officers of courts not of record; such, for instance, as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judicial power rather than a part of the judicial power itself. This was the view taken by the Supreme Court of Alabama in Ex parte Gist, 26 Ala. 156, wherein the authority of justices of the peace and other such officers to arrest and commit for a violation of the criminal law of the United States was held to be no part of the judicial power within the third article of the Constitution. And in the case of Prigg v. Pennsylvania, 16 Pet. 539, it was said that, as to the authority conferred on State magistrates to arrest fugitive slaves and deliver them to their owners, under the act of February 12, 1793, while a difference of opinion existed, and might still exist upon this point in different

States, whether State magistrates were bound to act under it, no doubt was entertained by this court that State magistrates might, if they chose, exercise the authority, unless prohibited by State legislation. See also Moore v. Illinois, 14 How. 13; In re Kaine, 14 How. 103.

We think the power of justices of the peace to arrest deserting seamen and deliver them on board their vessel is not within the definition of the "judicial power" as defined by the Constitution, and may be lawfully conferred upon State officers. That the authority is a most convenient one to intrust to such officers cannot be denied, as seamen frequently leave their vessels in small places, where there are no Federal judicial officers, and where a justice of the peace may usually be found, with authority to issue warrants under the State laws.

f. Conflicting Jurisdiction of Federal and State Courts.

RIGGS v. JOHNSON COUNTY.

6 Wallace, 166. 1867.

[A SUIT was brought by plaintiff against defendant in the Circuit Court of the United States on bonds of defendant issued in aid of a railroad, in pursuance of a State statute of Iowa which had been upheld by the State courts at the time these bonds were thus issued. (See Gelpcke v. Dubuque, 1 Wall. 175, infra, p. 802.) Judgment being rendered in plaintiff's favor against the county, and execution having been returned unsatisfied, plaintiff applied to the same court for the issuance of a writ of mandamus requiring the proper officers of the county to levy a tax to pay his judgment. The officers set up as a defence the fact that, after the rendition of the judgment and prior to the application for the writ, they had been enjoined in a suit in the courts of the State, brought by taxpayers of the county, from levying such tax; but it appears that this plaintiff was not a party to such suit. Plaintiff's demurrer to this answer of the officers was overruled and he sued out a writ of error to this court.]

MR. JUSTICE CLIFFORD delivered the opinion of the court.

[It is pointed out at length that under the statutes of Iowa the proceeding by mandamus was a proper one in such case, and therefore that it was proper in the Federal court under the provisions of the acts of Congress (1 Stat. at Large, 93 and 276; 4 id. 274; 5 id. 499 and 789), providing that procedure in the Federal courts in actions at law should conform to that provided for the State courts.]

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