or a return thereto, take cognizance of such questions only as arise under the Constitution, treaties or laws of the United States, or in connection with the proceedings of the United States Courts, or of Federal officers in their official capacity. Since the passage of the Fourteenth Amendment, which declares that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, repeated attempts have been made to get the Federal Courts to exercise general powers of jail delivery of criminals arrested, indicted or convicted under the State laws. The theory advanced is that the law under which the petitioner is arrested or prosecuted was not validly passed by the State Legislature, or is not constitutional or does not mean what the State authority says it does, and that consequently he has been deprived of his liberty without due process of law or has been denied the equal protection of the laws.

Such was the case of In re Duncan.1 Duncan was a convicted murderer. He applied to the United States Circuit Court for the Western District of Texas for a writ of habeas corpus, averring, among other things, that the pretended law under which he was convicted was not a law at all, as it had not been read on the number of days and in the manner required by the Constitution of Texas; that it had not been enrolled, etc.; that the judges of the Texas Court were interested in upholding the law, because the same statute fixed their salaries, etc. The Supreme Court said:

"The State of Texas is in full possession of its facul ties as a member of the Union, and its legislative, executive and judicial departments are peacefully operating by the orderly and settled methods prescribed by its fundamental law. Whether certain statutes have or have not binding force, it is for the State to determine, and that determination in itself involves no infraction of the Constitution of the United States, and raises no Federal question giving the courts of the United States jurisdiction."

1139 U. S. 449.

378. Federal Court Will Not Always Issue Writ Even Where Federal Question is Involved.-Ordinarily, even if there is a Federal question involved, the rule of the Federal Courts is not to interfere until the highest Court of the State that can consder the question has finally passed on it and has decided it adversely to the claim which the prisoner sets up under the Constitution, laws or treaties of the United States. At that stage he can always have his remedy by writ of error to the Supreme Court. To this policy of non-interference there are some exceptions. For example, in the famous case of Neagle, which has been heretofore mentioned, the Supreme Court interfered to discharge him from custody before he was tried by the California Court. It was felt that the obligation resting upon the United States to protect the lives of its judges from assaults committed upon them, because of the manner in which they discharged their official duties was so imperative that the Federal officials who gave this protection should in their turn, so soon as any proceedings were taken against them, be defended to the full power of the Federal Government.

379. Federal Courts Will Issue Writ to Protect Federal Jurisdiction.-Somewhat similar principles controlled the action of the Court in In re Loney. Loney, in the City of Richmond, had testified in a case of a contested election for a seat in the House of Representatives of the United States. He was charged before a State magistrate with having perjured himself in the testimony so given. He was arrested by the State authorities. He applied to the Circuit Court of the United States for the Eastern District of Virginia for a writ of habeas corpus. He was discharged by that Court and the respondent appealed to the Supreme Court of the United States. The latter said:

"The power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the Government in whose tribunals that proceeding is

134 U. S. 372.

had. It is essential to the impartial and efficient administration of justice in the tribunals of the nation, that witnesses should be able to testify freely before them, unrestrained by legislation of the State, or by fear of punishment in the State courts. The adininistration of justice in the national tribunals would be greatly embarrassed and impeded if a witness testifying before a court of the United States, or upon a contested election of a member of Congress, were liable to prosecution and punishment in the courts of the State upon a charge of perjury, preferred by a disappointed suitor or contestant, or instigated by local passion or prejudice."***"The Courts of Virginia having no jurisdiction of the matter of the charge on which the prisoner was arrested, and he being in custody, in violation of the Constitution and laws of the United States, for an act done in pursuance of those laws by testifying in the case of a contested election of a member of Congress, law and justice required that he should be discharged from such custody, and he was rightly so discharged by the Circuit Court on writ of habeas corpus."

In 1907 the Legislature of North Carolina passed certain Acts providing for radical reductions in the fares of passengers on railroads. The Southern Railroad Company applied to the United States Court to enjoin their enforcement on the ground that they deprived it of its property, the prescribed rates being so low as in their practical effect to be confiscatory. JUDGE PRITCHARD granted the injunction. In his order he directed that the railroad should give bond in a large sum to repay the excess fares, if upon final hearing the validity of the State legislation was upheld. Each passenger agent in selling a ticket was required to give the purchaser a coupon for the difference between the old fare and that which the Act fixed. The ticket agent at Asheville continued in accordance with the order to sell tickets at the former rate issuing the coupons to their purchasers. He was arrested by the State authorities, tried, convicted, and sentenced to thirty days in the chain gang. JUDGE PRITCHARD released him on habeas corpus and the Supreme Court affirmed the action. It said the agent was held in custody

by the State authorities for an act done pursuant to an order, process or decree of a Court or judge of the United States.2

380. Federal Courts Will Issue Writ to Protect Federal Officers in Discharge of Their Duties. In the case of Boske vs. Comingore,1 the Supreme Court upheld the action of a District Court of the United States in discharging on habeas corpus a United States Collector of Internal Revenue who had been committed for contempt of a State Court in refusing to produce records of his office. He had acted by direction of his official superiors given under the authority of a valid law of the United States. The Court said:—

"When the petitioner is in custody by State authority for an act done or omitted to be done in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or where, being a subject or citizen of a foreign State, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission, or order, or sanction of any foreign State, or under color thereof, the validity and effect whereof depend upon the law of nations; in such and like cases of urgency, involving the authority and operations of the General Government, or the obligations of this country to, or its relation with, foreign nations, the courts of the United States have frequently interposed by writs of habeas corpus and discharged prisoners who were held in custody under State authority." The Court added: "The present case was one of urgency, in that the appellee was an officer in the revenue service of the United States, whose presence at his post of duty was important to the public interests, and whose detention in prison by the State authorities might have interfered with the regular and orderly course of the business of the Department to which he belonged."

In other words, while the Federal Courts have the power to release persons held in custody by State authorities, contrary to the Constitution or laws of the United States, they will

Hunter vs. Wood, 209 U. S. 205. 1177 C. S. 459.

ordinarily refuse to pass the order of discharge unless they feel that, if they do not, some great public interest will suffer or be imperiled, or, in exceptional cases, that great private injustice and hardship will result.

381. An Alleged Fugitive From the Justice of One State May Have Federal Writ to Inquire Into the Lawfulness of his Detention.-One State may in its Courts begin a prosecution against "A." He may at the time be in another State. The Governor of the prosecuting State makes requisition upon the Governor of the other for his return as a fugitive from justice. The latter Governor may issue his warrant for the delivery of "A" to the agent of the prosecuting State. "A" may deny that he is a fugitive from the justice of the demanding State, or he may, perhaps, assert that the proceedings under which he is held in custody are for other reasons so irregular or improper as to afford no legal ground for his detention. If he wishes he may apply for a writ of habeas corpus to a United States District Court cr to a Federal judge. Upon what does his right to do so rest? He is not in the custody of any Federal official or under any process of its Courts. He has not been charged with any violation of its laws. It is possible that the proceedings against him may be so wanting in all regularity that his detention under them may be without due process of law, and therefore in violation of the Fourteenth Amend ment; but, as has been stated, it is, even under such circumstances, ordinarily the policy of the Federal Court to avoid precipitate interference with the action of the State authorities. Proceedings for interstate extradition are, however, not in legal theory taken altogether or even principally under State laws. The duty to return fugitives from the justice of other States is imposed by the Federal Constitution upon each of the States. Congress has power to provide by law the machinery for executing this constitutional duty. It has done so. A prisoner held for delivery by one State to another is, in a sense, in custody under color of the Constitution and laws of the United States. The Federal Courts, therefore,