§ 479. Same-Cases of urgency requiring immediate action. 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 depends 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 relations with, foreign nations, the courts of the United States have frequently interposed by writ of habeas corpus and discharged prisoners who were held in custody under state authority.20

§ 480. Same-Interstate extradition.-An agent appointed by the demanding state in which a fugitive from justice stands charged with a crime, to receive such fugitive from the state by which he is surrendered, is not an officer of the United States within the meaning of the adjudications of the federal supreme court, but is the agent of the demanding state, as well in receiving custody of the fugitive, as in transporting him to the state under whose commission he acts; 27 and a warrant of extradition of the governor of a state, issued upon the requisition of the governor of another state, accompanied by a duly authenticated copy of an indictment, is prima facie evidence,

Duncan v. McCall, 139 U. S. 449 (35:219); Wood v. Brush, 140 U. S. 278 (35:505); Jugiro v. Brush, 140 U. S. 291 (35:510); Cook v. Hart, 146 U. S. 183 (36:934); Ex parte Frederich, 149 U. S. 70 (37: 653); Pepke v. Cronan, 155 U. S. 100 (39:84); Bergmann v. Backer, 157 U. S. 655 (39:845); Whitten v. Tomlinson, 160 U. S. 231-247 (40:406); Minnesota v. Brundage, 180 U. S. 499-505 (45:639); Reid v. Jones, 187 U. S. 153-154 (47: 116); Pettibone v. Nichols, 203 U. S. 192-221 (51:148).

26 Cunningham v. Neagle, 135 U.

S. 1 (34:55); Thomas v. Lonly, 134 U. S. 372 (33:949); Mali v. Hudson County Jail Keeper (Mildenhus Case) 120 U. S. 1 (30: 565); Ex parte Royal, 117 U. S. 245-254 (29:868); New York v. Eno, 155 U. S. 89-95 (39:80); Ohio v. Thomas, 173 U. S. 276-284 (43:699); Boske V. Comingore, 177 U. S. 459 (44:846); Minnesota v. Brundage, 180 U. S. 499-505 (45:639).

27 Robb v. Connolly, 111 U. S. 624 (28:542); Roberts v. Reilly, 116 U. S. 80-97 (29:544).

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 offense, is sufficient to make it the duty of the court 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.28 Upon an application for a warrant of extradition, two questions are, under the federal statute,29 presented to the governor upon whom the demand is made, namely, (1) whether the person demanded has been substantially charged with a crime against the laws of the demanding state, and (2) whether he is a fugitive from justice, the first being a question of law. and the second a question of fact which the governor upon whom the demand is made must decide upon such evidence as is satisfactory to him. In deciding the question of fact, strict common-law evidence is not necessary. The federal statute does not prescribe the particular kind or quantity of evidence to be produced before the governor, nor how it shall be authenticated, but it must be such as is satisfactory to the mind of the governor. The person demanded has no constitutional right to be heard before governor on either the question of law or the question of fact, and the federal statute gives no such right, and it is not error for the governor to refuse such a hearing. The issuing of the warrant of extradition by the governor, with or without a recital therein that the person demanded is a fugitive from justice, is sufficient to justify his removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof adduced in an appropriate legal proceeding brought to review the action of the governor; and after issuing the warrant, and before the deportation of the

28 Whitten v. Tomlinson, 160 U. S. 231-247 (40:406); Robb v. Connolly, 111 U. S. 624 (28:542); Roberts v. Reilly, 116 U. S. 80-97 (29: 544); Ex parte Reggel, 114 U. S. 642 (29:250); Cook v. Hart, 146

U. S. 183 (36:934); Pearce v. Texas, 155 U. S. 311 (39:164); Pettibone v. Nichols, 203 U. S. 192-221 (51:148); Appleyard v. Massachusetts, 203 U. S. 222-232 (51:161). 29 U. S. Rev. Stat. sec. 5278.

person demanded, it is competent for a court, either state or federal, sitting in the state where the warrant is issued and the arrest is made, to inquire, upon writ of habeas corpus. whether the accused is in fact a fugitive from justice, and, if found not to be, to discharge him from the custody of the agent of the demanding state, and prevent his deportation.30 While the indictment, to authorize the issue of a warrant of extradition, should set forth a substantial criminal charge, yet its sufficiency as a matter of technical pleading, will not be inquired into on a writ of habeas corpus.31 No obligation is imposed by the constitution or laws of the United States upon the agent of the demanding state, to so time the arrest of the alleged fugitive from justice, and to so conduct his deportation from the surrendering state, as to afford him a convenient opportunity to test, before some competent judicial tribunal sitting in that state, the question whether he is in fact a fugitive from justice, and, as such, liable under the act of congress to be conveyed to the demanding state,32

§ 481. Same-Same-Concurrent jurisdiction of state courts. The jurisdiction of the federal courts and the judges thereof, to inquire, upon writ of habeas corpus, into the legality of the detention of persons arrested and held upon warrants of extradition, and to discharge them, if it be ascertained that such detention is illegal, is not an exclusive jurisdiction; but, in all such cases, the state courts and the judges thereof are vested with jurisdiction, concurrent with the federal courts and judges. Upon the courts of the state, equally with the courts of the United States, rests the obligation to guard, enforce and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever any such rights are involved in any suit or proceeding before them, and it is presumed that such courts will in good faith perform their obligations, and if they fail therein. and withhold or deny any rights, privileges or immunities se

30 Munsey v. Clough, 196 U. S. 364-375 (49:515); Hyatt v. New York, 188 U. S. 691 (47:657); Robb v. Connolly, 111 U. S. 624– 639 (28:542); Ex parte Reggel, 114 U. S. 642 (29:250); Pettibone v. Nichols, 203 U. S. 192-221 (51:

31 Munsey v. Clough, 196 U. S. 364-375 (49:515); Ex parte Reggel, 114 U. S. 642 (29:250); Pearce v. Texas, 155 U. S. 311 (39:164); Ex parte Hart, 59 Fed. R. 894. 32 Pettibone v. Nichols, 203 U. S. 192-221 (51:148).

cured by the constitution and laws of the United States, the party aggrieved may carry his case, even though in a proceeding for habeas corpus, from the highest court of the state in which the question could be decided, to the supreme court of the United States for final and conclusive determination.33

§ 482. Application for the writ of habeas corpus.-Application for the writ of habeas corpus should be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known; and the averments of facts set forth in the complaint must be verified by the oath of the person making the application. The general allegation in the complaint, that the petitioner is detained in violation of the constitution and laws of the United States, and is held without due process of law, are averments of mere conclusions of law and not matters of fact.35

34

§ 483. The award and direction of the writ.-The court or justice or judge to whom the application is made shall forthwith award the writ of habeas corpus, unless it appears from the petition or application itself that the party is not entitled thereto; and the writ shall be directed to the person in whose custody the party is detained.36 The writ ought not to be awarded, if the court is satisfied from the application that the prisoner, if brought into court and the cause of his commitment inquired into, would be remanded to prison.37

§ 484. Return of the writ-Time and form.—Any person to whom the writ of habeas corpus is directed shall make due return thereof within three days thereafter, unless the party be

V.

83 Robb v. Connolly, 111 U. S. 624-640 (28:542); Munsey Clough, 196 U. S. 364-375 (49: 515); Hyatt v. New York, 188 U. S. 691-719 (47:657).

34 U. S. Rev. Stat. sec. 754, 3 Fed. Stat. Anno. 172, U. S. Comp. Stat. 1901, p. 593; Ex parte Cuddy, 131 U. S. 280-287 (33:154).

35 Whitten v. Tomlinson, 160 U. S. 231-274 (40:406); Cramer v. Washington, 168 U. S. 124-131 (42:

407); Andersen v. Treat, 172 U. S. 24-31 (43:351).

36 U. S. Rev. Stat. sec. 755, 3 Fed. Stat. Anno. 173, U. S. Comp. Stat. 1901, p. 593.

37 Ex parte Watkins, 3 Pet. 193 (7:650); Ex parte Terry, 128 U. S. 289-314 (32:405); Ex parte Kearney, 7 Wheat, 38-45 (5:391); Ex parte Milligan, 4 Wall. 2-11 (18:281).

detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days. The person to whom the writ is directed shall certify to the court, or justice, or judge before whom it is returnable the true cause of the detention of the party.38

§ 485. Same-Production of the body.-The person making the return to the writ of habeas corpus shall at the same time bring the body of the party before the judge who granted the writ.99

§ 486. Day set for hearing-Pleadings.-When the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. The petitioner or party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained.40

§ 487. Same Summary hearing and disposition of the party. The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." But when the petitioner is in custody under state authority, and claims that he is restrained of his liberty in violation of the constitution or a law of the United States, the courts, judges and justices of the United States have a discretion as to the time and mode of granting the petitioner relief upon writ of habeas corpus.*2

38 U. S. Rev. Stat. sec. 756, 757, 3 Fed. Stat. Anno. 173, U. S. Comp. Stat. 1901, p. 593; Ex parte Baez, 177 U. S. 378-390 (44:813).

39 U. S. Rev. Stat. sec. 758, 3 Fed. Stat. Anno. 174, U. S. Comp. Stat. 1901, p. 593.

40 U. S. Rev. Stat. secs. 759, 760, 3 Fed. Stat. Anno. 174, U. S. Comp. Stat. 1901, p. 594.

41 U. S. Rev. Stat. sec. 761, 3 Fed. Stat. Anno. 174, U. S. Comp. Stat. 1901, p. 594; Motherwell v. United States, 107 Fed. 437; Cunningham v. Neagle, 135 U. S. 1-99 (34:55); Storti v. Massachusetts, 183 U. S. 138-144 (46:120). 42 Ante, sec. 478.