best method of remedying such abuses," respectfully reports as follows:

The general purpose of the writ of habeas corpus was properly stated by Judge Thompson to be "a means of subjecting to the superintendence of superior courts and judges, arrests and imprisonments made by ministerial officers and by inferior magistrates."

This original purpose of the writ has been lost sight of in very many instances in the history of the jurisprudence of the United States; and the abuses consequent upon this departure from the original design of the writ, as they are stated by Judge Thompson, may be divided into four classes, viz.:

1. The Federal Courts have sought to control the exercise of certain important functions of the Federal Executive. 2. State Courts have attempted to subject the Executive department of their own State to judicial control.

3. State Courts have attempted to interfere with functions of the Federal Executive.

4. Federal Courts and State Courts have "attacked each other's processes and opened each other's prisons."

As these abuses consist in the improper exercise of judicial powers, it is obvious that there are but two remedies which can be applied.

I. That the Courts themselves should be brought to recognize the existence of the abuses, and should voluntarily recede from the positions which have led to them; and

II. Legislation-both Federal and State.

The first of these two remedies would, plainly, be advisory only. The means would be the creation of a sentiment at the bar and the expression of that sentiment by petitions or suggestions, with the hope that the desired effect would ultimately be produced upon the Bench.

Any movement in this direction must be a general one before it can become a successful one. It would be the slow movement of many years and many men. This Association and the various State and the Local Bar Associations which the past few years have brought into being, might give it important aid; but, though they were all united in the common effort, they could not hope by the mere force of protest or argument to create any immediate change in judicial habits of thought and action which have been the growth of more than one generation.

We are impatient, in this land of easy legislation, of such delays. The prompt remedy of a statute is always within our reach, and if the sentiment of the community will support it, it is the best remedy as well as the quickest.

Your Committee has no doubt that many of the abuses in question are fully recognized as such by public opinion. Conflicts between Courts, and contests between judicial and executive officers, are always distasteful to Americans. They do not belong to a land of Constitutional Government. Wherever they exist, they impugn the scheme of the Constitution or the manner of its administration. Wherever they exist, the people will be found ready to repress them, if they are shown the way to do it. The question, therefore, is what legislation is necessary and expedient, in order to accomplish the desired result.

Let us consider, a little more specifically, what the mischiefs complained of are.

And, first, the Federal Courts improperly interfere, by means of the writ, with the exercise of functions belonging to the Federal Executive.

The most noticeable and important class of cases in which this interference exists embraces those arising under extradition treaties and the laws passed to carry them into effect.

The scheme of extradition, as expressed in the provisions.

of the act of Congress of August 12, 1848, contemplates (briefly) four stages in the process, viz., the issuing of the warrant by the judge or commissioner, the hearing before such judge or commissioner, the return of the testimony to the state department, and the order for the surrender of the prisoner by the Secretary of State.

Over this scheme or method of procedure the Federal Courts have asserted a supervisory power; and as this exercise of judicial power has resulted in certain abuses, the question is whether the power should be completely taken away, or whether its exercise should be merely circumscribed.

To abolish entirely the supervisory power on the part of the Federal Courts over proceedings for extradition would seem to be going too far. While, on the one hand, it may be admitted that the surrender of a fugitive from a foreign country may, and frequently does, give rise to diplomatic questions, the decision of which may be left to the Executive Department of the Government more properly than with the Courts, it must be conceded on the other hand, that the surrender should not take place without most careful examination by thoroughly competent judicial authority of the due observance of the processes pointed out by law. From the decision of the Commissioner in such cases, it would seem to be right that there should be one appeal-but no more-to a Court; but that such court should be so constituted as to give, on the one hand, every guaranty of its fairness and justice to the prisoner, and on the other hand, to the Government demanding the surrender, and to our own Government, every assurance that the requirements of international law and the obligations of the treaty under which the surrender is claimed, will be scrupulously observed.

The plan which suggests itself to your Committee is that an appeal from the decision of the Commissioner, if adverse

to the prisoner, should lie to the Circuit Court; and that at the hearing of the appeal the Circuit Judge and the District Judge should sit, or that provision be made for the calling in by either Judge of the other, or of the District Judge of an adjoining district, in important cases, the decision of the senior judge, in the case of disagreement between two District Judges, to control, with the right of certifying the questions of difference to the Supreme Court. The decision of such a Court, if adverse to the prisoner, would enforce the respect of all who were interested on his behalf; while if the Court should be of opinion that he be discharged, such discharge could not fairly be complained of either by the Federal Executive or by the Foreign State.

If, therefore, it were provided by act of Congress that the rulings of the Commissioner in extradition cases should be subject to review by such a Court, the law might safely provide, further, that the prisoner should not have the benefit of a writ of habeas corpus issued by any Federal tribunal. In this way, your Committee submit, the rights of the prisoner would be amply guarded; while the executive of the government would not be embarrassed in the discharge of diplomatic functions, but simply aided in that discharge by the advice of its own court.

The second class of abuses mentioned in Judge Thompson's paper embraces those cases in which "State Courts have attempted to subject the executive of their own State to judicial control."

The Committee, however, do not deem it possible to make any suggestions as to remedying abuses of this character. Their existence depends upon the relations between the Courts and the several executives, as adjusted by the constitutions and laws of each State; and no general plan for. readjustment can be suggested. To enter into schemes

amendatory of the constitution and laws of all the states, would seem to be to go beyond the scope of the reference to the Committee as contemplated by the resolution.

There is, however, a class of cases in which State Courts interfere, not with the State executive in State matters, but with the executive of one State in discharging his duty towards the government of a sister State, which seems to call for some attention, and which may be noticed under this head.

This class of cases may be best illustrated by the decision of the Supreme Court of the United States made May 5, 1884, in Robb vs. Connolly, 106 U. S., 624.

In that case one Bayley was arrested in San Francisco by virtue of a warrant issued by the Governor of California, in pursuance of a requisition by the Governor of Oregon. Bayley thereupon sued out a writ of habeas corpus from the Judge of the Superior Court for the City and County of San Francisco, to which Robb (who was the officer empowered by the Governor of Oregon to receive Bayley from the Governor of California) made return that he held Bayley "under the authority of the United States," and as evidence thereof he produced a copy of the warrant from the Governor of California and his commission from the Governor of Oregon. He declined to produce Bayley, on the ground that the Superior Court of San Francisco had "no power or authority to proceed in the premises." For this refusal Robb was committed for contempt; whereupon he sued out a writ of habeas corpus from the Supreme Court of California. Upon a hearing the writ was dismissed, and Robb was remanded to the custody of the sheriff, the decision of the Court being put upon the ground that Robb should have at least obeyed the writ so far as to produce Bayley in Court, so that the Court might have inquired into the cause of his detention.