Eng. Hobhouse's Case, 3 B. & Ald. 420, 5 ECL 246, 106 Reprint [b] In Hawaii, the writ of hab716, 2 Chit. 207, 18 ECL 593, 12 ERC 483.

state, in the absence of any special circumstances requiring immediate action by them, they exereise a discretion whether in any particular case they will grant the writ,95 and are governed by the special circumstances of the case. 96 They will not ordinarily interfere by habeas corpus with the regular course of procedure under state authority,97

94. See infra §§ 128-131. 95. Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Pettibone v. Nichols, 203 U. S. 192, 27 SCt 111, 7 AnnCas 1047; In re Lincoln, 202 U. S. 178, 26 SCt 602, 50 L. ed. 984; Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303 [rev 134 Fed. 404]; Whitten V. Tomlinson, 160 U. S. 231, 16 SCt 297, 40 L. ed. 406; New York v. Eno, 155 U. S. 89, 15 SCt 30, 39 L. ed. 80; Cook v. Hart, 146 U. S. 183, 13 SCt 40, 36 L. ed. 934; Duncan v. McCall, 139 U. S. 449, 11 SCt 573, 35 L. ed. 219; Ex p. Fonda, 117 U. S. 516, 6 SCt 848, 29 L. ed. 994; Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868; Ex p. Willman, 277 Fed. 819; Ex p. Kozlowski, 277 Fed. 83; Ex p. Shears, 265 Fed. 959; Castle v. Lewis, 254 Fed. 917, 166 CCA 279; Ex p. Martin, 180 Fed. 209; Kroschel v. Munkers, 179 Fed. 961: Ex p. Collins, 149 Fed. 573; Ex p. Rearick, 118 Fed. 928; In re Bradley, 96 Fed. 969; U. S. v. McAleese, 93 Fed. 656, 35 CCA 529; Eaton v. West Virginia, 91 Fed. 760, 34 CCA 68; U. S. v. Fiscus, 42 Fed. 395.

[a] Reason for rule.-"The injunction of the statute is to hear each case on the writ of habeas corpus summarily and thereupon 'to dispose of the party as law and justice may require.' This direction leaves to the wise judicial discretion of the court, or judge, the time and mode in which the granted power shall be used." Castle v. Lewis, 254 Fed. 917, 920, 166 CCA 279.

[b] Leading case. "The principles which should govern their action in this matter were stated, upon great consideration, in the leading case of Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868." Whitten v. Tomlinson, 160 U. S. 231, 240, 16 SCt 297, 40 L. ed. 406.

96. Pettibone v. Nicholas, 203 U. S. 192, 27 SCt 111, 51 L. ed. 148, 7 AnnCas 1047; Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639 [rev 96 Fed. 963]; New York v. Eno. 155 U. S. 89, 15 SCt 30, 39 L. ed. 80.

97. Frank v. Mangum, 237 U. S. 309, 35 SCt 582, 59 L. ed. 969; Ex p. Spencer, 228 U. S. 652, 33 SCt 709. 57 L. ed. 1010; Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303 [rev 134 Fed. 404]; Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639; Kohl v. Lehlback, 160 U. S. 293, 16 SCt 304, 40 L. ed. 432; Whitten v. Tomlinson, 160 U. S. 231, 16 SCt 297, 40 L. ed. 406; Cook v. Hart, 146 U. S. 183, 13 SCt 40, 36 L. ed. 934; Wood v. Brush, 140 U. S. 278, 11 SCt 738. 35 L. ed. 505; Filer v. Steele, 228 Fed. 242; Eaton v. West Virginia, 91 Fed. 760, 34 CCA 68; In re Huse, 79 Fed. 305, 25 CCA 1; In re Jordan, 49 Fed. 238. See also cases infra notes 98. 99. But see Ex p. Kozlowski, 277 Fed. 83 (holding petitioner entitled to discharge on writ by federal court).

and

in the absence of some emergency demanding prompt action, a party held in custody by a state will be left to stand his trial in the state court,' 98 and will be left to a review of the final judgment of the highest courts of the state by writ of error to the United States supreme court."9 A similar

Federal courts charged with the duty
of protecting the accused in the en-
joyment of his constitutional rights,
should be appealed to in the first in-
stance. Should such rights be de-
nied, his remedy in the Federal
court will remain unimpaired." Cook
v. Hart, 146 U. S. 183, 195, 13 SCt
40, 36 L. ed. 934.

"It has been so frequently ruled by
this court, that it is scarcely neces-
sary to cite cases, that the Federal
courts will not by writs of habeas
corpus undertake to reverse the
proceedings of the state courts,
while acting within their jurisdic-
tion under statutes which do not
conflict with the Federal Constitu-
tion. In re Shibuya Jugiro, 140 U.
S. 291; 11 SCt 770, 35 L. ed. 510; In
re Wood, 140 U. S. 278, 11 SCt 738,
35 L. ed. 505; Andrews v. Swartz,
156 U. S. 272, 15 SCt 389, 39 L. ed.
422." Rogers v. Peck, 199 U. S. 425,
434, 26 SCt 87, 50 L. ed 256.

[a] Pending appeal.-A federal court will not grant the writ for release of a state prisoner pending appeal from the decision of a state court in a similar proceeding. Ex p. Shears, 265 Fed. 959.

[b] Legality of detention of insane person.-In a case in which the questions were presented whether the petitioner was examined by physician as required by law, whether the commitment, by virtue of which petitioner was held and regular on its face, was a forgery, and was procured by fraud and collusion; and whether petitioner was sane at the time of the hearing in habeas corpus proceedings and, therefore, entitled to his discharge, were questions for determination by the state courts. In re Huse, 79 Fed. 305, 25 CCA 1.

[c] Prosecution of insolvent debtor alleged bankrupt.—Where a debtor arrested on a charge of having violated a penal statute of the state against fraudulent insolvency, afterward, in the federal court, was adjudged bankrupt, and the state court, then committed him for trial, and he applied to the United States circuit court for his release on habeas corpus, on the ground that the state statute was superseded by the bankruptcy law, it was held, that the state courts were competent to decide the federal question thus raised, and the federal courts should not assume its determination until the prisoner had exhausted his remedy in the state courts. U. S. v. McAleese, 93 Fed. 656, 35 CCA 529.

98. In re Spencer, 228 U. S. 652, 33 SCt 709, 57 L. ed. 1010; Urquhart v. Brown, 205 U. S. 179, 27 SCL 459, 51 L. ed. 760; Pettibone v. Nicholas, 203 U. S. 192, 27 SCt 111, 51 L. ed. 148, 7 AnnCas 1047; Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303 [rev 134 Fed. 404]; Baker V. Grice, 169 U. S. 284, 18 SCt 323, 42 L. ed. 748 [rev 79 Fed. 627]; Whitten v. Tomlinson, 160 U. S. 231, 16 SCt 297, 40 L. ed. 406; New York v. Eno, 155 U. S. 89, 15 SCt 30, 39 L. ed. 80; "While the power to issue writs Cook v. Hart, 146 U. S. 183, 13 SCt of habeas corpus to state courts 40, 36 L. ed. 934; Horner v. U. S., which are proceeding in disregard 143 U. S. 570, 12 SCt 522, 36 L. ed. of rights secured by the Consitution 266; Whitten v. Tomlinson, 136 U. S. and laws of the United States may exist, the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the

231, 16 SCt 297, 40 L. ed. 406; Castle
v. Lewis, 254 Fed, 917, 166 CCA 279;
Ex p. Bartlett, 197 Fed. 98; Ex p.
Collins, 149 Fed. 573; In re Wyman.
132 Fed. 708; Ex p. Rearick, 118 Fed.
928 (urgent necessity only can war-
rant interference by federal courts);
In re Welch, 57 Fed. 576; U. S. v.
Chapel, 54 Fed. 140; Ex. p. Yung
Jon, 28 Fed. 308; Ex p. Hanson, 28
Fed. 127. See Fitts v. McGhee, 172
U. S. 516, 19 SCt 269, 43 L. ed. 535

(no exceptional or extraordinary circumstances); Ex p. Roach, 166 Fed. 344 (where relief denied); In re Murphy, 87 Fed. 549 (no special circumstances existed unless petitioner showed a clear case).

"The Circuit Courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a State in violation of the Constitution, a law or a treaty of the United States, yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the State, and, even after such final determination, will leave him to his remedy to review it by writ of error from this court." Tinsley v. Anderson, 171 U. S. 101, 104, 18 SCt 805, 43 L. ed. 91.

"As the defence in this case is claimed to be jurisdictional, and, in any aspect, is equally available in the State as in the Federal courts, we do not feel called upon at this time to consider it or to review the propriety of the decision of the court below. We adhere to the views expressed in Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868, and Ex p. Fonda, 117 U. S. 516, 6 SCt 848, 29 L. ed. 994, that, where a person is in custody under process from a state court of original jurisdiction for an alleged offence against the laws of that State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court of the United States has a discretion whether it will discharge him in advance of his trial in the court in which he is indicted, although this discretion will be subordinated any special circumstances requiring immediate action." Cook v. Hart, 146 U. S. 183, 194, 13 SCt 40, 36 L. ed. 934.

to

"In a proper exercise of discretion the Circuit Court should not discharge the petitioner until the state court had finally acted upon the case, when it could be determined whether the accused, if convicted, should be put to his writ of error or the question determined on habeas corpus whether he was restrained of his liberty in violation of the Constitution of the United States." Riggins v. U. S., 199 U. S. 547, 549, 28 SCt 147, 50 L. ed. 303.

99. Frank v. Mangum, 237 U. S. 309, 35 SCt 582, 59 L. ed. 969; Bailey v. Álabama, 211 U. S. 452, 29 SCt 141, 53 L. ed. 278; Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760 [rev 139 Fed. 846]; Pettibone v. Nicholas, 203 U. S. 192, 27 SCt 111, 51 L. ed. 148, 7 AnnCas 1047; In re Lincoln, 202 U. S. 178, 26 SCt 602, 50 L. ed. 984; Wimbish v. Jamison, 199 U. S. 599, 26 SCt 747, 50 L. ed. 327 [rev 130 Fed. 3511; Reid v. Jones, 187 U. S. 153, 23 SCt 89, 47 L. ed. 116; Storti v. Massachusetts, 183 U. S. 138, 22 SCt 72, 46 L. ed. 120; Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639; Davis v. Burke, 179 U. S. 399, 21 SCt 210, 45 L. ed. 249; Dreyer v. Pease, 176 U. S. 681 mem, 20 SCt 1025 mem, 44 L. ed. 637 mem [aff 88 Fed. 878]; Markuson v. Boucher, 175 U. S. 184. 20 SCt 76, 44 L. ed. 124; Tinsley v. Anderson, 171 U. S. 101, 18 SCt 805, 43 L. ed. 91; Baker v. Grice, 169 U. S. 284, 18 SCt 323, 42 L. ed. 748 [rev 79 Fed. 627]; Whitten v. Tomlinson, 160 U. S. 231, 16 SCt 297, 40 L. ed. 406; Ex p. Belt, 159 U. S. 95, 15 SCt 987, 40 L. ed. 88; Bergemann v. Backer,

rule applies to cases pending in the federal courts.1 That the petitioner is without means to prosecute a writ of error from the supreme court of the United States is not a circumstance to justify a departure from the rule.2

The exceptional cases in which a federal court or judge may sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the state are those of great urgency that require to be promptly disposed of,3 such, for

8

an

instance, as cases involving the authority and operations of the general government, or the obligation of the country to, or its relations with, foreign nations, as where a citizen or subject of a foreign state is in custody for an act done under the authority of his own government,' or officer or agent of the United States has been arrested under state process for acts done under the authority of the federal government. But not every case where an under an indictment in a state court | 997. and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom." Drury V. Lewis, 200 U. S. 1, 7, 26 SCt 229, 50 L. ed. 343 [quot Urquhart v. Brown, 205 U. S. 179, 183, 27 SCt 459, 51 L. ed. 760]. (2) "Upon the state courts, equally with the courts

of the Union, rests the obliga-
tion to guard, enforce, and pro-
tect every right granted or secured
by the constitution of the United
States and the laws made in pur-
suance thereof, whenever these rights
are involved in any suit or proceed-
ing before them.' Eaton v. West
Virginia, 91 Fed. 760, 766, 34 CCA 68.
(3) "The jurisdiction is more deli-
cate, the reason against its exercise
stronger, when a single judge is in-
voked to reverse the decision of the
highest court of a State in which the
constitutional rights of a prisoner
could have been claimed and may
be were rightly decided, or if not
rightly decided, could be reviewed
and redressed by a writ of error from
this court." Markuson v. Boucher,
175 U. S. 184, 187, 20 SCt 76, 44 L. ed.
124.

[b]

5. Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760.

6. Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639.

7. Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639; Davis v. Burke, 179 U. S. 399, 21 SCt 210, 45 L. ed. 249; In re Dowd, 133 Fed. 747.

8. Minnesota v. Brundage, 180 U. S. 499, 21 SCt 455, 45 L. ed. 639; Davis v. Burke, 179 U. S. 399, 21 SCt 210, 45 L. ed. 249; Boske v. Comingore, 177 U. S. 459, 29 SCt 701, 44 L. ed. 846 [aff 96 Fed. 552]; Castle v. Lewis, 254 Fed. 917, 166 CCA 279 (where rule held not to apply); In re Turner, 119 Fed. 231; In re Fair, 100 Fed. 149; Campbell v. Waite, 88 Fed. 102, 31 CCA 403 [aff 81 Fed. 3591.

"Such an exceptional case was In re Neagle, 135 U. S. 1, 10 SCt 658, 34 L. ed. 55, 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." Whitten v. Tomlinson, 160 U. S. 231, 241, 16 SCt 297, 40 L. ed. 406.

157 U. S. 655, 15 SCt 727, 39 L. ed. 845; Andrews v. Swartz, 156 U. S. 272, 15 SCt 389, 39 L. ed. 422; Pepke v. Cronan, 155 U. S. 100, 15 SCt 34, 39 L. ed. 84; New York v. Eno, 155 U. S. 89, 15 SCt 30, 39 L. ed. 80; Ex p. Frederich, 149 U. S. 70, 13 SCt 793, 37 L. ed. 653; Cook v. Hart, 146 U. S. 183, 13 SCt 40, 36 L. ed. 934; Wood v. Brush, 140 U. S. 278, 11 SCt 738, 35 L. ed. 505; Duncan v. McCall, 139 U. S. 449, 11 SCt 573, 35 L. ed. 219; Ex p. Fonda, 117 U. S. 516, 6 SCt 848, 29 L. ed. 994; Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868; Ex p. Shears, 265 Fed. 959; Shapley V. Cohoon, 258 Fed. 757 [app dism 263 Fed. 893]; Ex p. Merrill, 245 Fed. 778; Ex p. Coatz, 242 Fed. 1003; Ex p. Martin, 180 Fed. 209; Kroschel v. Munkers, 179 Fed. 961; Ex n. Chadwick, 159 Fed. 576; Ex p. Collins, 154 Fed. 980 [aff 214 U. S. 113, 39 SCt 573, 53 L. ed. 933]; Ex p. Collins, 149 Fed, 573; Mackenzie v. Barrett, 144 Fed. 954, 76 CCA 8; In re Dowd, 133 Fed. 747; In re Ammon, 132 Fed. 714; In re Wyman, 132 Fed. 708; Ex p. Powers, 129 Fed. 985; U. S. v. Lewis, 129 Fed. 823 [aff 200 U. S. 1, 26 SCt 229, 50 L. ed. 343]; In re Reeves, 123 Fed. 343; In re Matthews, 122 Fed, 248; In re Stone, 120 Fed. 101; Ex p. McMinn, 110 Fed. 954; Ex p. Glenn, 103 Fed. 947; In re Failure to appeal. Where peO'Brien, 95 Fed. 131; Eaton v. West titioner was convicted and failed Virginia, 91 Fed. 760, 34 CCA 68; to avail himself of the right of Nesbit v. Hert, 91 Fed. 123; In re appeal within the time prescribed. Alexander, 84 Fed. 633 (where the he was not entitled to a writ of prisoner himself instigated the pros-habeas corpus from a federal ecution against him for the purpose court, on the ground that he was of testing the validity of a state deprived of his liberty without [a] Officials or agents released.law); In re Bennett, 84 Fed. 324; In due process of law, he being en- (1) An internal revenue officer re Lawrence, 80 Fed. 99; In re Krug, titled to a writ of habeas corpus imprisoned for contempt for a re79 Fed. 308; In re Moore, 75 Fed. 821; from the state court and to appeal fusal to testify with respect to facts In re Nelson, 69 Fed. 712; In re from the denial thereof to the su- learned by him in his official capacity Maldonado, 63 Fed. 825; In re Flinn, preme court of the state, and, if still which he is prohibited from divulg57 Fed. 496; In re King, 51 Fed. 434; unsuccessful, to a review on a writing by the regulations of the deIn re Spickler, 43 Fed. 653, 10 LRA of error by the supreme court. Kros-partment. Stegall v. Thurman, 175 446; U. S. v. Roman, 33 Fed. 117; chel v. Munkers, 179 Fed. 961. Fed. 813. (2) District attorney In re Tyson, 21 Colo. 78, 39 P 1093. Remedy by appeal as ground for having possession of records of a "It is true the rule has been an- denying writ see infra § 11. state court who refused to surrender nounced in cases where habeas corthem except in his official capacity. pus was applied for in advance of In re Leaken, 137 Fed. 680. (3) An final decision in the state courts; officer of the revenue service of the but the principle of the rule applies United States whose presence at his as well after decision. The rule 3. Urquhart v. Brown, 205 U. S. post of duty is important to the would be useless except to enforce 179, 27 SCt 459, 51 L. ed. 760; Rig- public interests imprisoned by reason a temporary delay if it did not com- gins v. U. S., 199 U. S. 547, 26 SCt of his compliance with certain regupel a review of the question in the 147, 50 L. ed. 303; Minnesota lations of a federal department. state court and, in the event of an Brundage, 180 U. S. 499, 21 SCt 455, Boske v. Comingore, 177 U. S. 459, adverse decision, the prosecution of 45 L. ed. 639; Davis v. Burke, 179 29 SCt 701, 44 L. ed. 846 [aff 96 Fed. error from this court. In other U. S. 399, 21 SCt 210, 45 L. ed. 249. 552]. (4) An officer of the United words, if it gave freedom to omit See also cases supra note 98. States army who in obedience to orsuch defenses in the state court and [a] Violation of federal injunc-ders of his superiors, was constructsubsequent review by this court, and tion.-Where a federal court granteding a sewer from an army post, aryet the accused have an absolute a preliminary injunction restraining rested by the authorities of a state right to habeas corpus." Matter of the officers of a state from enforc- for continuing such construction in Spencer, 228 U. S. 652, 660, 33 SCting a state statute fixing rates to be violation of an injunction of the state 709, 57 L. ed. 1010. charged by railroads, an agent ad- court. In re Turner, 119 Fed. 231. "When the State court shall have judged guilty of a crime and im- (5) Federal secret service officers finally acted upon the case, the Cir-prisoned, in violation of such injunc- detained for arrest made by them cuit Court has still a discretion tion pursuant to regulations of the secwhether, under all the circumstances retary of the treasury. U. S. v. then existing, the accused, if conFuellhart, 106 Fed. 911. (6) A fedvicted, shall be put to his writ of eral officer in charge of a federal inerror from the highest court of the stitution arrested by state authoriState, or whether it will proceed, by ties for violation of a state statute writ of habeas corpus, summarily to relating to the use of oleomargarine determine whether the petitioner is while acting in pursuance of a valid restrained of his liberty in violation federal authority in the performance of the Constitution of the United of his duties. Ohio v. Thomas, 173 States." Ex p. Royall, 117 U. S. 241, U. S. 276, 19 SCt 453, 43 L. ed. 699 253, 6 SCt 734, 29 L. ed. 868 [quot In [aff 87 Fed. 453, 31 CCA 80]. re Lincoln, 202 U. S. 178, 181, 26 SCt 602, 50 L. ed. 984].

1. Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303. See also infra §§ 10, 11.

2. In re Nelson, 69 Fed. 712.

v.

was released by the federal court on a writ of habeas corpus. Ex p. Wood, 155 Fed. 190 [aff 209 U. S. 205, 28 SCt 472, 52 L. ed. 747].

4. Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Pundt v. Pendleton, 167 Fed. 997; In re Dowd, 133 Fed. 747.

[a] Illustration.-A teamster in the employment of the quartermaster's department of the army, imprisoned for failure to perform labor on road which would interfere with his army duties was entitled to dis[a] "The reason for this course charge on habeas corpus where the is apparent.—(1) It is an exceeding-imprisonment prevented the performly delicate jurisdiction given to the ance of the duties of his employFederal courts by which a person ment. Pundt v. Pendleton, 167 Fed.

[b] Soldiers.-(1) Writ allowed. In re Wulzen. 235 Fed. 362, AnnCas 1917A 274. (2) Soldiers arrested by state process for killing deserter where the shooting was without malice and done in belief that it wag

officer or agent of the United States, in custody
under an order of a state court for trial for an
alleged offense against the laws of the state, claims
that the act charged against him was done or
omitted while acting in his official capacity in pur-
suance of a law of the United States is such a case
of urgency as requires a federal court or judge to
discharge the officer upon hearing of the writ of
habeas corpus before his trial in the state court."
Evidence may be taken in the habeas corpus pro-
ceeding for the purpose of determining whether the
acts alleged to be criminal were done in the per-
formance of a duty in the service of the United
States, 10
That state enactment may affect the
business of many and indirectly the rights of the
public is not sufficient to justify interference by
the federal courts. But injury to interstate com-
merce from delay may be sufficient to justify exer-
cise of jurisdiction.12 The general rule requiring

11

necessary to prevent his escape. In re Fair, 100 Fed. 149. (3) Where a soldier was sentenced by the civil authorities to an imprisonment for an unusually long period for the offense committed, habeas corpus was granted on the application of his commanding officer. Ex p. Schlaffer, 154 Fed. 921. (4) Where a proper case exists for the interference of the federal courts with a detention under state statutes, habeas corpus will lie to release a member of the military forces where the arrest is made under a municipal ordinance. In re Wulzen, 235 Fed. 362, AnnCas1917A 274.

Jurisdiction of federal courts to release one detained for act done pursuant to federal law see infra 125.

9. Castle v. Lewis, 254 Fed. 917, 166 CCA 279; Ex p. Tilden, 218 Fed. 920 (where an Indian policeman, while attempting to arrest an Indian outside of the reservation, killed him); U. S. v. Lewis, 129 Fed. 823 [aff 200 U. S. 1, 26 SCt 229, 50 L. ed. 343] (where soldiers were left in the custody of the state authorities); In re Matthews, 122 Fed. 248 (policeman attempting to arrest army deserter).

pursuit of the remedy in the state courts and by
appeal or error does not apply where the person
detained has no remedy in the state courts by
appeal, 13
nor where the state court was without
jurisdiction in a matter which was within the ex-
clusive jurisdiction of the federal courts.14 Where

the state courts in prior cases have upheld the con-
stitutionality of the statute involved, a federal
court has entertained an application for relief in
habeas corpus proceedings. 15

[9] 4. Existence of Other Remedy-a. In General. The writ of habeas corpus lies where the imprisonment is illegal and no other remedy is available to secure a release therefrom.17 As in the case of other extraordinary prerogative writs, 18 the writ of habeas corpus will not ordinarily be granted where there is another adequate remedy, by appeal or writ of error20 or otherwise. 21 although another remedy exists, it is not necessarily

the state has no jurisdiction."
re Fair, 100 Fed. 149, 155.
11. Minnesota v. Brundage,
U. S. 499, 21 SCt 455, 45 L. ed.
[rev 96 Fed. 963].

12. Ex p. Jervey, 66 Fed. 957;
p. Kieffer, 40 Fed. 399.

In 21 SE 592.

180 639

Ex

13. Walters v. McKinnis, 221 Fed. 746.

14. Ex p. Van Moore, 221 Fed. 954. 15. Dreyer v. Pease, 88 Fed. 978 [aff 176 U. S. 681, 20 SCt 1025, 44 L. ed.

637] ("If the validity of the statute were an open question in the courts of Illinois, then this court would, under the rulings of the supreme court of the United States, be excused from consideration of the question at this time. But the supreme court of Illinois in Meadowcroft v. Peo., 163 Ill. 56, 45 NE 991, 54 AmSR 447, 35 LRA 176, declared this law constitutional and valid. The question in the courts of the state is therefore foreclosed").

16. See infra § 18 et seq.

17. Ex p. Bracklis, (Cal. A.) 198 P 659; Ex p. Martin, (Cal. A.) 197 P 365; In re Goldie, 35 Cal. A. 341, 169 P 925; Peo. v. City Prison, 202 N. Y. 138, 95 NE 729 (that a writ will issue where constitutional rights cannot be otherwise adequately preserved). See cases passim.

10. U. S. v. Lipsett, 156 Fed. 65; In re Fair, 100 Fed. 149; Campbell v. Waite, 88 Fed. 102, 31 CCA 403 [aff [a] No other inquiry into founda81 Fed. 359]; In re Lewis, 83 Fed. tion for charge.-Where there was 159; Ex p. Jenkins, 13 F. Cas. No. no other speedy and efficacious 7,259, 2 Wall. Jr. 521 (court will in- remedy open to petitioner in the quire into claim of federal officer usual and orderly course of criminal that he is detained by state authori- procedure and there could be no inties for official act). See In re Wul-quiry whether the charge constituted zen, 235 Fed. 362, AnnCas1917A 274 (where writ was granted).

[a] Illustration.-Where federal officers were accused of robbery and detained by the state authorities for taking property under the order of a federal judge, the federal court in habeas corpus investigated whether the officers acted wantonly and with criminal intent or merely committed error of judgment. In re Lewis, 83 Fed. 159.

[b] Discussion of rule.-"I am mindful of the rule of law that in a habeas corpus proceeding the court will not examine the evidence for the purpose of determining whether the party should be pronounced guilty or innocent of the offense for which he is imprisoned; yet in a case of this character it is not only proper, but necessary, for the court to determine whether the parties acted wantonly and with criminal intent, or whether their acts, though wrongful, were errors of judgment only. If they acted wantonly, with a criminal intent, then they were not acting within the scope of the authority conferred by the laws of the United States. On the other hand, if they acted without criminal intent, but in an honest belief that they were only discharging the duties of a soldier, then their offense, if offense it was, was not against the laws of the state and in such case [29 C. J. 2]

an offense against the statute until
the meeting of a grand jury, and no
relief from imprisonment meantime
except through the writ of habeas
corpus or by furnishing bail, even
if the charge is unfounded, a writ
of habeas corpus is proper. In re
Barber, 75 Fed. 980.

18. See Mandamus [26 Cyc 125];
Prohibition [32 Cyc 596]; Quo War-
ranto [32 Cyc 1410].

19.

Ex p. Spagnoli, (Cal. A.) 200 P 836; Ex p. Bracklis, (Cal. A.) 198 P 659; Ex p. Martin, (Cal. A.) 197 SW 365; McLaughlin v. Barr, 191 Ky. 346, 230 SW 304; Peo. v. Lawes, 112 Misc. 257, 182 NYS 545. See cases infra notes 20, 21.

[a]

19

But,

Ind. Gillespie v. Rump. 163 Ind. 457, 72 NE 138 (certiorari).

Mont.-State V. Second Judicial Dist. Ct., 14 Mont. 396, 40 P 66.

N. J.-Patterson v. State, 49 N. J. L. 326, 8 A 305 [aff 50 N. J. L. 421, 14 A 125].

N. Y.-Peo. v. McLaughlin, 77 Misc. 13, 136 NYS 122; U. S. Bank v. Jenkins, 18 Johns. 305.

Pa.-Com. v. Lecky, 1 Watts 66, 26 AmD 37.

Va.-Mann v. Parke, 16 Gratt. (57 Va.) 443.

W. Va.-Ex p. Doyle, 62 W. Va. 280, 57 SE 824.

[a] Pending preliminary examination.-"We are of the opinion that the writ should not have been granted pending the proceeding before the magistrate. The magistrate who issued the warrant of arrest had jurisdiction as an examining court to inquire into the offense charged in the complaint, and it was not proper, and not in contemplation of the law, that another court or judge should defeat or interfere with that jurisdiction. In such case until the magistrate has, after examination, refused to discharge the accused, the remedy by habeas corpus is not available. Robertson v. State, 36 Tex. 346; Church on Habeas Corpus, sec. 90; Ex p. Kittrell, 20 Ark. 499." Ex p. McCorkle, Tex. A. 20, 13 SW 991 [dist Ex p. Krug, (Tex. Cr.) 60 SW 38].

29

[b] A motion for a new trial, on the ground of newly discovered evidence, is such a remedy as renders resort to habeas corpus unnecessary and improper. Peo. v. Lawes, 112 Misc. 257, 182 NYS 545.

In

[c] Remedies held a bar.-(1) Motion for discharge. Peo. v. Markell, 72 Misc. 427, 131 NYS 383 (under statute authorizing discharge of person unable to comply with conditions imposed by contempt order and unable to endure punishment provided); Ex p. Torres, 4 Porto Rico 285 (under statute authorizing discharge on failure to file information). (2) Taking poor debtor's oath. re Lincoln, 202 U. S. 178, 26 SCt 602, 50 L. ed. 984. (3) Application to court by witnesses imprisoned by officer taking deposition under statutory provision. In re Button, 83 Nebr. 636, 120 NW 203, 23 LRANS 1173. (4) Application to designated official. Ex p. Wheeler, 99 Ark. 201, 137 SW 803 (where chief of police was alone authorized to determine sufficiency of bail and was to be held responsible if insufficient); In re Ostatter, 103 Kan. 487, 175 P 377 (superintendent of insane asylum); State v. Clifford, 106 Wash. 16, 179 P 90; In re Lee Him, 15 B. C. 163 21. U. S.-In re Lancaster, 137 [app dism 15 B. C. 390]. (5) ReU. S. 393. 11 SCt 117, 34 L. ed. 713. opening proceeding under which comArk.-Ex p. Kittrel, 20 Ark. 499. mitment had. In re Rainbolt, 64 Cal.-Ex p. Bracklis, (A) 198 P Colo. 581, 172 P 1068 (commitment 659: Ex p. Martin, (A.) 197 P 365. for insanity). (6) Modification of Ga.-Bass v. Hightower, 94 Ga. 602, | judgment. Ex p. Mowry, 28 R. I.

Reason for rule.-"There is good reason for not permitting resort to a form of remedy like habeas corpus when, if there has been a mistake, the result must often be, not correction of a mistake, but immunity for the applicant whether he be guilty or not.' Rex v. Therrien, 17 Que. Pr. 285, 28 DomLR 57, 62, 25 CanCrCas 275.

20. See infra § 11.

Use as substitute for appeal or writ of error see infra § 19.

[10] b. Trial of Original Proceeding. Where the proceedings under which the petitioner is detained are still pending undisposed of, and the ordinary established procedure is still available to him, the orderly procedure by trial and appeal should not be interfered with by a writ of habeas corpus,28 there being another adequate remedy 29 and no necessity for issuance of this high extraordinary writ.30. This rule is applied with considerable strictness where a federal court is asked to interfere by habeas corpus with the process of state courts. 31 Even constitutional32 and jurisdictional