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 merely be 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.

And the reasons are given for that proposition.

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.

That is the remedy proposed for the first of the abuses.

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 con

stitutions 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.

The report gives an analysis of the case of Robb vs. Connolly, one of the most recent cases. That was a case which emphasizes Judge Thompson's statement in regard to the abuses of the writ, where one state court interferes with the action of the executive of another state, and presents the spectacle of a double interference-the state court staying the actions of the governors of two states, and this ruling approved by the highest federal court-while an inferior federal court, in its turn, ignores the process of the highest state court and sets its prisoner free.

The remedy for this condition of things would seem to be either:

1st. That the jurisdiction now existing in the state courts over such cases should be abridged or taken away.

2d. That the federal circuit courts should be deprived of the power of issuing writs of habeas corpus in such cases; or, 3d. That, from the action of the circuit courts in habeas corpus cases of this character, an appeal, and not a mere writ of error, should lie to the Supreme Court.

It would, no doubt, be eminently proper that the ultimate decision of cases of this sort should rest with the Supreme Court of the United States, for not only do the questions relate to authority given by the federal laws, but they

assume, or may assume, the aspect of a contest between the authorities of two states. But the present condition of the docket of this court, which has already been fully brought to the attention of the Association, admonishes us that appeals of this nature which, if granted, would be eagerly sought whenever the prisoner had friends or money, would produce more evils than they would cure. The desired result is now attainable, so far as questions of law are concerned, by writ of error.

There it may be proper to make a qualification. I understand from Judge Poland that some legislation is intended, to restore the writ of error in a certain class of cases, in which, by an act of Congress, it was suspended, and I trust that Judge Poland will supplement our report by a statement to the Association of the precise condition in which the legislation of Congress stands in this regard. An act of Congress took away and limited the right of writ of error in a certain class of cases, and having reference to a case then pending in the Supreme Court. An effort is being

made to correct that now.

Some court must certainly be open to applications for this relief, and it should be whatever court competent to do justice can be quickest reached. This will ordinarily be the court of a state; but if either party prefers a court of the United States, it would seem fully in accordance with the spirit of our more recent legislation to permit a removal of the cause before hearing, upon a proper showing that a constitutional question is involved, into the Circuit Court of the United States.

Then the third class of cases is where state courts have attempted to interfere with the functions of the federal executive. We think there is no trouble with those, and I will not further discuss them.

The last class of cases to be noticed embrace those in which

the federal and state courts have claimed the right to interfere with each other's processes and do away with the effect of each other's judgments.

So far as respects attempts on the part of state tribunals to interfere with the execution of the writs or the enforcement of the judgments of the courts of the United States, your committee do not consider that any legislation is necessary. The decisions in Ableman vs. Booth, and in Tarble's case, already referred to, cover cases of this description, and the rule there laid down may be safely relied upon to forbid a recurrence of abuses of this character.

But the complaint that the process, judgments, and decrees of state courts are improperly interfered with by writs of habeas corpus issued by federal tribunals is a just one, and the abuse still remains as a mischief in our jurisprudence which surely demands a remedy by the passage of an act of Congress, whereby it may be provided that when a prisoner under a writ from a state court is discharged under a habeas corpus issued by circuit or a district court, an appeal may be taken by the proper state authorities to the Supreme Court of the United States. Possibly, also, a similar appeal should be allowed to the party in custody, if the decision of the federal court should be that he be remanded.

This, as it seemed to the committee, may be supplied by so amending the existing statutes as to give the state or other public authorities interested in the case, though not a party to the record, the right to intervene and to have an adverse decision reviewed.

The committee recommend the passage of the following resolution:

Resolved, That it be referred to the Committee on Jurisprudence and Law Reform, to prepare suitable amendments to the provisions of the Revised Statutes of the United States, relating to writs of habeas corpus, to carry into effect

the recommendations of the foregoing report, and to report the same to this Association at its next annual meeting.

I would take leave to say that this subject presented to the Association by Judge Thompson in his very able paper last year is, as all the members of the Association will see, one of very great practical importance in the administration of justice, state and federal, and all that the committee have attempted to do is to point out, in a more summary way than Judge Thompson did in his paper, some means of relief, with such suggestions as seemed proper to them; and they ask leave from the Association, after they have considered this report, and after discussing it as far as may seem proper, to refer the subject back, in order that we may present the draft of such amendments as may be found practicable, especially in reference to the provision of the revised statutes.

There is but one other subject which has been referred to this committee, upon which we have not reported, and in reference to which we ask to postpone our report until next year. It had reference to habitual criminals, that is, the best means of conducting proceedings in regard to, and relieving society from, the burden of habitual criminals. That subject we reserve until next year. The habitual criminal we have always with us, and he will probably keep until next summer, when we shall be prepared to report.

REPORT ON ABUSES OF THE WRIT OF HABEAS CORPUS.

To the President of the American Bar Association:

The Committee on Jurisprudence and Law Reform, to whom, at the last meeting of the Association, was referred the paper read by Hon. Seymour D. Thompson, on the "Abuses of the Writ of Habeas Corpus," to report "as to the