being a fugitive is false he may be set free on habeas corpus.4 The fact of the executive issuing the warrant of arrest and removal is not conclusive proof that he had the necessary papers and that question is open to the courts on habeas corpus.5 It is held, however, in an early case that the warrant is conclusive proof that the party named stands charged with a crime in the demanding State.6 Whether the indictment or affidavit which accompanies the requisition substantially charges a crime is a question of law and open to judicial inquiry on habeas corpus.7 The court, however, will not deny extradition on matters of technical irregularity, if a crime is substantially set forth.8 The question of identity of the alleged fugitive is always open on habeas corpus.9 But the question of the actual guilt or innocence of the accused cannot be considered. 10 After the fugitive is delivered up, tried and convicted, the legality of his extradition will not be reviewed on habeas corpus.11

§ 1655. Penalty for resisting agent of demanding State.

Any agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year.

The above section was carried into the Revised Statutes from an act of 1793.13 The agent of the demanding State is not a Federal officer, although exercising an authority derived from United States laws; hence on habeas corpus before a State tribunal he may be compelled to produce the body of the alleged fugitive.14 Such agent, while acting within the scope of the authority conferred by this section, incurs no personal respon. sibility therefor.15

A. 99; Bruce v. Rayner, 124 Fed. 481; see also ex parte Brown, 28 Fed. 654.

4 Tennessee v. Jackson, 36 Fed. 258, 1 L.R.A. 370.

5 Ex parte Hart, 63 Fed. 249, 11 C. C. A. 165, 28 L.R.A. 801.

6In re Leary, 10 Ben. 216, Fed. Cas. No. 8,162; but see Ex parte Slauson, 73 Fed. 666.

7 Roberts v. Reilly, 116 U. S. 96, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; see In re Strauss, 126 Fed. 330, 63 C. C. A. 99.

8 See In re Roberts, 24 Fed. 132.

In re Leary, 10 Ben, 197, Fed. Cas. No. 8,162; In re White, 55 Fed. 54, 5 C. C. A. 29.

10In re Roberts, 24 Fed. 132; In re White, 55 Fed. 54, 5 C. C. A. 29; United States v. Greene, 100 Fed.

945.

11Eaton v. West Virginia, 91 Fed. 760, 34 C. C. A. 68.

13 Act Feb. 12, 1793, c. 7, § 2, 1 Stat. 302.

14 Robb v. Connolly, 111 U. S. 635, 28 L. ed. 545, 4 Sup. Ct. Rep. 544.

15 In re Titus, 8 Ben. 411, Fed. Cas. No. 14,062.

§ 1656. Extradition of fugitives found in District of Columbia. In all cases where the laws of the United States provide that fugitives from justice shall be delivered up, the Chief Justice of the Supreme Court of the District of Columbia shall cause to be apprehended and delivered up such fugitive from justice who shall be found within the District, in the same manner and under the same regulations as the executive authorities of the several States are required to do by the provisions of sections fifty-two hundred and seventy-eight and fifty-two hundred and seventy-nine, title sixty-six, of the Revised Statutes of the United States, "Extradition," and all executive and judicial officers are required to obey the lawful precepts or other process issued for that purpose, and to aid and assist in such delivery.

District of Columbia Code, § 930, 31 Stat.

§ 1657.

associate justice of district supreme court may act. Any associate justice of said court shall have like power, in case of the illness, absence or other disability of the chief justice or when any such application shall be certified to him by the chief justice.

District of Columbia Code, § 931, 31 Stat.

§ 1658. Extradition between United States and Philippine Isl

ands.

The provisions of sections fifty-two hundred and seventy eight and fifty-two hundred and seventy-nine17 of the Revised Statutes, so far as applicable, shall apply to the Phillipine Islands, which, for the purposes of said sections, shall be deemed a Territory within the meaning thereof.

§ 2 of act Feb. 9, 1903, c. 529, 32 Stat. 806, U. S. Comp. Stat. 1905, p. 164.

§ 1659.

Certification of fees and costs in extradition cases. All witness fees and costs of every nature in cases of extradition, including the fees of the commissioner, shall be certified by the judge or commissioner before whom the hearing takes place to the Secretary of State of the United States, who is hereby authorized to allow the payment thereof out of the appropriation to defray the expenses of the judiciary; and the Secretary of State shall cause

17 Ante, §§ 1654, 1655.

the amount of said fees and costs so allowed to be reimbursed to the government of the United States by the foreign government by whom the proceedings for extradition may have been instituted.

§ 4 of act Aug. 3, 1882, c. 378, 22 Stat. 216, U. S. Comp. Stat. 1901, p. 3595.

The above provision is superseded so far as providing the mode of pay. ment by a clause in an act of 1903 contained in the next following section of this Code.19

§ 1660. Fees and costs of foreign extradition, how payable.

From and after June 30, 1903, all the fees and costs in extradition cases shall be paid out of the appropriations to defray the expenses of the judiciary, and the Attorney General shall certify to the Secretary of State the amounts to be paid to the United States on account of said fees and costs in extradition cases by the foreign government requesting the extradition, and the Secretary of State shall cause said amounts to be collected and transmitted to the Attorney General for deposit in the Treasury of the United States.

Part of § 1, act June 28, 1902, c. 1301, 32 Stat. 475, U. S. Comp. Stat. 1905, p. 160.

The above is from the sundry civil appropriation act for the fiscal year ending June 30, 1903. The provision of the act of 1882, found in the preceding section,20 is largely superseded by this section.

19 Post, § 1660.

20 Ante, § 1659.

§ 1670.

§ 1671.

Supreme Court, circuit and district courts may issue writ.
Power of circuit court of appeals to issue.

§ 1674.

Rules limiting issuance of writ where prisoner in jail.

§ 1683.

§ 1684.

§ 1685.

§ 1686.

Notice to State's attorney when State prisoner claims exemption under international law.

To what courts appeals taken.

Action by State court or authority void while appeal pending.
Disposition of prisoner pending appeal where writ refused.

§ 1687. Disposition of prisoner if writ issued and then discharged.

§ 1688. Disposition of prisoner if ordered discharged by lower court. § 1689. Mode and scope of review.

§ 1669. When writ may be suspended.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Art. 1, § 9, clause 2, United States Constitution.

It is apparently undecided what department of the government has the right of suspending the writ. It has been held that only Congress has the right to suspend, but this ruling has not been followed.2 The War De

1Ex parte Merryman. Taney, 246, 2 Ex parte Field, 5 Blatchf. 63, Fed. Cas. No. 9,487; see also Ex parte Fed. Cas. No. 4,761. Bollman, 4 Cranch, 101, 2 L. ed. 563.

partment has been held to have no right to suspend the writ.3 It is held that the suspension of the privilege of the writ of habeas corpus does not suspend the writ itself, but after it issues and on return made, the court decides whether the party applying is denied the right of proceeding further.4

§ 1670. Supreme Court, circuit and district courts may issue writ. The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus.[a]-[d]

R. S. § 751, U. S. Comp. Stat. 1901, p. 592.

[a] In general.

Habeas corpus is a high prerogative writ known to the common law, the object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment, and is a civil and not a criminal proceeding, 8 even when instituted to arrest a criminal prosecution. The power to issue writs of habeas corpus is vested by the above section in the courts of the United States.10 The grant of jurisdiction is in language as broad as could well be employed. It is, however, attended by the general condition, necessarily implied, that the authority conferred must be exercised agreeably to the principles and usages of law.11 One under arrest but at large on bail is entitled to the writ the same as if the arrest was accompanied by actual imprisonment.12

[b] Rules of comity observed in issuance of writ.

The rules followed by the Federal courts in the matter of habeas corpus for the release of State prisoners where conflicts of jurisdiction might result from their interference are discussed in a previous section of this Code.15 Similar rules of comity prevail between different Federal courts and the power of one circuit court to review the judgment of another on habeas corpus is denied.16 These rules are important in practice, for while the right to apply for habeas corpus is absolute, the courts have found it necessary to circumscribe the cases in which applications will be enter

3 Ex parte Field, 5 Blatchf. 63, Fed. Cas. No. 4,761.

4 Ex parte Milligan, 4 Wall. 131, 18 L. ed. 299.

7Ex parte Watkins, 3 Pet. 202, 7 L. ed. 650.

8 Cross v. Burke, 146 U. S. 82, 36 L. ed. 898, 13 Sup. Ct. Rep. 22; Farnsworth v. Montana, 129 U. S. 113, 32 L. ed. 616, 9 Sup. Ct. Rep. 253; Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148.

9 Ex parte Tom Tong, 108 U. S. 556, 27 L. ed. 826, 2 Sup. Ct. Rep. 871.

10 Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 563; Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281.

11Ex parte Royall, 117 U. S. 247, 29 L. ed. 870, 6 Sup. Ct. Rep. 734.

12 Mackenzie v. Barrett, 141 Fed. 964; (C. C. A.) In re Grice, 79 Fed. 627; Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287.

15 Ante, § 18.

16 In re Eaton, 51 Fed. 806; In re Hale, 139 Fed. 504; see also ante, § 18.