apprehension and commitment for trial if the offense had been committed in such place, the law of the state in which he is found will be the law of the place by which the proceeding will be governed. 183 § 352. Evidence on behalf of fugitive. On his examination before a magistrate the fugitive has the right to produce witnesses in his own behalf.184 Evidence of insanity may be received to rebut the presumption of guilt.185 On a charge of attempt to commit murder, where it was alleged by the prisoner that he was acting in obedience to the command of a superior officer, and that his victim was the aggressor, it was held that these were matters of justification and defense which could properly be determined only by a trial in the country seeking his extradition. 186 It is not necessary that the evidence should be conclusive, or that the commissioner should be absolutely convinced of the guilt of the accused, but it will be sufficient if the prisoner is held on competent legal evidence, and there is probable cause for believing him guilty of the offense with which he is charged.187 § 353. Habeas corpus proceedings.-Writs of habeas corpus may be granted by the federal courts when it appears that a person is deprived of his liberty in violation of a law or a treaty of the United States, and where it is sought to try a person for an offense other than that for which he was surrendered, a writ may issue. 188 It is a settled rule that a writ of habeas corpus cannot perform the office of a writ of error. If the committing magistrate has jurisdiction of the subject matter, and if the offense charged is within the terms of the treaty, and there is competent legal evidence before him sufficient to authorize him. 183 Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. Rep. 657, 48 L. ed. 938; In re Frank, 107 Fed. 272. 184 In re Farez, 7 Blatchf. 345, Fed. Cas. No. 4645; In re Henrich, 5 Blatchf. 414, Fed. Cas. No. 6369; Ex parte Ross, 2 Bond, 252, Fed. Cas. No. 12,069; In re Kelley, 25 Fed. 268. 185 Phillips, 6 Op. Atty. Gen. 642. 186 In re Cienfuegos, 62 Fed. 972. The Department of State refused to surrender. the prisoner, for the reason that the crime for which he was committed was not mentioned in the requisition for his extradition, the crimes there specified being murder, arson and robbery. American Law Rev., January, February, 1895, 8. 187 United States v. Piaza, 133 Fed. 998. 1s8 Cohn v. Jones, 100 Fed. 639. 189 to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purpose of extradition, his decision will not be reviewed on habeas corpus.' Ordinarily, the federal courts will not interfere with a prosecution pending in a state court until the party whose rights are invaded has exhausted every remedy for relief which the laws of the state afford. 19 190 159 Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. Rep. 689, 40 L. ed. 787; Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. Rep. 484, 46 L. ed. 534; Bryant v. United States, 167 U. S. 104, 17 Sup. Ct. Rep. 744, 42 L. ed. 94; In re Krojanker, 44 Fed. 482; In re Adutt, 55 Fed. 376; Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. Rep. 302, 45 L. ed. 448. 190 Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. Rep. 297, 40 L. ed. 406; New York v. Eno, 155 U. S. 89, 15 Sup. Ct. Rep. 30, 39 L. ed. 80; Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734, 29 L. ed. 868; Baker v. Grice, 169 U. S. 284, 18 Sup. Ct. Rep. 323, 42 L. ed. 748; Minnesota v. Brundage, 180 U. S. 499, 21 Sup. Ct. Rep. 455, 45 L. ed. 639; Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544, 28 L. ed. 542; United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, 30 L. ed. 425; Ex parte Collins, 154 Fed. 980, In Whitten v. Tomlinson, 160 U. S. 231, 240-242, 16 Sup. Ct. Rep. 297, 40 L. ed. 406, it is said: "The power thus granted to the courts and judges of the United States clearly extends to prisoners held in custody, under the authority of a State, in violation of the Constitution, laws or treaties of the United States. But in the exercise of this power the courts of the United States are not bound to discharge by writ of habeas corpus every such prisoner. "The principles which should gov ern their action in this matter were stated upon great consideration, in the leading case of Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734, 29 L. ed. 868, and were repeated in one of the most recent cases upon the subject, as follows: "We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recog nition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution. 'Where a person is in custody, under process from a state court of original jurisdiction, for an alleged offense against the laws of § 354. Appeal and not writ of error.-Where the construction of a treaty of extradition is involved, an appeal, and not a writ of error, from a decision of a district court denying an application for a discharge upon a writ of habeas corpus is authorized by such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinate to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the Circuit Court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the State, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States.' Ex parte Royall, 117 U. S. 241, 251-253, 6 Sup. Ct. Rep. 734, 29 L. ed. 868; New York v. Eno, 155 U. S. 89, 93-95, 15 Sup. Ct. Rep. 30, 39 L. ed. 80. "In Ex parte Royall and in New York v. Eno, it was recognized that in cases of urgency, such as those of prisoners in custody, by authority of a State, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the authority and operations of the general government, or its relations to foreign nations, the courts of the United States should interpose by writ of habeas corpus. "Such an exceptional case was In re Neagle, 135 U. S. 1, 10 Sup. Ct. Rep. 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. "Such was In re Loney, 134 U. S. 372, 10 Sup. Ct. Rep. 584, 33 L. ed. 949, in which a person arrested by order of a magistrate of a State, for perjury in testimony given in the case of a contested Congressional election, was discharged on habeas corpus, because a charge of such perjury was within the exclusive cognizance of the courts of the United States, and to permit it to be prosecuted in the state courts would greatly impede and embarrass the administration of justice in a national tribunal. "Such, again, was Wildenhaus' Case, 120 U. S. 1, 7 Sup. Ct. Rep. 385, 30 L. ed. 565, in which the question was decided on habeas corpus whether an arrest, under authority of a State, of one of the crew of a foreign merchant vessel, charged with the commission of a crime on board of her while in a port within the State, was contrary to the provisions of a treaty between the United States and the country to which the vessel belonged. the act providing for the creation and jurisdiction of the court of appeals. The fact that it becomes essential or proper for a federal circuit court to construe the acts of Congress passed for the purpose of effectuating the provisions of an extradition "But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this Court." In Baker v. Grice, 169 U. S. 284, 18 Sup. Ct. Rep. 323, 42 L. ed. 748, violation of a Texas statute against the petitioner was charged with the trusts. He was discharged on habeas corpus by the circuit court on the ground that the statute conflicted with the constitution of the United States. But the supreme court of the United States reversed this action saying: "The court below had jurisdiction to issue the writ and to decide the questions which were argued before it. Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734, 29 L. ed. 868; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. Rep. 297, 40 L. ed. 406. In the latter case most of the prior authorities are mentioned. From these cases it clearly appears, as the settled and proper procedure, that while Circuit Courts of the United States have jurisdiction, under the circumstances set forth in the foregoing statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency; and that instead of discharging they will leave the prisoner to be dealt with by the courts of the State; that after a final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court 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, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued. Such are the cases In re Loney, 134 U. S. 372, 10 Sup. Ct. Rep. 584, 33 L. ed. 949, and In re Neagle, 135 U. S. 1, 10 Sup. Ct. Rep. 658, 34 L. ed. 55, but the reasons for the interference of the Federal court in each of those cases were extraordinary, and presented what this court regarded as such exceptional facts as to justify the interference of the Federal tribunal. Unless this case be of such exceptional nature, we ought not to encourage the interference of the Federal court below with the regular course of justice in the state court.' In Minnesota v. Brundage, 180 U. S. 499, 503, 21 Sup. Ct. Rep. 455, 45 L. ed. 639, the court, after referring to cases that are exceptions to the general rule, said: "The present case does not come within any of the exceptions to the general rule announced in the cases above cited. It is not, treaty will have no effect on the power of the supreme court of the United States to review the judgment if the determination of the case depends, in part, on the construction of the treaty.19 191 § 355. Consul may appeal.-Upon a complaint made by the Mexican consul under oath, certain persons were committed for extradition to Mexico. They applied for a writ of habeas corpus, and they were granted a discharge on the ground that the offenses with which they were charged were political. The consul took an appeal to the supreme court of the United States, and the question was raised that he was not the real party interested, but the court held that he might properly prosecute the appeal, as the government of Mexico was the real party interested.199 § 356. Conflicting evidence.-Although the evidence placed before the commissioner may be conflicting and far from producing conviction, the court will not, on habeas corpus, review the decision reached by him.193 Writs of habeas corpus cannot put an end to proceedings for extradition regularly and constitu in any legal view, one of urgency. The accused does not, in his application, state any reason why he should not be required to bring the question involved in the prosecution against him before a higher court of the State and invoke its power to discharge him if in its judgment he is restrained of his liberty in violation of the Constitution of the United States. It cannot be assumed that the state court will hesitate to enforce any rights secured to him by that instrument; for upon them equally with the courts of the Union rests the duty to maintain the supreme law of the land. Robb v. Connolly, 111 U. S. 624, 637, 4 Sup. Ct. Rep. 544, 28 L. ed. 542. If the state court declined to recognize the Federal right specially claimed by the accused, the case could be brought here for review."' 191 Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. Rep. 406, 45 L. ed. 577; Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. Rep. 657, 48 L. ed. 938. The fifth section of the act of 1891 permits an appeal directly from the district court to the supreme court of the United States "in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.' 26 Stats. at Large, 828. 192 Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. Rep. 689, 40 L. ed. 789. See, also, Mali v. Hudson County Common Jailkeeper, 120 U. S. 1, 7 Sup. Ct. Rep. 385, 30 L. ed. 565. 193 Sternaman v. Peck, 80 Fed. 883, 26 C. C. A. 214. |