Page:Harvard Law Review Volume 12.djvu/563

543 INTERSTATE CRIME AND EXTRADITION. 543 man can be deprived of a valuable right without any opportunity of being heard. But it is only in a plain case that a judge would be justified in discharging an alleged fugitive upon this ground. If there is a conflict of evidence, yet if there is sufficient evidence to justify the Governor or the court in believing that the prisoner is a fugitive from justice, he should be extradited. (Re Kellar, 36 Fed. Rep. 681 ; Roberts v. Reilly, ii6 U. S. 80 ) " But if on the other hand it is made to appear clearly that the accused is not a fugitive within the meaning of the Constitution, he should be discharged. And upon this question of fact he is entitled to a full hearing." Qones v. Leonard, 50 Iowa, 106; Re Smith, 3 McLean, 121 ; Tenn. v. Jackson, 36 Fed. Rep. 258 ; Hartman v. Aveline, 65 Ind. 344 ; Wilcox v. Wolze, 34 Ohio St., 520 ; Re Mohr, 73 Ala. 503.) If judges of State courts, either because feeling constrained by the peculiar form of State statutes, or, for other reasons, do not effectuate the rights of an arrested person, under the Constitu- tion and statutes of the United States, the proper remedy would seem to be to apply to a Federal judge for another writ of habeas corpus. The technical rule appears to be established that " a deci- sion upon one writ refusing a discharge does not prevent the suing out of another writ from another court or officer." ^ In Mr. Moore's work on extradition (section 647) there is cited the instance of an arrested person, who, having been held for extradition by a State court, thereafter applied for a writ of habeas corpus to a United States court. The Federal judge arrived at the same conclusion as the State judge, holding the relator liable to extradition. The case is significant, however, as illustrating that Federal judges will entertain writs of habeas corpus for the discharge of prisoners although similar writs have already been discharged by State courts. The rule is well settled that the Federal courts ordinarily will not interfere by habeas corpus to inquire into the restraint of liberty of a person under authority of a State, because alleged to be in contraventipn of the Constitution, laws, or treaties of the United States. The policy of the Federal courts in such cases is to permit a prosecution in the State courts to pro- ceed to judgment, the prisoner being relegated to his right of raising any question of infringement of Federal privileges and immunities upon writ of error from the Supreme Court of the 1 Ex parte Kaine, 3 Blatchf. C. C. i ; Roberts v. Reilly, 116 U. S. 80; Re Mohr, 73 Ala. 503 ; Re Perkins, 2 Cal. 474 ; Re Ring, 28 Cal. 247.