Thompson in his paper-caused me to give some attention to it, before that paper was read. Some two or three years ago, a man had been convicted before the county court, which is a court of general jurisdiction, both civil and criminal-the highest court we have in our state where they have trials by jury. This man was convicted of passing counterfeit notes of a national bank, and sentenced to the penitentiary. He was brought out by a writ of habeas corpus, before the United States District Court Judge,-a most learned judge, by the way-and he was discharged, upon the ground that the county court had no jurisdiction over the offense. The result of that decision is, that the jurisdiction over the crime of counterfeiting, or passing counterfeit money, has wholly departed from state courts everywhere, because the same decision that he made in reference to the passing of counterfeit national bank bills would apply with still stronger reason to the only other kind of paper money we have-United States notes, and to United States coin. The decision was put upon the ground that Congress, under the revised statutes, at least, had given exclusive jurisdiction of that offense to the Circuit Court of the United States. He seemed to labor under some misapprehension that there was a kind of concurrent jurisdiction, or might be, over an offense that was created by a law of Congress. I might further say, that in our state, our legislature had expressly provided that counterfeiting, or passing counterfeit bills of a national bank, should be an offense against the state of Vermont. But I will not take any time to argue about the unsoundness of his decision. What troubled me in reference to it was, that the lowest class of federal judges, district judges, were thereby turned into courts of error, to overthrow the final judgments of the highest jurisdiction of the state; and from them there is no appeal. There have been other instances in other parts of the United States of far more flagrant cases

than this in Vermont. Within the last year, the United States District Judge in the state of Oregon, released a man who had been convicted and sentenced for keeping a gambling house, in violation of an ordinance of some town in that state. The man was brought before the judge on a writ of habeas corpus. The judge decided that the ordinance was invalid because it went beyond what the general law of the state authorized. But the way that he obtained jurisdiction, was by putting it upon the ground that the man was unlawfully imprisoned, because the ordinance was invalid, and, therefore, he was imprisoned in violation of the Fourteenth Amendment of the Constitution.

That interpretation would give to a United States judge the most unlimited jurisdiction. So I gave my attention to this subject in the last session of Congress, and considered a good many ways of reaching the difficulty, but I finally satisfied myself that all that could practically be done was to restore the appeal to the Supreme Court of the United States, which was given by this broad act of 1867.

How many of you gentlemen have had occasion to look into this habeas corpus history, I do not know. Up to the year 1833, the jurisdiction of United States judges and courts in matters of habeas corpus was very limited. It was limited wholly to cases, where persons were in custody under process of the United States courts. In 1833, the time of the nullification difficulty, by an act that was then passed, this jurisdiction was given to the courts of the United States to relieve United States Revenue officers who had been prosecuted for acts done as officers, in state courts. There was no further alteration or extension of the jurisdiction, until after the McLeod difficulty in this state, when an act was passed, providing for cases of that sort. But none has ever arisen since then that I have heard of. It ran along until after the war was over. In 1867, Congress passed an

act which, very broadly, extended the federal jurisdiction. It was extended to all cases of imprisonment of "persons in custody in violation of the Constitution, or of any law or treaty of the United States," and all difficulties that have been pointed out by Judge Thompson, and by the report of. our committee, have grown up under that act.

I had something to do with the passage of that act. It was deemed necessary at that time, and probably was necessary in certain portions of the country, that the judges and courts of the United States should be vested with all the jurisdiction that could be given to them under the constitution; but it was known that that jurisdiction might be very widely extended. Therefore, that act of 1867 provided that where a case was brought before a single judge, an appeal should be to the next regular term of the circuit court in that district, and that from the decision of the circuit court, an appeal should lie to the Supreme Court of the United States. Within a year after the passage of that act, there came up the famous case of McArdle, who was imprisoned in Mississippi under an order of some military governor, and took out a writ of habeas corpus before the district judge, who decided against him. He appealed to the circuit. court with the same result. From there he appealed to the Supreme Court. After the case was argued in the Supreme Court, and while the court held it under advisement, that portion of the act of 1867, which allowed an appeal to the Supreme Court, became very suddenly repealed, and that court held that the repeal operated upon that case.

Since that time-since the decision of these inferior federal judges has been left to be final-they have lived up to the old saying of a good judge,, that he "enlarges his jurisdiction."

Accordingly, I introduced a bill in the House last session, which was referred to the Judiciary Committee, was unani

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.

If, therefore, it were provided by act of Congress that the rulings of the Commissioner in extradition cases should be subject to review by such a Court, the law might safely provide, further, that the prisoner should not have the benefit of a writ of habeas corpus issued by any Federal tribunal. In this way, your Committee submit, the rights of the prisoner would be amply guarded; while the executive of the government would not be embarrassed in the discharge of diplomatic functions, but simply aided in that discharge by the advice of its own court.

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 constitutions 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.

This class of cases may be best illustrated by the decision of the Supreme Court of the United States made May 5, 1884, in Robb vs. Connolly, 106 U. S., 624.

In that case one Bayley was arrested in San Francisco by virtue of a warrant issued by the Governor of California, in pursuance of a requisition by the Governor of Oregon. Bayley thereupon sued out a writ of habeas corpus from the Judge of the Superior Court for the City and County of San Francisco, to which Robb (who was the officer empowered by the Governor of Oregon to receive Bayley from the Governor of California) made return that he held Bayley "under the authority of the United States," and as evidence thereof he produced a copy of the warrant from the Governor of California and his commission from the Governor of Oregon. He declined to produce Bayley, on the ground that the Superior Court of San Francisco had "no power or authority to proceed in the premises." For this refusal Robb was committed for contempt; whereupon he sued out a writ of habeas corpus from the Supreme Court of California. Upon a hearing the writ was dismissed, and Robb was remanded to the custody of the sheriff, the decision of the Court being put upon the ground that Robb should have at least obeyed the writ so far as to produce Bayley in Court, so that the Court might have inquired into the cause of his detention.