None of the courts of the United States have authority to grant the writ for the pur pose of inquiring into the cause of commit ment, where the prisoner is imprisoned un der process issued from the state courts, ex cepting where he is denied, or cannot en force, in the judicial tribunals of the state, any right secured to him by any law provid ing for the equal civil rights of citizens of the United States; R. S. § 641; Texas v. Gaines, 2 Woods 342, Fed. Cas. No. 13,847. It was refused by the supreme court where the party for whose benefit the application was made had been convicted in a state court of levying war against the state ; Ex parte Dorr, 3 How. (U. S.) 103, 11 L. Ed. 514. Federal courts will proceed with great cau tion upon applications for writ of habeas cor pus in behalf of a person imprisoned under process of the state courts, and, when prac ticable, will investigate the questions raised before issuing the writ; In re Jordan, 49 Fed. 238. See also paper by Seymour D. Thompson on the abuse and too rigorous use of the writ of habeas corpus by the federal judges; 6 Rep. Am. Bar. Assoc. 243.
It was refused by the circuit court where the petitioner, a secretary attached to the Spanish legation, was confined under crimi nal process issued under the authority of the state of Pennsylvania ; Ex parte Cabrera, 1 Wash. C. C. 232, Fed. Cas. No. 2,278; also where the petitioner, a British seaman, was arrested under the authority of an act of the legislature of the state of South Carolina, which was held to conflict with the constitu tion of the United States ; Ex parte Elkison, 2 Wheel. Cr. Cas. 56, Fed. Cas. No. 4,366; and where the only question involved was the identity of a state prisoner, and no di versity of citizenship was involved; Ex parte Moebus, 148 Fed. 39; or the prisoner is regu larly under indictment in the state court; Ex parte Glenn, 103 Fed. 947.
It will be granted, however, where the im prisonment, although by a state officer, is under or by color of the authority of the United States, as where the prisoner was arrested under a governor's warrant as a fugitive from justice of another state, requi sition having been regularly made; Ex parte Smith, 3 McLean 121, Fed. Cas. No. 12,968; or where extradited under a treaty with a foreign country upon the charge of a certain offence for which he was afterwards tried and acquitted, and immediately thereafter he was arrested under a charge entirely sep arate and distinct from the former one; In re Reinitz, 39 Fed. 204, 4 L. R. A. 236. It will also be granted where United States marshals or their deputies are arrested by state authority for using force or threats in executing process of the federal courts; U. S. v. Fullhart, 47 Fed. 802; but see In re Marsh, 51 Fed. 277. Federal judges should grant writs to persons imprisoned for any act done in pursuance of a law of the United States; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55.
The power of the federal courts to issue the writ is confined to cases in which the prisoner is in custody under or by order of the authority of the United States, or is committed for trial before some court there of, or is in custody for an act done or omit ted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof ; or is in custody in violation of the constitution, or of a law or treaty of the United States, or being a sub ject or citizen of a foreign state, and domi ,ciled therein, is in custody for an act done or omitted under any alleged right, title, au thority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof de pend upon the law of nations; or where it is necessary to bring the prisoner into court to I testify ; R. S. § 753.
The circumstances under which the writ will be issued are stated and the authorities collected in Ex parte Collins, 149 Fed. 573.
Proper use of the writ. The true use of the writ is to cause a legal inquiry into the cause of imprisonment, and to procure the release of the prisoner where that is found to be illegal.
The writ cannot be made use of to per form the function of a writ of error or an appeal ; In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689 ; Felts v. Murphy, 201 U. S. 123, 26 Sup. Ct. 366, 50 L. Ed. 689; Welty v. Ward, 164 Ind. 457, 73 N. E. 889, 3 Ann. Cas. 556; Ex parte Powers, 129 Fed. 985; In re Dowd, 133 Fed. 747 ; Ex parte Mitchell, 104 Mo. 121, 16 S. W. 118, 24 Am. St. Rep. 324; Ex parte McMinn, 110 Fed. 954 ; In re Langston, 55 Neb. 310, 75 N. W. 828; In re Ammon, 132 Fed. 714; In re Wy man, 132 Fed. 708; Ex parte Collins, 149 Fed. 573 ; Storti v. Massachusetts, 183 U. S. 138, 22 Sup. Ct. 72, 46 L. Ed. 120 ; In re Mc Kenzie, 180 U. S. 536, 21 Sup. Ct. 468, 45 L. Ed. 657 ; not even to test the constitutionality of the law under which the imprisonment was imposed under a mittinnus issued on final judgment of a court of competent jurisdic tion; People v. Jonas, 173 Ill. 316, 50 N. E. 1051; and a federal court will not interfere by issuing the writ so long as the remedy by writ of error from the supreme court to the highest state court is not exhausted; Ex parte Chadwick, 159 Fed. 576; Minnesota v. Brundage, 180 U. S. 499, 21 Sup. Ct. 455, 45 L. Ed. 639 ; Riggins v. U. S., 199 U. S. 547, 26 Sup. Ct. 147, 50 L. Ed. 303 ; but where the case is one of which the public interest demands a speedy determination and the ends of justice will be promoted thereby, the supreme court may proceed to final judg ment on appeal from the 03rder of the circuit court denying the relief ; Appleyard v.. Mas sachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161; and while the federal court to which the application is made will usually leave the petitioner to the ordinary course of proceedings, there are exceptional cases in which the federal court or judge may some times interfere, such for instance as cases "involving the authority and power of the general government or the obligations of this country to or its relations with foreign nations"; Urguhart v. Brown, 205 U. S. 179, 27 Sup. Ct. 459, 51 L. Ed. 760. The writ only challenges the jurisdiction or power to commit, and may not be invoked merely to review ; In re Nevitt, 117 Fed. 448, 54 C. C. A. 622a Where the state court has jurisdic tion of the crime under a statute not repug nant to the Constitution or a treaty or law thereunder, habeas corpus cannot be made a means of review ; Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399.