Petitioner claims his discharge upon the ground that he is accused of having illegally received a deposit in his bank at Juneau, when in fact he had not been in Juneau within three weeks before the deposit was received, and that, at the time it was received, which was about 4 o'clock in the afternoon of June 20, 1890, he was in Illinois, and had been in that state for more than two hours before the deposit was received. He had in fact left Beaver Dam, Wis., at an early hour that day, and traveled continuously to Chicago, not stopping at Juneau, and having no actual knowledge of the illegal deposit charged. Upon this state of facts petitioner insists that his journey from Wisconsin to Illinois was not a 'fleeing from justice,' within the meaning of article 4, § 2, of the constitution; that it is essential to the jurisdiction of the trial court that he should have been a fugitive from justice; and hence that the circuit court of Dodge county was without authority to try him for the offense charged, and he should therefore be relieved from its custody upon this writ of habeas corpus.

We regard this case as controlled in all its essential features by those of Kerr v. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225, and Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204. The former case arose upon a writ of error to the supreme court of Illinois. The petitioner had pleaded, in abatement to an indictment for larceny in the criminal court of Cook county, that he had been kidnapped from the city of Lima, in Peru, forcibly placed on board a vessel of the United States in the harbor of Callao, carried to San Francisco, and sent from there to Illinois upon a requisition made upon the governor of California. After disposing of the point that he had not been deprived of his liberty without 'due process of law,' the court intimated, in reply to an objection that the petitioner was not a fugitive from justice in the state of California, that 'when the governor of one state voluntarily surrenders a fugitive from the justice of another state to answer for his alleged offenses, it is hardly a proper subject of inquiry on the trial of the case to examine into the details of the proceedings by which the demand was made by the one state, and the manner in which it was responded to by the other.' The court further held that the petitioner had not acquired by his residence in Peru a right of asylum there, a right to be free from molestation for the crime committed in Illinois, or a right that he should only be removed thereto in accordance with the provisions of the treaty of extradition; and winds up the opinion by observing that 'the question of how far his forcible seizure in another country, and transfer by violence, force, or fraud to this country, could be made available to resist trial in the state court for the offense now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the consititution or laws or treaties of the United States guaranty him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense. * * * However this may be, the decision of that question is as much within the province of the state court as a question of common law, or of the law of nations, of which that court is bound to take notice, as it is of the courts of the United States.'

The case of Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204, arose upon an application of the governor of West Virginia to the district court of the United States for the district of Kentucky for the release of Mahon upon a writ of habeas corpus, upon the ground that he had been, while residing in West Virginia, and in violation of her laws, without warrant or other legal process, arrested by a body of armed men from Kentucky, and, by force and against his will, carried out of the state to answer to a charge of murder in the state of Kentucky. As stated in the opinion of the court, the governor 'proceeded upon the theory that it was the duty of the United States to secure the inviolability of the territory of the state from a lawless invasion of persons from other states, and, when parties had been forcibly taken from her territory and jurisdiction, to afford the means of compelling their return.' This court held that, while the accused had the right, while in West Virginia, of insisting that he should not be surrendered to the governor of Kentucky, except in pursuance of the acts of congress, and was entitled to release from any arrest in that state not made in accordance with them, yet that, as he had been subsequently arrested in Kentucky under the writs issued under the indictments against him, the question was not as to the validity of the arrest in West Virginia, but as to the legality of his detention in Kentucky. 'The only question, therefore,' said the court, 'presented for our determination is whether a person indicted for a felony in one state, forcibly abducted from another state and brought to the state where he was indicted by parties acting without warrant or authority of law, is entitled, under the constitution or laws of the United States, to release from detention under the indictment by reason of such forcible and unlawful abduction.' After a full review of all the prior authorities upon the point, the court came to the conclusion that the jurisdiction of the court of the state in which the indictment was found was not impaired by the manner in which the accused was brought before it. 'There is, indeed,' said the court, 'an entire concurrence of opinion as to the ground upon which a release of the appellant in the present case is asked, namely, that his forcible abduction from another state, and conveyance within the jurisdiction of the court holding him, is no objection to his detention and trial for the offense charged. They all proceed upon the obvious ground that the offender against the law of the state is not relieved from liability because of personal injuries received from private parties, or because of indignities committed against another state.'

There was a vacancy in the office of chief justice at the time, and two members of the court (Mr. Justice Bradley and Mr. Justice Harlan) dissented upon the ground that the constitution had provided a peaceful remedy for the surrender of persons charged with crime; that this clearly implied that there should be no resort to force for this purpose; that the cases upon which the court relied had arisen where a criminal had been seized in one country and forcibly taken to another for trial, in the absence of any international treaty of extradition; and that, as the application in that case was made by the governor of the state whose territory had been lawlessly invaded, he was entitled to a redelivery of the person charged.

These cases may be considered as establishing two propositions: (1) That this court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one state to that of another, where they are held under process legally issued from the courts of the latter state; (2) that the question of the applicability of this doctrine to a particular case is as much within the province of a state court, as a question of common law or of the law of nations, as it is of the courts of the United States.

An attempt is made to distinguish the case under consideration from the two above cited, in the fact that those were cases of kidnapping by third parties, by means of which the accused were brought within the jurisdiction of the trial state, and the state had not acted, as here, under legal process, or been in any way a party to the proceedings; that they were cases of tort, for which the injured parties could sue the tort feasors, while in the case under consideration the action is under and by virtue of an act of congress, and hence the party can ask this court to inquire whether the power thus invoked was properly exercised. The distinction between cases of kidnapping by the violence of unauthorized persons without the semblance of legal action, and those wherein the extradition is conducted under the forms of law, but the governor of the surrendering state has mistaken his duty, and delivered up one who was not in fact a fugitive from justice, is one which we do not deem it necessary to consider at this time. We have no doubt that the governor upon whom the demand is made must determine for himself, in the first instance, at least, whether the party charged is in fact a fugitive from justice, (Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. Rep. 1148; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. Rep. 291;) but whether his decision thereon be final is a question proper to be determined by the courts of that state. A proceeding of that kind was undertaken in this case when Cook applied to the state circuit court of Chicago to obtain a writ of habeas corpus to test the legality of his arrest. Upon the hearing of this writ the court decided the arrest to be legal, and remanded Cook to the custody of the sheriff, by whom he was delivered to the defendant as executive agent of the state of Wisconsin. Cook acquiesced in this disposition of the case, and made no attempt to obtain a review of the judgment in a superior court. Long after his arrival in Wisconsin, however, and after the trial of his case had begun, he made this application to the circuit court of the United States for that district upon the ground he had originally urged, namely, that he was not a fugitive from justice, within the meaning of the constitution and laws of the United States. That court decided against him, holding that he had been properly surrendered.

It is proper to observe in this connection that, assuming the question of flight to be jurisdictional, if that question be raised before the executive or the courts of the surrendering state, it is presented in a somewhat different aspect after the accused has been delivered over to the agent of the demanding state, and has actually entered the territory of that state, and is held under the process of its courts. The authorities above cited, if applicable to cases of interstate excited, if applicable to cases of interstate extradition, where the forms of law have been that the executive warrant has spent its force when the accused has been delivered to the demanding state; that it is too late for him to object even to jurisdictional defects in his surrender; and that he is rightfully held under the process of the demanding state. In fact it is said by Mr. Justice Miller in Kerr v. Illinois, 119 U. S. 441, 7 Sup. Ct. Rep. 225, that 'the case does not stand where the party is in court, and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California.' Some reasons are, however, suggested for holding that, if he were not in fact a fugitive from justice, and entitled to be relieved upon that ground by the courts of the surrendering state, he ought not to be deprived of that right by a forced deportation from its territory before he could have an opportunity of suing out a writ of habeas corpus. That question, however, does not not necessarily arise in this case, since the record before us shows that he did sue out such writ before the criminal court of Cook county, and acquiesced in its decision remanding him to the custody of the officer.

As the defense in this case is claimed to be jurisdictional, and, in any aspect, is equally available in the state as in the federal courts, we do not feel called upon at this time to consider it, or to review the propriety of the decision of the court below. We adhere to the views expressed in Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734, and Ex parte Fonda, 117 U. S. 516, 6 Sup. Ct. Rep. 848, that, where a person is in custody under process from a state court of original jurisdiction for an alleged offense against the laws of that state, and it is claimed that he is restrained of his liberty in violation of the constitution of the United States, the circuit court of the United States has a discretion whether it will discharge him in advance of his trial in the court in which he is indicted, although this discretion will be subordinated to any special circumstances requiring immediate action. While the federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the federal constitution or laws, they are not bound to exercise such power even after a state court has finally acted upon the case, but may, in their discretion, require the accused to sue out his writ of error from the highest court of the state, or even from the supreme court of the United States. As was said in Robb v. Connolly, 111 U. S. 624, 637, 4 Sup. Ct. Rep. 544: 'Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them.' We are unable to see in this case any such special circumstances as were suggested in the case of Ex parte Royall as rendering it proper for a federal court to interpose before the trial of the case in the state court. While the power to issue writs of habeas corpus to state courts which are proceeding in disregard of rights secured by the constitution and laws of the United States may exist, the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are, equally with the federal courts, charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the federal court will remain unimpaired. So far from there being special circumstances in this case to show that the federal court ought to interfere, the fact that, with ample opportunity to do so, he did not apply for this writ until after the jury had been sworn and his trial begun in the state court, is of itself a special circumstance to indicate that the federal court should not interpose at this time.

The judgment of the court below refusing the discharge is therefore affirmed.