of payment for a definite period for a valuable consideration. See Aud v. Magruder, 10 Cal. 282; Shriver v. Lovejoy, 32 id. 575; Damon v. Pardow, 34 id. 278; Sichel v. Carrillo, 42 id. 493; Harlan v. Ely, 55 id. 344. The decision in the case of Aud v. Magruder, to which the subsequent cases generally refer, was rendered to controvert and to overrule a former decision of the same court in the case of Bryan v. Berry, 6 Cal. 394, in which case it had been assumed that the obligation of a surety was that of a mere guarantor or indorser and it was held, as it is held everywhere, that the obligation of a surety to the payee or holder is the same as that of the principal, which obligation is to pay the note when it becomes due. No one ever supposed that this obligation could be escaped unless the payee or holder, with full knowledge, by some act or omission, released the surety. Mere proof that one of the parties signed as surety is not material, and is no defense, because such proof does not in any manner affect his contract or obligation; but if the payee or holder, knowing that one of the makers of the note was surety merely, enters into a valid contract with the principal, whereby the contract of the surety is varied or changed without his consent, then the surety is discharged, and in order to show that the surety has been so discharged by the act of the payee or holder, it is competent to prove the fact of suretyship by parol, and that the payee or holder had knowledge of such fact when he entered into the new contract, whereby the surety was discharged. We do not think any decision in California holds to the contrary. | the first question, admitting that a request and failure to prosecute has been shown, is the security exonerated from liability? Such a state of facts did not discharge the surety in England. His remedy was to pay the debt himself and then sue the principal, or perhaps he might, by bill in chancery, compel the creditor to proceed against the principal. Chancellor Kent says: There is no case in the English law in which the personal application of the surety was held to be compulsory on the creditor at the hazard of discharging the surety.' 2 Johns. Ch. 562. "There was a departure from the English rule on this subject in Pain v. Packard, 13 Johns. 174, and in that case the surety was held to be discharged. But this case was combatted and overruled by Chancellor Kent in King v. Baldwin, 2 Johus. Ch. 554. The case was appealed, and in the Court of Errors reversed by the casting vote of the lieutenant governor, who, like many senators voting on the question, was a layman. This fact detracts very much from the weight of the decision as authority, and the arguments of Chancellor Kent in the Court of Chancery, and of Senator Van Vechten in the Court of Errors, against the principle announced in the case, appear to us conclusive. "The courts of New York have since followed the case of King v. Baldwin, while they have disapproved of the principle established by it. Mr. Justice Cowen, in commenting on this case in Herrick v. Borst, 4 Hill, 656, says: What principle such a defense should ever have found to stand upon in any court it is difficult to see. It introduces a new term into the creditor's contract. It came into this court without precedent, was afterward repudiated by a court of chancery, as it always has been at law and in equity in England, but was restored on a tie vote in the Court of Errors, turned by the casting vote of a layman.' "Platt and Yates, JJ., took that occasion to acknowledge that they had erred in Pain v. Packard, as SenatorVan Vechten showed most conclusively that the whole court had done, yet he followed the case on the ground 'that the error had become inveterate.' 2. As to the second question, "the great majority of the cases on the subject hold, in the absence of any statutory provision, that if, after the debt is due, the surety request the creditor to sue the principal, who is then solvent, and the creditor fails to do so, and the principal afterward becomes insolvent, the surety is not thereby discharged. The ground upon which these decisions rest is that the principal and surety are both equally bound to the creditor, who may have taken a surety in order that he might not have to sue the principal." Brandt Sur & Guar. 208, referring to Jenkins v. Clarkson, 7 Ohio, 72; Carr v. Howard, 8 Blackf. 190; Halstead v. Brown, 17 Ind. 202; Ex'rs of Dennis v. Rider, 2 McL. 451; Davis v. Huggins, 3 N. H. 231; Pickelt v. Land, 2 Bailey (S. C.), 608; Nichols v. McDowell, 14 B. Monr. (Ky.) 5; Frye v. Barker, 4 Pick. 382; Stout v. Ashton, 5 T. B. Monr. (Ky.) 251; Gage v. Bank, 79 Ill. 62; Dillon v. Russell, 5 Neb. 484; Inkster v. Bank, 30 Mich. 143; Langdon v. Markle, 48 Mo. 357; Hartman v. Burlingame, 9 Cal. 557; Dune v. Corduan, 24 id. 157: Hickok v. Bank, 35 Vt. 476; Hogaboom v. Herrick, 4 id. 131; Caston v. Dunlap, Rich. Eq. Cas. 77; Croughton v. Duval, 3 Call (Va.), 69; Boutte v. Martin, 16 La. 133; Taylor v. Beck, 13 Ill. 376; Huey v. Pinney, | cited; 1 Pars. Bills & Notes, 236, and notes and cases 5 Minn. 310 (Gil. 246); Bizzell v. Smith, 2 Dev. Eq. (N. | C.) 27; Thompson v. Bowne, 39 N. J. L. 2; Hogshead v. Williams, 55 Ind. 145; Harris v. Newell, 42 Wis. 687; Pintard v. Davis, 1 Spenc. (N. J.) 205; S. C., 1 Zab. (N. J.) 632. When a surety signs a promissory note his promise is absolute and unconditional to pay the same when it becomes due, and there is no escape from this promise unless the payee or holder releases him. He does not promise that he will pay if the payee or holder fails to collect the note by an action against the principal. The payee or holder does not receive the note with an implied promise that he will exhaust his remedy against the principal before proceeding against the surety. The obligation of the surety is to pay according to the terms of his promise, and he may protect himself by paying and then proceeding against the principal, and that is his remedy. In the case of Dane v. Corduan, 24 Cal. 164, the court reviews the authorities and holds as follows. "As to "The courts of Pennsylvania have also followed King v. Baldwin, but they assign as a reason for so doing that in Pennsylvania there is no court of chancery, and the common-law courts exercise chancery powers to a very limited extent; that for this reason a surety in that State cannot, as in other States, compel the creditor to sue the principal. He is therefore without remedy unless he can protect himself in this mode. In some other States King v. Baldwin has been followed. In some the rights and remedies of sureties are regulated by statute, and in others the doctrine of King v. Baldwin has been entirely repudiated. Bull v. Allen, 19 Conn. 106; 2 Am. Lead. Cas. 270, and cases cited. "When a party contracts jointly with another, as in this case, as between himself and the creditor, he is a principal debtor; he expressly undertakes to pay the debt. It is his duty, both morally and legally, to pay it; and we are of the opinion that the weight, both of authority and reason, is decidedly in favor of the proposition that the failure of the creditor to sue when requested so to do by the surety does not operate to discharge the surety from his liability. This was evidently the opinion of the late Supreme Court of this State. Hartman v. Burlingame, 9 Cal. 561, and Humphreys v. Crane, 5 id. 175." In Harris v. Newell, 42 Wis. 690, Ryan, C. J., said: "The contract of a surety is not merely a contract to perform upon the failure of the principal, but binds the surety equally with the principal. The surety assumes for himself the liability of his principal; and as Lord Eldon remarks in Wright v. Simpson, 6 Ves. Jr. 714, as between the creditor and the surety the creditor assumes no obligation of active diligence against his principal; and it is the business of the surety, not of the creditor, to see that the principal performs." to pay providing the creditor cannot collect from the principal. The averment in the answer that the plaintiff therefore agreed to and did release this defendant from all liability on the note, is the averment of a legal conclusion; and the further averment that the plaintiff then and there told the defendant to rest easy, that he would not look to him for the payment of the note, but that the principal was good enough, and that he would trust him for the payment thereof, is a promise without a consideration, and would not have prevented the plaintiff (the payee) from at once commencing an action against the surety to collect the note. "This is the legal contract; but because the surety has no interest in the contract of his principal, and because the creditor of the principal debtor may prejudice the surety by delay, equity will sometimes interfere in behalf of the surety, either against his principal or against his creditor. In such a case the surety may proceed in a court of equity against the principal to compel him to pay the debt, or against the creditor to compel him to proceed at law to collect his debt from the principal. 1 Story Eq., § 327; Wright v. Simpson, supra; Hayes v. Ward, 4 Johns. Ch. 123; Bishop v. Day, 13 Vt. 81. This well-established equitable jurisdiction appears to preclude the right claimed in this case for the surety-the right to notify the cred-payment does not seem to have been extended for any itor to proceed, and upon failure of the creditor to do so to stand released at law; for if the surety could thus of himself put the creditor in motion it is difficult to see why he should resort to a court of equity to do for him what he could do for himself. "This power to put the creditor in motion appears to be more safely reposed in the discretion of a court of equity than vested as a legal right at his option in the surety. The diligence of creditors is generally to be trusted, and when they forbear it is generally for prudent motives, having regard to all the interests concerned. The legal right of a surety to interfere against such forbearance might well be mischievous and oppressive. It is true that the creditor and principal debtor may collude to the prejudice of the surety. That would be a proper ground for equitable interference. But it is safer in any case to leave the surety to the equitable remedy, to be exercised in view of all the circumstances, than to make him his own chancellor to control the action of his creditor." After referring to the decisions in New York and Pennsylvania to the contrary he continues: "But we believe that the doctrine of Pain v. Packard, as a rule of judicial construction, is confined to those two States. There is a full and learned note to Pain v. Packard and King v. Baldwin, in the Court of Errors, by the learned author of American Leading Cases, by which it appears that the doctrine of those cases does not prevail in England in the Federal courts or in the courts of any other State in which it has not been adopted by statute. The learned counsel of the respondent cited cases against the doctrine from Maine, Massachusetts, New Hampshire, Vermont, Illinois, South Carolina and the Federal courts. A review of these cases would fully sustain our view. And the learned counsel for the appellants cited in support of his position only cases in New York and Pennsylvania, and in Alabama, Arkansas and Tennessee which go upon statutes. There are indeed dicta in some of the cases turning upon statutes approving the rule of Pain v. Packard. But these cannot avail for the unsound doctrine against the strong and universal current of authority outside of the infected States. Indeed the adoption in those States of such statutes may be regarded as a strong concession against the rule, independent of them." The authorities are decidedly in favor of the proposition, in the absence of any statutory provision controlling it, that if, after the debt is due, the surety request the creditor to sue the principal, who is then solvent, and the creditor fails to do so, and the principal afterward becomes insolvent, the surety is not thereby discharged. And if there were no authorities on the subject, considering the nature of the obligation of the surety, we do not see how the contrary could be maintained. The contract of the surety to pay is as absolute as that of the principal, and he cannot change his absolute promise into a conditional one The averment in the answer that the plaintiff, without the consent of the defendant (the surety) gave the principal debtor further time in which to pay the note, is deficient in two particulars at least. The time of definite period or upon any consideration. The answer did not state a defense to plaintiff's action, and the motion for a judgment in favor of plaintiff, notwith. standing the answer, was therefore properly granted. Judgment affirmed. [See 20 Alb. L. J. 186; 33 Am. Rep. 76n.; 34 id. 578n.; 43 id. 301; 10 id. 256; 8 id. 701; 23 Eng. R. 155; 19 id. 301; 29 id. 571∙ 17 id. 183.-ED.] HABEAS CORPUS-OFFICER REFUSING TO PRO- ROBB V. CONNOLLY. An agent, appointed by the State in which a fugitive from Subject to the exclusive and paramount authority of the Na- IN error to the Supreme N error to the Supreme Court of California. The HARLAN, J. On the 20th day of November, 1883, one C. H. Bayley was arrested in the city of San Francisco, California, and delivered to W. L. Robb, who had been empowered by the governor of the State of Oregon to take and receive him from the proper authorities of the State of California, and convey him to the former State, to be there dealt with according to law. The arrest and delivery were in pursuance of the warrant of the governor of California, as follows: "STATE OF CALIFORNIA, Executive Department. ( "The people of the State of California to any sheriff, constable, marshal, or policeman of this State, greeting: "Whereas, It has been represented to me by the governor of the State of Oregon that C. H. Bayley stands charged with the crime of embezzlement, committed in the county of Clatsop, in said State, and that he has fled from the justice of that State, and has taken refuge in the State of California; and the said governor of the State of Oregon, having in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said C. H. Bayley to be arrested and delivered to W. L. Robb, who is authorized to receive him into his custody and convey him back to said State of Oregon; "And whereas the said representation and demand is accompanied by a certified copy of the information filed in the office of the justice of the peace of the precinct of Astoria, Clatsop county, State of Oregon, whereby the said C. II. Bayley stands charged with said crime, and with having fled from said State and taken refuge in the State of California, which is certified by the governor of the State of Oregon to be authentic: You are therefore required to arrest and secure the said C. H. Bayley, wherever he may be found within this State, and to deliver him into the custody of the said W. L. Robb, to be taken back to the State from which he fled, pursuant to the said requisition, he, the said W. L. Robb, defraying all costs and expenses incurred in the arrest and securing of said fugitive. You will make return to this departmeut of the manner in which this warrant has been executed. "In witness whereof I have hereunto set my hand and caused the great seal of the State to be affixed, this, the twentieth day of November, in the year of our Lord one thousand eight hundred and eightythree. Bayley sued out a writ of habeas corpus from the judge of the Superior Court for the city and county of San Francisco, directed to Robb, and commanding him to have the body of the petitioner before said judge, together with the time and cause of his detention, etc. His application for the writ proceeded upon the ground that the imprisonment and detention were illegal, in that "no copy of an indictment found, or affidavit made, before a magistrate, charging petitioner with any crime, was produced to the governor of California," and consequently, that the warrant of arrest was issued without compliance with the act of Congress. Robb made return that he held Bayley "under the authority of the United States," as evidence whereof he produced a copy of the warrant of the governor of California, with his commission from the governor of Oregon, authorizing him to take and receive the prisoner, as a fugitive from justice. He refused "to produce said C. H. Bayley, on the ground that under the laws of the United States, he ought not to produce said prisoner, because the honorable Superior Court has no power or authority to proceed in the premises." For this refusal-the court finding that the body of the petitioner could be produced-Robb was adjudged guilty of contempt of court, and by order of the judge he was arrested by the sheriff and committed to jail until he "obeys said writ and produces the body of the said C. H. Bayley," or "until he be otherwise legally discharged." He thereupon sued out a writ of habeas corpus from the Supreme Court of California. His application proceeded on the ground that Bayley was in his custody "under and by virtue of the authority of the United States, and that said Superior Court had no jurisdiction to proceed in the premises," and "his (Robb's) imprisonment is contrary to the laws of the United States and in excess of the jurisdiction of said court." Upon hearing, the writ was dismissed, and Robb remanded to the custody of the sheriff. "It is no part of our duty," said the Supreme Court of California, "to decide whether the authority under which Robb holds the prisoner, Bayley, is sufficient or not. Neither is it incumbent on us to decide whether Bayley is held under the authority of the United States, and if so, how far it is competent for the court below to inquire into the legality of the proceedings under which he is held. Whether an affidavit or in. dictment must accompany the requisition or not; whether the recitals in the governor's warrant of arrest are conclusive or simply prima facie evidence of the facts they recite, all these are matters for the consideration of the court issuing the writ and before whom the prisoner is to be brought. The only inquiry in this case relates to the power of the court below to compel the production of the body of the prisoner before it, so that the cause of his imprisonment and detention can be inquired into, and on this point we have no doubt. It was not the duty of the court issuing the writ, nor was it obliged to accept as true, the return of the party. It was within the jurisdiction of the court, at least, to inquire into the facts of the case and the alleged cause of detention, and to this end it was proper that the prisoner should be brought into the presence of the court, in obedience to the command of the writ, whereupon the prisoner would have had a right to traverse the return. People v. Donohue, 84 N. Y. 438; People v. Brady, 56 id. 182; Norris v. Newton, 5 McLean, 99; State v. Schlemn, 4 Harr. (Del.) 577. This the petitioner refused to do, and by such refusal was guilty of a contempt of court." From the judgment dismissing the writ and remanding Robb to the custody of the sheriff, he has prosecuted the present writ of error. For the purpose of giving effect to the second section of article four of the Constitution of the United States, declaring that "a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on the demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." Congress passed the act of February 12, 1793, in relation to fugitives from justice. 1 Stat. 302. The provisions of its first and second sections have been re-enacted in sections 5278 and 5279 of the Revised Statutes, which are as follows: "Section 5278. Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and shall produce a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appear, within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory. "Section 5279. Any agent so appointed who shall receive the fugitive into his custody, shall be empowered to transport him to the State or Territory from which he has fled. And every person, who by force sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year." The Penal Code of California, in conformity with the Constitution of that State, provides, in reference to the Superior Court of the city and county of San Francisco, that "said court and their judges, or any of them, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties." guilty of an offense against the laws of the United States, and sentenced to imprisonment by the District Court. 21 How. 513, 514. It was held that no such paramount power existed in any State, or her tribunals, since its existence was inconsistent with the supremacy of the general government, as defined and limited by the Constitution of the United States and the laws made in pursuance thereof, and could not be recognized without bringing within the control of the States the entire Criminal Code of the United States, including all offenses from the highest to the lowest, involving imprisonment as a part of the punishment inflicted. While the sovereignty of the State within its territorial limits to a certain extent was conceded, that sovereignty, the court adjudged, was so limited and restricted by the supreme law of the land, that the sphere of action ap the reach of the judicial process issued by a State judge or a State court, as the proceedings in one of the States were beyond the reach of the process of the judicial tribunals of another State. "We do not question," said this court, "the au The authority and duty of the judge of that court to issue a writ of habeas corpus upon Bayley's applica-propriated to the United States was as entirely beyond tion is not disputed in argument. But the contention of the plaintiff in error is, that in receiving and holding Bayley for the purpose of transporting him to Oregon he was, and is, acting under the authority and executing the power of the United States; and therefore that neither the Superior Court of San Francisco,thority of a State court, or judge, who is authorized by nor one of its judges, could legally compel him to produce the prisoner, or commit him, as for contempt, for refusing to do so. If that court was without jurisdiction, by reason of the paramount authority of the Constitution and laws of the United States, to compel the plaintiff in error, in response to the writ of habeas corpus, to produce the prisoner, then his committal for contempt was the denial of a right, privilege, and immunity secured by the supreme law of the land, the claim by the plaintiff in error that there was such a denial constitutes the foundation of our jurisdiction. It is contended that the principles announced in Ableman v. Booth, and United States v. Booth, 21 How. 506, and in Tarble's case, 13 Wall. 397, sustain the refusal of the plaintiff in error to produce the prisoner. The soundness of this position will be the subject of our first inquiry. In Ableman v. Booth, the general question was as to the authority of a justice of the Supreme Court of Wisconsin, upon a writ of habeas corpus, to compel❘ the marshal of the United States to produce the body of one, committed to his custody by an order of a commissioner of a Circuit Court of the United States, for failing to give bail for his appearance in the District Court of the United States for that State, to answer a charge of having violated the provisions of the Fugitive Slave Act of September, 18, 1850. In other words, a judge of the Supreme Court of the State claimed and exercised the right to supervise and annul the proceedings of that commissioner, and to discharge a prisoner committed by him for an offense against the laws of the general government. In United States v. Booth, the question was as to the authority of a justice of the Supreme Court of the same State, upon a writ of habeas corpus, to discharge one in custody, under a judgment of the District Court of the United States, in which he had been indicted for an offense against the laws of the United States, and by which he had been sentenced to be imprisoned for one month, to pay a fine of $1,000 and costs of prose. cution, and to remain in custody until the sentence was complied with. The authority claimed by the justice who issued the writ and discharged the prisoner was affirmed by the Supreme Court of the State, and hence, as was said, the State court claimed and exercised jurisdiction over the proceedings and judgment of a District Court of the United States, and upon a summary and collateral proceeding, by habeas corpus, set aside and annulled its judgment, and discharged a prisoner who had been tried and found the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by pro. cess of habeas corpus, and the duty of the officer to make a return, grows, necessarily, out of the complex character of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other. But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken before a State judge or court upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enfore it beyond these boundaries is nothing less than lawless violence." 21 How. 523. Before considering the scope and effect of that decision, it is proper to examine Tarble's case, 13 Wall. 397, which is also relied on to support the proposition that the judge of the State court was without jurisdiction to compel the plaintiff in error to produce the body of the alleged fugitive from justice. In that case the question was whether a judicial officer of a State, or a commissioner of a State court, had jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers in the military service of the United States, and to discharge them from such service, when in his judgment their enlistment had not been made in conformity with law. "It is evident," said the court, "if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the court commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to persons employed in any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of that authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the State. It may even reach to parties imprisoned under sentence of the National courts, after regular indictment, trial and conviction, for offenses against the laws of the United States." 13 Wall. 402. The grounds of the decision in Ableman v. Booth, and United States v. Booth were fully examined, and the conclusion reached is indicated in the following extract from the opinion: State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case when a party is alleged to be illegally confined within their limits, unless it appear, upon his application, that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the person, to give, by a proper return, information in this respect." Alluding to the fact that the language used in Ableman v. Booth, and United States v. Booth had been construed by some as applying only to cases where a person is held in custody under the undisputed lawful authority of the United States, as distinguished from his imprisonment under mere claim and color of such authority, the court rejected any such limitation upon the decisions in those cases, and said: "All that is meant by the language used, is that the State judge or State court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, iu truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release." It was adjudged that the State court commissioner was without jurisdiction to issue the writ for the discharge of the prisoner in that case, because it appeared, upon the application presented for the writ, that the pris oner was held by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the National government; and the same information was imparted to the commissioner by the return of the officer." From this review of former decisions, it is clear that the question now presented has never been determined by this court. In Ableman v. Booth, the prisoner, as we have seen, was held in custody by an officer of the United States, under a warrant of commitment from a commissioner of a Circuit Court of the United States, for an offense against the laws of the general government. In United States v. Booth, he was in custody in pursuance of a judgment of a court of the United States founded upon an indictment, charging him with an offense against the laws of the United States. In Tarble's case, the person whose discharge was sought was held as an enlisted soldier of the army, by an officer of that army acting directly under the Constitution and laws of the United States. No such questions are here presented, unless it be, as claimed, that the plaintiff in error is, within the principles of former adjudications, an officer of the United States, wielding the authority and executing the power of the Nation. We are all of opinion that he was not such an officer, but was and is simply an agent of the State of Oregon, invested with authority to receive, in her behalf, an alleged fugitive from the justice of that State. By the very terms of the statute under which the executive authority of Oregon demanded the arrest and surrender of the fugitive, he is described as the “agent of such authority." It is true that the executive authority of the State, in which the fugitive has taken refuge, is under a duty imposed by the Constitution and laws of the United States, to cause his surrender upon proper demand by the executive authority of the State from which he has fled. It is equally true that the authority of the agent of the demanding State to bring the fugitive within its territorial limits, is expressly conferred by the statutes of the United States, and therefore while so transporting him, he is, in a certain sense, in the exercise of an authority derived from the United States. But these circumstances do not constitute him an officer of the United States, within the meaning of former decisions. He is not appointed by the United States, and owes no duty to the National government, for a violation of which he may be punished by its tribunals or removed from office. His authority, in the first instance, comes from the State in which the fugitive stands charged with crime. He is, in every substantial sense, her agent, as well in receiving custody of the fugitive, as in transporting him to the State under whose commission he is acting. What he does, in execution of that authority, is to the end that the violation of the laws of his State may be punished. The fugitive is arrested and transported for an offense against her laws, not for an offense against the United States. The essential difference therefore between the cases heretofore determined and the present one is, that in the former, the judicial authorities of the State claimed and exercised the right, upon habeas corpus, to release persons held in custody in pursuance of the judgment of a court of the United States, or by order of a Circuit |