ALDRICH, District Judge.
Apparent uncertainty of counsel as to the effect of the pendency of this writ upon proposed extradition proceedings, and the possibility that the state authorities may be in doubt as to the reasons for not proceeding summarily to determine the question of discharge or no discharge, make it justifiable and advisable to file a rescript which shall explain the action taken here and the grounds for it.
It is understood that the state of New York is seeking to -have the petitioner, Harry K. Thaw, returned to that state under the executive authority of the state of New Hampshire, and that he has been held in custody under New Hampshire state process to that end. The person so restrained institutes habeas corpus proceedings under federal law, in which he alleges that he is held in violation of the federal Constitution and laws, and particularly in. violation of the fourteenth amendment in respect to due process and liberty.
This proceeding does not expressly involve the proposed extradition hearing before the state executive, yet it concerns it indirectly, in the sense that if this hearing should go forward, and if it should be determined here that the process under which the petitioner is held is not constitutionally due process, and that the restraint is therefore illegal, it would doubtless be contended that the result should be accepted as conclusive of the question of the right of extradition under the existing state process.
The rights of the state of New York are not of such urgency as to justify summary and precipitate action here in advance of the usual and proper course of interstate extradition proceedings, and the petitioner, having invoked federal protection for the purpose of saving his federal rights and of not waiving them, does not now insist upon his constitutional right of a speedy hearing and a speedy test of the question of the legality of the state restraint, and having thus safeguarded his rights, through his counsel, yields to the idea of a postponement of this hearing to the end that extradition proceedings may go forward before the state executive in the ordinary and usual way. This is a perfectly proper course for counsel to pursue. It is in perfect harmony with our system of federal and state interrelations. It involves no yielding of the idea of the paramount authority under the federal Constitution, and is strictly within the spirit and the reasoning of the Supreme Court in Ex parte Royall, 117 U. S. 247-253, 6 Sup. Ct. 734, 29 L. Ed. 868, and other Supreme Court cases.
What law and justice may require is often an embarrassing question for courts and other officers before whom persons are brought for such purposes as exist in this case, and in this particular case, whether the character of the custody in New York, prior to the alleged escape, [73]*73where, as is alleged, the petitioner was restrained in an institution because of insanity, or something like it, rather than for crime, where the offense for which he is sought to be extradicted consists in his compassing his escape, whether the warrant of commitment under which the petitioner was held in New York, and whether, under the circumstances of this case, the question of extraditable crime, which is a mixed question of law and fact (Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct, 689, 40 L. Ed. 787), are involved, among other things, in the question of constitutional due process, at once present more than the usual novelties and difficulties, and their'proper solution will require careful and painstaking consideration.
Under the colonial system there was no such thing as extradition of fugitives from one colony to another, except under imperfect compacts in the nature of treaties. Nor was there between the states until the Articles of Confederation, a source from which power of extradition was derived. Subsequently the federal Constitution, through the second section of article 4, defined and established a definite source of power with reference to extradition from one state to another, which section is as follows:
“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 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.”
Following this there was congressional action, which imposed upon the states certain regulations and duties in respect to extradition, and, without much change, the regulations and duties are now defined by section 5278, page 3597, vol. 3, U. S. Comp. St. 1901, which corresponds to the same section of the Revised Statutes of the United States. Rev. St. p. 1022.
As repeatedly .expressed by the Supreme Court and the highest courts of the various states, interstate extradition is now regulated by the federal Constitution and laws in pursuance thereof. Generally speaking, the states have recognized the power of extradition as emanating from federal source. This is particularly so in respect to New Hampshire, the state from which the person in question is sought to be extradited, because section 1 of chapter 263 of the Public Statutes of 1891 of New Hampshire (page 706), provides that:
“Whenever a person in this state is charged with an offense committed in another state, and is liable by the laws of the United States to be delivered over upon demand of the executive of such other state,” etc.
It is thus seen that New Hampshire expressly recognizes the laws of the United States as the foundation for extradition, and this view is fully accepted by Judge Walker, who delivered the opinion of the Supreme Court in State v. Clough, 71 N. H. 594, 53 Atl. 1086, 67 L. R. A. 46, which is popularly known as “Mrs. Munsey’s Case.”
While the Supreme Court decisions sustain the federal power, i» the broadest sense, in a situation like this, where it is alleged that the party is restrained of his liberty in violation of the Constitution and the laws of the United States, as well as the view that hearing on habeas cor[74]*74pus may in an extreme case proceed summarily and speedily, for the purpose of testing the legality of the restraint, still, if I understand the scope and theory of them, they also sustain the doctrine of a broad, practical discretion, when the party invoking the' federal law is held under state authority, upon the question whether the interests of government and of the parties concerned require that federal courts shall proceed at once to determine ultimate rights, or whether, without relinquishing federal authority, considerations of usage and comity require suspension of a given proceeding for the purpose of allowing the state authorities to deal with questions of extradition; and the reasons for federal suspension are especially weighty where the .person invoking the writ does not insist upon pressure of federal instrumentalities.
This is upon the theory that the state authorities, executive and judicial, are charged with the same duty as that of the federal authorities in sustaining the provisions of the laws of the United States, so far as they apply to given situations which involve questions of interstate extradition.
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ALDRICH, District Judge.
Apparent uncertainty of counsel as to the effect of the pendency of this writ upon proposed extradition proceedings, and the possibility that the state authorities may be in doubt as to the reasons for not proceeding summarily to determine the question of discharge or no discharge, make it justifiable and advisable to file a rescript which shall explain the action taken here and the grounds for it.
It is understood that the state of New York is seeking to -have the petitioner, Harry K. Thaw, returned to that state under the executive authority of the state of New Hampshire, and that he has been held in custody under New Hampshire state process to that end. The person so restrained institutes habeas corpus proceedings under federal law, in which he alleges that he is held in violation of the federal Constitution and laws, and particularly in. violation of the fourteenth amendment in respect to due process and liberty.
This proceeding does not expressly involve the proposed extradition hearing before the state executive, yet it concerns it indirectly, in the sense that if this hearing should go forward, and if it should be determined here that the process under which the petitioner is held is not constitutionally due process, and that the restraint is therefore illegal, it would doubtless be contended that the result should be accepted as conclusive of the question of the right of extradition under the existing state process.
The rights of the state of New York are not of such urgency as to justify summary and precipitate action here in advance of the usual and proper course of interstate extradition proceedings, and the petitioner, having invoked federal protection for the purpose of saving his federal rights and of not waiving them, does not now insist upon his constitutional right of a speedy hearing and a speedy test of the question of the legality of the state restraint, and having thus safeguarded his rights, through his counsel, yields to the idea of a postponement of this hearing to the end that extradition proceedings may go forward before the state executive in the ordinary and usual way. This is a perfectly proper course for counsel to pursue. It is in perfect harmony with our system of federal and state interrelations. It involves no yielding of the idea of the paramount authority under the federal Constitution, and is strictly within the spirit and the reasoning of the Supreme Court in Ex parte Royall, 117 U. S. 247-253, 6 Sup. Ct. 734, 29 L. Ed. 868, and other Supreme Court cases.
What law and justice may require is often an embarrassing question for courts and other officers before whom persons are brought for such purposes as exist in this case, and in this particular case, whether the character of the custody in New York, prior to the alleged escape, [73]*73where, as is alleged, the petitioner was restrained in an institution because of insanity, or something like it, rather than for crime, where the offense for which he is sought to be extradicted consists in his compassing his escape, whether the warrant of commitment under which the petitioner was held in New York, and whether, under the circumstances of this case, the question of extraditable crime, which is a mixed question of law and fact (Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct, 689, 40 L. Ed. 787), are involved, among other things, in the question of constitutional due process, at once present more than the usual novelties and difficulties, and their'proper solution will require careful and painstaking consideration.
Under the colonial system there was no such thing as extradition of fugitives from one colony to another, except under imperfect compacts in the nature of treaties. Nor was there between the states until the Articles of Confederation, a source from which power of extradition was derived. Subsequently the federal Constitution, through the second section of article 4, defined and established a definite source of power with reference to extradition from one state to another, which section is as follows:
“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 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.”
Following this there was congressional action, which imposed upon the states certain regulations and duties in respect to extradition, and, without much change, the regulations and duties are now defined by section 5278, page 3597, vol. 3, U. S. Comp. St. 1901, which corresponds to the same section of the Revised Statutes of the United States. Rev. St. p. 1022.
As repeatedly .expressed by the Supreme Court and the highest courts of the various states, interstate extradition is now regulated by the federal Constitution and laws in pursuance thereof. Generally speaking, the states have recognized the power of extradition as emanating from federal source. This is particularly so in respect to New Hampshire, the state from which the person in question is sought to be extradited, because section 1 of chapter 263 of the Public Statutes of 1891 of New Hampshire (page 706), provides that:
“Whenever a person in this state is charged with an offense committed in another state, and is liable by the laws of the United States to be delivered over upon demand of the executive of such other state,” etc.
It is thus seen that New Hampshire expressly recognizes the laws of the United States as the foundation for extradition, and this view is fully accepted by Judge Walker, who delivered the opinion of the Supreme Court in State v. Clough, 71 N. H. 594, 53 Atl. 1086, 67 L. R. A. 46, which is popularly known as “Mrs. Munsey’s Case.”
While the Supreme Court decisions sustain the federal power, i» the broadest sense, in a situation like this, where it is alleged that the party is restrained of his liberty in violation of the Constitution and the laws of the United States, as well as the view that hearing on habeas cor[74]*74pus may in an extreme case proceed summarily and speedily, for the purpose of testing the legality of the restraint, still, if I understand the scope and theory of them, they also sustain the doctrine of a broad, practical discretion, when the party invoking the' federal law is held under state authority, upon the question whether the interests of government and of the parties concerned require that federal courts shall proceed at once to determine ultimate rights, or whether, without relinquishing federal authority, considerations of usage and comity require suspension of a given proceeding for the purpose of allowing the state authorities to deal with questions of extradition; and the reasons for federal suspension are especially weighty where the .person invoking the writ does not insist upon pressure of federal instrumentalities.
This is upon the theory that the state authorities, executive and judicial, are charged with the same duty as that of the federal authorities in sustaining the provisions of the laws of the United States, so far as they apply to given situations which involve questions of interstate extradition.
It is perfectly obvious, in respect to a proceeding involving proposed ■extradition, that some findings of the executive of a state might be accepted as conclusive and binding upon both state and federal courts, and it is equally obvidus that questions might arise before the executive, where its action would not be binding upon either. Upon the question as to what findings would be conclusive and what not conclusive I make no intimation whatever.
The reasoning of federal and state decisions which sustain this view of suspension or delay of federal process, even where it is alleged that the restraint is in violation of the federal Constitution, is based upon the idea that, if investigation by the executive results in denying extradition, the aggrieved person would be set at liberty, and thus there would be no necessity for interposition of federal instrumentalities, while, if the result there were to be different, it would still be open to federal authority to afford such protection as the Constitution and laws of the United States require.
Holding pendency and control of this proceeding, under suspension, menaces neither the rights of the parties concerned, nor of state authorities. The proceeding -is based upon a right which rests with every person restrained of liberty, and delaying the hearing, under the circumstances to which I have referred, is for the express purpose of allowing the state authorities, upon whom under our system equally with us rests the obligation to guard, enforce and protect every right guaranteed or secured by the Constitution of the United States and the laws made in pursuance thereof (117 U. S. 248, 6 Sup. Ct. 734, 29 L. Ed. 868), to go forward with attempts to legally solve the questions involved in the contest between the state of New York and the petitioner.
Under our system of federal and interstate relations, the fullest measure of comity exists in respect to extradition proceedings, and while there is no rule of comity which justifies extradition, unless the Constitution and the laws provide for it, the spirit of comity between [75]*75the federal and state governments is such that each assumes, with respect to the other, that proceedings will be in accordance with the supreme law of the land, and it is understood that this practical and wholesome view holds until some question is evolved which reasonably presents a situation which justifies a review under proper proceedings.
Such considerations make it justifiable, the custody of the party petitioning for the writ being properly safeguarded, that the hearing under the writ before us be suspended, to the end that the executive of the state shall have a free hand in respect to the extradition investigation contemplated by the Constitution and the laws.
Under such suspension as may be deemed advisable under these suggestions, it must be understood that it is open to the petitioner, at any time, to press his alleged constitutional right of an immediate hearing. It is likewise open to counsel representing the state of New York or the state of New Hampshire to- move, at any time, for a hearing or for a dismissal of the writ.
The parties will consider whether the pleadings contemplated by the federal statutes should be perfected within the statutory period, or whether those are matters which go along with the suspension.
Under the decision of the Supreme Court in Barth v. Clise, Sheriff, 12 Wall. 400, 20 L. Ed. 393, as the body of the petitioner has been produced, the control of his person must be treated as within this proceeding, subject to recommitment to state authority, to be held to bail or placed in the custody of suitable keepers. My inclination is to appoint'keepers, and to appoint Mr. Nute,’ the marshal, and Mr. Holman A. Drew, as such a custody will be most convenient for all,- at least during these hearings.
Counsel will confer upon this question of custody.