The writ of ha-beas corpus in this case vas issued by the district judge for this district, under the authority conferred by that clause of section 753 of the Revised Statutes of the United States which relates to the case of a prisoner “in custody for an act done in pursuance of a law of the United States.” The law of the United States here referred to is to be found in sections 5278 and 5279 of the Revised Statutes, providing for the demand and surrender of fugitives from justice. The relators claim that they have been indicted in the state court and arrested by its process for an act done by them in pursuance of the law of the United States relating to this subject, as incorporated in the two sections of the Revised Statutes above cited.
If the relators had been indicted and were in custody solely for acts done in pursuance of this statute, I agree with the learned district judge, in the elaborate and able opinion which he has filed in the case, that they could be properly discharged on habeas corpus. The cases referred to by him fully support his judgment on this point. U. S. v. Jailer of Fayette County [Case No. 15,463]; Ex parte Robinson [Id. 11,934]; Ex parte Jenkins [Id. 7,259]; In re Neill [Id. 10,089]; Ex parte Smith [Id. 12,968]; Ex parte Bridges [Id. 1,862]; U. S. v. Morris [Id. 15,811]; Ex parte Robinson [Id. 11,935].
If the identity of the act which forms the basis of the indictment with the act done in pursuance of the United States statute appeared on the face of the record, there seems to be no doubt as- to the power of the federal court or judge, under the legislation of congress, to discharge the prisoner on habeas corpus. Ex parte Bridges [supra]. If this identity does not thus appear, the cases above cited establish a settled construction of the existing statute relating to the writ of habeas corpus, that this may be shown by proofs aliunde. Testimony on this subject was introduced before the district judge by the relators and by the respondent; and the same evidence is now before the circuit court. The district judge found, as a matter of fact, that all that was done by the re-lators within the territorial limits of Nebraska, was done by them under and in pursuance of the act of congress. In other words, he found as a fact that the purpose of the re-lators not to convey and deliver Blair to the proper authorities in Illinois, under the requisition, was formed after they had left the state of Nebraska, and not until they had reached the city of St. Louis. And thus finding, he held that their acts could not, by “relation,” reach back to the time when they originally received Blair at Lincoln, in Lancaster county, Nebraska, so as to make them guilty of the crime of kidnapping within the last named county. I have read all the proofs in this case with attention and care; and while I admit that there is much conflicting testimony, I am constrained to differ with my learned brother as to what if; *621ought to be taken (on such a bearing as this) as establishing, or as tending to establish, with such cogency as to make it proper to withdraw the case from the state tribunals by means of the writ of habeas corpus.
Upon the proofs before me, I am not satisfied that the relators kept within the scope of their duty under the requisition, or acted in pursuance of it. On the contrary, it seems to me that there is strong ground to maintain and believe that the procuring of the indictment against Blair in Chicago, the application for the requisition, and for the arrest of Blair, and the taking of him out of the state of Nebraska, and to England, were all part of a plan, formed beforehand, to effect this precise result, and that it was not the intention of the relators, .at any time, to take their prisoner, under the requisition, to the state of Illinois. to answer to the indictment. If so, it is clear that the relators could not justify their acts under sections 5278 and 5279 of the Revised Statutes, and they ought, in this event, to answer to the criminal justice of the state whose laws they have violated.
There is no provision of law for the removal of such a case as that of the indictment against the relators to a court of the United States for trial. Where it is dear that the imprisonment under the state authority is for an act done in pursuance of federal authority and warranted by it, it may be conceded that the federal judicial tribunals or judges may, on habeas corpus, discharge the prisoner from custody. But this should appear with reasonable certainty to justify a federal court or magistrate in withdrawing the case in this summary manner from the jurisdiction of the state court. If the latter court proceeds with it and denies the party any of the rights given or secured by the constitution, laws, or authority of the United States, he has a remedy by a writ of error in the supreme court of the United States. Rev. St. § 709.
An order will be entered in this court reversing and setting aside the order of the district judge discharging the relators from the custody of the respondent. Ordered accordingly.