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uisition was not certified to as required by the laws of the United States; that there was not produced to that executive a copy of any indictment or affidavit certified as authentic by the Governor of Mississippi; and that the petitioner was not present before the Governor of Missouri at the hearing before him of the warrant of extradition, nor was he given an opportunity to meet the witnesses face to face.

No reason whatever was shown on the hearing of the application for habeas corpus for the discharge of the accused from custody-nothing that showed any failure to conform to the requirements of the Constitution or laws of the United States. The material allegations of fact set forth in the application for the writ are wholly unsupported by anything in the record; indeed, some of them are affirmatively disproved by the record. No proof at all appears to have been made by the accused of any essential fact, and the decision of the court must have been based altogether upon the same official documents that were presented to the Governor of Missouri supported by the legal inferences to be drawn from their contents. It was made to appear by those documents that the accused was charged by indictment with a specified crime against the laws of Mississippi (Miss. Code, § 1043) and had become a fugitive from the justice of that State. That was legally sufficient, without more, to authorize a requisition, and when the Governor of Missouri was furnished, as he was, with a copy of the indictment against Marbles, certified by the Governor of Mississippi to be authentic, it then became the duty of the Governor of Missouri, under the Constitution and laws of the United States, to cause the arrest of the alleged fugitive. So reads the statute enacted in execution of the constitutional provision relating to fugitives from justice. Rev. Stat., § 5278. It is true that it does not appear from the record before us that there was any evidence before the Governor of Missouri other than the requisition of the Governor of Mississippi and a copy of the indictment against the alleged fugitive, certified to be authentic. It is also true that, so far

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as the Constitution and laws of the United States are concerned, the Governor of Missouri could not legally have issued his warrant of arrest unless the accused was charged with what was made by Mississippi a crime against its laws and was a fugitive from justice. But those facts were determinable in any way deemed satisfactory by that executive, and he was not bound to demand-although he may have required if the circumstances made it proper to do so-proof apart from proper requisition papers that the accused was so charged and was a fugitive from justice. He was, no doubt, at liberty to hear independent evidence showing that the act with which the accused was charged by indictment was not made criminal by the laws of Mississippi and that he was not a fugitive from justice. No such proof appears to have been offered to the Governor or to the court below. But the official documents, reasonably interpreted, made a prima facie case against the accused as an alleged fugitive from justice and authorized that executive to issue his warrant of arrest as requested by the Governor of Mississippi. The contention that the Governor of Missouri could not act at all on the requisition papers in the absence of the accused and without previous notice to him is unsupported by reason or authority, and need only be stated to be rejected as unsound.

The principles here announced are firmly established by the decisions of this court. McNichols v. Pease, 207 U. S. 100; Ex parte Reggel, 114 U. S. 642, 652, 653; Roberts v. Reilly, 116 U. S. 80, 95; Hyatt v. Corkran, 188 U. S. 691, 719; Munsey v. Clough, 196 U. S. 364, 372; Pettibone v. Nichols, 203 U. S. 192; Appleyard v. Massachusetts, 203 U. S. 222.

Other questions may be noticed. One is, in effect, that the requisition of the Governor of Mississippi was invalid because of the clause or provision therein that that State would not be responsible for any expense attending the arrest and delivery of the alleged fugitive. We will not indulge in conjecture as to the object of inserting that clause in the requisition; particularly, as the State of Mississippi is not represented in

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this court by counsel. It is sufficient now to say that the warning given to the Governor of Missouri that Mississippi would not be responsible for any expense attending the arrest and delivery of the alleged fugitive was a matter for the consideration of the Governor of the former State when he received the official demand for the arrest and delivery of the appellant as a fugitive from justice and a copy of the indictment against Marbles, certified as authentic. It was not a matter that could legally affect the inquiry before the Circuit Court on habeas corpus, whether the requisition of the demanding State and the action thereon by the Governor of Missouri were in substantial conformity with the Constitution and the laws of the United States, and, therefore, not in any legal sense hostile to the liberty of the accused.

The other question to be noticed is that raised by the following averments in the application for the writ of habeas corpus: "Your petitioner further states that he is a negro, and that the race feeling and race prejudice is so bitter in the State of Mississippi against negroes that he is in danger, if removed to that State, of assassination and of being killed, and that he cannot have a fair and impartial trial in any of the courts of that State, and that to deliver him over to the authorities of that State is to deprive him, as a citizen of the United States and a citizen and resident of the State of Mississippi, of the equal protection of the laws." It is clear that the executive authority of a State in which an alleged fugitive may be found, and for whose arrest a demand is made in conformity with the Constitution and laws of the United States, need not be controlled in the discharge of his duty by considerations of race or color, nor by a mere suggestion-certainly not one unsupported by proof, as was the case here--that the alleged fugitive will not be fairly and justly dealt with in the State to which it is sought to remove him nor be adequately protected, while in the custody of such State, against the action of lawless and bad men. The court that heard the application for discharge on writ of habeas corpus was entitled to

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assume, as no doubt the Governor of Missouri assumed, that the State demanding the arrest and delivery of the accused had no other object in view than to enforce its laws, and that it would, by its constituted tribunals, officers and representatives, see to it not only that he was legally tried, without any reference to his race, but would be adequately protected while in the State's custody against the illegal action of those who might interfere to prevent the regular and orderly administration of justice.

We perceive no error of law in the record and the judgment of the Circuit Court must be affirmed.

It is so ordered.

MCGILVRA AND BRESSLER,1 v. ROSS, STATE LAND COMMISSIONER OF THE STATE OF WASHINGTON.

APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 328. Argued October 19, 20, 1909.-Decided November 15, 1909.

While the construction of the act of Congress under which a patent issued and what rights passed under the patent present Federal questions which give the Circuit Court jurisdiction of the case as one arising under the laws of the United States, if prior decisions have so defined such rights that they are removed from controversy, jurisdiction does not exist in the absence of diverse citizenship. The decision in Shively v. Bowlby, 152 U. S. 1, which determined the relative rights of a patentee of the United States and one holding under a conveyance from the State of land below high watermark applies equally to lands bordering on navigable waters, whether tidal or inland, and the test of navigability is one of fact. Each State has full jurisdiction over the lands within its borders including the beds of streams and other waters, Kansas v. Colorado, 206 U. S. 46, 93, subject to the rights granted by the Constitution to the United States.

1 In the Circuit Court separate cases were instituted by McGilvra and Bressler, respectively.

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Where the Circuit Court is without jurisdiction because the Federal questions presented by the bill are no longer open to discussion it should dismiss the bill and not decide it on the merits in order that the plaintiff's rights, if any, may be litigated in the state courts. 164 Fed. Rep. 604, affirmed as to lack of jurisdiction and case remanded for dismissal.

THESE cases were consolidated in the Circuit Court. The appellants were complainants in the suits respectively, and asserted title by virtue of patents from the United States to lands bordering on and touching Lakes Washington and Union in the State of Washington to the lands below the high-water mark of said lakes respectively, against a title claimed by the State. The appellee, James P. Agnew, is the auditor of the county of King, and the other appellees constitute the board of land commissioners of the State.

The fundamental question presented is whether rights below high-water mark passed to the patentees as appurtenant to the uplands conveyed to them or whether they vested in the State upon its admission into the Union and are subject to the control of the State.

The patent in the McGilvra case was issued in 1866, under the act of Congress of April 24, 1820, entitled "An act making further provisions for the sale of public lands;" that in the Bressler case was issued under the provisions of the act of Congress of September 27, 1850, entitled "An act to create the office of surveyor of the public lands in Oregon, and to provide for the survey and to make donations to the settlers of the said public land." It is alleged that the lakes are respectively non-tidal bodies of water, situated wholly within the county of King, Lake Washington being about twenty miles in length, with an average breadth of three miles, and Lake Union being about three miles in length, with an average breadth of one mile; and that neither lake has an outlet, navigable for boats, scows or lighters, and at all times has been confined to the conveyance of passengers or freight to and from different points said lake; and that neither lake is now or ever has been

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