Opinion of the Court. 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 extradition, where the forms of law have been observed, doubtless tend to support the theory 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 Ker v. Illinois, p. 441, 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 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 defence 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, and Ex parte Fonda, 117 U. S. 516, that, where a person is in custody under process from a state court of original jurisdiction for an alleged offence 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 ad Opinion of the Court. vance 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: "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. Statement of the Case. STOTESBURY v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 30. Argued November 11, 1892. - Decided November 21, 1892. A decision by the Commissioner of Internal Revenue on an application for the refunding of taxes collected, authorizing the same to be refunded, which was made under the authority conferred upon him by the act of July 13, 1866, c. 184, § 9, 14 Statutes, pages 98, 109, 111, (Rev. Stat. § 3220) and was reported to the Secretary of the Treasury for his consideration and advisement July 26, 1871, under the Treasury Regulations then in force, is held by the court not to have been a final decision, but to have been subject to revision by the secretary and to be returned by him to the successor of the Commissioner for reëxamination. ON December 19, 1870, the firm of Harris & Stotesbury appealed to the Commissioner of Internal Revenue for the refunding of $67,335.85, internal revenue taxes claimed to have been erroneously assessed and collected from them. This claim was examined and rejected and notice thereof given to the claimants. An application for a rehearing was made and sustained. On July 26, 1871, the Commissioner having examined the claim, signed and transmitted to the Secretary of the Treasury the following schedule: "No. 99. A schedule of claims for the refunding of taxes erroneously assessed and paid, which have been examined and allowed, and are transmitted to the Secretary of the Treasury for his consideration and advisement in accordance with regulations dated January 12, 1866. District. Claimants. Amount. Disposi- Reason of disposition. 66 1st Penn. Harris & Stotesbury $67,335 85 Allowed Harris, Heyle & Co. 26,642 96 66 Were not sugar-retiners within the definition of section 75 of an act to provide internal revenue, etc., approved July 1, 1862, as amended by the act approved March 3, 1863. "I hereby certify that the foregoing claims for the refunding of taxes erroneously assessed and paid have been examined and allowed, and are transmitted to the Secretary of the Treasury for his consideration and advisement. A. PLEASONTON, Commissioner.” Statement of the Case. On August 8, 1871, Commissioner Pleasonton resigned, and on the next day J. W. Douglass, having been duly appointed his successor, entered upon the discharge of the duties of the office. On that day the Secretary of the Treasury sent to him this letter: "TREASURY DEPARTMENT, "WASHINGTON, D. C., August 9, 1871. 'SIR: The enclosed refunding claims of Harris & Stotesbury and Harris, Heyle & Co., transmitted by your predecessor to this office for approval, would seem to have been passed by a reversal of the construction of the law relative to sugar manufactures which obtained during the whole period of its existence. "Under these circumstances I deem it proper to return them to you for reëxamination, declining to consider them unless again submitted by your office. Respectfully yours, GEO. S. BOUTWELL, "Secretary of the Treasury. "Hon. J. W. Douglass, Com'r of Int. Revenue." And on the 9th of November, 1871, the Commissioner endorsed on the claim these words: "November 9, 1871. Rejected on reëxamination. J. W. Douglass, Commissioner;" notice of which action was duly given to the claimants. On the wrapper or jacket enclosing the papers in this claim appear the following endorsements: "(Office of Internal Revenue. Rec'd Dec. 19, '70. sec. 3.) Coll'r not'd Dec. 20, '70. J. D. 3395. Wrote claimants Nov. 13, '71. J. D. 12, 21, '70. (46) Claim for refunding taxes collected. Serial No. 18. No. of draft,, $67,335.85. Harris & Stotesbury, claimant Post-office address, Philadelphia. 1 district of Penna. Div. 1, W. J. POLLOCK, Collector. Opinion of the Court. Assessed upon sp. tax sugar-refiners. Basis of claim: Claims that they do not refine sugar. No notice was given to the claimants of the action of Commissioner Pleasonton, and it does not appear that they were aware of it until 1880, when, on being informed thereof, they made application for the payment of the money as having been duly allowed them by such decision of Commissioner Pleasonton. This application was denied, but the question of the liability of the government was transmitted by the Secretary of the Treasury to the Court of Claims. A petition in that court was filed in the name of Thomas P. Stotesbury, sole surviving partner of Harris & Stotesbury, and afterwards, on his death, the suit was revived in the name of the present appellants, his executors. The decision was in favor of the government, (23 Ct. Cl. 285,) from which decision the executors brought this appeal. Mr. Enoch Totten for appellants. Mr. Thomas W. Neill filed a brief for same. Mr. Assistant Attorney General Cotton for appellee. MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court. The Court of Claims decided that the action of Commissioner Pleasonton did not constitute a final award binding the government; and whether it was so or not is the question presented to us for decision. The law under which the Commissioner acted is found in |