HKB
COMITY AS A PRINCIPLE OF STATUTORY CONSTRUCTION
On the other hand, in Ex parte Royall,[693] decided in 1886, the Court held that the jurisdiction of the lower federal courts in the above category of cases involved no duty to release persons from State custody but only a discretion to do so. Such discretion, the Court declared, "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between the courts equally bound to guard and protect rights secured by the Constitution."[694] In pursuance of these principles the Court has subsequently formulated rules to the effect that mere error in the prosecution and trial of a suit cannot confer jurisdiction upon a federal court to review the proceedings upon a writ of habeas corpus*;[695] that the writ of *habeas corpus cannot be substituted for the writ of error, however serious the errors committed by the State court;[696] that except in extreme and urgent cases the federal courts will not discharge a prisoner in State custody prior to final disposition of the case in the State courts, where the prisoner must first exhaust all State remedies; and even after the State courts have acted, the federal courts will usually leave the prisoner to the usual and orderly procedure of appeal to the Supreme Court. Furthermore, the Supreme Court will, in the exercise of a sound discretion, issue a writ of mandamus to compel a federal court to remand to a State court a prosecution of a federal officer removed to it, when it appears that the officer in question, in seeking removal, failed to make a candid, specific, and positive explanation of his relation to the transaction giving rise to the crime for which he was indicted.[697]
Because of the care with which the discretion to issue writs of habeas corpus and to grant removals has been exercised by the federal courts to release persons from State custody there has been a minimum of friction in this area of federal-state relations, in contrast to that
enforcement of State statutes. In Wade v. Mayo,[698] Justice Murphy cited the statistics of the Administrative Office of the United States Courts which revealed that during the fiscal years of 1943, 1944, and 1945, there was an average of 451 habeas corpus petitions filed each year in federal district courts by persons in State custody, and that of these petitions, an average of only six per year resulted in a reversal of the conviction and the release of the prisoner.
COMITY AS COOPERATION
Moreover, cold comity may become on occasion warm cooperation between the two systems of courts. In Ponzi v. Fessenden,[699] the matter at issue was the authority of the Attorney General of the United States to consent to the transfer on a writ of habeas corpus of a federal prisoner to a State court to be there put on trial upon indictments there pending against him. The Court, speaking by Chief Justice Taft, while conceding that there was no express statutory authority for such action, sustained it. Said the Chief Justice: "We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure."[700]
EARLY USE OF STATE COURTS IN ENFORCEMENT OF FEDERAL LAW