A writ of error, under the Act of March 3, 1891, c. 517, § 5,
from this Court to a circuit or district court of the United
States, in a case of conviction of an infamous and not capital
crime, may be allowed, the citation signed, and a supersedeas
granted, by any Justice of this Court, although not assigned to the
particular circuit, and the same justice may order the prisoner,
after citation served, to be admitted to bail, by the judge before
whom the conviction was had, upon giving bond in a certain sum, in
proper form and with sufficient sureties, and if that judge
declines so to admit to bail, because in his opinion the order was
without authority of law, and the bond if given would be void, he
may be compelled to do so by this Court by writ of mandamus.
This was a petition for a writ of mandamus to the Honorable
Isaac C. Parker, the District Judge of the United States for the
Western District of Arkansas, to command him to admit the
petitioner to bail on a writ of error from this Court, dated August
14, 1894, upon a judgment rendered by the district court for that
for that district at May term, 1894, to-wit, on July 21, 1894,
adjudging him, upon conviction by a jury, to be guilty of an
assault with intent to kill, and sentencing him to imprisonment for
the term of four years at hard labor at Brooklyn, in the State of
The petition alleged that Mr. Justice Brewer, the Justice of
this Court assigned to the Eighth Circuit, in which the district
court was held, being absent from that circuit and from the City of
Washington, the petitioner, on August 14, 1894, presented to MR.
JUSTICE WHITE at chambers in this city a petition for a writ of
error upon that judgment, and for a supersedeas and bail pending
the writ of error, and that MR. JUSTICE WHITE signed and endorsed
upon that petition the following order:
Page 156 U. S. 278
"Writ of error, to operate as a supersedeas, allowed, returnable
according to law, the defendant to furnish bond in the sum of five
thousand dollars, conditioned according to law, subject to the
approval of the district judge."
"Justice Supreme Court of the United States"
"Washington, August 14, 1894"
The petition for a mandamus further alleged that on September 3,
1894, after the writ of error had been issued, and the citation
served upon the United States, the petitioner presented to the
district judge, in open court, and requested him to approve, a bond
in the sum of $5,000, executed by himself, as principal, and by
four persons, residents of the Western District of Arkansas, as
sureties, who (as appeared by their affidavits annexed to the bond)
were worth in their own right, over and above their debts and
liabilities and the property exempt by law from execution, the sum
This bond, which was filed with the petition for a mandamus, was
dated August 27, 1894; recited that the petitioner had sued out a
writ of error from this Court, upon which a citation had been
issued and served upon the United States, and that the petitioner
had, by order of MR. JUSTICE WHITE, been admitted to bail, pending
the writ of error, in the sum of $5,000, and was conditioned that
the petitioner should prosecute his writ of error with effect and
without delay, and should abide the judgment of this Court, and, if
this Court should reverse the judgment of the district court,
appear in that court until discharged according to law.
The petition for a mandamus further alleged that, upon the
presentation of this bond to the district judge, he refused to
approve it, or to discharge the petitioner, and made and signed an
order which, after reciting the application to him for the approval
of the bond and the order of MR. JUSTICE WHITE, proceeded and
concluded as follows:
"It is found by the judge of this Court, that the above order is
made without authority of law, and is therefore invalid, and that
the bond approved by him in obedience to
Page 156 U. S. 279
it would be null and void, and that there would be no obligation
of the sureties to have the principal in court when and where he is
required by the terms of the bond to appear, nor would there be any
obligation resting on the principal to appear as required by the
terms of the bond. For the above reasons, the judge of this Court
refuses to approve the bond tendered by defendant, and further, it
is noted that defendant has made no legal tender of bail."
"I. C. Parker"
"United States district judge"
The petition for a writ of mandamus also alleged that the writ
of error had been duly entered and was pending in this Court, and
the petitioner was still confined in prison at Fort Smith, in the
State of Arkansas, and prayed that the order of MR. JUSTICE WHITE
might be affirmed by this Court, and the district judge be ordered
to approve the bond, and discharge the petitioner, or that his bond
might be approved by this Court, and the petitioner discharged, and
for all other proper relief.
This Court gave leave to file the petition and granted a rule to
show cause why a peremptory mandamus should not issue as prayed
The district judge, in his return to the rule, stated that on
August 6, 1894 (as appeared by the record), he ordered that, upon
the filing of an assignment of errors, the clerk issue a writ of
error taking the case to this Court, but that, at the request of
the petitioner's counsel, stating that they had not determined
whether they would take the case to this Court, the writ of error
was not immediately issued by the clerk, and that the application
to MR. JUSTICE WHITE for a writ of error and for supersedeas and
bail was made before the writ of error was issued; that when MR.
JUSTICE WHITE's order was made, there had been no citation served,
but (as the record showed) the citation, signed by him on August
14, 1894, was not served until August 21, 1894, and that, after MR.
JUSTICE WHITE's order,
"the petitioner, with others, was tried and convicted of
conspiracy to run away the principal witness against him in the
above-entitled cause; that one of
Page 156 U. S. 280
the conspirators gave evidence against him, and that he is now
in jail at Fort Smith, Arkansas, on that charge."
The return also set forth at length various reasons of law why a
writ of mandamus should not issue, which may be briefly stated as
First. That the petitioner had a clear, adequate, and complete
remedy, by applying to MR. JUSTICE BREWER, the justice assigned to
the Eighth Circuit, for the approval of the bond.
Second. That under paragraph 2 of Rule 36 of this Court, the
matter of admitting to bail and approving the bond was a matter
requiring the exercise of judicial power and discretion, involving
the decision of questions of law and the ascertainment of facts,
and could not be controlled by writ of mandamus.
Third. That the bond, if given, would be void, because by
paragraph 2 of Rule 36, a person convicted and sentenced for crime
could only be admitted to bail after citation served.
Fourth. That the bond would be void because, by paragraph 2 of
Rule 36, MR. JUSTICE WHITE, not being the justice of this Court
assigned to the Eighth Circuit according to the last allotment,
made April 2, 1894, 152 U.S. 711, nor a judge of the circuit court
of that circuit, nor the district judge of any district in that
circuit, had no authority to make the order.
Fifth. That paragraph 2 of Rule 36 was void for want of power in
this Court, either by the common law or under any act of Congress,
to order bail to be taken after conviction and sentence of such a
crime as that of which the petitioner had been convicted.
The district judge, in concluding his return, submitted the
questions involved to the judgment of this Court; stated that he
would, as a matter of course, enforce by order any decision given
by this Court in the premises, and prayed to be dismissed without
Page 156 U. S. 281
The petitioner demurred to the return.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
By express acts of Congress beginning with the first
organization of the judicial system of the United States, this
Court and the circuit and district courts are empowered to issue
all writs not specially provided for by statute which may be
necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law. Act of September 24,
1789, c. 20, § 14, 1 Stat. 81, 82; Rev.Stat. § 716; Stockton v.
Bishop, 2 How. 74; Hardeman v. Anderson, 4 How. 640; Ex Parte
Milwaukee R. Co., 5 Wall. 188. Under the first Judiciary Act this
Court had power "to make and establish all necessary rules for the
orderly conducting of business," in all the courts of the United
States. Act of September 24, 1789, c. 20, § 17, 1 Stat. 83. And
successive statutes recognized its power to make rules, not
inconsistent with the laws of the United States, prescribing the
forms of writs and other process at common law, as well as in
equity or admiralty, in those courts. Acts of May 8, 1792, c. 36, §
2, 1 Stat. 276; May 19, 1828, c. 68, §§ 1, 3, 4 Stat. 281; Act of
August 23, 1842, c. 188, § 6, 5 Stat. 518; Wayman v.
10 Wheat. 1, 23 U. S. 27
Bank of United States v.
10 Wheat. 51; Beers v.
9 Pet. 329, 34 U. S. 360
2 Black 430, 67 U. S. 436
Since the Act of June 1, 1872, c. 255, § 5, indeed, the practice,
pleadings, and forms and modes of proceeding in actions at law in
the circuit and district courts of the United States are required
to conform as near as may be to those existing at the time in like
causes in the courts of record of the state within which they are
held, any rule of court to the contrary notwithstanding. 17 Stat.
197; Rev.Stat. § 914. But this act does not include the manner of
bringing cases from a lower court of the United States to this
Court. Chateaugay Co., Petitioner, 128 U.
; Fishburn v. Chicago &c.
Page 156 U. S. 282
137 U. S. 60
section 917 of the Revised Statutes, therefore, by which
(reenacting to this extent the provision of the act of 1842)
"the Supreme Court shall have power to prescribe, from time to
time, and in any manner not inconsistent with any law of the United
States, the forms of writs and other process,"
this Court has power to regulate the manner of proceeding, or
"mode of process," in taking bail upon writs of error from this
Court to the circuit court or district court in civil or criminal
cases. Act of September 24, 1789, c. 20, § 33, 1 Stat. 91;
Rev.Stat. § 1014; Beers v. Haughton,
United States v.
14 Pet. 301; United States v.
2 Curtis 41.
By section 4 of the Act of March 3, 1891, c. 517, the review by
appeal, writ of error, or otherwise, of judgments of the circuit
courts or districts courts can be had only in this Court or in the
circuit courts of appeals, according to the provisions of this act.
By section 5, "appeals or writs of error may be taken from" the
circuit courts or district courts "direct to" this Court "in cases
of conviction of a capital or otherwise infamous crime," as well as
in certain other classes of cases. 26 Stat. 827. And by section
"All provisions of law now in force regulating the methods and
system of review through appeals or writs of error shall regulate
the methods and system of appeals and writs of error provided for
in this act in respect of the circuit courts of appeals, including
all provisions for bonds or other securities to be required and
taken on such appeals and writs of error."
26 Stat. 827. But as to the methods and system of review through
appeals or writs of error, including the citation, supersedeas, and
bond or other security, in cases, either civil or criminal, brought
to this Court from the circuit court or the district court,
Congress made no provision in this act, evidently considering those
matters to be covered and regulated by the provisions of earlier
statutes forming parts of one system.
By those statutes, upon writs of error from this Court to the
circuit courts or district courts of the United States, as well as
upon writs of error from this Court to the courts of
Page 156 U. S. 283
the several states, any Justice of this Court -- not necessarily
the Justice assigned to the circuit in which the other court is
held -- may, in or out of court, allow the writ of error, sign the
citation, take the requisite security for the prosecution of the
writ of error, and grant a supersedeas, when the writ of error does
not of itself operate as a stay of proceedings, as it does if filed
and security given within sixty days after the judgment complained
of. Rev.Stat. §§ 999, 1000, 1002, 1003, 1007; Sage v. Railroad
Co., 96 U. S. 712
18 How. 530; Peugh v. Davis,
110 U. S. 227
In Claasen's Case, 140 U. S. 200
was adjudged upon full consideration that by the act of 1891, a
writ of error from this Court to the circuit court in the case of a
conviction of a crime infamous but not capital was a matter of
right, without giving any security; that the citation might be
signed by a Justice of this Court under Rev.Stat. § 999; that a
supersedeas might be granted not only by this Court under § 716,
but by a Justice thereof under § 1000, and that if the Justice
signing the citation directed that it should operate as a
supersedeas, the supersedeas might be obtained by merely serving
the writ within the time prescribed in § 1007. Mr. Justice
Blatchford, in delivering the unanimous judgment of the Court
"To remove all doubt on the subject, however, in future cases we
have adopted a general rule, which is promulgated as Rule 36 of
this Court and which embraces also the power to admit the defendant
to bail after the citation is served."
140 U.S. 205, 207-208.
By that rule, which was promulgated May 11, 1891, the same day
on which that judgment was delivered, "an appeal or a writ of error
from a circuit court or a district court direct to this Court," in
the cases provided for in sections 5 and 6 of the act of 1891,
"may be allowed, in term time or in vacation, by any Justice of
this Court, or by any circuit judge within his circuit, or by any
district judge within his district, and the proper security be
taken and the citation signed by him, and he may also grant a
supersedeas and stay of execution or of proceedings, pending such
writ of error or appeal."
And by paragraph 2 of the same rule,
"Where such writ
Page 156 U. S. 284
of error is allowed in the case of a conviction of an infamous
crime, or in any other criminal case in which it will lie under
said sections 5 and 6, the circuit court, or district court, or any
justice or judge thereof, shall have power, after the citation is
served, to admit the accused to bail in such amount as may be
139 U.S. 706.
This Court cannot, indeed, by rule, enlarge or restrict its own
inherent jurisdiction and powers, or those of the other courts of
the United States or of a justice or judge of either, under the
Constitution and laws of the United States. Poultney
v. La Fayette,
12 Pet. 472; The
1 Black 522, 66 U. S. 526
21 Wall. 558, 88 U. S. 576
88 U. S. 579
Nor has it assumed to do so.
On the contrary, the rule in question was adopted by this Court
under and pursuant to its power to make rules, prescribing the
forms of writs and process, and regulating the practice upon
appeals or writs of error, and was so framed as to give effect to
the appellate jurisdiction conferred by the act of 1891, in the
manner most consistent with the provisions of the various acts of
Congress concerning the same matter.
There can be no doubt, therefore, that under the acts of
Congress, the decision of this Court in Claasen's Case,
above cited, and the first paragraph of Rule 36, MR. JUSTICE WHITE,
although not the Justice of this Court assigned to the Eighth
Circuit, was authorized to allow the writ of error, to operate as a
supersedeas, and to sign the citation.
The next question is of the validity of his order, so far as
regards admitting the prisoner to bail pending the writ of
Recurring once more to Rule 36 and to the decision in
which were considered and promulgated
together, and mutually serve to explain each other, the matter
stands thus: the first paragraph of the rule, embracing all cases,
civil or criminal, of which this Court has appellate jurisdiction
under the act of 1891, provides that the writ of error may be
allowed in term time or vacation, "and the proper security be
taken," the citation signed, and a supersedeas granted, "by any
justice of this Court." In Claasen's Case,
it was held
that in the case of an infamous crime, the writ of
Page 156 U. S. 285
error was a matter of right, and that no security, such as is
necessary in a civil case, was required. The only "proper
security," then, in a criminal case, is security for the appearance
of a prisoner admitted to bail. Within the very terms of the rule,
therefore, any Justice of this Court, although not assigned to the
particular circuit, would seem to have the power to permit bail to
be taken. But the power rests upon broader grounds.
The statutes of the United States have been framed upon the
theory that a person accused of crime shall not, until he has been
finally adjudged guilty in the court of last resort, be absolutely
compelled to undergo imprisonment or punishment, but may be
admitted to bail not only after arrest and before trial, but after
conviction and pending a writ of error.
The statutes as to bail upon arrest and before trial provide
that "bail may be admitted" upon all arrests in capital cases, and
"shall be admitted" upon all arrests in other criminal cases, and
may be taken in capital cases by this Court, or by a Justice
thereof, or by a circuit court, a circuit judge or a district
judge, and in other criminal cases by any justice or judge of the
United States or other magistrate named. Rev.Stat. §§
Under the Act of March 3, 1879, c. 176, upon writs of error from
the circuit court to review judgments of the district court upon
convictions in criminal cases, the Justice of this Court assigned
to the circuit or the circuit judge -- that it to say, any member
of the appellate court except the district judge, presumably the
judge who rendered the judgment below -- might allow the writ to
operate as a supersedeas and might take bail for the defendant's
appearance in the circuit court. 20 Stat. 354; United States v.
13 F. 534. And upon a writ of error from this Court
to the highest court of a state to review a decision against a
right claimed under the Constitution and laws of the United States,
and which lies both in criminal and civil cases and operates as a
supersedeas under the same circumstances in the one as in the
other, bail may be taken pending the writ of error; but, because of
the relation between the two governments, in
Page 156 U. S. 286
the court of the state only, it being enacted by the Act of July
13, 1866, c. 184, § 69, in accordance with the practice previously
prevailing in some states, that the plaintiff in error, if charged
with an offense bailable by the laws of the state, should not be
released from custody until final judgment upon the writ of error,
"or until a bond, with sufficient sureties, in a reasonable sum, as
ordered and approved by the state court, shall be given," or, if
the offense was not so bailable, until such final judgment. 14
Stat. 172; Rev.Stat. § 1017; Cohens v.
6 Wheat. 264; Worcester
6 Pet. 515, 31 U. S. 537
31 U. S. 562
31 U. S. 567
Bryan v. Bates,
12 Allen 201. By these statutes, bail
after conviction was provided for in every class of writs of error
pending in the courts of the United States in cases of bailable
offenses, for when they were enacted, no writ of error lay from
this Court to the circuit court or district court in any criminal
By the Act of February 6, 1889, c. 113, § 6, it was enacted that
final judgments of any court of the United States upon conviction
of a crime punishable with death might, upon the application of the
defendant, be reviewed by this Court "upon a writ of error, under
such rules and regulations as said court may prescribe," and that
every such writ of error should "be allowed as of right, and
without the requirement of any security for the prosecution of the
same, or for costs," and should "during its pendency operate as a
stay of proceedings upon the judgment, in respect of which it is
sued out," and might be immediately filed in this Court, but should
not be sued out or granted except upon a petition filed with the
clerk of the court in which the trial was had, during the same
term, or within sixty days after its expiration. 25 Stat. 656.
Although that act expressly recognized the power of this Court
to make rules regulating the proceedings upon writs of error in
capital cases, yet, as by its terms the writ was to be allowed as
of right, without requiring any security, and was of itself to
operate as a stay of proceedings, no rule upon the subject was
considered necessary, and none was made by this Court. It can
hardly be doubted, however, that Congress intended that the
allowance of the writ of error and stay of
Page 156 U. S. 287
proceedings, while suspending the execution of the sentence,
should neither have the effect of discharging the prisoner from
custody nor of preventing his being admitted to bail, upon
sufficient cause shown, pending the writ of error, and, no special
provision upon the subject of bail in a capital case after
conviction having been made by act of Congress or rule of court, it
would seem that it might be taken by the justice or judge who
allowed the writ of error.
But however it may be in a capital case, it is quite clear, in
view of all the legislation on the subject of bail, that Congress
must have intended that, under the act of 1891, in cases of crimes
not capital, and therefore bailable of right before conviction,
bail might be taken, upon writ of error, by order of the proper
court, justice, or judge. And we are of opinion that any Justice of
this Court having power by the acts of Congress to allow the writ
of error, to issue the citation, to take the security required by
law, and to grant a supersedeas has the authority, as incidental to
the exercise of this power, to order the plaintiff in error to be
admitted to bail independently of any rule of court upon the
subject, and that this authority is recognized in the first
paragraph of Rule 36.
Having the authority to order bail to be taken, the same Justice
might either himself approve the bail bond or he might order that
such a bond should be taken in an amount fixed by him, the form of
the bond and the sufficiency of the sureties to be passed upon by
the court whose judgment was to be reviewed or by a judge of that
court, or he might leave the whole matter of bail to be dealt with
by such court or judge.
Upon a writ of error in a civil case, the requisite security is
ordinarily taken by the justice or judge who allows the writ and
signs the citation. Jerome v.
21 Wall. 17. But where the bond taken is
insufficient in law, this Court, in the exercise of its inherent
jurisdiction as a court of error, may direct that the writ be
dismissed unless the plaintiff in error gives security sufficient
in this respect, to be taken and approved by any justice or judge
who is authorized to allow the writ of error and citation.
9 Wheat. 553, 22 U. S. 555
O'Reilly v. Edrington, 96 U. S. 724
Page 156 U. S. 288
This Court, in the lawful exercise of its power to prescribe the
forms of process and to regulate the practice upon writs of error,
has said, in paragraph 2 of Rule 36, that in the case of a
conviction of an infamous crime,
"the circuit court, or district court, or any justice or judge
thereof, shall have power, after the citation is served, to admit
the accused to bail in such amount as may be fixed."
The necessary consequence is that that part of the order of MR.
JUSTICE WHITE which required "the defendant to furnish bond in the
sum of five thousand dollars, conditioned according to law, subject
to approval by the district judge" was a valid exercise of his
authority to order bail in an amount fixed by him, to be taken by
the district judge, leaving the form of the bond and the
sufficiency of the sureties to be passed upon by the latter.
A writ of error, allowed out of court, is neither considered as
brought, even for the purpose of computing the time of limitation
of suing it out, nor does it operate as a supersedeas, until it has
been filed in the clerk's office of the court to which it is
addressed. Credit Co. v. Arkansas Railway, 128 U.
, 128 U. S. 260
and cases cited; Foster v. Kansas, 112 U.
. By the order of MR. JUSTICE WHITE, the allowance
of the writ of error to operate as a supersedeas was not to take
effect until the approval of the bond by the district judge, and
when the bond was presented to the district judge for approval, the
writ of error had been filed in the clerk's office of the district
court, and the citation had been issued and served. The objection
that the petitioner could only be admitted to bail after citation
served has therefore no application to this case.
The discretion of a judge, indeed, in a matter entrusted by law
to his judicial determination cannot be controlled by writ of
mandamus. But if he declines to exercise his discretion, or to act
at all, when it is his duty to do so, a writ of mandamus may be
issued to compel him to act. For instance, a writ of mandamus will
lie to compel a judge to settle and sign a bill of exceptions,
although not to control his discretion as to the frame of the bill.
4 Pet. 102; Ex
Page 156 U. S. 289
5 Pet. 190; Chateaugay Co., Petitioner,
128 U. S. 544
128 U. S. 557
See also Ex Parte Morgan, 114 U.
; Ex Parte Parker, 120 U.
; Ex Parte Parker, 131 U.
; Virginia v. Paul, 148 U.
, 148 U. S.
If, as suggested in the return, the petitioner is also in
custody under a subsequent conviction for another offense, that
custody will not be affected by admitting him to bail in this
Were the question here only as to what persons should be
accepted as sureties on the bond or as to their sufficiency, there
would be no ground for issuing a writ of mandamus. Ex Parte
14 How. 3; Ex Parte
5 Wall. 188. But in the case
before us, the district judge has not exercised any discretion in
the matter, but has declined to act at all, and has refused to
approve the bond, solely because, in his own words, "it is found
by" him that the order of MR. JUSTICE WHITE was made without
authority of law, and that the bond, if approved, would be
As the district judge, in so refusing to approve the bond,
appears to have acted under a misunderstanding of the powers of
this Court and of its Justices, and of his own duty in the
premises, and as in his return he expresses his readiness to
enforce any decision of this Court, it appears to us to be more
just to him, as well as more consistent with the maintenance of the
rightful authority of this Court, to sustain this petition and
enable bail to be taken before him in accordance with the order
heretofore made, than to dismiss these proceedings, and to deal
with the matter over his head, as it were, by having the petitioner
admitted to bail by this Court, or by the justice thereof assigned
to the Eighth Circuit.
We do not anticipate that there will be any occasion for the
actual issue of a writ of peremptory mandamus, but should it become
necessary to do so in order to secure the rights of the petitioner,
his counsel may move for the writ at any time. The present order
Petitioner entitled to writ of mandamus to the district
judge to admit the petitioner to bail on his giving bond in proper
form, and with sufficient sureties.
MR. JUSTICE WHITE took no part in the decision of this case.
Page 156 U. S. 290
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE BROWN,
I am unable to concur in all the views expressed in the opinion
of the Court. Agreeing that this Court has power to admit to bail
in criminal cases pending proceedings in error, I reach this
conclusion in a different way, and deduce the right to let to bail
solely from the grant of jurisdiction over the proceedings in
error. As said in Ex Parte Dyson,
25 Miss. 356-359:
"The right of a prisoner to bail, after conviction, is not
regulated by the Constitution or by statute, and is governed by the
rules and practice of the common law. It seems to be fully and
clearly established that the Court of King's Bench could bail in
all cases whatsoever, according to the principles of the common
law; the action of that court not being controlled by the various
statutes enacted on the subject of bail, but regulated and governed
entirely by a sound judicial discretion on the subject. 2 Hale,
P.C. 129; 4 Co.Inst. 71; 2 Com.Dig. 6, tit. (f. 3); 1 Bacon's Ab.
483-493; 2 Hawk. P.C. 170; Cowp. 333. In the exercise of this
discretion, the court in some instances admitted to bail, even
after verdict, in cases of felony, whenever a special motive
existed to induce the court to grant it. 1 Bac.Abr. 489-490; 2
Hawk. P.C. 170."
So when jurisdiction is given over proceedings in error in
criminal cases, that jurisdiction carries with it, by implication,
the power to make all orders necessary and proper not merely for
bringing up the record, but also for the custody of the defendant
pending the hearing of his allegations of error. But that
jurisdiction is vested in this Court as a court, and not in any
There have been five separate enactments of Congress in
reference to the letting to bail and the review of judgments in
criminal cases: First. For bail before trial. Secs. 1014-1016
Rev.Stat. These sections name the judicial officers by whom bail
may be taken. Second. In respect to judgments in criminal cases in
the state courts brought here on error. Sec. 1017, Rev.Stat. In
this section there is
Page 156 U. S. 291
specific provision in reference to the matter of bail. Third.
The Act of March 3, 1879, providing for a review by the circuit
court of judgments in the district court in criminal cases. 20
Stat. 354. In this act, express authority is given for bail, and
the officers named by whom such bail may be taken. Fourth. The Act
of February 6, 1889, c. 113, 25 Stat. 655, granting a writ of error
from this Court to bring up the judgments of any inferior courts of
the United States in capital cases. Nothing is said in this act in
respect to the matter of bail, but the allowance of the writ is
made to operate as a stay of proceedings. Fifth. The Act of March
3, 1891, c. 517, 26 Stat. 827 -- the act under which this
controversy has arisen -- which provides for a review by this Court
of the final judgments of circuit or district courts in cases of
"convictions of capital or otherwise infamous crimes." In this
statute also there is no mention of bail.
I fail to appreciate the argument that because Congress has made
specific provision for bail in criminal cases before conviction, it
is to be assumed that it intended that bail should likewise be
allowed in all cases after conviction, or that because in two
statutes contemplating review of judgments in criminal cases it
made like specific provision in respect to letting to bail, it
intended the same grant of power in two other and later statutes
granting a right of review, in which it said nothing in respect to
bail. In other words, an omission apparently made ex
implies the same intention as an express provision
fully stated. On the contrary, as I understand it, the logic of all
differences in substantial provisions between earlier and later
statutes is indicative of difference, rather than identity, of
"Indeed, the words of a statute, when unambiguous, are the true
guide to the legislative will. That they differ from the words of a
prior statute on the same subject is an intimation that they are to
have a different,
and not the same,
Rich v. Keyser,
54 Penn.St. 86, 89.
Where the later of two acts upon limited partnerships omitted
the infliction, prescribed by the earlier, of a penalty for the
omission of certain matters required by both, the court
Page 156 U. S. 292
"We must presume that the [earlier] act . . . and the decisions
under it were well known to the lawmakers at the time the [later]
act . . . was passed. The omission to prescribe the penalty . . .
is good reason for concluding that no such liability was
Eliot v. Himrod,
108 Penn.St. 569, 573. See
Endlich on the Interpretation of Statutes § 384.
Neither can I gather from the legislation authorizing bail
before trial, or that provision for bail in cases brought to this
Court from conviction in state tribunals, or that authorizing bail
in cases taken from the district to the circuit court, the evidence
of a settled policy on the part of Congress that bail should be
allowed in all cases, capital or otherwise, brought here on error
from a final judgment of the circuit or district court. Indeed,
with reference to this matter of policy, it was well said in
Hadden v. The
5 Wall. 107, 72 U. S.
"What is termed the 'policy' of the government with reference to
any particular legislation is generally a very uncertain thing,
upon which all sorts of opinions, each variant from the other, may
be formed by different persons. It is a ground much too unstable
upon which to rest the judgment of the court in the interpretation
Nevertheless, I agree with the majority that this Court has
power to prescribe by rule all matters of detail in respect to
procedure which are not in terms fixed or denied by statute. It has
exercised such power, and passed a rule concerning the letting to
bail in which, as I have hitherto supposed, it determined the whole
It is idle to say that there is no difference between the
supersedeas of a judgment and the letting to bail. When a sentence
of death is stayed by this Court, it does not follow as a matter of
course that the party sentenced is to be discharged from custody,
and permitted to go where he pleases, and the same is true in case
of a sentence to confinement and hard labor in the penitentiary.
The stay of execution simply prevents the hanging or the removal of
the party to the penitentiary. But it is unnecessary, in view of
the language of this Court, to make any argument to show that the
two things are different. In
Page 156 U. S. 293
In re Claasen, 140 U. S. 200
140 U. S. 208
the Court said:
"We hold therefore that the allowance of the supersedeas in the
present case was proper, and we deny the motion to set it aside. To
remove all doubt on the subject, however, in future cases, we have
adopted a general rule, which is promulgated as Rule 36 of this
139 U.S. 706) and which embraces also the power
to admit the defendant to bail after the citation served."
The rule there indicated was put into two paragraphs, one of
which provides, among other things, for a supersedeas, and the
other for admitting to bail. This Court, then, certainly understood
that there was a difference between the two, and did not add a
second paragraph to regulate a matter which was fully regulated by
the first. It is also true that in the first paragraph, provision
is made for the taking of security, but taking security is not
technically letting to bail, and the provision in reference to
security evidently refers to those cases in which the sentence of
the trial court directs the payment of a fine. In respect to such a
sentence, "security" is an apt and suitable word.
Now the idea of a rule is that it makes full provision for
everything within the scope of its general purpose, and when this
Court, by the second paragraph, named certain judicial officers as
the ones to admit to bail, it was a declaration first that this
Court had power to pass such a rule, and second upon the principle,
expressio unius exclusio alterius,
that it had named
therein all the judicial officers who were to exercise that
particular authority. There is in its language nothing to suggest
that it was intended to be cumulative or that, in addition to
certain officers, given by law the right to admit to bail, other
officers were by it given the like power. It is well to note the
very words of the rule:
"1. An appeal or a writ of error from a circuit court or a
district court direct to this Court, in the cases provided for in
sections 5 and 6 of the Act entitled 'An act to establish circuit
courts of appeals, and to define and regulate in certain cases the
jurisdiction of the courts of the United States, and for other
purposes,' approved March 3, 1891, may
Page 156 U. S. 294
be allowed, in term time or in vacation, by any justice of this
Court, or by any circuit judge within his circuit, or by any
district judge within his district, and the proper security be
taken and the citation signed by him, and he may also grant a
supersedeas and stay of execution or of proceedings, pending such
writ of error or appeal."
"2. Where such writ of error is allowed in the case of a
conviction of an infamous crime, or in any other criminal case in
which it will lie under said sections 5 and 6, the circuit court or
district court, or any justice or judge thereof, shall have power,
after the citation is served, to admit the accused to bail in such
amount as may be fixed."
No one can read this rule, and particularly the second
paragraph, without understanding that by it, this Court had named
the officers, and the only officers, who should have the power to
admit to bail. Certainly such has been the understanding of bench
and bar through the country.
In United States v. Simmons,
47 F. 723, Judge Benedict
"The rules of the Supreme Court of the United States (Rule 36)
permit persons convicted, when they appeal to the Supreme Court of
the United States, to be admitted to bail, but leave the question
of admitting to bail to the discretion of the court below."
Can there be any doubt as to the meaning of the second
paragraph? It says, "The circuit court or district court, or any
justice or judge thereof." Surely that does not mean any circuit
court or any district court, or any justice or any judge thereof,
but the court in which the case was tried. If it was intended by
the second paragraph to give to any justice of this Court the power
to admit to bail, why was not the language of the first paragraph
repeated, or a mere reference made to the words of description
therein? Why was the careful language used which unquestionably
limits to the judicial officers of the circuit in which the case
was tried? It says, "any justice or judge thereof." Section 605,
Rev.Stat., contains these words:
"The words 'circuit justice' and 'justice of a circuit,' when
used in this title, shall be understood to designate the justice of
the supreme court who
Page 156 U. S. 295
is allotted to any circuit."
Did not this Court, when it framed this paragraph, understand
what the statute had declared to be the meaning of the words
"justices of a circuit?" If the power belonged to all the justices
of the court, either independently of the rule or by virtue of the
first paragraph, why, in this second paragraph, mention the justice
of the circuit? I confess my inability to see any reason
Hence, I am forced to the conclusion that if the order of MR.
JUSTICE WHITE, who was not the justice of the Eighth Circuit, is to
be construed as a command in respect to bail, it was beyond the
scope of the rule. I think, however -- and in this I must also
differ from the majority -- that, reasonably construed, it may be
taken as a supersedeas, the power to grant which is unquestioned,
and a reference of the matter of bail to the trial judge.
Indeed, the conclusion reached by the court seems to work out
this curious result -- that one judge, by virtue of his power to
allow a writ of error, can command another judge to perform the
ministerial duty of approving a bail bond. Suppose a criminal case
is tried by a Justice of this Court while holding the circuit
court, can it be that the circuit judge, exercising the power given
to him by the first paragraph of this rule, can allow a writ of
error, and couple with it a command to the circuit justice to
approve a bail bond against his judgment of the propriety of
letting to bail, and such command be enforced by a writ of mandamus
from this Court? I submit the query without further comment.
I am authorized to say that MR. JUSTICE BROWN concurs in these