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 Railroad, 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. 246; May 19, 1828, c. 68, §§ 1, 3; Stat. 281; August 23, 1842, c. 188, § 6; 5 Stat. 518; Wayman v. Southard, 10 Wheat. 1, 27-29; Bank of United States v. Halstead, 10 Wheat. 51; Beers v. Haughton, 9 Pet. 329, 360; Ward v. Chamberlain, 2 Black, 430, 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.S. 544; Fishburn v. Chicago &c. Railway,
U.S. 60. Under 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, above cited; United States v. Knight, 14 Pet. 301; United States v. Rundlett, 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 District 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 Destrict 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 11, "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. 829. But as to the methods and system of review, through appeals or writs of error, including the citations, 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
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; Hudgins v. Kemp, 18 How. 530; Peugh v. Davis, 110 U.S. 227.
In Claasen's case, 140 U.S. 200, it 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 accordingly, said: "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
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." 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 St. Lawrence, 1 Black, 522, 526; The Lottawanna, 21 Wall. 558, 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 error.
Recurring once more to Rule 36, and to the decision in Claasen's case, 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 habeas corpus
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 ...