Argument for the United States. 242 U. S. penalties in certain specific instances; for avoiding indefinite imprisonment on account of fines and costs; for motions for new trials, motions in arrest of judgment, and writs of error. Otherwise, the federal statutes evince a plain intention that sentence must be prompt and execution likewise. Section 722 of the Revised Statutes, even if applicable to supply power, only operates where the federal laws are deficient in details. And the common law, as modified, may only be resorted to under that section to govern in the disposition of the case and the infliction of punishment. To resort to the local law for means to avoid inflicting punishment would offend § 722 as well as the related federal laws generally. But even if resort were to be had to the common law as modified, there is neither a common law nor any statute of Ohio conferring the power here involved. Courts have inherent power to suspend sentence while awaiting determination of some question upon the event of which depends the legal propriety of enforcing sentence, this being essential to due administration of the law. Arbitrary, capricious or indefinite suspension, on the other hand, destroys the due administration of the law, and transcends all inherent power. Cf. Kendall v. United States, 12 Pet. 524; Porto Rico v. Rosaly, 227 U. S. 270; Interstate Commerce Commission v. Brimson, 154 U. S. 479. A capricious suspension of the imposition of sentence is essentially a nonjudicial act, for it leaves the convict enjoying all his civil rights as well as immunity from punishment. Though in a less degree, the same is true of a capricious suspension of execution. Each, in effect, involves an exercise of the pardoning power; for while civil rights are not preserved or restored by a suspension of execution, no more are they by a commutation of sentence by the President. Of course, if a judge (after sentence and commitment) were to grant a parole under authority of some valid act of Congress, he would then 242 U. S. Argument for the United States. be enforcing the law, because the parole would be a statutory element of every punishment. This court has frequently intimated that it does not consider it an inherent power of federal courts to capriciously stay proceedings upon their judgments or sentences. Ex parte Gordon, 1 Black, 503; United States v. Mayer, 235 U. S. 55. In Pointer v. United States, 151 U. S. 396, the question whether authority existed to suspend sentence indefinitely was mooted but not decided. The common law did not allow it, and in this country the reasoning and the great weight of the state decisions condemn it. The contrary state decisions are based on misconceptions of the common law or for other reasons are unsatisfactory. They relate almost entirely to delays in imposing sentence rather than suspension of execution. Of the cases usually referred to as supporting the power [citing decisions from New York, Michigan, New Jersey, New Hampshire, North Carolina, Florida, Massachusetts, Maine, California, Pennsylvania and Ohio] all save Weber v. State, 58 Ohio St. 616, and State v. White, 117 N. Car. 806, involve only postponement of the imposition of sentence. The expression in Weber v. State, supra, is a dictum. Even a decision by the Ohio court would not bind this court upon a question of inherent or common-law powers. See Wells on Jurisdiction of Courts, §§ 208, 304; Smith v. Alabama, 124 U. S. 465; Ex parte Wells, 18 How. 310. Further as to the Ohio view see State v. Baker, 3 Ohio N. P. Rep. N. S. 624; 6 Page & Adams Anno. Ohio General Code, note, § 13698, p. 644; Sterling v. Drake, 29 Ohio St. 457; Ohio v. Radcliffe (Ct. Common Pleas, Franklin County), Ohio Law Bulletin, November 15, 1915. The court may not judicially notice what the lower federal courts have done in similar cases. From the return and reply thereto, however, enough conceded facts Argument for Respondent. 242 U. S. appear to show that (1) the practice never was alike in all parts of the United States; (2) within single States, the practice, in some cases, differed in different districts; (3) within a single district the practice at one period would be one way and at another period the other way; (4) many judges exercised the function without any claim of right other than the right of necessity, some even admitting their lack of power; (5) after 1891 and 1894, respectively, whenever exercised, it was in the face of the Wilson Case, 46 Fed. Rep. 748, and the Pointer Case, 151 U. S. 396, 420; and (6) it was always done in the face of statutes prescribing the punishment for crimes, and the established principle of public policy that offenders against the law should suffer its penalties. This practice being neither general nor consistent nor conformable to statutes or constitution, cannot be considered. United States v. Buchanan, 8 How. 82; Thompson v. Riggs, 5 Wall. 663; United States v. Macdaniel, 7 Pet. 1; Basey v. Gallagher, 20 Wall. 670. The Midwest Oil Company Case, 236 U. S. 459, is readily. distinguished. Humanitarian arguments do not touch the question of power or affect the necessity of preserving the Constitution. Ample relief may be afforded by enlarging the general parole law (36 Stat. 819). Judicial suspension opposes teachings of advanced criminology, with which the Government is in entire sympathy. The respondent, Hon. John M. Killits, in his return to the rule to show cause and in a memorandum prepared by him in support thereof claimed: That the power of the court may be exercised broadly either by deferring the imposition or suspending the execution of sentence if such step seems consonant with the best interests of society as where the minimum penalty named in a statute is disproportionate to the criminality involved in the particular offense, or where the law may be vindicated 242 U.S. Argument for Respondent. and the individual saved, consistently. In a detailed statement, accompanied by much argument and illustration, the benefits accruing from the practice, in convenience of administration, in justice to the offender, and in the upbuilding of society, were eloquently set forth, together with reasons for believing that no adequate substitute may be provided. In discussing the question in its legal and constitutional aspects, he dwelt particularly upon the practice of many federal courts and judges and the acquiescence of the Government generally. Also upon the common law and the practice in Ohio. Local practice is significant of the common-law power. In Ohio the inherent power of the state court to suspend execution is no longer open to question. Weber v. State, 58 Ohio St. 616; State v. Whiting, 83 Ohio St. 447. In all discussion of the subject, judicial and lay, it is conceded that the power in both aspects existed in the common-law courts in 1787. See 49 American Law Review, 709, 713; Gehrmann v. Osborne, 79 N. J. Eq. 430, 441. Mr. Edwin J. Marshall for respondent: The power existed at common law. Hale's Pleas of the Crown, Vol. I, pp. 367, 19, 26; Vol. II, pp. 412, 401, 309, 35; Hawkins' Pleas of the Crown, Vol. II, ch. 51, § 8; ch. 33, § 144; ch. 6, § 8; ch. 15, §§ 40, 65; 1 Chitty's Crim. Law, ch. xix, p. 757; 2 Dyer, 235a; 2 Dyer, 205a; 2 Dyer, 165a. Although these authorities, confessedly, leave in some doubt whether indefinite suspension was a commonlaw power, they tend strongly to uphold it. Reprieves were either ex arbitrio judicis or ex necessitate legis. The latter covered all cases now dealt with by temporary suspensions, as for insanity, pregnancy, etc. The former seem to have applied whenever it appeared that injustice would result from conviction or execution. This power was an implied common-law exception to the statutory Argument for Respondent. 242 U.S. duty to punish. Courts reprieved before and after judgment, to allow opportunity to apply for pardon and for other reasons inconsistent with a strict and invariable duty to punish. If sentences could be suspended for limited times in avoidance of injustices, why not indefinitely? Hale says reprieves were granted after conviction of small felonies as well as on capital convictions, and the cases in Dyer show that the justices controlled the execution of judgments. See further Queen v. Richardson, 8 Dowling's Practice Cases, 511 (1840); Regina v. Ryan, 7 Cox Crim. Cas. 109 (1855); 9 American Law Review, 600 (1875); King v. Inhabitants of Wandsworth, 1 Barn. & Ald. 63 (1817); Rex v. Inhabitants of Southampton, 2 Chitty, 215 (1818). But see also King v. Inhabitants of the County of Oxford, 13 East. 411 (1811). The power might have had its origin in the "law of nature" conception (Blackstone Comm., Intro., § 2). It is consistent with the duty to "administer justice." While modern decisions, based on these common-law authorities, disagree in their interpretations (see Gehrmann v. Osborne, 79 N. J. Eq. 430 (1911); People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288 (1894)), long and continuous exercise by state and federal judges affords the best reason for believing that the power existed at common law. State v. Crook, 115 N. Car. 760 (1894). The exercise may have been common in England and yet no records made in the ancient reports, just as it has been frequent here in the federal practice though evidenced by barely a reported case. Analysis of the decisions of the various States and Territories shows that some courts affirm the power broadly, others only as to imposition of sentence, others deny it in toto, and some, while they disown it in words, have applied it indirectly where justice demanded. Some base the denial on the executive power of pardon. The distinction between the power to delay imposing sentence and the power to suspend execution is illusory in reason, |