Opinion of the Court.

in criminal cases punishable with death shall be considered writs of grace and not writs of right, (Ib. 283,) was brought forward from an act passed March 6, 1795. Laws of New Jersey, Revision of 1821, pp. 184, 186, § 13.

The contention of the appellant is that such a statute is in violation of the Constitution of the United States. If it were necessary, upon this appeal, to consider that question, we would only repeat what was said in McKane v. Durston, 153 U. S. 684, 687: "An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review." "It is, therefore, clear that the right of appeal may be accorded by the State to the accused upon such terms as in its wisdom may be proper;" and "whether an appeal should be allowed, and if so, under what circumstances or on what conditions, are matters for each State to determine for itself."

Whether, as is contended, the above statute in its application to capital cases is in violation of the constitution of New Jersey, is not necessarily a Federal question, and upon that point we need not, therefore, express an opinion. The repugnancy of a statute to the constitution of the State by whose legislature it was enacted cannot authorize a writ of habeas corpus from a court of the United States unless the petitioner is in custody by virtue of such statute, and unless also the statute is in conflict with the Constitution of the United States.

The further contention of the accused is that he is restrained of his liberty in violation of the Constitution and laws of the United States, in that persons of his race were arbitrarily excluded, solely because of their race, from the panel of jurors summoned for the term of the court at which he was tried, and because the state court denied him the right to establish that fact by competent proof.

Opinion of the Court.

It is a sufficient answer to this contention that the state court had jurisdiction both of the offence charged and of the accused. By the laws of New Jersey the Court of Oyer and Terminer and general jail delivery has "cognizance of all crimes and offences whatsoever which, by law, are or shall be of an indictable or presentable nature, and which have been or shall be committed within the county for which such court shall be held." Rev. Stat. N. J. 272, § 30. If the state court, having entered upon the trial of the case, committed error in the conduct of the trial to the prejudice of the accused, his proper remedy was, after final judgment of conviction, to carry the case to the highest court of the State having jurisdiction to review that judgment, thence upon writ of error to this court, if the final judgment of such state court denied any right, privilege, or immunity specially claimed, and which was secured to him by the Constitution of the United States. Even if it be assumed that the state court improperly denied to the accused, after he had been arraigned and pleaded not guilty, the right to show by proof that persons of his race were arbitrarily excluded by the sheriff from the panel of grand or petit jurors solely because of their race, it would not follow that the court lost jurisdiction of the case within the meaning of the well-established rule that a prisoner under conviction and sentence of another court will not be discharged on habeas corpus unless the court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void. Ex parte Siebold, 100 U. S. 371, 375; In re Wood, 140 U. S. 278, 287; In re Shibuya Jugiro, 140 U. S. 291, 297; Pepke v. Cronan, 155 U. S. 100. When a state court has entered upon the trial of a criminal case, under a statute not repugnant to the Constitution of the United States, and has jurisdiction of the offence and of the accused, no mere error in the conduct of the trial should be made the basis of jurisdiction in a court of the United States to review the proceedings upon writ of habeas corpus. The application to the Circuit Court for a writ of habeas corpus was properly denied, and the judgment must be

Affirmed.

Statement of the Case.

HUDSON v. PARKER.

ORIGINAL.

No. 9. Original. Submitted January 7, 1895. Decided February 4, 1895.

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 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 New York.

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:

Statement of the Case.

"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.

"E. D. WHITE,

"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 $5000, 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 of $17,500.

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 $5000; 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

Statement of the Case.

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 for.

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 15, 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