Opinion of the Court.

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. § 1014–1016.

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 is 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. Whittier, 11 Bissell, 356. 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 in 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

Opinion of the Court.

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 offence bailable by the laws of the State, shall 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 offence is not so bailable, until such final judgment. 14 Stat. 172; Rev. Stat. § 1017; Cohens v. Virginia, 6 Wheat. 264; Worcester v. Georgia, 6 Pet. 515, 537, 562, 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 offences; for, when they were enacted, no writ of error lay from this court to the Circuit Court or District Court in any criminal case.

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

Opinion of the Court.

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. McCarter, 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. Catlett v. Brodie, 9 Wheat. 553, 555; O'Reilly v. Edrington, 96 U. S. 724.

Opinion of the Court.

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. S. 258, 260, and cases cited; Foster v. Kansas, 112 U. S. 201. 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. Ex parte Bradstreet, 4 Pet. 102; Ex parte

Opinion of the Court.

Crane, 5 Pet. 190; Chateaugay Co., petitioner, 128 U. S. 544, 557. See also Ex parte Morgan, 114 U. S. 174; Ex parte Parker, 120 U. S. 737; Parker, petitioner, 131 U. S. 221; Virginia v. Paul, 148 U. S. 107, 123, 124.

If, as suggested in the return, the petitioner is also in custody under a subsequent conviction for another offence, that custody will not be affected by admitting him to bail in this case.

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 Taylor, 14 How. 3; Ex parte Milwaukee Railroad, 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 void.

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 will be

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.

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