The usual remedy for the requirement of excessive bail is an application for the writ of habeas corpus.12 Upon an application for a warrant and for the removal of the prisoner to another Federal District, the judge reduced the bail fixed by the commissioner.13 A motion to reduce the bail might be sustained; 14 but its denial could not, like the denial of a discharge upon habeas corpus, be immediately reviewed upon an appeal.15 A petition for the writ will be dismissed, if the prisoner before the decision, give the bail which he claims to be excessive.16 The Revised Statutes provide: "For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a Circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor

In U. S. v. Petit, 11 Fed. 58, Ed. Mo. the defendant to a charge of passing a counterfeit half dollar was held in bail in the sum of $1,000.

In Smith v. Lee, 13 Fed. 28, an arrest in a civil action by a receiver for conversion of the money of a bank after a disagreement of the jury upon one trial the bail was reduced from $100,000 to $10,000. The defendant was under bail in the sum of $10,000 upon indictments. He had made a general assignment for the benefit of creditors without preferences the schedules in which filed by the assignee estimated his property at the value of $35,000. The greater part of his property was real estate in the city where the bank was located. The affidavit also stated that, with the exception of the property so assigned, he had nothing whatever with which to pay any judgment that might be awarded against him; that from the day the

bank suspended-April 14, 1882until May 18th, the date of the arrest in this action, he was, with the exception of one day, at large in the city of Buffalo, making no attempt to depart; that he has now no property to offer as security, and it will be absolutely impossible for him to procure bail unless the same be mitigated; that if reduced to a nominal sum in this action, it may be possible, through his friends, to secure bail in the criminal actions to the amount of $15,000.'' The plaintiff did not claim that there was danger of defendant's absconding.

In People v. Tweed, 63 N. Y. 202, an order was affirmed which fixed the amount of bail at $3,000,000, in a civil suit to recover more than $6,000,000.

12 U. S. v. Brawner, 7 Fed. 86. 13 Ibid.

14 Smith v. Lee, 13 Fed. 28, a civil case.

15 See § 467, supra, § 695, infra. 16 Johnson v. Hoy, 227 U. S. 445, 57 L. ed. 497; supra, § 467.

of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizance of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." 17

It has been said that this statute is as regards District Courts merely declarative of the inherent powers of such courts to admit offenders to bail.18

"Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the persons authorized by the preceding section to arrest and imprison offenders." 19 "Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstances of the offense, and of the evidence, and to the usages of law." 20

"When a writ of error is issued for the revision of the judgment of a State court, in any criminal proceeding where is drawn in question the validity of a statute of, or an authority exercised under, the United States, or where any title, right, privilege, or immunity is claimed under the Constitution, or any statute of, or commission held or authority exercised under, the United States, the defendant, if charged with an offense that is bailable by the laws of such State, shall not be released from

17 U. S. R. S., § 1014.

18 Ewing v. U. S., C. C. A., 240 Fed. 241.

19 U. S. R. S., § 1015.

20 U. S. R. S., § 1016.

custody until a final judgment upon such writ, or until a bond, with sufficient sureties, in a reasonable sum, as ordered and approved by the State court, is given; and if the offense is not so bailable, until a final judgment upon the writ of error.

"When proof is made to any judge of the United States, or other magistrate having authority to commit on criminal charges as aforesaid, that a person previously admitted to bail on any such charge is about to abscond, and that his bail is insufficient, the judge or magistrate shall require such person to give better security, or, for default thereof, cause him to be committed to prison; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued, by such judge or magistrate, setting forth the cause thereof." 22 "When a defendant who has procured bail to respond to the judgment in a suit in any court of the United States in any district is afterwards arrested in any other district and is committed to a jail, the use of which had been ceded to the United States for the custody of prisoners, the judge of the court wherein the suit in which the defendant has so procured bail is depending, shall, at the request of the bail, order that such defendant be held in said jail, in the custody of the marshal of the district in which it is. The said marshal, upon the delivery of such order, duly authenticated, shall receive such person into his custody, and thereupon be chargeable for an escape, and shall forthwith make a certificate, under his hand and seal, of such commitment, and transmit the same to the court from which the order issued, and, if required, shall make and deliver to such bail or to his attorney a duplicate thereof. Upon the return of said certificate, the court which made the said order, or any judge thereof, may direct that an exoneratur be entered upon the bail-piece, where special bail shall have been found, or otherwise discharge such bail." 23

"When a defendant is committed by virtue of the order provided in the preceding section, he shall, unless sooner discharged by law, be holden in jail until final judgment is rendered in the suit in which he procured bail as aforesaid, and sixty days thereafter, if such judgment is rendered against him, in

21 U. S. R. S., § 1017. 22 U. S. R. S., § 1019.

23 U. S R. S., § 943.

order that he may be charged in execution, which may, in such cases, be directed to and served by the marshal in whose custody he is.'' 24

"Bail and affidavits, when required or allowed in any civil cause in any circuit or district court, may be taken by a commissioner of the circuit court for the district; 'and such acknowledgements of bail and affidavits shall have the same effect as if taken before any judge of such courts.''' 25

"When a bail-bond is given for the appearance of any person to answer in the district or circuit court for the district of Kentucky, the clerk of such court shall call the party at the time he is bound to appear. If the party fails, the clerk shall enter such failure on his minutes, and on said entry judgment may afterward be made of record by the court; but if the party appears, the clerk shall take another bond, with sureties similar to the first, for further appearance at the next succeeding term of the court, and if the party fails to give such other bond and surety, he shall stand committed by order of the clerk until he complies." 26

It has been said: that courts have inherent power to take recognizances; but that clerks possess such power only by statute.27 "Recognizances of special bail may be taken de bene esse by the clerks of the circuit and district courts, in the absence or in case of the disability of the judges, in any action depending in either of the said courts, where special bail is demandable." '' 28

A Circuit Court of Appeals, pending a writ of error therefrom, may admit to bail a prisoner after his conviction of a crime which is not capital.29 It has been said by a high authority: "The granting of the writ of error in itself stays the execution of the sentence of the trial court. Detention pending the writ is only for the purpose of securing the attendance of the convicted person after the determination of his proceedings in error. If this can or will be done by requiring bail there is no excuse for refusing or denying such relief." 30 The

Circuit Court of Appeals may allow bail in such a case, although the trial judge has refused an application therefor.31 The fact that the judgment is the third conviction after the third trial upon the same indictment is not a sufficient reason for denying bail.32 The better practice in the Circuit Court of Appeals is to permit bail for a time only sufficient to insure the filing of the transcript there, reserving the question of further bail until then, when a new bond may be taken by the trial court immediately or by direction of the Circuit Court of Appeals for such time as the latter may prescribe.3 33

After the conviction has been affirmed, pending a motion for a rehearing, the prisoner may be allowed to remain at large on