Hudson v. Parker/Dissent Brewer

Mr. Justice BREWER (dissenting).

I am unable to concur in all the views expressed in the opinion of the court. Agreeing that this court has power to admit to bail in criminal cases pending proceedings in error, I reach this conclusion in a different way, and deduce the right to let to bail solely from the grant of jurisdiction over the proceedings in error. As said in Ex parte Dyson, 25 Miss. 356-359: 'The right of a prisoner to bail, after conviction, is not regulated by the constitution or by statute, and is governed by the rules and practice of the common law. It seems to be fully and clearly established that the court of king's bench could bail in all cases whatsoever, according to the principles of the common law; the action of that court not being controlled by the various statutes enacted on the subject of bail, but regulated and governed entirely by a sound judicial discretion on the subject. 2 Hale, P. C. 129; 4 Co. Inst. 71; 2 Com. Dig. 6, tit. 'F,' 3; 1 Bac. Abr. 483-493; 2 Hawk. P. C. 170; Cowp. R. 333. In the exercise of this discretion, the court in some instances admitted to bail, even after verdict, in cases of felony, whenever a special motive existed to induce the court to grant it. 1 Bac. Abr. 489-490; 2 Hawk. P. C. 170.'

So, when jurisdiction is given over proceedings in error in criminal cases, that jurisdiction carries with it, by implication, the power to make all orders necessary and proper, not merely for bringing up the record, but also for the custody of the defendant pending the hearing of his allegations of error. But that jurisdiction is vested in this court as a court, and not in any single justice.

There have been five separate enactments of congress in reference to the letting to bail and the review of judgments in criminal cases: First. For bail before trial. Rev. St. §§ 1014-1016. These sections name the judicial officers by whom bail may be taken. Second. In respect to judgments in criminal cases in the state courts, brought here on error. Id. § 1017. In this section there is specific provision in reference to the matter of bail. Third. The act of March 3, 1879, providing for a review by the circuit court of judgments in the district court in criminal cases. 20 Stat. 354. In this act express authority is given for bail, and the officers named by whom such bail may be taken. Fourth. The act of February 6, 1889 (25 Stat. 656), granting a writ of error from this court to bring up the judgments of any inferior courts of the United States in capital cases. Nothing is said in this act in respect to the matter of bail, but the allowance of the writ is made to operate as a stay of proceedings. Fifth. The act of March 3, 1891 (26 Stat. 827),-the act under which this controversy has arisen,-which provides for a review by this court of the final judgments of circuit or district courts in cases of 'convictions of capital or otherwise infamous crimes.' In this statute, also, there is no mention of bail.

I fail to appreciate the argument that, because congress has made specific provision for bail in criminal cases before conviction, it is to be assumed that it intended that bail should likewise be allowed in all cases after conviction; or that, because in two statutes, contemplating review of judgments in criminal cases, it made like specific provision in respect to letting to bail, it intended the same grant of power in two other and later statutes granting a right of review, in which it said nothing in respect to bail. In other words, an omission apparently made ex industria implies the same intention as an express provision fully stated. On the contrary, as I understand it, the logic of all differences in substantial provisions between earlier and later statutes is indicative of difference, rather than identity, of purpose.

'Indeed, the words of a statute, when unambiguous, are the true guide to the legislative will. That they differ from the words of a prior statute on the same subject is an intimation that they are to have a different, and not the same, construction.' Rich v. Keyser, 54 Pa. St. 86, 89.

'Where the later of two acts upon limited partnerships omitted the infliction, prescribed by the earlier, of a penalty for the omission of certain matters required by both, the court said: 'We must presume that the [earlier] act * *  * and the decisions under it were well known to the lawmakers at the time the [later] act *  *  * was passed. The omission to prescribe the penalty * *  * is good reason for concluding that no such liability was intended." End. Interp. St. § 384; Eliot v. Himrod, 108 Pa. St. 569, 573.

Neither can I gather from the legislation authorizing bail before trial, or that provision for bail in cases brought to this court from conviction in state tribunals, or that authorizing bail in cases taken from the district to the circuit court, the evidence of a settled policy on the part of congress that bail should be allowed in all cases, capital or otherwise, brought here on error from a final judgment of the circuit or district court. Indeed, with reference to this matter of policy, it was well said in Hadden v. The Collector, 5 Wall. 107, 111: 'What is termed the 'policy' of the government with reference to any particular legislation is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may be formed by different persons. It is a ground much too unstable upon which to rest the judgment of the court in the interpretation of statutes.'

Nevertheless, I agree with the majority that this court has power to prescribe by rule all matters of detail in respect to procedure which are not in terms fixed or denied by statute. It has exercised such power, and passed a rule concerning the letting to bail in which, as I have hitherto supposed, it determined the whole matter.

It is idle to say that there is no difference between the supersedeas of a judgment and the letting to bail. When a sentence of death is stayed by this court, it does not follow, as a matter of course, that the party sentenced is to be discharged from custody, and permitted to go where he pleases; and the same is true in case of a sentence to confinement and hard labor in the penitentiary. The stay of execution simply prevents the hanging or the removal of the party to the penitentiary. But it is unnecessary, in view of the language of this court, to make any argument to show that the two things are different. In Re Claasen, 140 U.S. 200, 208, 11 Sup. Ct. 735, the court said: 'We hold, therefore, that the allowance of the supersedeas in the present case was proper, and we deny the motion to set it aside. 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 (see 139 U.S. 706, 11 Sup. Ct. iv.) and which embraces also the power to admit the defendant to bail after the citation served.'

The rule there indicated was put into two paragraphs, one of which provides, among other things, for a supersedeas, and the other for admitting to bail. This court, then, certainly understood that there was a difference between the two, and did not add a second paragraph to regulate a matter which was fully regulated by the first. It is also true that in the first paragraph provision is made for the taking of security, but taking security is not technically letting to bail, and the provision in reference to security evidently refers to those cases in which the sentence of the trial court directs the payment of a fine. In respect to such a sentence, 'security' is an apt and suitable word.

Now, the idea of a rule is that it makes full provision for everything within the scope of its general purpose; and when this court, by the second paragraph, named certain judicial officers as the ones to admit to bail, it was a declaration-First, that this court had power to pass such a rule; and, second, upon the principle, 'Expressio unius exclusio alterius,' that it had named therein all the judicial officers who were to exercise that particular authority. There is in its language nothing to suggest that it was intended to be cumulative, or that, in addition to certain officers, given by law the right to admit to bail, other officers were by it given the like power. It is well to note the very words of the rule:

'(1) 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 entitled 'An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' approved March 3, 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.

'(2) 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.'

No one can read this rule, and particularly the second paragraph, without understanding that by it this court had named the officers, and the only officers, who should have the power to admit to bail. Certainly such has been the understanding of bench and bar through the country.

In U.S. v. Simmons, 47 Fed. 723, Judge Benedict says: 'The rules of the supreme court of the United States (rule 36) permit persons convicted, when they appeal to the supreme court of the United States, to be admitted to bail, but leave the question of admitting to bail to the discretion of the court below.'

Can there be any doubt as to the meaning of the second paragraph? It says, 'The circuit court or district court, or any justice or judge thereof.' Surely, that does not mean any circuit court or any district court, or any justice or any judge thereof, but the court in which the case was tried. If it was intended, by the second paragraph, to give to any justice of this court the power to admit to bail, why was not the language of the first paragraph repeated, or a mere reference made to the words of description therein? Why was the careful language used, which unquestionably limits to the judicial officers of the circuit in which the case was tried? It says, 'any justice or judge thereof.' Section 605, Rev. St., contains these words: 'The words 'circuit justice' and 'justice of a circuit,' when used in this title, shall be understood to designate the justice of the supreme court who is allotted to any circuit.' Did not this court, when it framed this paragraph, understand what the statute had declared to be the meaning of the words 'justices of a circuit?' If the power belonged to all the justices of the court, either independently of the rule or by virtue of the first paragraph, why, in this second paragraph, mention the justice of the circuit? I confess my inability to see any reason therefor.

Hence I am forced to the conclusion that, if the order of Mr. Justice White, who was not the justice of the Eighth circuit, is to be construed as a command in respect to bail, it was beyond the scope of the rule. I think, however,-and in this I must also differ from the majority,-that, reasonably construed, it may be taken as a supersedeas, the power to grant which is unquestioned, and a reference of the matter of bail to the trial judge.

Indeed, the conclusion reached by the court seems to work out this curious result: that one judge, by virtue of his power to allow a writ of error, can command another judge to perform the ministerial duty of approving a bail bond. Suppose a criminal case is tried by a justice of this court while holding the circuit court, can it be that the circuit judge, exercising the power given to him by the first paragraph of this rule, can allow a writ of error, and couple with it a command to the circuit justice to approve a bail bond against his judgment of the propriety of letting to bail, and such command be enforced by a writ of mandamus from this court? I submit the query without further comment.

I am authorized to say that Mr. Justice BROWN concurs in these views.