Page:Federal Reporter, 1st Series, Volume 10.djvu/820

 808 TEDEBAL BEPORTEB. �make examination of the matter, and may liold to bail oi commit the prisoner to the jail of his own county or to the jail of the county in which the offence was committed. If he commits to the jail of his own county, I am inclined to think that his power ceases, and he can- not afterwards issue a warrant to transport such prisoner to another county for trial. This transportation can only properly be done by a writ of habeas corpus issued by a judge of a court of superior juris- diction. �In England it was provided by the habeas corpus act that if any subject should be committed to any prison, or in custody of any officer, for any supposed criminal matter, he should not be removed from such custody iuto the custody of any other officer unless it be by liaheas corpus or some other legal writ. 1 Chit. C. L. 108. �I believe, however, that the general practice in this state is that the sheriff or jailer, having a prisoner in custody, conveys him to the proper county for trial, upon the request of the proaecuting officer, without being required so to do by writ of habeas corpus. The writ of habeas corpus especially provided for in the statutes of this state and of the United States is the high prerogative writ of right granted upon the application of a person illegally imprisoned or in any way restrained of his liberty. We must look to the common law for guidance in the use of the aneillary writ of habeas corpus to remove a prisoner to take his trial in the county where the ofience was committed. Power to award such writ is conferred in general terms by statute upon courts of the United States. �The powers and duties of a commissioner are co-extensive with the limits of the judicial district in which he is appointed, and he may in the iirst instance commit a prisoner to the jailer of the county in which the United States court is held, but I think it best for him to commit to the jailer of the county of residence, that the prisoner may have convenient opportunity of procuring sureties or bail. If the commitment be to the last-mentioned jail without any qualification, the commissioner bas no further control over the prisoner except to admit him to bail. Under a statute of thia state justices of the peace have power to let to bail persons committed to prison charged with crime in all cases where the punishment is not capital; and the recognizanee taken must be filed with the clerk of the court of trial. Bat. Eev. c. 33, § 38. Commissioners have similar powers in United States cases. �When a prisoner gives notice that he is prepared and desires to give bail, a commissioner is not required by law to go to the jail to ��� �