Page:Federal Reporter, 1st Series, Volume 10.djvu/821

 XINITED BTATES V. HABDEN. ���809 ���accept such bail, but he may issue a warrant to the marshal or his deputy to bring the prisoner before liim at some convenient place for the purpose of performing the legal duty of accepting bail. There is no express power conferred by statute to issue such warrant, but the power arises by necessary implication. It may be laid down as a general rule that where the law imposes upon a magistrate any duty, or confera upon him power to act in any matter, by implication the power is conferred to issue his warrants to enable him to do that duty and f ully exercise that power. A commissioner bas no power to commit a defendant to prison, or take him out of prison, except by a written warrant for that purpose. �Section 1030, Eev. St., directs that "no writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody, but the same shall be done on the order of the court or district attorney." From this grant of express power it seems that in the opinion of congress it did not exist as an implied power, and as the power is only granted to the court and district attorney, the statute may be regarded as restrictive, and intended to exclude all officers of the government not mentioned. Even without this constructive prohibition, commissioners in this state cannot by verbal order commit to prison, as the law requires justices of the peace to commit only by a written mittimus setting forth the cause of commitment. �When there is an order of commitment to a county jailer, and the marshal bas executed the mittimus, he has no further control overthe prisoner, and is not responsible for an escape from prison. 9 Cranch, 76. "For certain purposes and to certain intents the state jail, law- fully used by the United States, may be deemed to be the jail of the United States, and that keeper to be the keeper of the United States." Id. Section 788, Eev. St., provides that marshals in each state, in exe- cuting the laws of the United States, shall have the same powers as Bheriiis in executingthe laws of the state. �I believe that marshals in this state have usually adopted the prac- tice of the sheriff in removing prisoners to the proper place of trial without applying to a judge for a writ of habeas corpus. �I regard this course as an unsafe practice, as an offieer in trans- porting a prisoner ought always to be under the authority and pro- tection of the law by having in his possession due proeess of law. �I think that the inconvenience of applying to a judge for a writ of habeas corpus can be easily obviated by a change in the form of the mittimus generally used by commissioners. They can direct the mar- ��� �