Page:Federal Reporter, 1st Series, Volume 7.djvu/100

 8S FEDERAL EKPOKTEK. �trial npon a criminal charge. If the warrant of removal ia ti be issued mechanicaliy, and as a mere ministerial act, there is no reason Why the commiting magistrate should not have been reqnired to issue itat once, upon neglect or refusai to giv© bail. The necessary implication, from the method of procedure' adopted by the statutes, is that the "judge of the district," whether it be the district judge or some other, as is intimated in jR* Bailey, 1' Yfoul-w. 422, it may be, must judicially determine whether the prisoner shall be taken to another district for trial, and that he may roftise his warrant where'it appears that 'the removal shouldnot be made, or where he wonld admit the pa*ty to bail. Doubtless the action of the committing magistrate ifst prima faaie sufficient as a basis for the warrant, but it is tiot^conclusive ; and while the judge should not unneoessarily require another or further prelimi- nary examination, if it appear to him necessary that the bail should be reduced, or that for any reason the prisoner ehould again be heard in defeflce, I have ino doubt that it is Lis duty to pass fuily upon Ihe case, and determine for bim- self whether he should be further held or removed. These views are abundantly supported by the authorities. Conk. Th:. (4th Ed.) 582; Murray, U. 8. Courts, 29; Re Buell, 3 Dill. 116, at p. 120; [/. S. v. Jacobi, le Int. Rev. Rec. 45; U. S. y. Pope, 24 Int. Eev. Rec. 29 ; U. S. v. Volz, 14 Blatehf. 16; U. S. V. Haskins, 3 Sawy. 262; Re Alexander, 1 Low, 530 ; U. 8. V. Shepard, 1 Abb. 431 ; Re Doig, 4 Fed. Eee. 193; and cases cited in these opinions. In some of the cases there \fras a writ of habeas corpus, and in some the original examination was before the district judge, and in one the question atose in the district to which the removal was made, on a motion to quash the indiotment; but in none of them does it seem to have been treated as a mattor of much im- portance by what form of procedure the action of the judge is invoked, and in none is it denied that he may determine for hiniBelf whetteer the removal is proper. In BueWs Case, supra, there was both a habeas corpus and an application for a warrant bf removal, which latter was refused. In the case of U. S. Vi Somerville, related in Volz' s Case, supra, it seems ��� �