by John Marshall Harlan

“ Whether that action of the officer be legal, is a question that does not now arise; for the application to the supreme court of the territory for habeas corpus only raised the question of the right of the accused to be discharged, on bail, from all custody whatever; and the present appeal is from the order, in that court, refusing such discharge, and remanding him to the custody of the marshal. There is no error in the record, and the judgment is affirmed. ”

“ The return of the officer is that the accused is in his custody under and by virtue of the order of commitment. It is not claimed that he is treated as a convict in the penitentiary, undergoing the sentence pronounced in pursuance of the judgment appealed from, but only that the officer uses that institution as a place for the confinement of the accused while the latter is in his custody. ”

“ Upon the subject of bail, the same laws provide that 'a defendant charged with an offense punishable with death cannot be admitted to bail when the proof of his guilt is evident, or the presumption thereof great;' also, that 'if the charge is for any other offense, he may be admitted to bail before conviction as a matter of right;' further, that 'after conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: (1) As a matter of right when the appeal is from a judgment imposing a fine only ”