sued a warrant to the marshal, commanding him to arrest Horner, and bring him before the commissioner. This was done, and Horner demanded an examination on the charge, which was had and completed; and the commissioner then certified that it appeared to him, from the testimony offered, that there was probable cause to believe Horner guilty of the offense charged in the warrant, and he committed Horner to the custody of the marshal, in default of $5,000 bail, to a wait the action of the grand jury. By consent, Horner was then discharged, on his own recognizance, until a day named, for the purpose of giving bail, and was subsequently discharged on bail, to await trial.

On the 17th of November, 1891, Horner was surrendered by his surety, and was committed by the commissioner, in *default of $5,000 bail, to the custody of the marshal on the warrant, to await the action of the grand jury. On the same day,

JOSEPH RUDde, Imperial-Royal Minister Counselor. PLENER, "Imperial-Royal Minister of Justice. "For the board for controlling the state loans: "[Signed] COLLERDO MANNSFELDT. "Signed] WINTERSTEIN.

"For the imperial-royal universal state loan treasury: "[Signed] "Signed]

WINTER. SCHIMKOWSKY.'

Each of the so-called bonds has upon its face a series number and a number in the series. The amount of indebtedness which said so called bond purports to evidence is one hundred (100) florins. The plan of drawing set forth on the back of said so-called bond shows that up to April, 1874, there were to take place five drawings a year, on dates therein stated, which should determine upon which of the so-called bonds payments should be made, and the amounts of such payments. That thereafter, and until the end of the nineteenth (19th) year after the date of the issue of the socalled bonds, four drawings per year were to take place at stated dates for the same purpose; and that thereafter to and including the thirtyfirst (31st) year, three (3) drawings were to take place at fixed dates for each year for the same purpose; and that thereafter, to and including the fifty-fifth (55th) year after the date of issue of such so-called bonds, two (2) drawings per year were to take place for the same purpose; at the end of which time all of said so-called bonds were, according to the plan aforesaid, to be paid. That according to said plan the smallest amount to be paid for any of such so-called bonds selected for payment during the first year after issue was one hundred and thirty-five (135) gulden, during the second year one hundred and forty (140) gulden, and during the third year one hundred and forty-five (145) gulden, and so on, increasing in amount five (5) gulden each year until the amount should reach two hundred (200) gulden, which amount then remained fixed as

on the petition of Horner, presented to the circuit court of the United States for the southern district of New York, an order was made by that court that writs of habeas corpus and certiorari issue to the marshal and the commissioner, returnable on that day. Returns were made to the writs, and on the same day, after counsel were heard, the court, held by Judge WHEELER, made an order dismissing the writ of habeas corpus, and remanding Horner to the custody of the marshal. Horner thereupon took an ap peal to this court, on November 17, 1891, and was discharged on bail, to abide the further action of the circuit court on the mandate of this court.

The complaint in this case is founded on section 3894 of the Revised Statutes of the United States, as amended by the act of September 19, 1890, chapter 908, (26 St. p. 465,) which reads as follows: "No letter, postal-card, or circular concerning

the minimum sum to be paid for any of the socalled bonds, whose payment should be determined by the drawings aforesaid. That gulden and florins are denominations of money of the same value. That under the said plan other larger amounts are provided to be paid on certain of the so-called bonds, to be determined by the drawing. Thus, during the first year the following sums are, according to said plan, to be paid on certain so-called bonds, to be determined by such drawing, to-wit:

On one bond..

250,000 gulden 25,000 15,000 4 10,000 10,000

6,000

6,000 7,500

On 2 bonds, each at 5,000 gulden On 3 bonds, each at 2,000 gulden On 6 bonds, each at 1,000 gulden On 15 bonds, each at 500 gulden On 30 bonds, each at 400 gulden 12,000 And during subsequent periods other provis ion is made for such larger amounts. That all of the said so-called bonds are in the same form as said copy translation, and have the same drawing and redemption plan indorsed upon them, and are identical in all respects, except that the series numbers and the number thereof vary as to each so-called bond. That deponent produces herewith the original of the so-called bond herein referred to. That all the drawings heretofore referred to, by which-First, are determined the series of the so-called bonds to be paid or redeemed in each year; and, second, are determined the particular bonds in the series whose holders shall be entitled to the larger sums aforesaid, the numbers of which are drawn from the wheel,-are conducted in such a way as that the determination of the numbers both for redemption and for amounts is wholly by lot or chance. The holder of each so-called bond has an equal chance with the holder of every other so-called bond-First, in securing an early payment of his so-called bond; and, second, in se curing, as a so-called payment for his so-called bond, the very large prizes to which reference has already been made; the result in each case, as before alleged, being dependent wholly on lot or chance.

Wherefore deponent says that the scheme for the so-called redemption of the so-called bonds above referred to is a lottery, and that the depositing of the said circular, and the causing thereof to be deposited, as above alleged, was against the peace and dignity of the United States of America, and contrary to and in violation of section three thousand eight hundred and ninetyfour (3894) of the Revised Statutes of the United States, as amended by the act of September nineteenth, (19th,) one thousand eight hundred and ninety, (1890.)

any lottery, so-called 'gift concert,' or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, and no list of the drawings at any lottery or similar scheme, and no lottery ticket, or part thereof, and no check, draft, bill, money, postal-note, or money order for the purchase of any ticket, tickets, or part thereof, or of any share or any chance in any such lottery or gift enterprise, shall be carried in the mail, or delivered at or through any post-office or branch thereof, or by any letter-carrier; nor shall any newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail, or delivered by any postmaster or letter-carrier. Any person who shall knowingly deposit or cause to be deposited, or who shall knowingly send or cause to be sent, anything to he conveyed or delivered by mail in violation of this section, or who shall knowingly cause to be delivered by mail anything herein forbidden to be carried by mail, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment, for each offense. Any person violating any of the provisions of this section may be proceeded against by information or indictment, and tried and punished, either in the district at which the unlawful publication was mailed, or to which it is carried by mail for delivery according to the direc tion thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed."

There are nine assignments of error in this case, six of which allege that the facts proved before the commissioner do not constitute a crime within section 3894, as amended; two of them are based on the claim that that section is unconstitutional; and the remaining one contends that that section is in violation of a treaty between the United States and Austria, and is therefore void.

It is contended on the part of the United States that, as the appeal in this case was taken on November 17, 1891, after 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, chapter 517, passed March 3, 1891, (26 St. p. 826,) went into effect, this court has no jurisdiction of this appeal, and that it ought to have been taken to the circuit court of appeals for the second circuit. But, as the constitutionality of section 3894, as amended, is drawn in question, an appeal in this case lies directly to this court from the circuit court, under section 5 of the act of March 3, 1891, which gives snch appeal "in any case in which the constitutionality of any law of the

66

is drawn in ques

United States • tion." This is in accordance with our decision in Nishimura Ekiu v. U. S., 142 U. S. 651, 658, 659, 12 Sup. Ct. Rep. 336, where it was said: As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this court, notwithstanding the appeal was taken since the act establishing circuit courts of appeals took effect. Act March 3, 1891, c. 517, § 5; 26 St. pp. 827, 828, 1115."

We are further of opinion that, where an appeal or writ of error is taken direct to this court under section 5 of the act of March 3, 1891, in a case in which the constitutionality of a law of the United* States is drawn in question, this court acquires jurisdiction of the entire case, and of all questious involved in it, and not merely of the question of the constitutionality of the law of the United States. This is shown by the fact that under section 5, where an appeal or writ of error is taken direct to this court, in a case in which the jurisdiction of the district court or of the circuit court is in issue, it is specifically directed that "the question of jurisdiction alone shall be certified to the supreme court from the court below for decision;" but there is no kindred limitation prescribed in regard to any of the other cases in which jurisdiction in this court of appeals or writs of error is given by section 5.

His

It is contended for Horner that the circular set forth in the complaint, relating to the redemption of the Austrian government bonds. is not included in the prohibition of section 3894 of the Revised Statutes, as amended, and that he committed no offense by depositing such circular in the mail. But we are of opinion that that question ought not to be reviewed by us on this appeal. The point raised is that the Austrian bond scheme was not a lottery. That is a question properly triable by the court in which an indictment may be found against Horner. He is now held to await the action of a grand jury. case is in the regular course of criminal adjudication. It is not proper for this court, on this appeal, nor was it proper for the circuit court, on the writ of habeas corpus, to determine the question as to whether the scheme was a lottery. In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. Rep. 1031; Stevens v. Fuller, 136 U. S. 468, 10 Sup. Ct. Rep. 911. The commissioner had jurisdiction of the subjectmatter involved, and of the person of Horner, and the grand jury would have like jurisdiction. The offense, if any, was committed within the southern district of New York. Whether the scheme was a lottery is a question to be determined in the administration of the jurisdiction. It is not for this court to determine that question in advance. The principle is the same as that involved in Re Tassett, 142 U. S. 479, 483, 484, 12 Sup. Ct. Rep. 295. The case presents for the determination of the court in which the indictment may be found the question as to whether the scheme was a lottery, and it is not for any court to determine it in advance," on habeas corpus. If an inferior court or

magistrate of the United States has juris- | diction, a superior court of the United States will not interfere by habeas corpus. Ex parte Mason, 105 U. S. 696; Ex parte Carli, 106 U. S. 521, 1 Sup. Ct. Rep. 535; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. Rep. 1050; Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Rep. 1240; In re Coy, 127 U. S. 731, 758, 8 Sup. Ct. Rep. 1263; In re Luis Oteiza y Cortes, 136 U.S. 330, 10 Sup. Ct. Rep. 1031; Stevens v. Fuller, 136 U. S. 468, 477, 478, 10 Sup. Ct. Rep. 911, and cases there cited.

The question of the constitutionality of section 3894, as amended, is disposed of by the decision of this court in Ex parte Rapier, 143 U. S. 110, 12 Sup. Ct. Rep. 374, which holds that it is constitutional.

The proposition that that section is void if it contravenes a treaty between the United States and Austria is not tenable. The statute is a law equally with the treaty, and, if subsequent and conflicting with the treaty, supersedes the latter. Head-Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. Rep. 456; Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. Rep. 623.

The order of the circuit court, dismissing the writ of habeas corpus and remanding the accused, is affirmed.

(143 U. S. 442)

SCHWAB V. BERGGREN, Sheriff.

(February 29, 1892.)

DUE PROCESS OF LAW-PRESENCE OF CRIMINAL IN APPELLATE COURT-SENTENCE-COMMUTATION— PLACE OF IMPRISONMENT.

1. When a prisoner sentenced to death carries his case to an appellate court, due process of law does not require that he shall be personally present therein when it pronounces its judgment, since, in case of affirmance, it pronounces no new sentence, but merely directs that the sentence already imposed shall be carried into execution.

2. Nor does it affect his rights that the appellate court, in pronouncing its judgment, fixes a new date for the execution, as required by the state statute. Rev. St. Ill. c. 38, $$ 459, 465, div. 15.

3. A judgment sentencing a prisoner to death is not vacated by a writ of error. The only effect is to stay its execution pending the determination of the appellate court.

4. The time and place of execution are not, strictly speaking, any part of a judgment prescribing the penalty of death. Holden v. Minnesota, 187 U. S. 483, 11 Sup. Ct. Rep. 143, followed.

5. Under Const. Ill. art. 5, § 13, authorizing the governor to "grant reprieves, commutations, and pardons, after conviction, for all offenses;" and Rev. St. Ill. c. 108, § 1, making the penitentiary at Joliet the general prison for all persons sentenced by any court of competent jurisdiction,

a person whose sentence of death has been commuted to imprisonment for life may be lawfully kept imprisoned there.

Appeal from the circuit court of the United States for the northern district of Illinois. Affirmed.

STATEMENT BY MR. JUSTICE HARLAN.

This is an appeal from an order sustaining a demurrer to a petition by the appellant for a writ of habeas corpus, and dismissing that petition.

In the case of People of Illinois v. August Spies, Michael Schwab, Samuel Field

en, et al.-which was an indictment for murder in the criminal court of Cook county, in the state of Illinois-an order was entered, October 9, 1886, as follows:

"The People of the State of Illinois vs. Michael Schwab, Impl'd, etc. 18,803. Indictment for murder.

"This day again come the said people, by Julius S. Grinnell, state's attorney, and the said defendant, as well in his own proper person as by his aforesaid counsel, also comes; and now, neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not now be pronounced against him on the verdict of guilty heretofore rendered to the indictment in this

cause:

"Therefore it is ordered and adjudged by the court that the said defendant, Michael Schwab, be taken from the bar of the court to the common jail of Cook county, from whence he came, and be confined in said jail in safe and secure custody until the third day of December, A. D.. 1886, and that on said third day of Decem-1 ber, between the hours of ten o'clock in the forenoon and two o'clock in the aft ernoon, the said defendant, Michael Schwab, be by the sheriff of Cook county, according to law, within the walls of said jail or in a yard or inclosure adjoining the same, hanged by the neck until he is dead; and the said sheriff is hereby required and commanded to take the body of the said defendant, Michael Schwab, and contine him in the said common jail of Cook county in such safe and secure custody, and upon the said third day of Deember, A. D. 1886, between the hours of ten o'clock in the forenoon and two o'clock in the afternoon, to hang the said defendant, Michael Schwab, by the neck until he be dead."

The case was carried by writ of error to the supreme court of Illinois, where the following order was made September 14th, 1887, one of the regular days of that court:

"August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, Louis Lingg, and Oscar W. Neebe vs. The People of the State of Illinois. 59 A. D. Error to the criminal court of Cook county.

"On this day came again the said parties, and the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for that it appears to the court now here that neither in the record nor proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious, or defective, and that that record is no error: "Therefore it is considered by the court that the judgment aforesaid be affirmed in all things as to each and every of said plaintiffs in error, and stand in full force and effect, notwithstanding the said matters and things therein assigned for error.

"And it is further ordered by the court that the eleventh day of November, A. D. 1887, be, and the same is hereby, fixed As

112 N. E. Rep. 865.

the time when the sentence of death pronounced upon said plaintiffs in error, August pies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, by the criminal court of Cook county, Illinois, shall be executed.

“And it is further ordered by the court that the sheriff of Cook county, Illinois, be, and he is hereby, ordered and directed to carry into execution the sentence by the criminal court of Cook county, Illinois, of the defendants in the indictment, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, on Friday, the eleventh day of November next, (November 11, A. D. 1887,) between the hours of ten o'clock in the forenoon and four o'clock in the afternoon of that day. "And it is further considered by the court that the said defendants in error recover of and from the said plaintiffs in error their costs by them in this behalf expended, and that they have execution therefor."

On the day preceding that fixed for the execution the governor of Illinois commuted the sentence of death imposed upcn Schwab to imprisonment in the penitentiary for life, in consequence of which the sheriff of Cook county delivered him on the 12th of November, 1887, to the warden of the penitentiary at Joliet, Ill., in which institution he has ever since been confined at hard labor. On the same day of the commutation of the sentence the governor addressed to the warden a communication, in which it was said: "The commutation papers will this day be forwarded by me to the sheriff of Cook county, Illinois, directed to Canute R. Matson, sheriff of said county, with instructions to him to deliver said Fielden and Schwab into your custody as warden of the Illinois penitentiary at Juliet, together with the commutation papers in each case. You will receive the said Samuel Fielden and Michael Schwab, as warden of said penitentiary, into your custody, whereby under said commutation you are hereby directed to receive said Samuel Fielden and Michael Schwab into your custody as warden of said penitentiary, and to confine the said Fielden and Schwab in said penitentiary, in safe and secure custody and keeping, at hard labor, during the term of their natural lives. The said commutation papers would have been sent, as is usual, directly to you. I desired, however, that the sheriff might temporarily have said papers in his possession on the day when said Fielden and Schwab, with several other persons named in said sentence which was pronounced against them, were to be executed on the 11th day of November, 1887, that he might be able by said papers to show why the sentence of said Samuel Fielden and Michael Schwab was not carried into execution, as pronounced by said court against them.

It is averred in the petition for the writ of habeas corpus that the recital in the judgment of the supreme court of Illinois that "on this day came again the said parties" was and is false and untrue, in that the petitioner was before and at the

date of said order, and up to and including November 12, 1887, imprisoned continuously in the county jail of Cook county, and was not, when the order of September 14, 1887, was made, present personally or by counsel in that court, nor had he notice, personally or by counsel, to be present there on that day.

The petitioner claimed that his detention in the penitentiary, and his confinement there at hard labor, were in violation of the constitution and laws both of Illinois and the United States.

Benj. F. Butler and Moses Salomon, for appellant. George Hunt and E. S. Smith, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The demurrer to the petition for the writ admits that the judgment of the supreme court of Illinois of September 14, 1887, was rendered in the absence of both the appellant and his counsel, and without notice to either that the case would be disposed of at that time. It is therefore contended by the appellant that the judgment was void, as not being that due process of law required by the constitution of the United States, where life or liberty is involved.

At common law, it was deemed essential in capital cases that inquiry be made of the defendant, before judgment was passed, whether he had anything to say why the sentence of death should not be pronounced upon him; thus giving him an opportunity to allege any ground of arrest, or to plead a pardon, if he had obtained one, or to urge any other legal*ob-* jection to further proceedings against him. This privilege was deemed of such substantial value to the accused that the judgment would be reversed if the record did not show that it was accorded to him. Ball v. U. S., 140 U. S. 118, 129, 11 Sup. Ct. Rep. 761; 1 Chit. Crim. Law, 699, 700; Rex v. Geary, 2 Salk. 630; King v. Speke, 3 Salk. 358; Anon., 3 Mod. 265; 1 Archb. Crim. Pr. & Pl. (Pom. Ed.) 577, 578. And it has been so ruled in the courts of some of the states. Hamilton v. Com., 16 Pa. St. 129, 133; Messner v. People, 45 N. Y. 1, 5, James v. State, 45 Miss. 572, 579; Crim v. State, 43 Ala. 53, 56; Perry v. State, Id. 21; State v. Jennings, 24 Kan. 642, 659; Keech v. State, 15 Fla. 591, 609; Grady v. State, 11 Ga. 253, 257; Safford v. People, 1 Parker, Crim. R. 474, 476.

But this rule of the common law, as the authorities clearly show, applied to the court of original jurisdiction which pro. nounced the sentence, and not to an appellate court, which, upon review of the proceedings in the trial court, merely affirms the final judgment,-no error having been committed to the prejudice of the accused,—without rendering a new judgment. The entire argument, on behalf of the appellant, assumes that the supreme court of Illinois pronounced a sentence of death upon him. But such is not the fact. The sentence of death, by hanging, was pronounced by the criminal court of Cook County, October 9, 1886, "neither the said defendant nor his counsel for him saying