the law permits does not render the legal or authorized portion of the sentence void, but leaves only such part of it as may be in excess, open to question and attack." In the conclusion of its opinion, the court was particular to say, "It did not consider it necessary or proper to express any opinion as to what would have been the proper action of the Circuit Court in dealing with the petitioner's application," and refrained from intimating even whether the proper practice would be to deny the writ and leave the petitioner to his writ of error, or to issue the writ of habeas corpus, and commit the prisoner to the custody of the penitentiary officials, with directions to carry out and enforce only that part of the sentence imposing imprisonment according to the rules and regulations of the institution. În Re Bonner, 151 U. S. 242-259, 14 Sup. Ct. 323, 326 (38 L. Ed. 149), where the Supreme Court discusses the question at some length, Mr. Justice Field speaking of cases where the conviction itself is correct, and "the excess of jurisdiction on the part of the court being in enlarging the punishment or enforcing it in a different mode or place than that provided by law," says:

"In such case, there need not be any failure of justice, for where the conviction is correct, and the error or excess of jurisdiction has been as stated, there does not seem to be any good reason why the jurisdiction of the person shall not be reassumed by the court that imposed the sentence in order that its defects may be corrected. In such case, the original court would only set aside what it had no authority to do, and substitute the direction required by law to be done upon the conviction of the offender."

The whole opinion is a strong admonition to the courts to conform strictly to the terms of the statutes in imposing sentences. Here, the application for the writ is to the court of original jurisdiction, and the court, the prisoners still being within its control, has full power to correct the sentences, or, if need be, resentence according to law, and for many obvious reasons, it is better for this court to issue the writ and bring up the prisoners and correct an unauthorized sentence than to leave that duty to be performed by other courts. Reynolds v. United States, 98 U. S. 145-167, 25 L. Ed. 244, opinion on rehearing.

The writ having issued, and the prisoners being in court, and having had due notice, the government moves to amend the sentences nunc pro tunc by expunging therefrom the part imposing "hard labor." These words can be expunged without affecting in any way the validity of that part of the sentence which already provides for imprisonment in the penitentiary. The words are not so interwoven and intermingled with the purpose of the rest of the sentence, or the language in which it is expressed, that they cannot be stricken out, and still leave the corrected sentence perfect, and capable of execution according to the command of the statute, and the judgment of the court in that respect. When statutes prescribe particular kinds or modes of punishment, the court has no power to inflict any other. The statute nowhere authorizes the court to impose hard labor on conviction for the offense, though it does authorize and require imprisonment in the penitentiary. When the court went further than imprisonment in the penitentiary, and prescribed hard labor, it cut loose from the authority of the statute, and exceeded its jurisdiction, and

to the extent of such excess, its action is a nullity. It is true that hard labor may be inflicted by the penitentiary authorities, where the sentence is to imprisonment in the penitentiary merely; but in that case, hard labor is inflicted, not in obedience to the command in the sentence, but because of the status of confinement in the penitentiary, under whose rules hard labor may be administered, if they so provide, whether included in the sentence or not. No law gives the court the power to determine what the rules and discipline of the penitentiary shall be. The citizen has the right to stand on the law as it is, and to insist that the court, by imposing modes of punishment which the statute does not provide for the offense, shall not determine questions which the law leaves solely to the prison authorities, under the statutes regulating federal penitentiaries. Plainly, that part of the sentence which imposed hard labor is without warrant in law, beyond the power of the court to inflict in any event on a conviction for this offense, and is invasive of the legal rights of petitioners. Manifestly, it is the duty of the trial court, when its attention is called to its unauthorized action, to correct the sentence nunc pro tunc in this particular.

2. While the writer does not doubt in view of the statement in the letter from the President's secretary to Senator Taliaferro, that the President has ordered the sentences in these cases to be commuted to six months' imprisonment, the court can take no action upon it. A pardon must be delivered to the prisoner, or some one for him, before it can become legally effective. Until then, it rests in the pleasure of the pardoning power to rescind and withdraw what, up to that time, is a mere promise to grant a favor in the future. It is not shown that any warrant of commutation has ever issued or been delivered. Had that been done, as the action of the executive must appear by matter of record, it could be shown only by the production of the warrant of commutation, or a certified copy thereof. These matters aside, had a warrant of commutation issued and been delivered to the prisoners, and exhibited to the court, it would not afford the slightest reason for interfering with the execution of the commuted sentence in the penitentiary. The constitutional prerogative of the President to grant reprieves and pardons includes the power to commute punishments. A common exercise of the power is where without changing the mode of punishment, less of that kind of punishment is exacted and substituted for the greater punishment of the same kind required by the original sentence. Here, the punishment fixed was imprisonment in the penitentiary for a certain time, and it is changed to imprisonment there for a less time. The original sentence to the penitentiary being lawful, and the President having the power to shorten the length of imprisonment without otherwise interfering with it, the execution of the commuted sentence in the penitentiary cannot be unlawful merely because the statutes do not authorize the courts, in fixing the punishment in the first instance, to inflict imprisonment in the penitentiary for so short a time. In re William Wells, 18 How. 307, 15 L. Ed. 421.

3. When the Circuit Court is in session, it necessarily makes the order to draw the grand jury to attend its sitting. At other times, the

Such

order is properly made by any "one of the judges of such Circuit Court," in his discretion. Rev. St. § 810. Under our statutes, whatever may have been the case at the common law (Curtis v. Commonwealth, 87 Va. 589, 13 S. E. 73), the making of an order for the drawing and attendance of a grand jury is the exercise of judicial power, but the power pertains to the judge, as well as to the court. an order does not determine anything with reference to any adversary proceeding in the court, or conclude public or private rights in any way, and amounts to nothing more than a mere administrative regulation of internal affairs relating to the organization of the court. There is nothing in the nature of the order which calls for the presence of the judge when the court officers execute its command. So long as the order is made by the proper authority, its source, whether the court, or one of its judges, is of no concern to the defendant who is afterwards indicted by the grand jury; though if the grand jury be drawn by unauthorized persons, or from persons not properly selected or qualified and the like, he has his remedy by motion to quash the indictment when he is called to answer it. Judge Shelby was one of the judges of the Circuit Court for the Northern district of Florida, when he made his order of October 23, 1906, for the drawing of a grand jury to attend the Circuit Court for the Northern district of Florida, on the 7th of November following. As such, he had the right, and was under duty, whenever occasion arose, to make preparatory orders for the disposition of business which might come before the court at its next sitting. His general authority as to such matters is not questioned, but it is insisted in this instance, his order is a nullity, and, apart from another objection hereinafter considered, could not authorize the assembling of a grand jury, because Judge Shelby was in Alabama, and did not come personally into the territorial jurisdiction of the circuit court for this district, at the time of making the order. This contention is untenable both on reason and authority.

While Judge Shelby is "one of the judges" of this court, he is at the same time one of the judges of all the other circuit courts in this judicial circuit, which, at the time the order was made, were required to be held in as many as 56 different places in the six states constituting the Fifth judicial circuit. The necessity for the exercise of his administrative functions regarding these numerous courts is constantly arising, in such matters as the adjournment of a court, when the circuit or district judge who purposed to hold that court cannot attend, or postponing the day fixed for the sitting of a court to another day or drawing of juries in advance to be in readiness for the court when it convenes, and the like, yet, at that very time, he may be holding another circuit court himself, or sitting with the Court of Appeals. To require a circuit judge to abandon his duty in every other court, and to come personally into the territorial jurisdiction of a particular court, before he can lawfully exercise his administrative functions concerning it, would, in a large measure, prevent the exercise of his functions as to other courts at the same time, and for the time being, convert him, for all practical purposes, into a judge of only one of them, though the statutes, at least, while he is in the discharge of his judicial duties anywhere in the Fifth judicial circuit, make him

the judge of all of them at the same time. The operation of such a rule would inevitably hinder and clog the administration of justice, and undermine the purpose of Congress in the creation of the circuit judges and the duties conferred upon them. A circuit judge may rightfully dispose of any administrative matter in any circuit court in his judicial circuit, which may be properly ordered at chambers, without personally going into its territorial limits, wherever his chambers. may be for the time being, so long as they are held at any place within his judicial circuit. In re Parker, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123; Horn v. Pere Marquette R. R. Co. (C. C.) 151 Fed. 626; Ex parte Steele (C. C.) 161 Fed. 886. Apart from this, the persons summoned were qualified to serve as grand jurors, selected for that purpose by the officers provided by law, and drawn pursuant to an order of a judge and the rules of the court by officials to whom the law commits the duty. A grand jury so drawn certainly cannot be without "authority to sit as a grand jury," unless the court of which it formed a part was itself holding a session at a time or place not authorized by law. If in any other way, there was a want of strict conformity to law in their convening, it was a mere irregularity which was waived by the defendants' pleading not guilty and going to trial, without first calling the attention of the trial court to it in some appropri

ate way.

4. Waiving the question whether the objection that no "legal evidence was introduced before the grand jury authorizing the finding of the indictment" can be raised for the first time after plea and conviction, and whether a sentence can ever be attacked collaterally on such a ground, it suffices to say that neither the record of the trial, nor the evidence introduced on this hearing, supports that averment of the petition. The presumption, until the contrary appears, is that the grand jury acted upon legal evidence, and the burden rests on him. who asserts that it did not to prove it. This indictment was evidently founded upon the testimony of witnesses on two previous days touching the offense upon which the grand jury at that session had already found two other indictments; and was preferred, to cure supposed defects in the earlier indictments touching the same matter. Under such circumstances, it was not necessary, or at all essential to the validity of the last indictment, that the witnesses be recalled before the grand jury and go over their former testimony. The attention of the grand jury was pointedly directed to this indictment, whose disposition was the only unfinished business before it. After it was discussed, the foreman said he would sign it, and the grand jurors made no objection. Immediately afterwards, they went in a body to the courtroom and made a report of the number of "true bills" they had found, which included this one, and delivered them to the presiding judge in open court. No formal vote of jurors is essential to the finding of a true bill, and the law requires no record of such a vote, if taken. The intelligent assent of the jurors to the making of the accusation is all that the law requires, and it provides the mode by which that assent must appear, by the requirement that the grand jury itself deliver the indictment to the judge in open court. When, as the record itself,

180 F.-9

as well as the testimony shows, the grand jury went in a body before the court and returned these indictments with others found at that time, signed by the foreman and the United States attorney, and delivered them to the presiding judge in open court, that furnished evidence that the grand jury had found the bills, and assented to them as "true bills," and was proof in the most solemn form that it had regularly discharged its constitutional functions as an accuser regarding the particular matter. When the petitioners pleaded not guilty and went to trial without first raising the objection, it was an admission of record by them that the indictments had been properly found and constituted a genuine record of the court. The necessities of this case do not require the court to follow counsel in their elaborate argument as to the power of the court at a subsequent term to discharge a prisoner, who is still within its control, after conviction and sentence, when he has been tried on an indictment which was never in fact acted on by the grand jury, but got upon the court records by mistake, or was palmed off on the court by trickery or fraud. It may be in such a case that due regard for "truth and justice, and the preservation of the verity and dignity of its own records, and the protection of the citizen, and the preservation of the constitutional guaranty," in its integrity, would compel the court to expunge the indictment from its record as a spurious paper, and thereupon treat the conviction as though the prisoner had been tried without indictment at all, and, if the prisoner were still in its control, require the court to bring him up on habeas corpus and discharge him. Sparrenberger v. State, 53 Ala. 482, 25 Am. Rep. 643; United States v. Coolidge, 2 Gall. 367, Fed. Cas. No. 14,858; Low's Case, 4 Greenl. (Me.) 439, 16 Am. Dec. 271. This case clearly does not present that question.

5. It is insisted with much confidence that the application to the facts of these cases of the doctrine declared in Re Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849, and Hans Nielsen, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118, as to the denial of constitutional rights in a criminal trial, requires the discharge of petitioners on grounds other than those hereinbefore mentioned, which it is urged appear on the face of the record. The first is that the court had no jurisdiction to try or detain the petitioners, because they were tried and convicted in violation of the sixth amendment, in the Northern district of Florida, for an offense, which, if committed at all, was committed in the Middle district of Alabama, and that, "under the authority of Hyde v. Shine, 199 U. S. 84 [25 Sup. Ct. 760, 50 L. Ed. 90], while this court upon habeas corpus may not weigh the evidence, yet, upon habeas corpus, this court should examine the evidence to see whether it shows, as claimed by the petitioners, affirmatively, conclusively and without contradiction, entire lack of evidence to support the accusation, and if so found, then this court should discharge the prisoner." This court had undoubted jurisdiction of the offense for which the petitioners were indicted. They were lawfully in the custody of the court, and were arraigned upon an indictment which charged that the offense was committed within the Northern district of Florida. They were confronted with the witnesses against them, and given a trial