* * * That the legisla [Care and custody of convicts of Territories.] tive assemblies of the several Territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such Territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other Territory or State, and provide that such person or persons may be sentenced to confinement accordingly in such other Territory or State, and all existing legislative enactments of any of the Territories for that purpose are hereby legalized: Provided, That the expense of keeping such prisoners shall be borne by the respective Territories, and no part thereof shall be borne by the United States. * * [21 Stat. L. 277.] * This is from the Sundry Civil Appropriation Act of June 16, 1880, ch. 235. Sentence to prison claimed to be without territory. There is no law requiring prisoners convicted and sentenced to imprisonment by the courts of the territory (Arizona) to be confined within the territory; and the fact that a territorial prison, is claimed to be without the territory and within the limits of an adjoining state will not constitute imprisonment therein, under sentence of the territorial court,. illegal, especially where the territory is in possession of the prison and exercises authority over it and has no other territorial prison, and where it is not alleged that the state has ever made any claim whatever to the land upon which the prison stands. In re Wilson, (1896) 72 Fed. Rep. 656. Sec. 1936. [Control of penitentiaries in Montana, Idaho, etc., transferred to said Territories.] The care and custody of the penitentiaries in Montana, Idaho, Wyoming, and Colorado, and the personal property thereunto belonging, and the use and occupation thereof, are transferred to such Territories, respectively, until otherwise ordered by the Attorney-General; but the legal title to such penitentiaries and the property shall continue to vest in the United States. [R. S.] Act of Jan. 24, 1873, ch. 63, 17 Stat. L. 418. But see the following acts. The provisions as to Montana, Idaho, and Wyoming appear to be repealed by Act of June 20, 1874, ch. 332, set out below. An Act transferring the Control of certain territorial Penitentiaries to the several Territories in which the same are Located. [Act of Jan. 24, 1873, ch. 63, 17 Stat. L. 418.] [SEC. 1.] [Penitentiaries in Montana, Idaho, Wyoming, and Colorado.] That so much of the act entitled "An act in relation to certain territorial penitentiaries," approved January tenth, eighteen hundred and seventy-one, placing the penitentiaries in the Territories of Montana, Idaho, Wyoming, and Colorado, under the care and control of the respective United States marshals for said Territories, is hereby repealed, and the care and custody of said penitentiaries, and the personal property thereunto belonging, and the use and occupation thereof, are hereby transferred to said Territories respectively, until otherwise ordered by the Attorney-General: Provided, That the legal title to said penitentiaries and property shall continue to vest in the United States: And provided further, That said Territories shall keep and maintain, in the penitentiaries hereby transferred to their custody and control, all persons convicted in said respective Territories of violations of the laws of the United States, and sentenced to imprisonment therefor, and all persons held to answer for alleged violations of the laws of the United States in said respective Territories, at the rate and price, to be paid by the United States out of the judiciary fund, of one dollar per day for each person so imprisoned. [17 Stat. L. 418.] The Act of Jan. 10, 1871, ch. 15, mentioned in the above section, is incorporated in the Revised Statutes as R, S, secs. 1892-1895. See repeal of this Act in part by following Act. SEC. 2. [Transfer to Territorial authorities.] That immediately after the passage of this act the Attorney-General of the United States shall cause to be transferred to the proper authorities of the Territories of Montána, Idaho, Wyoming, and Colorado, the penitentiaries and personal property connected therewith, situated in each of said Territories, respectively. [17 Stat. L. 419.] An act to amend the act entitled ["]an act transferring the control of certain Territorial penitentiaries to the several Territories in which the same are located," approved January twenty-fourth, eighteen hundred and seventy-three. [Act of June 20, 1874, ch. 332, 18 Stat. L. 112.] [SEC. 1.] [Penitentiaries in Montana, Idaho, and Wyoming Territories.] That the act entitled "An act transferring the control of certain Territorial penitentiaries to the several Territories in which the same are located," approved January twenty-fourth, eighteen hundred and seventy-three, be, and the same is hereby, amended by striking out the words Montana, Idaho, and Wyoming wherever the same occur in said act, and the said act shall hereafter have no applicability to the Territories of Montana, Idaho, and Wyoming. [18 Stat. L. 112.] SEC. 2. [To continue under control of United States marshals.] That the penitentiaries in the Territories of Montana, Idaho, and Wyoming, shall continue under the care and control of the marshal of the United States for said Territories, under and pursuant to the provisions of the act entitled "An act in relation to certain territorial penitentiaries," approved January tenth, eighteen hundred and seventy-one; which said last mentioned act is hereby revived and reënacted so far as the same applies to the Territories of Montana, Idaho, and Wyoming. [18 Stat. L. 112.] The Act of Jan. 10, 1871, ch. 15, mentioned in the text, was incorporated in R. S. as secs. 1892-1895. Section 1 is the same as R. S. sec. 1892, with the exception of the provision as to the territories of Montana, Idaho, Wyoming, and Colorado. Section 2 is the same as R. S. secs. 1893, 1894. Section 3 is the same as R. S. sec. 1895. Sec. 1937. [Expenses of maintenance of prisoners to be paid from judiciary fund.] The Territories named in the preceding section shall keep and maintain, in the penitentiaries transferred to their custody and control, all persons convicted in such Territories of violations of the laws of the United States, and sentenced to imprisonment therefor, and all persons held to answer for alleged violations of the laws of the United States in such Territories, at the rate and price, to be paid by the United States out of the judiciary fund, of one dollar per day for each person so imprisoned. [R. S.] Act of Jan. 24, 1873, ch. 63, 17 Stat. L. 419. Sec. 5536. [Expenses for U. S. prisoners to be paid by the United States.] All the expenses attendant upon the transportation from place to place, and upon the temporary or permanent confinement of persons arrested or committed under the laws of the United States, as well as upon the execution of any sentence of a court thereof respecting them, shall be paid out of the Treasury of the United States in the manner provided by law. [R. S.] Res. No. 2 of March 3, 1821, 3 Stat. L. 646; Act of March 3, 1835, ch. 40, 4 Stat. L. 777; Act of March 3, 1865, ch. 86, 13 Stat. L. 500. See further Act of March 3, 1891, ch. 529, sec. 5, supra, p. 25. Sections 5536-5550 constitute chapter 9 ("Prisoners and Their Treatment ') of title 70 ("Crimes ") of the Revised Statutes. The United States may use state prisons for the punishment of federal prisoners, paying the expense and letting the prisoners be employed and treated as the state convicts are. U. S. v. Smith, (1846) 1 Woodb. & M. (U. S.) 184, 27 Fed. Cas. No. 16,346. What constitutes such expenses. "What are these expenses? A reasonable, agreed sum for the nourishment and clothing of the prisoner in such prison, for the other means of comfort and health which it affords, as fuel and medical service, and for the custody of the prisoner, which includes the cost of the construction, reparation, occasional improvements, and ordinary wear and tear of the establishment; that is, in a word, pro tanto indemnification of the state." (1857) 8 Op. Atty. Gen. 292. Expenses of employed prisoners. The United States, not possessing any places of imprisonment within the states, are admitted by each state into its prisons on conditions agreed for the indemnification of the state; and, although the state so employ a federal convict as to derive returns from his labor, still it may demand compensation for entertaining him in its penitentiary, to be paid by the United States. (1857) 8 Op. Atty.-Gen. 289. To whom payable. The compensation in such case is due to the state as such, but is payable to any lawfully appointed agent of the state. (1857) 8 Op. Atty. Gen. 289. Sec. 5537. [Places of confinement.] In a State where the use of jailą, penitentiaries, or other houses is not allowed for the imprisonment of persons arrested or committed under the authority of the United States, any marshal in such State, under the direction of the judge of the district, may hire, or otherwise procure, within the limits of such State, a convenient place to serve as a temporary jail. [R. S.] Res. No. 2 of March 3, 1821, 3 Stat. L. 646; Act of March 2, 1833, ch. 57, 4 Stat. L. 634. Confinement of federal prisoners generally. "The federal government has no regular places of imprisonment of its own, either of the class denominated jails, or of that denominated penitentiaries, within any of the states. In general, each of the respective states had acceded to the suggestion of the first Congress, and had made provision to receive in its places of confinement, general or special, the prisoners of the United States, making for such prisoners the same regulations as for their own in the matter of discipline, subsistence, and other necessaries of life. The federal courts may, if they please, send their penitentiary convicts to the District of Columbia; but as to prisoners, of whatever class, confined in special or preliminary process, or convicts not sentenced to hard labor, the federal courts must depend on the prisons of the state within whose limits the incident occurs, or, in case of refusal there, make order for some other suitable, special place of confinement, at the direct charge of the United States." (1857) 8 Op. Atty.-Gen. 291. Implied consent of state. - The state would have the right to refuse the use of its penitentiary to the prisoners of the United States, but where for more than thirty years prisoners convicted in the courts of the United States have been sentenced to the penitentiary, and have been there received and kept, with the knowledge and acquiescence of the state authorities, and their expenses paid by the United States, it is not competent for an offender sentenced to the penitentiary by the federal court to object that there is no express legislation by the state authorizing such prisoners to be there confined; such objection could only be made by the state. Ex p. Geary, (1871) 2 Biss. (U. S.) 485, 10 Fed. Cas. No. 5,293. Lawful detention. So long as the state permits him to remain in its prison as the prisoner of the United States, and does not object to his detention by its officers, he is rightfully detained in custody under a sentence lawfully passed. Ex p. Karstendick, (1876) 93 U. S. 396. Necessity of process of commitment. — In cases under this section no special process of commitment is necessary, the prisoners being already in the custody of the marshal, and their detention being still continued in his custody. Erwin v. U. S., (1889) 37 Fed. Rep. 470; Turner v. U. S., (1884) 19 Ct. Cl. 629. Sec. 5538. [Marshal to make provision for safe-keeping of prisoners.] The marshal shall make such other provision as he may deem expedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until permanent provision for that purpose is made by law. [R. S.] Res. No. 2 of March 3, 1821, 3 Stat. L. 646; Act of March 2, 1833, ch. 57, 4 Stat. L. 634. Power of Congress to legislate for arrest and safe-keeping. Congress has the right to enact laws for the arrest and commitment of those accused of any crime or offense against the United States, whether committed within one of the states of the Union or within territory over which Congress has plenary and exclusive jurisdiction, and for holding them in safe custody until indictment and trial; and persons arrested and held pursuant to such laws are in the exclusive custody of the United States. Logan v. U. S., (1892) 144 U. S. 263. Protection of prisoners from injury. "The United States having the absolute right to hold such prisoners have an equal duty to protect them, while so held, against assault or injury from any quarter. The existence of that duty on the part of the government necessarily implies a corresponding right of the prisoners to be so protected; and this right of the prisoners is a right secured to them by the Constitution and laws of the United States." Logan v. U. S., (1892) 144 U. S. 263. Delivery of prisoners to incompetent deputies. A United States marshal owes a duty to prisoners to keep them safely and protect them from unlawful injury, and where he has taken prisoners into his custody, permitted them to be disarmed and shackled, and knowingly delivered them over to incompetent deputies and to the known hostility of mobs, he is liable for a neglect of his duty as his own personal negligence and default; and in states in which recovery may be had when the death of any person is caused by the wrongful act of another an action may be maintained on the marshal's bond for the death of prisoners so delivered to such incompetent deputies. Asher v. Cabell, (C. C. A. 1892) 50 Fed. Rep. 818. Examination of state jails by marshal. A marshal is not keeper of the jails of the state; "he has no control over them; he neither repairs the jails nor feeds the prisoners nor regulates their police; and in the absence of an order of the court requiring him to make an examination of state jails to ascertain if they are proper for the confinement of United States prisoners he is not entitled to charge for so doing. U. S. v. Smith, (1846) 1 Woodb. & M. (U. S.) 184, 27 Fed. Cas. No. 16,346. Sec. 5539. [United States convicts in State penitentiaries.] Whenever any criminal, convicted of any offense against the United States, is imprisoned in the jail or penitentiary of any State or Territory, such criminal shall in all respects be subject to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which such jail or penitentiary is situated; and while so confined therein shall be exclusively under the control of the officers having charge of the same, under the laws of such State or Territory. [R. S.] Act of June 30, 1834, ch. 163, 4 Stat. L. 739. Construed with other sections. This section being in pari materia with the sections immediately following is to be construed with those sections. Ex p. Karstendick, (1876) 93 U. S. 396. Jailer of state jail. "The United States uses the jails of the state for the confinement of prisoners under sentence or awaiting trial. But the jailer is not an officer of the United States, and the commissioner has no power to call upon him to perform any service." Saunders v. U. S., (1896) 73 Fed. Rep. 782. Control of marshal. The state jails are not under the control of the marshal, nor is the custody of the jailer the custody of the marshal in such cases. Erwin v. U. S., (1889) 37 Fed. Rep. 470; Randolph v. Donaldson, (1815) 9 Cranch (U. S.) 76. Hard labor for federal prisoners in Illinois. -As by the laws of Illinois the prisoners in the state penitentiary are subject to hard labor, unless it is otherwise directed in their sentence, and as it is provided that criminals sentenced by the United States court shall be subject to the same discipline and treatment as convicts sentenced by the state courts, it follows, as a conclusion of law, that the former are subject to hard labor as a part of the imprisonment. It is not necessary, in order to clothe the court with authority to imprison in the penitentiary, that a part of the punishment by the terms of the sentence should be hard labor. Ex p. Geary, (1871) 2 Biss. (U. S.) 485, 10 Fed. Cas. No. 5,293. * * * Taking testimony of prisoners. "As to prisoners confined in state prisons, whether under sentence of federal or state courts, they are subject exclusively to the government of rules and regulations prescribed by the several states as well in respect of federal as state prisoners; and the executive has no power to give the German government the privilege of access to such prisoners for the purpose [of taking testimony], without the instrumentality of a treaty, supposing the subject to be, to its full extent, within the treaty-making power." (1883) 17 Op. Atty.-Gen. 565. Sec. 5540. [Selection of penitentiary where a judicial district is divided.] Where a judicial district has been or may hereafter be divided, the circuit and district courts of the United States shall have power to sentence any one convicted of an offense punishable by imprisonment at hard labor to the penitentiary within the State, though it be out of the judicial district in which the conviction is had. [R. S.] Act of March 28, 1856, ch. 9, 11 Stat. L. 2. Sec. 5541. [Sentences to imprisonment for more than a year, where to be executed.] In every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed may order the same to be executed in any State jail or penitentiary within the district or State where such court is held, the use of which jail or penitentiary is allowed by the legislature of the State for that purpose. [R. S.] "The term 'state prison' is used in juxtaposition and as synonymous with penitentiary,' the meaning of which is definitely established. All understand a penitentiary to be a prison for the compulsory confinement, generally at compulsory labor, of convicts from the criminal courts." U. S. v. Smith, (1889) 40 Fed. Rep. 755. "The term 'state prison' is not used in the general sense of any jail or lock-up of a county or city owned by the state." U. S. v. Smith, (1889) 40 Fed. Rep. 755. Common-law offenses. This statute does not affect the punishment of common-law offenses. U. S. v. Marshall, (1887) 6 Mackey (D. C.) 34. Sufficient authorization. — “This language is explicit, and taken by itself is certainly sufficient to authorize imprisonment in a penitentiary at the discretion of the court in all cases where the sentence is for a longer term than one year." Ex p. Karstendick, (1876) 93 U. S. 396. The reformatory prison at Sherborn, Massachusetts, for the reformation and punishment of female offenders sentenced to hard labor by the state and the federal courts, is undoubtedly a state penitentiary, within the meaning of this section and R. S. sec. 5542, therefore a sentence of six months without hard labor in that prison is illegal. In re Johnson, (1891) 46 Fed. Rep. 481. Sentence of one year or less. Under this provision of law a court of the United States has no right to order a person who is sentenced to imprisonment for a period of one year, or less, to be confined in any particular state prison or penitentiary. Matter of De Puy, (1869) 3 Ben. (U. S.) 307, 7 Fed. Cas. No. 3,814. ment not exceeding one year, the convict cannot be confined in any state prison or penitentiary." U. S. v. Cobb, (1890) 43 Fed. Rep. 570. -- Imprisonment in penitentiary not required. by statute. "Where the statute of the United States prescribing a punishment by imprisonment does not require that the accused shall be confined in the penitentiary, a sentence of imprisonment in the penitentiary cannot be imposed unless the sentence is for a period longer' than one year." Haynes v. U. S., (C. C. A. 1900) 101 Fed. Rep. 817. 66 The court has no jurisdiction to order an imprisonment, when the place is not specified by law, to be executed in a penitentiary, when the imprisonment is not ordered for a period longer than one year, or at hard labor. The statute is equivalent to a direct denial of any authority on the part of the court to direct that imprisonment be executed in a penitentiary in any cases other than those specified. Whatever discretion, therefore, the court may possess, in prescribing the extent of imprisonment as a punishment for the offense committed, it cannot in specifying the place of imprisonment_name one of these institutions." In re Bonner, (1894) 151 U. S. 242, affirming (1893) 57 Fed. Rep. 184. "A sentence simply of imprisonment," said the court, "in the case of a person convicted of an offense against the United States, where the statute prescribing the punishment does not require that the accused shall be confined in a penitentiary, cannot be executed by confinement in a penitentiary, except in cases in which the sentence is for a period longer than one year. There is consequently no escape from the conclusion that the judgment of the court, sentencing the petitioner to imprisonment in a penitentiary, in one case for a year and in the other for six months, was in violation of the statutes of the United States. The court below was without jurisdiction to pass any such sentences, and the orders directing the sentences of imprisonment to be executed in a penitentiary are void." In re Mills, (1890) 135 U. S. 263. citing Nielson, Petitioner, (1889) 131 U. S. 176; In re Coy, (1888) 127 U. S. 731; Ex p. Rowland, (1881) 104 U. S. 604; Ex p. Virginia, (1879) 100 U. S. 339; Ex p. Parks, (1876) 93 U. S. 18; Ex p. Lange, (1873) 18 Wall. (U. S.) 163. Hard labor prescribed by statute." The only case where a person can be sentenced to |