(concurring.) The bail bond in this case having been taken to secure the appearance of one Thomas, a party charged with a criminal offense against the laws of the United States, the question raised by the demurrer is, was the taking of such bond authorized by the laws of the United States, and if not, is it valid if taken in conformity to the laws of this territory? It is admitted that if there be authority to take the bond in question under any law of congress it is by virtue of section 1014 of the Revised Statutes. That section, so far as it is pertinent to the question involved, reads as follows:
“For any crime or offense against the United States the offender may, by any justice or judgeof the United States, or by any commissioner of a circuit court authorized to take bail, or by any chancellor, judge of a superior or supreme court, chief or first judgeof common pleas, maypr of a city, justice of the peace, or other magistrate of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned or bailed, as th'ecase may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speodily as may be into the clerk’s office of such court, together with the recognizance of the witnesses for their appearance to testify in the case. ”
The first question which would seem to suggest itself on reading this section is, does it apply or have any reference to the taking of bail in criminal cases for the violation of the laws of the United States in the territories? My doubts are *157so strong that they amount to a conviction that it does not. I am clearly of opinion that the courts and judges of the United States referred to in this section are courts and judges in the sense of the constitution, and which were created and authorized hy that instrument, and consequently the section has reference to such courts only which exist in a state. It has been decided that the supreme and district courts in a territory are legislative courts, therefore unknown to tbecon-stitution, created wholly by authority of congress, under that clause of the constitution which confers upon congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Clinton v. Englebrecht, 13 Wall. 434. Again, at the time congress passed the act in question, (1789,) there were no such territorial organizations as exist at the present day. It is true that two years previous, in 1787, congress passed the ordinance for the government of the territory of the United States northwest of the River Ohio; but its provisions were essentially differentfrom those found in the organic acts of the various territories which have been organized since that time. I need call attention to but one. By that ordinance the governor and judges of the territory were empowered and authorized to adopt and publish in each of the districts of said territory such laws of the original states, civil and criminal, as might be necessary and best suited to the circumstances of the district. It would seem, therefore, to be manifest that when congress passed the act of which section 1014 forms a part it never intended it to have, nor has it, any force or effect in a territory, — that its application is confined exclusively to a state.
But, for the sake of argument, I will concede that section 1014 applies with equal force and effect in a territory as it does in a state. How does the matter then stand? let me ask. The section says that the offender may be bailed. How bailed? In what manner? For it will be observed that the mode or method of bailing is not prescribed or defined by the statute. There are two methods of taking bail,— by recognizance and by bond. In some respects a recognizance is very similar to a bond. It is defined to be an obligation of record, which a man enters into before some court of record or magistrate duly authorized, binding himself uuder a penalty to do some particular act. A bond, or, as it is commonly called, a bail bond, is also an obligation, but under seal, signed by the party giving the same, with one or more sureties, under a penalty, conditioned to do some particular act. It will be observed that the chief distinction between the two methods of bailing is that the former is an acknowledgment upon record of a debt already due, while the latter is the creation of a new debt not of record. The’contention of the learned counsel for the plaiutiff in error is that congress, in not prescribing the method of taking bail in section 1014, left it wholly to the rule at common law as to that matter, and which he maintains was by recognizance only, and for this reason the bail bond in question was unauthorized, and therefore illegal and void. I submit, is it not just as reasonable to suppose that congress purposely omitted to prescribe a method of taking bail in order that either of the modes I have referred to might be adopted by legislative authority as convenience and circumstances required? I think so. Assuming, as I have done, that the position taken by the counsel for the plaintiff in error is correct, viz., that section 1014 is alike applicable to a territory as a state, still, inasmuch as the words of the section do not exclude and prohibit the taking of a bond, I am unable to see any valid reason why the bond executed by Thomas and his sureties is not just as legal and valid as a recognizance would have been had one been taken instead of a bond. Totter & W. St. 154.
I will now return to and consider the last branch of the inquiry suggested at the beginning of this opinion, viz., is the bond in question valid if taken in conformity to the laws of this territory? The proposition will hardly be questioned that where congress fails to provide how or in what manner a thing required shall be done to give effect to a law of congress in a territory, resort may be had to the law of the territory to supply the omission. Congress having failed to prescribe in section 1014 of the Revised Statutes the method of taking bail in criminal cases, and inasmuch as the laws of this territory authorize the taking of a bond in such cases, and it appearing that the bond upon which this action was brought in the court below is in all respects conformable to the requirements of said laws, I am of opinion that it is legal and valid, and that the judgment of the court below should be affirmed.