other misdemeanor of that kind. He is bound by the magis trate (unless there be no credible evidence against him, in which case he is discharged) to appear at the next court in order to be examined and dealt with according to law. If he do not give a recognisance, he is committed to gaol. To speak correctly, he is not permitted to appear without giving security and entering into a recognisance that he will appear at the next term. After he is taken by the capias, or appears pursuant to the recognisance, his trial takes place. On grounds of convenience and reason, I ask you, where can be the least propriety of permitting a defendant to appear without giving bail? If left to himself he never will be tried; if he give no bail he may make his escape instantly. He must be brought before the court, but cannot be enlarged without giving bail.

I presume the court will be of opinion that the motion now made ought not to be sustained; that the accused will not be summoned or permitted to appear to the indictment without giving bail. Two other clauses of the same section confirm the opinion that bail ought to be given in all such cases: that for any offence against the United States, the accused must be arrested, and not merely summoned. "Upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death;" &c. " and if a person committed by a justice of the supreme court or a judge of the district court, for an offence not punishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme or superior court of law of such state." It would be strange and inconsistent that the party accused should be required to give bail to appear before the court, and after he did appear that he should be discharged without bail, before he

had trial.

Here a long and desultory debate took place.

Mr. WICKHAM thought the words of the act of congress conclusive as to this question, that "the offender may be arrested and imprisoned or bailed," but how?" Agreeably to the usual modes of process against offenders in such state;" that though the punishment was provided by the act of congress, yet the proceedings were to be according to the laws of the several states; and if the laws of the state do not allow an arrest at all, then they do not admit an arrest in this case; that it was confined to the usual process in the state; that the gentlemen for the prosecution constantly declaimed against the waste of time occasioned by unnecessary discussion: but he took the liberty to observe, that remarks of that sort were as little applicable to his friend, Mr. Botts, as to any gentleman; he would neither except himself nor any gentleman on the other side; that all he had said was in an investigation

of legal principles directed to the understanding of the court; that the gentleman had asked whether this prosecution were ever to be ended. If, said Mr. Wickham, that question had come from my client, it would have been natural and proper; and I wonder that he did not put it to the gentlemen concerned in the prosecution; for according to their mode of conducting it, the life of a man would be insufficient to terminate it. According to the principles which the gentlemen on the other side have advanced, and the zeal and perseverance which they have displayed, an hundred years might be employed in it.

After reverting to the subject of the proceedings, and aver ring that they ought to conform to the state laws, Mr. Wickham asked, whether so great a right as that of personal liberty were to be taken away by implication. He said that a law which imposed high penalties ought to be taken strictly; and, if the words would bear that construction, it must be expounded favourably to the citizen; that if they did not follow the laws of a particular state, they would not resort to the common law, as Mr. Hay would readily admit; and, therefore, with respect to the mode of proceeding, whenever the act of congress was silent, the laws of Virginia must govern; that they were in fact the laws of this court.

Mr. HAY insisted that in cases of flagrant enormity a venire facias should not issue, but a capias to bring the offender before the court; that whether the process were made returnable immediately or at the next court, whether a venire facias or a capias issued, let the party come before the court when or how he would, he must give bail.

Mr. WICKHAM denied the law to be so. He considered it as perfectly clear, that wherever the practice had been to issue a venire facias, it had been equally the practice for the accused to appear by attorney. He recollected no instance where the party brought before the court by a venire facias had given bail. And if there were such a precedent in the state of Virginia, he begged that it might be produced. There had been several cases in this court, in all of which a venire facias had issued, and the parties appeared without giving bail. What, said he, is a venire facias? A summons. Does the officer take him into custody and imprison him? He does not. He only serves the summons, and the par ty appears; or, if he fail to appear, subjects himself to a capias, in the second instance.

Mr. HAY stated the practice to be otherwise; that in the counties the magistrates issued their warrants to apprehend persons charged with great or enormous misdemeanors; that the warrant required the officer to bring the offenders before the magistrate issuing it, or some other; and on the appearance of any such offender before either magistrate, he was compelled to

enter into a recognisance to appear at the next court and abide by its decision; and if he refused to give bail, he would be committed. If he appeared, and was not tried at the next court, he must enter into a further recognisance, or be committed. Mr. Hay appealed to the court, whether this were not the invariable practice in the country.

Mr. WICKHAM said that there was no instance of such practice in the superior courts; that he would not undertake to say, positively, how they proceeded in the inferior courts, because he was not very conversant in their practice; but he could safely say, that the gentleman had neither explained the reason nor extent of this practice; that he knew that the most common cases were breaches of the peace; that the party accused generally entered into a recognisance to keep the peace in the mean time and to appear at the next county court, and if the court on hearing the evidence judged it proper, he was ordered to give a new recognisance for keeping the peace; that this was in all human probability the utmost extent of the practice in those courts; that it did not extend to any other cases than those of violations of the public peace, the preservation of which was so essential to the public felicity; that the magistrates were not perfectly conusant of the law; but if such a usage had prevailed, without the sanction of a deliberate decision of a superior court, this court would not consider itself bound by it, but vary the course of proceeding; that if this practice had been continued for 20 years, it ought not, all circumstances duly considered, to be much respected; that there existed no fair means of reviewing it; that it could not be referred to the decision of the court of appeals, the tribunal of the dernier resort in this state, in which he had himself a considerable standing for a number of years; that the question had been recently argued in that court, whether it had appellate jurisdiction in criminal cases. Its own practice was referred to; and it said that the point had never been considered; and it determined it had no jurisdiction. He apprehended that it was not improper to state the motives of colonel Burr's counsel in submitting before to give bail as to the misdemeanor. Colonel Burr did object to it; but his counsel thought that such was the infatuation of the public mind, and so violent the prejudices against him, that with, or without process, he would have been taken and transported to some other place if released here. He therefore gave bail as to the misdemeanor, in order that he might be under the protection of the court. The idea of his counsel was their own exclusively.

The CHIEF JUSTICE said, that when he mentioned the difficulty of entering into an examination of evidence, at the instance of the counsel of the United States, in order to commit the accused,

to be sent to Kentucky or some other state, it was on a supposition that he was actually confined to answer for the misdemeanor in this court, and that those counsel had a right to elect the place to which he should be sent, and to dismiss the prosecution here, if they preferred to send him to another state. But the prece dents in this court, which had been quoted, differed from his idea of the effect of the act of congress relative to process in criminal prosecutions. The subject required consideration; and he would decide according to the result of his reflections.

Mr. BOTTS observed, that he had read a considerable number of authorities to the court in support of his argument to shew that a summons was the proper process; but that Mr. Hay had neither answered his authorities nor arguments; that his silence might indeed be taken as a mortifying contempt of the gentleman, had he not sometimes interrupted him; that had he not honoured him with the interruptions, and occasionally manifested uneasiness, he might have concluded that the gentleman thought that his arguments deserved no notice; but that such conduct, of itself, induced him to think that there was some weight in his argument; that unquestionably, that part, which was founded on the decision of judge Iredell, could not be answered.

Mr. Botts then made some very facetious remarks on the authority of county court magistrates, which Mr. Hay had called to his aid; and on some ludicrous mistakes committed by some of them, in the course of their judicial conduct. He said that the practice of different magistrates in different parts of the country varied much, and however meritorious their conduct, or upright their intentions, (and he acknowledged that a great proportion of them were very respectable) their necessarily limited information must prevent their decisions from being considered as authority; that colonel Burr had reason to apprehend danger, not from the authority of the magistrates, but from the violence and turbulence of the mob; that this induced the submission to give bail contrary to the conviction of the accused; that it was not demandable of right.

Mr. Botts then recapitulated all the circumstances of what he deemed "the history of colonel Burr's sufferings, from his first illegal seizure and transportation till the termination of his close confinement in gaol, after a true bill had been found against him by improper means, and the mistake of the grand jury with respect to the opinion of the supreme court." He concluded, by expressing a hope that the court would decide in favour of the process that conduces to the preservation, not to the depression of liberty.

The CHIEF JUSTICE said that the opinion which he had given on the impropriety of hearing evidence to support the motion to

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commit, while the indictments for the misdemeanor were depending, was predicated on the belief, that they were confined by the process of this court. He thought that a capias ought to have issued, but had not fully considered the question; that his own impression was directly against those decisions which were relied on by Mr. Botts; but he would consider the point, and if he should conclude that he was bound by those precedents, he would decide in conformity to them.

Mr. HAY inquired, where the propriety could be of issuing a process to bring into court a person who was at this very moment in custody before the court.

The CHIEF JUSTICE said, that if a capias should be determined to be the proper process, he should consider the situation of the party, and direct that he should not be discharged till the cause was finally decided. If a capias should be considered not to be the proper process, a venire facias must be awarded. There was another consideration: if a venire facias issued, it would involve the right to a continuance of the cause till another term. He would consider that with the principal question.

The court took time to consider; and adjourned till to-mor

row.

THURSDAY, September 3, 1807.

The CHIEF JUSTICE delivered the following opinion of the court on the proper process to bring Aaron Burr before the court to answer the indictment for the misdemeanor.

The question now before the court is whether bail be demandable from a person actually in custody, against whom an indictment for a misdemeanor has been found by a grand jury. As conducing directly to a decision of this point, the question has been discussed whether a summons or a capias would be the proper process to bring the accused in to answer the indictment, if, in point of fact, he were not before the court.

It seems to be the established practice of Virginia in such cases to issue a summons in the first instance; and if by any act of congress the laws of the several states be adopted as the rules by which the courts of the United States are to be governed in criminal prosecutions, the question is at an end; for I should admit the settled practice of the state courts as the sound construction of the state law under which that practice has prevailed.

The 34th section of the judicial act, it is contended, has made this adoption.

The words of that section are "that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regardVOL. II.

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