ed as rules of decision in trials at common law in the courts of the United States, in cases where they apply."

It might certainly be well doubted whether this section, (if it should be construed to extend to all the proceedings in a case where a reference can be made to the state laws for a rule of decision at the trial,) can comprehend a case where, at the trial in chief, no such reference can be made. Now in criminal cases the laws of the United States constitute the sole rule of decision; and no man can be condemned or prosecuted in the federal courts on a state law. The laws of the several states therefore cannot be regarded as rules of decision in trials for offences against the United States. It would seem to me too that the technical term, "trials at common law," used in the section, is not correctly applicable to prosecutions for crimes. I have always conceived them to be, in this section, applied to civil suits, as contradistinguished from criminal prosecutions, as well as to suits at common law as contradistinguished from those which come before the court sitting as a court of equity or admiralty.

The provision of this section would seem to be inapplicable to original process, for another reason. The case is otherwise provided for by an act of congress. The 14th section of the judicial act empowers the courts of the United States "to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."

This section seems to me to give this court power to devise the process for bringing any person before it who has committed an offence of which it has cognisance, and not to refer it to the state law for that process. The limitation on this power is, that the process shall be agreeable to the principles and usages of law. By which I understand those general principles and those general usages which are to be found not in the legislative acts of any particular state, but in that generally recognised and long established law, which forms the substratum of the laws of every

state.

Upon general principles of law it would seem to me that in all cases where the judgment is to affect the person, the person ought to be held subject to that judgment. Thus in civil actions. where the body may be taken in execution to satisfy the judg ment, bail may be demanded. If the right of the plaintiff be supported by very strong probability, as in debt upon a specialty, bail is demandable without the intervention of a judge. If there be no such clear evidence of the debt, bail is often required upon the affidavit of the party. Now, reasoning by analogy from civil suits to criminal prosecutions, it would seem not unreasonable, where there is such evidence as an indictment found by a grand jury, to such process as will hold the person of the accused within

the power of the court, or furnish security that the person will be brought forward to satisfy the judgment of the court.

Yet the course of the common law appears originally to have been otherwise. It appears from Hawkins that the practice of the English courts was to issue a venire facias in the first instance, on an indictment for a misdemeanor. This practice however is stated by Blackstone to have been changed. He says, (vol. 4. p. 319.) "and so in the case of misdemeanors, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant."

It is then the English construction of the common law, that although in the inferior courts the venire facias might be the usual course, and although it had prevailed, yet that a judge of the king's bench might issue a capias in the first instance.

This subject has always appeared to me to be in a great measure governed by the 33d section of the judicial act. That section provides, that for any crime or offence against the United States, the offender may, agreeably to the usual mode of process against offenders in that state where he is found, be arrested and imprisoned or bailed as the case may be.

This act contemplates an arrest, not a summons; and this arrest is to be, not solely for offences for which the state laws authorize an arrest, but, "for any crime or offence against the United States." I do not understand the reference to the state law respecting the mode of process as overruling the preceding general words and limiting the power of arrest to cases in which according to the state laws a person might be arrested, but simply as prescribing the mode to be pursued. Wherever by the laws of the United States an offender is to be arrested, the process of arrest employed in the state shall be pursued; but an arrest is positively enjoined for any offence against the United States. This construction is confirmed by the succeeding words: the offender shall be imprisoned or bailed as the case may be. There exists no power to direct the offender, or to bind him without bail, to appear before the court; which would certainly have been allowed had the act contemplated a proceeding in such a case which should leave the person at large without security. But he is absolutely to be imprisoned or bailed as the case may be.

In a subsequent part of the same section it is enacted" that upon all arrests in criminal cases bail shall be admitted, except where the punishment may be death."

There is no provision for leaving the person at large without bail; and I have ever construed this section to impose it as a duty on the magistrate who proceeds against any offender against the United States to commit or bail him. I perceive in the law no other course to be pursued.

This section, it is true, does not respect the process upon an indictment. But the law would be inconsistent with itself if it required a magistrate to arrest for any offence against the United States-if it commanded him on every arrest to commit or to bail, and yet refused a capias and permitted the same offender to go at large, so soon as an indictment was found against him. This section therefore appears to me to be entitled to great influence in determining the court on the mode of exercising the power given by the 14th section in relation to process.

On the impeachment which has been mentioned, this point was particularly committed to Mr. Lee, and the law upon it was fully demonstrated by him.

The only difficulty I ever felt on this question was produced by the former decision of judge Iredell. If the state practice on this subject had been adopted I should have held myself bound by that adoption. But I do not consider the state practice as adopted. Mundell's case was a civil suit; and the decision was that the state rule respecting bail in civil actions must prevail. Sinclair's case was indeed a case similar to this; and in Sinclair's case a venire facias was issued. But I am informed by the clerk that this was his act at the instance of the attorney, not the act of the court. The point was not brought before the court.

In Callender's case, a capias, or what is the same thing, a bench warrant was issued. This was the act of the court; but, not having been an act on argument, or with a view of the whole law of the case and of former decisions, I should not have considered it as overruling those decisions if such existed. But there has been no decision expressly adopting the state practice; and the decision in Callender's case appears to me to be correct.

I think the capias the more proper process. It is conformable to the practice of England at the time of our revolution, and is, I think, in conformity with the spirit of the 33d section of the judicial act. I shall therefore adopt it.

To issue the capias to take into custody a person actually in custody would be an idle ceremony. In such a case the order of the court very properly supplies the place of a capias. The only difference between proceeding by capias and by order, which I can perceive, would be produced by making the writ returnable to the next term.

As soon as this opinion had been delivered, Mr. HAY said that he would proceed to the trial of the indictment for the misde

meanor.

CHIEF JUSTICE.-The issue, I suppose, is to be made up.

Mr. BURR.-A letter has been demanded of the president of the United States, which has been often promised but not yet

produced. I wish to know whether that letter be in court, and whether it cannot be put into the hands of the clerk.

Mr. HAY.-I have not seen the letter though I have most minutely searched for it among my papers. It is possible, however, that it may be among them; but I presume that a copy of it verified by affidavit would do; and that the production of it is not neces sary at the trial. This copy is ready to be produced.

Mr. BURR.—The president said that he had means to have access to that letter, and promised that it should be produced. It is strange, after this, that it is not here. I am not disposed to admit a copy.

Mr. MARTIN.-It is within my knowledge that the attorney general has been at Washington since application was made for this letter.

Mr. HAY.-I wrote for it to Mr. Rodney the attorney general, and he has sent me a large bundle of papers. It is probable that he has sent it among them, but I have not yet been able to find it after a very minute search. General Wilkinson has a copy of it verified on oath.

CHIEF JUSTICE.-Unless the loss of the original be proved, a copy cannot be admitted.

Mr. BURR then observed that he would now call the attention of the court to the subject of bail, as he understood from the opinion of the court just delivered that bail was demanded; that circumstances had considerably varied since bail had been first demanded of him, and some of them ought to induce a reduction of the amount of the bail; that it was well known that there were several claims against him; and he had incurred great expenses; that he was not able to give bail in as large a sum as he had given at first; that his ability being lessened, the same sum would be now much more oppressive than it had been then; that it ought to be recollected that the indictment for treason had failed; that he thought that, all the circumstances considered, half the sum required of him at first would be sufficient for the present.

Mr. BOTTS.-The court has overruled us, and it is our duty to acquiesce. I suppose that in this country the only mode of establishing a criterion to regulate the amount of bail to be taken from any individual is by looking at the state of his property. A man of no property ought not to be required to give bail in a large sum of money. The court has always inquired into the amount of the estate of the party accused. In taking recognisances for breaches of the peace, the court always inquires what the accused is worth, and makes him give security accordingly. Colonel Burr's circumstances are well known; and I should apprehend

that a very small sum would be accepted by the court especially since his acquittal has taken place from the charge of treason.

Mr. HAY differed in opinion from the counsel of the accused in one respect. He had been acquitted from the charge of treason but not after a full examination of the evidence. The greater part of the most interesting evidence had been excluded. The charge of treason ought to be fully investigated somewhere: in Kentucky, Tennessee, the Mississippi territory, or some other state or territory. He wished the person of the accused to be secured till he could have an opportunity of moving for his commitment; which he would do as soon as the trial for the misdemeanor would permit him.

Mr. WICKHAM thought the bail at first taken was enormous, considering colonel Burr's situation; that it ought to be taken in a much smaller sum and not in reference to a future motion to commit; that colonel Burr had been already tried and acquitted. And he asked what was the evidence against him? Nothing that was done in Virginia.

Mr. BOTTS hoped that when the subject of the motion came before the court, it would see in it an attempt most alarming and dangerous to the citizens of this country, which if not opposed would crush them, their liberties and rights, though at this time very little need be said about it. He said it would be the ground of discussion when the motion should be actually made, (as the only question now was as to the quantum of the bail); that the government with a full knowledge of all the circumstances had selected a particular place for the trial of colonel Burr, and were bound by it; that from the success of that trial, the court could judge of the offence which was then charged; that with respect to the offence, said to have been committed in Kentucky, the charge was contradicted by gentlemen of respectability. And another circumstance ought to be recollected: inquests had been held concerning these acts in Kentucky and Tennessee; and we know the result.

CHIEF JUSTICE.-I do not think that I have a right to consider the question of treason on the subject of taking bail in the case of the misdemeanor so as to demand a greater or smaller sum. I did not on the first examination take into consideration any charge that might be made hereafter; nor shall I now have reference to any future charge. I always thought, and still think, the former bail a very high sum. I thought, and still think, that to bind a man in six times the sum that he could by law be fined for that offence was subjecting him to give very high bail; especially in a country whose constitution says that excessive bail shall not be exacted; but I was disposed to make it as high as I could re