Page images
PDF
EPUB

might choose to prosecute; for they can find a bill of indictment, upon these principles, against any man.

Chief Justice. I should think that the bill charging with misdemeanor, ought first to be disposed of, before he is removed out of the custody where he now is, into another custody. The Court know not how to commit else: since he is already, in custody.

Mr. Hay. The application to you, Sir, is to commit. If the district Judge should find any difficulty, upon enquiring into the circumstances, it will be removed.

Chief Justice. The only doubt is, whether this Court is not bound to hear the whole case, before a decision is made. Suppose the motion had been made before the district Judge; might he not require a decision upon the present indictment, before he committed? (After examining the law,) the Chief Justice said, that when a person was to be transmitted to a foreign Court, if the offence was bailable, the Court was to take a récognizance of bail. Now, can the Court take a recognizance to appear in another Court, when the party is bound to appear in this?

This Court is bound to specify the Court to which the accused is to be sent, and the district Judge is bound to send him. Mr. Blannerhasset and Mr. Smith were brought into Court by the Marshal.

Mr. Hay observed, that the three persons then before the Court, all stood in the same situations, and the same difficulty applied to all. He regretted, that the Court had not expressed an opinion, before the prisoners had been sent for. He was not. disposed to disturb the opinions of the Court, but would go on with the trial for a misdemeanor against Col. Burr,

The Clerk was about to read the indictment for a misdemeanor, when he was interrupted by Col. Burr, who said, he was not to be arrained, but might plead by attorney. He said that he was not in Court upen that indictment. He was only in Court, because he had not moved to be discharged from the first indictment. He hoped that nothing which had passed, would prevent a full consideration of this subject. In this case, he wished to set up certain land marks, by which others might be guided, who were to follow; and he feared there would be

many.

Mr. Wirt enquired as to the effect of the proclamation which was made by the Marshal, after the Jury had returned their verdict. The usual course was, (and the one which had been adopted in this case,) for the officer to make proclamation if any person "knew of any treasons, felonies, or other misdemeanors committed, or done by the prisoner at the bar, let them come forth, and they shall be heard. The prisoner at the bar stands upon his deliverance," that is, his discharge.

Mr. Hay. It was at first objected that Col. Burr was in custody, and therefore he could not be transmitted to any other Court. We are now told that he is not in custody.

that

Mr. Botts went into a very lengthy argument, to prove although Col. Burr was corporeally present, he was not legally in Court. He produced a number of precedents from the records

VOL. 3.

B

of the General Court of this State, as well as of the Federal Court, to shew that after an indictment for a misdemeanor, the regular process was a summons, and not a capias by which the body could be arrested. He relied particularly on the opinion of Judge Iredell pronounced in Mundell's case; in which he considered the practice of the State Courts, as adopted throughout, by the judicial act of Congress, and on the practice. in Sinclair's case, which was a prevention under this very act. In the latter case, the process was a summons.

The cases referred to, were from the order book, No. 36, page 73, 79 and 76, 97. Sect. 34 Jud. act. 3 Bl. 280, and in the appendix. Caul's Mss. 115, 232, 247, 129, 130. Act 2nd March, 1793. Order book A. 358, 398, 404, 459. Calender's trial, Chase's impeachment, page 5, 17, 35. 2 Hawk. 402, ch. 9, sect, 27. 4 Bl. 301, &c.

Col. Burr observed, that his Counsel considered it a question of policy, not to move for his discharge immediately. In submitting to give bail as to the misdemeanor in the first instance, it was never his intention to admit the right to demand it.

The Chief Justice said, that he had determined, in the first instance, that bail was demandable, without considering the subject fully. He thought the law was clear: but he was open to conviction. He did not think himself precluded from a full examination of its propriety.

Mr. Hay said, he was not solicitous as to the result of the motion. The question now was, whether the prisoner should appear to the indictment for a misdemeanor without bail. Whenever a motion should be made to discharge him altogether, he should object to it, on the ground that treason had been committed elsewhere. He relied upon the act of Congress, which said, that for any crime or offence against the United States, the prisoner upon an arrest should be committed, or give bail. also relied upon the practice of this Court in the case of Logwood. He had no doubt as to the application of the law of Congress, to the practice of the State Courts in civil cases. His only doubts were, whether it applied to criminal cases.

He

Mr. Wickham considered that the act of Congress, declaring that the usual mode of process of the several states in criminal cases should be adopted, was conclusive upon this question. The act of Congress fixes the punishment, but the proceedings are to be according to the laws of the several states. He had no objection to state the motives which governed the Counsel of Col. Burr, in submitting to bail as to the misdemeanor. Such was the infatuation of the public mind, that if the Grand Jury had not found a true bill as to the treason, it was believed that Col. Burr would have been taken with or without process, and sent to some other place. He therefore gave bail, as to the misdemeanor, in order that he might be under the protection of the Court.

The Chief Justice said, that when he gave his opinion on the question, of entering into an examination of evidence, with a view to send the accused to Cumberland, or to some other place; it was predicated on the idea, that he was actually confined by the process of this Court. The precedents of this Court, which

have been quoted, seem to settle the practice very differently from my ideas of the law of Congress, in relation to criminal prosecutions. The question deserves consideration; and if I should be of opinion, that I am bound by those precedents, then the foundation on which I gave my opinion fails.

Mr Hay enquired, where would be the propriety of issuing a process, to bring a person into Court, who was already before it.

The Chief Justice said, that if a capias should be determined to be the proper process, he should consider the state of the party as sufficient, and might direct the Marshal to take him into custody but if a summons should be considered the regular process, he could not make such an order; and a venire must be awarded. If a venire issues, it will involve a question, whether the party is not entitled to a continuance.

:

The Court took time to consider, and adjourned till to-mor

row.

THURSDAY, September 3.

The Chief Justice delivered the following OPINION of the Court, on the proper process to be employed for bringing 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 was 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 are 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 thirty-fourth 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 regarded 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 the 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 contra-distinguished from criminal prosecutions; as well as to suits at common law, as contra-distinguished 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 fourteenth section of the judicial act, empowers the Courts of the United States, "to issue all writs not specially provided for by statute, which may bo necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."

this

power

is,

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 cognizance, and not to refer it to the State Law for that process. The limitation on that the process shall be agreeable to the principles and usages of law. By which I understand those general priuciples and those general usages which are to be found, not in the legislative acts of any particular State, but in that generally recognized and long established law, which forms the substratum of the laws of every state.

person

Upon general principles of law, it would seem to me, that in all the person, cases where the judgment is to affect the ought to be held subject to that judgment. Thus in civil ac tions, where the body may be taken in execution to satisfy the judgment, bail may be demanded. If the right of the plaintiff is supported by very strong probability, as in debt upon a speciality, bail is demandable without the intervention of a Judge. If there be no such clear evidence of the debt, bail is often iequired upon the affidavit of the party. New, 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 use 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 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."

[ocr errors]

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 King's Bunch 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.

66

This act contemplates an arrest, not a summons; and this arrest is to be, not solely for offences for which the State laws authorise 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."

[ocr errors]

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 fourteenth 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 decisions 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

« PreviousContinue »