ought to award a capias: the words of the act being "upon presentment made by the grand jury of an offence not capital, the court shall order the clerk to issue a summons or other proper process against the person or persons so presented to appear and answer such presentment at the next court, and thereupon hear and determine the same according to law;" that as the court had the power of ordering the proper process to issue, it had a right to judge of circumstances and prevent the escape of an offender when there was good ground to believe it probable, by ordering a capias to arrest him. It was answered by the counsel for the accused and decided by the court that the universal construction and practice was to issue a summons in such cases; that the words "or other proper process" meant a venire facias, which is of the same kind, and the process used in England on such occasions. Though the man was going away out of the jurisdiction of the court and would probably never return so as to be amenable to its process, the court only awarded a summons to issue.

This has been the uniform course of our criminal jurispru dence till this time. If there be a solitary case different from this practice, it must have been passed sub silentio. Yet I believe not a solitary case can be found in the superior courts different from this practice.

Secondly, I lay down this position for your consideration, that the 34th section of the judicial act has adopted the state law in civil as well as criminal cases in regard to the process which shall issue on presentments or indictments: " 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." The subject before you has been already fully discussed at another place and time, [in the senate of the United States on the trial of the impeachment against judge Chase,] and I have availed myself of all the objections then made to the use of this process, in order that when these objections should be seen by you, they might be answered by the argument I now make.

There are three classes of proofs to support this second position: It is proved by the necessary meaning of the words of the act; secondly, by adjudged cases and precedents; and thirdly, by the authority of Mr. Hay and Mr. Wirt, the Hampden and Sidney of the day, and the representatives of the United States.

As to the first class of proofs, the necessary meaning of the words of the act of congress, "the laws of the several states, &c. shall be regarded as rules of decision in trials at common law, in cases where they apply," are sufficiently comprehensive and explicit to effect the purpose for which we contend.

To its application to the present case several objections are made: first, that it relates to "trials" only; that this being a mere preparatory step to a trial, it may be contended that it does not apply to this case. To this objection several answers may be made: first, you would have had the courts of the United States to spend five or six terms in legislating on the subject of process, pleadings, &c. which must have been the case, if this reference to the state laws had not been made. Secondly, the practical construction of the act of congress has been to apply the 34th section to the practice of the state courts in judicial proceedings from their inception to their consummation; of which the following are examples. The capias is used in conformity to the law of the state, instead of the "præcipe quod reddat," which was the first process in an action of debt at common law, as appears from Fitzherbert's Natura Brevium, and 3 Blackstone's Commentaries, p. 280. and in the appendix.

Your writs of capias command the officers to take the bodies of the defendants in all cases whatsoever. The mandate of every writ of capias orders the officer to seize the body of the defendant. But the act of assembly, requiring bail to be taken in some cases and dispensing with it in others, directs that the true species of action shall be indorsed on the writ, for the information of the sheriff, whether bail is to be demanded or not. And in certain actions it must be added that bail is to be required. The indorsement of " no bail required," contradicting the language of the writ, has practically prevailed in those cases where bail is not demandable. This act of assembly, in consequence of the 34th section of the act of congress has been pursued in the courts of the United States; and this indorsement contradicting the process has practically prevailed therein. See Call's manuscript, p. 115, 116. 124. where in Mundell's case judge Iredell says that the law concerning bail is perhaps of this nature, that it changed with the change of the government. His words are, "it is in no manner inconsistent, that I can perceive, with the change of government; and therefore I should have been strongly inclined to think, had congress made no express reference to the laws of the different states as rules of decision, that until they made a law concerning such subject, the state law in relation to it would have been in force. But I have no doubt that under the express reference by the act of congress to the laws of the several states as rules for our decision, fortified by the considerations I have stated, the law of Virginia, whatever it may be concerning the requisition of bail in actions of debt by the public upon penal statutes, is that by which we are bound to decide on the present occasion."

By the construction of an act of its legislature by the court of appeals in the case of Ruffin v. Call, reported in 2d Washington's

Reports, p. 181, it has been determined that appearance bail ought not to be taken in actions of debt or bonds with collateral conditions. And pursuant to this settled construction of the law in Virginia, it has been determined in this court, in the case of Green's executors v. Banks, that bail is not requirable in actions on such bonds; and the defendant who had been improperly held to bail in an action on a bond with a collateral condition was discharged from custody. See Call's manuscript, p. 232.

According to the laws of Virginia also, a factor's name must be stated in the declaration on a suit brought by a creditor residing in Great Britain; and if the name of the factor who sold the goods be not in the declaration, the suit shall be dismissed. According to this act of the legislature of Virginia, this court decided in the case of Jackson v. Bowyer, (see Call's manuscript, p. 224.) that the factor's name must be mentioned in the declaration in every such case, or that the suit will be dismissed.

In page 247. of the same book the court will find that judge Iredell decided in the case of Cearnes, adm. v. Banks in this court that bail may be required in actions of covenant, because the act of assembly appeared to authorize the demand of bail in such actions. These are particular examples of the propriety of the doctrine for which I contend, proved by express authority. The practice of your courts, from their institution in the year 1789, or from their organization in the year 1790, till this day, has confirmed this practical construction in legal prosecutions from inception to consummation, and that their rules of proceeding con. form to those of the state courts. The day after rising of the court is the appearance day. The privilege of the witnesses, the rules and proceedings in the clerk's office, pleading, entering judg ments, confirming them, docketing causes, summoning juries, fining them for misconduct, mesne process or process issued between the original and final process, issuing executions &c., are all conformable to state practice.

The second objection made to the application of the 34th section of the judicial act to this case is this: that the words "at common law" restrict its operation to the common law of the states and distinguish it from the statute law of the states.

[Here a desultory conversation took place between Mr. Hay and Mr. Botts.]

The first and an obvious answer to this objection is, that the common and statute law of Virginia are the same as to process on indictments.

The second answer is that the words "at common law," restrict it to courts of common law as distinguished from admiralty, maritime and chancery courts, which have rules, principles and usages peculiar to themselves. It will be found in page 95, 96, 97. of Call's manuscript to be the opinion of Judge Iredell in

Mundell's case. This learned distinction was not then discovered though the case was very fully discussed by the greatest talents at the bar. Among the different constructions contended for and objections made this was not one; and after such an elaborate discussion the point might be considered as settled; and it was hoped that it would preclude the possibility of stirring the question again. The terms used cannot admit rationally of such a construction: "the laws of the states shall be regarded as rules of decision in trials at common law in cases where they apply.” The terms, "trials at common law," are plain and familiar, as contradistinguished from admiralty or chancery jurisdiction.

But "a trial at statute law" would be a novel if not an absurd expression. Suppose it were urged as an argument that this was a court not of common but of statute law, it would be giving this tribunal a strange and new character. All courts are indeed created by statute; but when a court is constituted, it is called a court of common law, a court of admiralty, or a court of chancery, according to the fact. Because courts of admiralty, chancery, and common law are the only courts of civil jurisdiction, (as distinguished from courts martial or military) which we have in this country. But as already observed, it matters not whether the reference of these words be to the rules of the common law or the statutory decisions of the state; because the common law and the statute law, as regarding process, in Virginia, are the same. But it may be objected further that it will be a great inconvenience to have different rules respecting process in different states, for the courts of the United States: as to issue a summons in Virginia or Maryland where they issue a capias in Pennsylvania. This objection of a diversity of modes in different states is applicable to rules of trial as well as of process, and would be as insuperable an objection to the mode and time of trial as it can be to that of process.

But sir, that has been represented to be an inconvenience, and may be so represented again, which is quite otherwise. It is at most an inconvenience which has been considered by those who framed the constitution. They saw the policy of this supposed inconvenience and ingrafted it in the constitution. The different manners, habits and usages of different communities ought to be consulted. This they well knew and provided accordingly. They knew that it would be deemed a great convenience by the people to consult their habits and customs. There is a great diversity in the rights of suffrage in the different states, and consequently as great in the mode of choosing the national representation as in the rights of suffrage, or the habits and opinions of the people. Every part of this great confederated community has its own peculiar rights of suffrage, and of sending representatives to one and the same national legislature. The same diversity prevails in the dif

ferent states as to the election of electors of the president of the United States. Those, who have a right to vote in each state for representatives to the most numerous branch of the state legislature, have a right to elect electors of the president and representatives to the national legislature; and this arrangement, notwithstanding the amendability of every part of the constitution, has continued unaltered since the government went into operation; and in like manner the diversity in the different states respecting process has continued in the courts of the United States since the government has been in operation; which proves that it is deemed convenient by the people. The court must take the English or the Virginia law. Where they differ, which is to be preferred? When the question is whether the mode used in England or that practised in Virginia is to be adopted by the court, can there be a moment's hesitation as to the policy and propriety of consulting the habits and opinions of the people of Virginia and preferring that to which they have been accustomed? But if there were inconveniences in this diversity, the legislature of the United States, and not their courts, ought to remedy them.

The case of Mundell shews that in the most enormous misdemeanors, the court will proceed on no other principle than according to the Virginia practice to summon the party accused in the first instance.

Judge Iredell, in delivering the opinion of the court, that the marshal had no right to require bail of the defendant on a capias issued for the penalty of a statute, expressed sentiments well calculated to illustrate this subject: "It may be lamented in this case that a man guilty of a most daring violation of the peace of the country, and an inhuman assault upon an innocent and meritorious officer, should escape a punishment proportionate to his offence. But no passions must mingle in the administration of justice. The law alone ought ever to be, and I trust ever will be the guide of our decisions." This very well applies to this branch of the subject. We see that after having committed a breach of the peace and effectually resisted the public officer, Mundell's person was not arrested, but he was summoned in the first instance; and after he was in contempt for not obeying the summons, a capias was awarded against him, which did not authorize the marshal to imprison or hold him to bail; and he finally appeared, not in person, but by attorney on the indictment for resisting the warrant of the officer. He was first summoned; and his resistance to the marshal demanding bail on the capias in the second instance was justifiable, as the process did not authorize the requisition of bail.

But it is objected that the supreme court of the United States has declared that until there should be special rules of practice devised by it, the common law of England and the English practice should furnish outlines of practice for that court. The