Deeply impressed with these opinions, the general assem bly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts

Το oppose the passing of any law, founded on, or recognising the, principle lately advanced, that the common law of England is in force under the government of the United States,' excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; . . . . and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.

IV.

(EXTRACT.)

THE UNITED STATES v. AARON BURR.

In the Circuit Court of the United States for the Virginia District.

(2 Robertson, 481.)

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 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 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 judgment, 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 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 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 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 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 over-ruling the preceding general words and limiting the power of arrest to cases in which, according to the State laws, a person may 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 of