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

concile to my own ideas of propriety. But a difference has since occurred with respect to the situation of the person indicted. Claims of a civil nature have come against him which have necessarily increased the difficulty of his procuring bail in this case. However I do not put it on that ground. I think the original sum required was very high; and that probably one half of it would be more correct. I shall therefore be contented with bail in the sum of five thousand dollars.

Mr. WIRT Submitted to the court whether this would not obstruct or entangle the proceedings for a higher offence; that it had been announced to the court that a motion would be made to commit the accused for high treason in another state. It might be urged that he was so entangled that no motion could be made to commit him. He begged the court to consider whether taking bail would prevent the motion from being made.

Mr. BURR.-I trust the court will not proceed by anticipation of a motion not yet made.

CHIEF JUSTICE.-The motion to send him to another state might be made immediately if there were not depending in court an indictment for a misdemeanor which retains the person of the prisoner in this court until it shall be disposed of by due course of law. He is here to abide the judgment of the court. It is therefore out of the power of the court to send him to another district to be tried for another offence while he is held by recognisance to answer this indictment. The gentlemen can make the motion to remove him when they think proper by getting rid of the misdemeanor.

Mr. WIRT.-I suppose that the removal itself would be an exonereter of the bail, as it would take him from custody here.

CHIEF JUSTICE.-The court wishes not to commit itself by prematurely expressing its opinion. But as the accused is in legal custody and actual confinement under the prosecution for the misdemeanor, I cannot conceive how this court can release him.

Mr. WIRT begged pardon of the court for speaking so oftenAlthough recognisances in cases of misdemeanor might with propriety be taken in small sums of money and the parties permitted to go at large, yet when persons were charged with enormous crimes, as treason, murder or felony, it would be very improper to bail them in so small a sum as five thousand dollars. It might be a temptation to a person accused to make his escape from such a situation.

CHIEF JUSTICE.-Those who prosecute have the choice of making the motion to commit him for a greater crime by discon

tinuing the prosecution for the misdemeanor or of persevering in the latter; if he be retained, the person of the accused must be subject to the opinion of the court.

Mr. WIRT.-Though I cannot flatter myself that my arguments will induce this court to alter its opinion, yet I should be glad if it would not make up its mind too soon. Suppose the pri soner, not discharged from his recognisance for the misdemeanor, goes into another district and commits treason or murder, and it is announced to the judge before whom he is brought for trial that he is bound by recognisance to appear to be tried here for a bare misdemeanor, will any body say that he would discharge him from prosecution for a crime of such enormous magnitude, merely that he might be transmitted and tried for this subordinate offence?

Mr. BURR.-Let him state a case where there is but a single act charged: suppose it to be levying war or any other act whatever, which it has ever been attempted to convert into two crimes. The government, with a full knowledge of the facts, having chosen to charge it as the crime of treason, and having selected the spot for its commission, are precluded from alleging now (after the charge of treason has been tried,) that it was another crime. How can two indictments grow out of one and the same act? It is a thing without example. In England there has been but one instance of such an attempt; and the court laid its hands on it, and the prosecution was dismissed. Is an act or a supposed crime to be cut up into halves or quarters or tenths, so as to authorize as many prosecutions as malice may suggest? Am I to be pursued from place to place, from district to district, for the same act? Or, are we to find, after all, that we have fewer privileges in the United States than the people have in Great Britain? According to their doctrine, I know no bounds to prosecutions, but the discretion of the attorney for the district. Has the attorney this advantage over the people of America, that he can prosecute as often as he pleases for one and the same supposed offence? If it be true that crimes have been committed, they ought to be inquired into and punished, according to the constitution in that district only, where they have been committed. If the attorney do not choose to proceed further with the charges, he ought to enter a nolle prosequi; but it is oppressive, and without example, to carry on sev eral prosecutions for the same act.

Mr. MARTIN. The question is not distinctly stated. It is not, whether a person against whom there are two charges, one for a great crime, and another for a misdemeanor, can be discharged from the more heinous, except by due course of law; t it is this, whether as the accused stands indicted of a crime