The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-09

and thofe general ufages which are TO be found
not in the Legislative acts of ar particular at,
but in that generally recognized and long eta
bliihed law, which forms the fubfratum of the
laws of every aate.
Upon general principles flaw it would fecm
to me, that in all cafes where the judgment i.
to affect the perfon, the petfon ought to be
held fubjret to that Judgment. Thus in civil
actions, where the body may be taken in exc.
cution to fatisfy the judgment, bail may be de.
manded. If the right of the plaintiff is fup-
ported by very frong probabili,y,as in debt up.
on fpecality, bail is demandahle without the
intervention of judge. IF there be no fuch
clear evidence OF the debt. bail is often requr.
ed upon the affidavit of the party. Now, rca.
foning by analogy from civil flute TO criminal
projections, it would feem not UNREASONABLE
where there is fuch evidence as an indictment
found by grand jury, to ufe fuch proceis as
will hold the perfon of the accufed within the
power Of III court, or furniih fecurity that the
perion will be brought forward TO iatisfy the
judgment of the court.
Yet the courie If the common law appears o.
rgnaliy TO have seen o!herxiie. 1t appears
from Haw kris. that the practice of the Englifh
Courts was to iiiIs 1s:Ye t'eiGJ in The iirf in
ONanc@, CT an indictment for A mfiemsanor.
This practice, however, is t4ted by Backbone
TO have been changed. He iiys, (vo. 4, p. sI9)
'' And 60 in the cafe Of mild ymeanors, it is now
the ulual practice for any judge Of the court
OF KING Bench, upon certificate Of an indiGt-
nent found, 10 award a writ OF c apias inmc-
dIaitiy, in order to bring in the defendant"
Ii Is then the EngiiiI contribution of the com.
mon law, that although in the inferior courts
the q'eni'-e facin5 might ne the ufual courfe and
although 1t had prevailed. yet that Judge of
The Kings bench nigh, Rue capias in the
fra iuIt anre.
This .iuhirf has always appeared to me
be in great meaiiire governed by the SD
fetiicn OF the judicial act. That fiction pro-
v'des that for any crime or offence aCainf the
Uo'ted States, the offender may agreeaby to
the uiua mode of proccis agaiuft offenders in
tnit state where he is found, be arrcfted, and
impriioned or hailed rs the cafe may be.
D This at contemplated AT arref, not a FUN
mons; and this arrsit is to be, not foley for Of.
fcnies for which the Rate laws authorize an ar
ref bat " for any crime CT ciIlnce again1t the
u. States" do not uederitand the reference
10 the Rate law refpeetirg the mode of procef.
as overriding the preceding general words and
limiting the power cf arr,h 10 cafes in which
according 20 the fate laws a perfon might he
arFeRsd, but Imply as prricribing the mode ia
be puifued. Wherever by the laws of the u
nTlSu States an ofc"dtris to be arreied, the
procefs OF arrett employed in the late liall be
Furiued, but an arreit is poii'ively euioned for
a'y offence againft the United States. This
contribution is confirmed hy The fucceeding
words. The offender il,all be imprioued or
baiied IS the cafe may be. There exits no Dow
erto direct the offender or TO bind him without
bail 10 appear before the court, which would
certainly have been allowed, had the act con
temP'aied proceeding in iuch 4 cafe which
thould leave he perfon at large without fscuri-
ty. But he is abfoiuteIy to be impriloned or
bailed as the cafe may be.
In tub't qutnt part ofthe fame f 6tion, it is
enacted" that upon all arreits in criminal cal es
bail ihall be admitted, except where the puniiil
ment may be DEATH
There is no provi(ion for leaving the perfon
at large without bail, and I have ever conitrlI.
ed this iettion TO impofe it as duty on the
magiltrate who proceeds agaiDft any offender
aga'ntt the u. S. 10 commit or bail him. | per-
ceive in the law no other courfe to be purfaed
This fiction, it is true, does not refpeet the
procefs upon an indictment. But the law
would he inconiiftent with itfelf if it reouired
maeifra'e to arreG for any offence againit the
United States if it commanded him on every
arrch TO commit or to bail, and vet rrfnfed a
capias and permitted the fame offender to go
at large, 10 ioon as Indictment was found A.
gauit him. This feeion therefore appears 70
me to be emit" d tn great influence in determin-
ing the court on the mode of exerciliug the
power sven by the l4th fiction in relation to
procefs.
On the impeachment which has heen menti
oned, this point was particularly committed ia
Mr.. Lee and the law upon it was fully demon
frafed by him.
The only difficulty ever felt on this quefior
was produced by the former clecifons of Jutlee
Iredell. II the hate practice on this lubiec
had been adopted aiouid have held myfe
bound by thar adoption. But / do not couGde,
the fate practice as adopted, MundePs caf,
was a civil fuit, and the deciGon was that th,
fate rule refpetlng bail in civil aclons nun
prevail. Sinclair's cafe was indeed cafe fmi
lar to this, and in Sinclairs cafe yeni,-e facia
was ifued. But am informed by the clerl
that this was his ACT at the infance of the At
torney, not the aa of the court. The poin
WAS not brought before the court.
In Cal'cnder's CAFE, Capias or, what is tn,
lame thing. bench warrant was iffued. Thi
was he ACT Of the court but, not having beer
an act on argument, or with view of thu
wh"'e law Of the cafe, and of former deciions
ihou'd rot bav" coufidered it as everything
iboie deciiionf if fuch ex-fed Bu; there ha
been no deciiion exprc;sly adopting the fla'I
y Practice, and the decifon in CalleGder's cafe ap
pears to nic TO be coIrea.
thiak the Capiss The more proper procrfs
Ut 10 conformahIc TO the practice of England =
the tine OF cur revolution, and i ! ttiHk ~ con
formity with the fpirit of the s8l. fec. of tn
Judicial act fi,2ll therefore adopt It.
To lHue the Capias TO take into cufody