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U.S. Supreme Court

Ex Parte Bollman and Ex Parte Swartwout, 8 U.S. 4 Cranch 75 75 (1807)

Ex Parte Bollman and Ex Parte Swartwout

8 U.S. (4 Cranch) 75*




This Court has power to issue the writ of habeas corpus ad subjiciendum.

To constitute a levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistments of men to serve against government is not sufficient.

When war is levied, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors.

Any assemblage of men for the purpose of revolutionizing by force the government established by the United States in any of its territories, although as a step to or the means of executing some greater projects, amounts to levying war. The traveling of individuals to the place of rendezvous is not sufficient, but the meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous is such an assemblage as constitutes a levying of war.

A person may be committed for a crime by one magistrate upon an affidavit made before another. A magistrate who is found acting as such must be presumed to have taken the requisite oaths.

Quaere whether, upon a motion to commit a person for treason, an affidavit stating the substance of a letter in possession of the affiant, be admissible evidence?

The clause of the eighth section of the act of Congress, "for the punishment of crimes against the United States," which provides that

"The trial of crimes committed on the high seas or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought"

applies only to offenses committed on the high seas or in some river, haven, basin, or bay not within the jurisdiction of a particular state and not to the territories of the United States where regular courts are established competent to try those offenses.

The word "apprehended" in that clause of the act does not simply imply a legal arrest to the exclusion of a military arrest or seizure.

C. Lee moved for a habeas corpus to the Marshal of the District of Columbia to bring up the body of Samuel Swartwout, who had been committed by the Circuit Court of that District on the charge of treason against the United States and for a certiorari to bring up the record of the commitment, &c.

And on a subsequent day Harper made a similar motion in behalf of Erick Bollman, who had also been committed by the same court on a like charge.

On a former day (Feb. 5), C. Lee had made a motion for a habeas corpus to a military officer to bring up the body of James Alexander, an attorney at law at New Orleans, who, as it was said, had been seized by an armed force under the orders of General Wilkinson and transported to the City of Washington.

The order of the court below for their commitment was in these words:

"The prisoners, Erick Bollman and Samuel Swartwout, were brought up to court in custody of the marshal,

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arrested on a charge of treason against the United States, on the oaths of General James Wilkinson, General William Eaton, James L. Donaldson, Lieutenant William Wilson, and Ensign W. C. Mead, and the court went into further examination of the charge, whereupon it is ordered that the said Erick Bollman and Samuel Swartwout be committed to the prison of this Court, to take their trial for treason against the United States by levying war against it, to be there kept in safe custody until they shall be discharged in due course of law. *"

The oaths referred to in the order for commitment, were affidavits in writing, and were filed in the court below.

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MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as follows:

As preliminary to any investigation of the merits of this motion, this Court deems it proper to declare that it disclaims all jurisdiction not given by the Constitution or by the laws of the United States.

Courts which originate in the common law possess a jurisdiction which must be regulated by their common law until some statute shall change their established principles, but courts which are created by written law and whose jurisdiction is defined by written law cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this Court, and with the decisions heretofore rendered on this point no member of the bench has even for an instant been dissatisfied. The reasoning from the bar in relation to it may be answered by the single observation that for the meaning

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of the term "habeas corpus" resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States must be given by written law.

This opinion is not to be considered as abridging the power of courts over their own officers or to protect themselves and their members from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals or between the government and individuals.

To enable the court to decide on such question, the power to determine it must he given by written law.

The inquiry therefore on this motion will be whether by any statute compatible with the Constitution of the United States the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this Court.

The 14th section of the judicial act (Laws U.S. vol. 1. p. 58) has been considered as containing a substantive grant of this power.

It is in these words:

"That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other 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. And that either of the justices of the Supreme Court as well as judges of the district courts shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided that writs of habeas corpus shall in no case extend to prisoners in gaol unless where they are in custody under or by color of the authority of the United States or are committed for trial before some court of the same or are necessary to be brought into court to testify. "

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The only doubt of which this section can be susceptible is whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding.

It has been urged that in strict grammatical construction these words refer to the last antecedent, which is "all other writs not specially provided for by statute."

This criticism may be correct, and is not entirely without its influence, but the sound construction which the court thinks it safer to adopt is that the true sense of the words is to be determined by the nature of the provision and by the context.

It may be worthy of remark that this act was passed by the first Congress of the United States, sitting under a Constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, it must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity, for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

It has been truly said that this is a generic term, and includes every species of that writ. To this it may be added that when used singly -- when we say "the writ of habeas corpus," without addition, we most generally mean that great writ which is now applied for, and in that sense it is used in the Constitution.

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The section proceeds to say that

"either of the justices of the Supreme Court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment."

It has been argued that Congress could never intend to give a power of this kind to one of the judges of this Court which is refused to all of them when assembled.

There is certainly much force in this argument, and it receives additional strength from the consideration that if the power be denied to this Court, it is denied to every other court of the United States; the right to grant this important writ is given in this sentence to every judge of the circuit or district court, but can neither be exercised by the circuit nor district court. It would be strange if the judge, sitting on the bench, should be unable to hear a motion for this writ where it might be openly made, and openly discussed, and might yet retire to his chamber, and in private receive and decide upon the motion. This is not consistent with the genius of our legislation nor with the course of our judicial proceedings. It would be much more consonant with both that the power of the judge at his chambers should be suspended during his term than that it should be exercised only in secret.

Whatever motives might induce the legislature to withhold from the Supreme Court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States, and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.

The doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus and selecting those to which this general grant of power must be restricted if taken in the limited sense of being merely used to enable

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the court to exercise its jurisdiction in causes which it is enabled to decide finally.

The various writs of habeas corpus, as stated and accurately defined by judge Blackstone, 3 Bl.Com. 129, are 1st., the writ of habeas corpus ad respondendum,

"when a man hath a cause of action against one who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above."

This case may occur when a party having a right to sue in this Court, as a state at the time of the passage of this act or a foreign minister wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court of the United States or of a state court. If it be in a court of the United States, this writ would be inapplicable because perfectly useless, and consequently could not be contemplated by the legislature. It would not be required in such case to bring the body of the defendant actually into court, as he would already be in the charge of the person who, under an original writ from this Court, would be directed to take him into custody, and would already be confined in the same jail in which he would be confined under the process of this Court if he should be unable to give bail.

If the party should be confined by process from a state court, there are many additional reasons against the use of this writ in such a case.

The state courts are not in any sense of the word inferior courts except in the particular cases in which an appeal lies from their judgment to this Court, and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government.

2d. The writ of habeas corpus ad satisfaciendum,

"when a prisoner hath had judgment against him in an action and the plaintiff is desirous to bring him up to

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some superior court to charge him with process of execution."

This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it.

3d. Ad prosequendum, testificandum, deliberandum, &c.,

"which issue when it is necessary to remove a prisoner in order to prosecute, or bear testimony in any court or to be tried in the proper jurisdiction wherein the fact was committed."

This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of Congress, but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the Court.

4th and last. The common writ ad faciendum et recipiendum,

"which issues out of any of the courts of Westminster Hall when a person is sued in some inferior jurisdiction and is desirous to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatever the King's court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supersedes all proceedings in the court below."

Can a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court?

It would not be difficult to demonstrate that the writ of habeas corpus cum causa cannot be the particular writ contemplated by the legislature in the section under consideration, but it will be sufficient to observe generally that the same act prescribes a different mode for bringing into the courts of the United States suits brought in a

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state court against a person having a right to claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipso facto removed into the courts of the United States.

The only power then, which on this limited construction would be granted by the section under consideration would be that of issuing writs of habeas corpus ad testificandum. The section itself proves that this was not the intention of the legislature. It concludes with the following proviso,

"That writs of habeas corpus shall in no case extend to prisoners in jail unless where they are in custody under or by color of the authority of the United States or are committed for trial before some court of the same or are necessary to be brought into court to testify."

This proviso extends to the whole section. It limits the powers previously granted to the courts, because it specifies a case in which it is particularly applicable to the use of the power by courts: where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted.

From this review of the extent of the power of awarding writs of habeas corpus, if the section be construed in its restricted sense; from a comparison of the nature of the writ which the courts of the United States would, on that view of the subject, be enabled to issue; from a comparison of the power so granted with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature.

But the 33d section throws much light upon this question. It contains these words:

"And upon all arrests in criminal cases, bail shall be admitted except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court or by a Justice of the Supreme Court, or a judge of a district

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court, who shall exercise their discretion therein regarding the nature and circumstances of the offense and of the evidence and of the usages of law."

The appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed is by the writ now applied for. Of consequence, a court possessing the power to bail prisoners not committed by itself may award a writ of habeas corpus for the exercise of that power. The clause under consideration obviously proceeds on the supposition that this power was previously given, and is explanatory of the 14th section.

If, by the sound construction of the act of Congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this Court, it remains to inquire whether this be a case in which the writ ought to be granted.

The only objection is that the commitment has been made by a court having power to commit and to bail.

Against this objection the argument from the bar has been so conclusive that nothing can be added to it.

If then this were res integra, the court would decide in favor of the motion. But the question is considered as long since decided. The case of Hamilton is expressly in point in all its parts, and although the question of jurisdiction was not made at the bar, the case was several days under advisement, and this question could not have escaped the attention of the Court. From that decision the Court would not lightly depart. United States v. Hamilton, 3 Dall. 17.

If the act of Congress gives this Court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the Constitution.

In the mandamus case, ante, vol. 1. p. 5 U. S. 137, Marbury v. Madison, it was decided that this Court would not exercise original jurisdiction except so far as that jurisdiction was given by the Constitution. But so far as that

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case has distinguished between original and appellate jurisdiction, that which the Court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court by which a citizen has been committed to jail.

It has been demonstrated at the bar that the question brought forward on a habeas corpus is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts.

The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature.

But this point also is decided in Hamilton's Case and in Burford's Case.

If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.

That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this Court can only see its duty, and must obey the laws.

The motion, therefore, must be granted.

* The warrant by which they were brought before the court was as follows:


"The United States of America to the Marshal of the District of Columbia, greeting:"

"Whereas there is probable cause, supported by the oath of James Wilkinson, William Eaton, James Lowrie Donaldson, William C. Mead, and William Wilson, to believe that Erick Bollman, commonly called Doctor Erick Bollman, late of the City of Philadelphia in the state of Pennsylvania, gentleman, and Samuel Swartwout, late of the City of New York, in the State of New York, gentleman, are guilty of the crime of treason against the United States of America."

"These are, therefore, in the name of the said United States, to command you that you take the bodies of the said Erick Bollman and Samuel Swartwout if they shall be found in the County of Washington in your said district, and them safely keep so that you have their bodies before the Circuit Court of the district of Columbia for the County of Washington, now sitting at the Capitol, in the City of Washington, immediately to answer unto the United States of America of and concerning the charge aforesaid. Hereof fail not at your peril, and have you then and there this writ. Witness the Honorable WILLIAM CRANCH, Esq., Chief Judge of the said Court, this 27 January, 1807."

"[Seal] WILLIAM BRENT, Clerk"

"Issued 27 January, 1807."


In this case, I have the misfortune to dissent from the majority of my brethren. As it is a case of much interest, I feel it incumbent upon me to assign the reasons upon which I adopt the opinion that this Court has not authority to issue the writ of habeas corpus now moved for. The prisoners are in confinement under a commitment ordered by the Superior

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Court of the District of Columbia upon a charge of high treason. This motion has for its object their discharge or admission to bail under an order of this Court as circumstances upon investigation shall appear to require. The Attorney General having submitted the case without opposition, I will briefly notice such objections as occur to my mind against the arguments urged by the counsel for the prisoners.

Two questions were presented to the consideration of the Court.

1st. Does this Court possess the power generally of issuing the writ of habeas corpus?

2d. Does it retain that power in this case after the commitment by the District Court of Columbia?

In support of the affirmative of the first of these questions, two grounds were assumed.

1st. That the power to issue this writ was necessarily incident to this Court as the supreme tribunal of the union.

2d. That it is given by statute, and the right to it has been recognized by precedent.

On the first of these questions it is not necessary to ponder long. This Court has uniformly maintained that it possesses no other jurisdiction or power than what is given it by the Constitution and laws of the United States or is necessarily incident to the exercise of those expressly given.

Our decision must then rest wholly on the due construction of the Constitution and laws of the union and the effect of precedent, a subject which certainly presents much scope for close legal inquiry, but very little for the play of a chastened imagination.

The first section of the third article of the Constitution vests the judicial power of the United States in one Supreme Court and in such inferior courts as the Congress

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may from time to time establish. The second section declares the extent of that power and distinguishes its jurisdiction into original and appellate.

The original jurisdiction of this Court is restricted to cases affecting ambassadors or other public ministers and consuls and those in which a state shall be a party. In all other cases within the judicial powers of the union, it can exercise only an appellate jurisdiction. The former it possesses independently of the will of any other constituent branch of the general government. Without a violation of the Constitution, that division of our jurisdiction can neither be restricted or extended. In the latter, its powers are subjected to the will of the legislature of the union, and it can exercise appellate jurisdiction in no case, unless expressly authorized to do so by the laws of Congress. If I understand the case of Marbury v. Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been controverted.

It is incumbent, then, I presume, on the counsel, in order to maintain their motion, to prove that the issuing of this writ is an act within the power of this Court in its original jurisdiction, or that, in its appellate capacity, the power is expressly given by the laws of Congress.

This it is attempted to do, by the fourteenth and thirtythird sections of the Judiciary Act and the cases of Hamilton and Burford, which occurred in this Court, the former in 1795, the latter in 1806.

How far their position is supported by that act and those cases will now be the subject of my inquiry.

With a very unnecessary display of energy and pathos, this Court has been imperatively called upon to extend to the prisoners the benefit of precedent. I am far -- very far -- from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. But I deny that a court is precluded from the right or exempted from the necessity of examining into the correctness or consistency of its own

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decisions or those of any other tribunal. If I need precedent to support me in this doctrine, I will cite the example of this Court, which, in the case of the United States v. Moore, February, 1805, acknowledged that in the case of the United States v. Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine that an inadvertency once committed by a court shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.

The claim of the prisoners, as founded on precedent, stands thus. The case of Hamilton was strikingly similar to the present. The prisoner had been committed by order of the district judge on a charge of high treason. A writ of habeas corpus was issued by the Supreme Court, and the prisoner bailed by their order. The case of Burford was also strictly parallel to the present, but the writ in the latter case having been issued expressly on the authority of the former, it is presumed that it gives no additional force to the claim of the prisoners, but must rest on the strength of the case upon which the Court acted.

It appears to my mind that the case of Hamilton bears upon the face of it evidence of its being entitled to little consideration, and that the authority of it was annihilated by the very able decision in Marbury v. Madison. In this case, it was decided that Congress could not vest in the Supreme Court any original powers beyond those to which this Court is restricted by the Constitution. That an act of Congress vesting in this Court the power to issue a writ of mandamus in a case not within their original jurisdiction and in which they were not called upon to exercise an appellate jurisdiction was unconstitutional and void. In the case of Hamilton, the Court does not assign the reasons on which it founds its decisions, but it is fair to presume that it adopted the idea which appears to have been admitted by the district attorney in his argument, to-wit that this Court possessed a concurrent power with the district court in admitting to bail. Now a concurrent power in such a case must be an original

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power, and the principle in Marbury v. Madison applies as much to the issuing of a habeas corpus in a case of treason, as to the issuing of a mandamus in a case not more remote from the original jurisdiction of this Court. Having thus disembarrassed the question from the effect of precedent, I proceed to consider the construction of the two sections of the Judiciary Act above referred to.

It is necessary to premise that the case of treason is one in which this Court possesses neither original nor appellate jurisdiction. The 14th section of the Judiciary Act, so far as it has relation to this case, is in these words:

"All the before-mentioned courts [of which this is one] of the United States shall have power to issue writs of scire facias, habeas corpus, and all other 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."

I do not think it material to the opinion I entertain what construction is given to this sentence. If the power to issue the writs of scire facias and habeas corpus be not restricted to the cases within the original or appellate jurisdiction of this Court, the case of Marbury and Madison rejects the clause as unavailing, and if it relate only to cases within their jurisdiction, it does not extend to the case which is now moved for. But it is impossible to give a sensible construction to that clause without taking the whole together; it consists of but one sentence, intimately connected throughout, and has for its object the creation of those powers which probably would have vested in the respective courts without statutory provision as incident to the exercise of their jurisdiction. To give to this clause the construction contended for by counsel would be to suppose that the legislature would commit the absurd act of granting the power of issuing the writs of scire facias and habeas corpus without an object or end to be answered by them. This idea is not a little supported by the next succeeding clause, in which a power is vested in the individual judges to issue the writ of habeas corpus expressly for the purpose of inquiring into the cause of commitment. That part of the thirtythird section of the Judiciary Act which relates to this subject is in the following words:


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upon all arrests in criminal cases, bail shall be admitted except where the punishment is death, in which cases it shall not be admitted but by the supreme or a circuit court or by a justice of the Supreme Court or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offense and of the evidence and usage of law."

On considering this act, it cannot be denied that if it vests any power at all, it is an original power. "It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted." I quote the words of the Court in the case of Marbury v. Madison.

And so far is this clause from giving a power to revise and correct, that it actually vests in the district judge the same latitude of discretion by the same words that it communicates to this Court. And without derogating from a respectability which I must feel as deep an interest in maintaining as any member of this Court, I must believe that the district court, or any individual district judge, possesses the same power to revise our decision that we do to revise theirs -- nay, more, for the powers with which they may be vested are not so particularly limited and divided by the Constitution as ours are. Should we perform an act which according to our own principle we cannot be vested with power to perform, what obligation would any other court or judge be under to respect that act? There is one mode of construing this clause, which appears to me to remove all ambiguity, and to render every part of it sensible and operative. By the consent of his sovereign, a foreign minister may be subjected to the laws of the state near which he resides. This Court may then be called upon to exercise an original criminal jurisdiction. If the power of this Court to bail be confined to that one case, reddendo singula singulis, if the power of the several courts and individual judges be referred to their respective jurisdictions, all clashing and interference of power ceases, and sufficient means of redress are still held out to the citizen, if deprived of his liberty, and this surely must have been the intention of the legislature. It never could have been contemplated that the mandates of this Court

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should be borne to the extremities of the states, to convene before them every prisoner who may be committed under the authority of the general government. Let it be remembered that I am not disputing the power of the individual judges who compose this Court to issue the writ of habeas corpus. This application is not made to us as at chambers, but to us as holding the Supreme Court of the United States -- a creature of the Constitution, and possessing no greater capacity to receive jurisdiction or power than the Constitution gives it. We may in our individual capacities, or in our circuit courts, be susceptible of powers merely ministerial, and not inconsistent with our judicial characters, for on that point the Constitution has left much to construction, and on such an application the only doubt that could be entertained would be whether we can exercise any power beyond the limits of our respective circuits. On this question I will not now give an opinion. One more observation, and I dismiss the subject.

In the case of Burford, I was one of the members who constituted the Court. I owe it to my own consistency to declare that the Court was then apprized of my objections to the issuing of the writ of habeas corpus. I did not then comment at large on the reasons which influenced my opinion, and the cause was this: the gentleman who argued that cause confined himself strictly to those considerations which ought alone to influence the decisions of this Court. No popular observations on the necessity of protecting the citizen from executive oppression, no animated address calculated to enlist the passions or prejudices of an audience in defense of his motion, imposed on me the necessity of vindicating my opinion. I submitted in silent deference to the decision of my brethren.

In this case I feel myself much relieved from the painful sensation resulting from the necessity of dissenting from the majority of the Court in being supported by the opinion of one of my brethren, who is prevented by indisposition from attending.

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MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The prisoners having been brought before this Court on a writ of habeas corpus, and the testimony on which they were committed having been fully examined and attentively considered, the Court is now to declare the law upon their case.

This being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is whether the accused shall be discharged or held to trial, and if the latter in what place they are to be tried, and whether they shall be confined or admitted to bail. "If," says a very learned and accurate commentator,

"upon this inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him. Otherwise he must either be committed to prison or give bail."

The specific charge brought against the prisoners is treason in levying war against the United States.

As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both.

To prevent the possibility of those calamities which result from the extension of treason to offenses of minor

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importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend.

"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, the distinct offenses. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself or the fact of levying war cannot have been committed. So far has this principle been carried that in a case reported by Ventris and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied.

It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied -- that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose -- all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war.

Crimes so atrocious as those which have for their object the subversion by violence of those laws and those

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institutions which have been ordained in order to secure the peace and happiness of society are not to escape punishment because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case, and the framers of our Constitution, who not only defined and limited the crime but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it unless on the testimony of two witnesses to the same overt act or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite and which a flexible definition of the crime or a construction which would render it flexible might bring into operation. It is therefore more safe as well as more consonant to the principles of our Constitution that the crime of treason should not be extended by construction to doubtful cases, and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide.

To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the Court, a design to overturn the government of the United States in New Orleans by force would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war.

In conformity with the principles now laid down have been the decisions heretofore made by the judges of the United States.

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The opinions given by Judge Paterson and Judge Iredell in cases before them imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied than on the nature of the force itself. Their opinions, however, contemplate the actual employment of force.

Judge Chase, in the trial of Fries, was more explicit.

He stated the opinion of the court to be

"that if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war, and the quantum of the force employed neither lessens nor increases the crime -- whether by one hundred, or one thousand persons, is wholly immaterial. . . . The court are of opinion [continued Judge Chase on that occasion] that a combination or conspiracy to levy war against the United States is not treason unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war, but it is altogether immaterial whether the force used is sufficient to effectuate the object -- any force connected with the intention will constitute the crime of levying war."

The application of these general principles to the particular case before the Court will depend on the testimony which has been exhibited against the accused.

The first deposition to be considered is that of General Eaton. This gentleman connects in one statement the purport of numerous conversations held with Colonel Burr throughout the last winter. In the course of these conversations were communicated various criminal projects which seem to have been revolving in the mind of the projector. An expedition against Mexico seems to have been the first and most matured part of his plan, if indeed it did not constitute a distinct and separate plan,

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upon the success of which other schemes still more culpable, but not yet well digested, might depend. Maps and other information preparatory to its execution, and which would rather indicate that it was the immediate object, had been procured, and for a considerable time, in repeated conversations, the whole efforts of Colonel Burr were directed to prove to the witness, who was to have held a high command under him, the practicability of the enterprise, and in explaining to him the means by which it was to be effected.

This deposition exhibits the various schemes of Col. Burr, and its materiality depends on connecting the prisoners at the bar in such of those schemes as were treasonable. For this purpose the affidavit of General Wilkinson, comprehending in its body the substance of a letter from Colonel Burr, has been offered, and was received by the circuit court. To the admission of this testimony great and serious objections have been made. It has been urged that it is a voluntary, or rather an extrajudicial, affidavit, made before a person not appearing to be a magistrate, and contains the substance only of a letter, of which the original is retained by the person who made the affidavit.

The objection that the affidavit is extrajudicial resolves itself into the question whether one magistrate may commit on an affidavit taken before another magistrate. For if he may, an affidavit made as the foundation of a commitment ceases to be extrajudicial, and the person who makes it would be as liable to a prosecution for perjury as if the warrant of commitment had been issued by the magistrate before whom the affidavit was made.

To decide that an affidavit made before one magistrate would not justify a commitment by another might in many cases be productive of great inconvenience, and does not appear susceptible of abuse if the verity of the certificate be established. Such an affidavit seems admissible on the principle that before the accused is put upon his trial, all the proceedings are ex parte. The Court therefore overrules this objection.

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That which questions the character of the person who has on this occasion administered the oath is next to be considered.

The certificate from the Office of the Department of State has been deemed insufficient by the counsel for the prisoners because the law does not require the appointment of magistrates for the territory of New Orleans to be certified to that office, because the certificate is in itself informal, and because it does not appear that the magistrate had taken the oath required by the act of Congress.

The first of these objections is not supported by the law of the case, and the second may be so readily corrected that the Court has proceeded to consider the subject as if it were corrected, retaining however any final decision, if against the prisoners, until the correction shall be made. With regard to the third, the magistrate must be presumed to have taken the requisite oaths, since he is found acting as a magistrate.

On the admissibility of that part of the affidavit which purports to be as near the substance of the letter from Colonel Burr to General Wilkinson as the latter could interpret it, a division of opinion has taken place in the Court. Two judges are of opinion that as such testimony delivered in the presence of the prisoner on his trial would be totally inadmissible, neither can it be considered as a foundation for a commitment. Although in making a commitment the magistrate does not decide on the guilt of the prisoner, yet he does decide on the probable cause, and a long and painful imprisonment may be the consequence of his decision. This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case it must be ex parte, ought in many other respects to be such as a court and jury might hear.

Two judges are of opinion that in this incipient stage of the prosecution an affidavit stating the general purport of a letter may be read, particularly where the person in possession of it is at too great a distance to admit of

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its being obtained, and that a commitment may be founded on it.

Under this embarrassment it was deemed necessary to look into the affidavit for the purpose of discovering whether, if admitted, it contains matter which would justify the commitment of the prisoners at the bar on the charge of treason.

That the letter from Colonel Burr to General Wilkinson relates to a military enterprise mediated by the former has not been questioned. If this enterprise was against Mexico, it would amount to a high misdemeanor; if against any of the territories of the United States or if in its progress the subversion of the government of the United States in any of their territories was a means clearly and necessarily to be employed, if such means formed a substantive part of the plan, the assemblage of a body of men to effect it would be levying war against the United States.

The letter is in language which furnishes no distinct view of the design of the writer. The cooperation, however, which is stated to have been secured points strongly to some expedition against the territories of Spain. After making these general statements, the writer becomes rather more explicit and says

"Burr's plan of operations is to move down rapidly from the falls on 15 November with the first 500 or 1,000 men in light boats now constructing for that purpose, to be at Natchez between 5 and 15 December, there to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on or to pass by Baton Rouge. The people of the country to which we are going are prepared to receive us. Their agents now with Burr say that if we will protect their religion and will not subject them to a foreign power, in three weeks all will be settled."

There is no expression in these sentences which would justify a suspicion that any territory of the United States was the object of the expedition.

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For what purpose seize on Baton Rouge; why engage Spain against this enterprise if it was designed against the United States?

"The people of the country to which we are going are prepared to receive us." This language is peculiarly appropriate to a foreign country. It will not be contended that the terms would be inapplicable to a territory of the United States, but other terms would more aptly convey the idea, and Burr seems to consider himself as giving information of which Wilkinson was not possessed. When it is recollected that he was the governor of a territory adjoining that which must have been threatened if a territory of the United States was threatened, and that he commanded the army, a part of which was stationed in that territory, the probability that the information communicated related to a foreign country, it must be admitted, gains strength.

"Their agents now with Burr say that if we will protect their religion and will not subject them to a foreign power, in three weeks all will be settled."

This is apparently the language of a people who, from the contemplated change in their political situation, feared for their religion and feared that they would be made the subjects of a foreign power. That the Mexicans should entertain these apprehensions was natural, and would readily be believed. They were, if the representation made of their dispositions be correct, about to place themselves much in the power of men who professed a different faith from theirs and who, by making them dependent on England or the United States, would subject them to a foreign power.

That the people of New Orleans, as a people, if really engaged in the conspiracy, should feel the same apprehensions and require assurances on the same points is by no means so obvious.

There certainly is not in the letter delivered to Gen. Wilkinson, so far as that letter is laid before the Court, one syllable which has a necessary or a natural reference

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to an enterprise against any territory of the United States.

That the bearer of this letter must be considered as acquainted with its contents is not to be controverted. The letter and his own declarations evince the fact.

After stating himself to have passed through New York and the western states and territories without insinuating that he had performed on his route any act whatever which was connected with the enterprise, he states their object to be, "to carry an expedition into the Mexican provinces."

This statement may be considered as explanatory of the letter of Col. Burr if the expressions of that letter could be thought ambiguous.

But there are other declarations made by Mr. Swartwout which constitute the difficulty of this case. On an inquiry from General Wilkinson, he said "this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed, at New Orleans."

If these words import that the government established by the United States in any of its territories was to be revolutionized by force, although merely as a step to or a means of executing some greater projects, the design was unquestionably treasonable, and any assemblage of men for that purpose would amount to a levying of war. But on the import of the words a difference of opinion exists. Some of the judges suppose they refer to the territory against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to a territory of the United States, as alluding to a revolution to be effected by the people, rather than by the party conducted by Col. Burr.

But whether this treasonable intention be really imputable to the plan or not, it is admitted that it must have been carried into execution by an open assemblage of

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men for that purpose previous to the arrest of the prisoner in order to consummate the crime as to him, and a majority of the Court is of opinion that the conversation of Mr. Swartwout affords no sufficient proof of such assembling.

The prisoner stated that

"Col. Burr, with the support of a powerful association extending from New York to New Orleans, was levying an armed body of 7,000 men from the State of New York and the western states and territories, with a view to carry an expedition to the Mexican territories."

That the association, whatever may be its purpose, is not treason has been already stated. That levying an army may or may not be treason, and that this depends on the intention with which it is levied and on the point to which the parties have advanced, has been also stated. The mere enlisting of men, without assembling them, is not levying war. The question then is whether this evidence proves Col. Burr to have advanced so far in levying an army as actually to have assembled them.

It is argued that since it cannot be necessary that the whole 7,000 men should have assembled, their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime.

This position is correct, with some qualification. It cannot be necessary that the whole army should assemble and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and therefore the evidence should make the fact unequivocal.

The traveling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous would be such an assemblage.

The particular words used by Mr. Swartwout are that Col. Burr "was levying an armed body of 7,000 men."

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If the term "levying" in this place imports that they were assembled, then such fact would amount, if the intention be against the United States, to levying war. If it barely imports that he was enlisting or engaging them in his service, the fact would not amount to levying war.

It is thought sufficiently apparent that the latter is the sense in which the term was used. The fact alluded to, if taken in the former sense, is of a nature so to force itself upon the public view that if the army had then actually assembled, either together or in detachments, some evidence of such assembling would have been laid before the court.

The words used by the prisoner in reference to seizing at New Orleans and borrowing perhaps by force from the bank, though indicating a design to rob, and consequently importing a high offense, do not designate the specific crime of levying war against the United States.

It is therefore the opinion of a majority of the Court that in the case of Samuel Swartwout, there is not sufficient evidence of his levying war against the United States to justify his commitment on the charge of treason.

Against Erick Bollman there is still less testimony. Nothing has been said by him to support the charge that the enterprise in which he was engaged had any other object than was stated in the letter of Colonel Burr. Against him, therefore, there is no evidence to support a charge of treason.

That both of the prisoners were engaged in a most culpable enterprise against the dominions of a power at peace with the United States those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the district of Columbia is apparent. It is therefore the unanimous opinion of the court that they cannot be tried in this district.

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The law read on the part of the prosecution is understood to apply only to offenses committed on the high seas or in any river, haven, basin, or bay not within the jurisdiction of any particular state. In those cases there is no court which has particular cognizance of the crime, and therefore the place in which the criminal shall be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offense was committed.

But in this case, a tribunal for the trial of the offense, wherever it may have been committed, had been provided by Congress, and at the place where the prisoners were seized by the authority of the commander in chief there existed such a tribunal. It would, too, be extremely dangerous to say that because the prisoners were apprehended not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the general might select and to which he might direct them to be carried.

The act of Congress which the prisoners are supposed to have violated describes as offenders those who begin or set on foot, or provide, or prepare the means for any military expedition or enterprise to be carried on from thence against the dominions of a foreign prince or state with whom the United States is at peace.

There is a want of precision in the description of the offense which might produce some difficulty in deciding what cases would come within it. But several other questions arise which a Court consisting of four judges finds itself unable to decide, and therefore, as the crime with which the prisoners stand charged has not been committed, the Court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offense which there is probable cause for supposing they have committed, and if those whose duty it is to protect the nation by prosecuting offenders against the laws shall suppose

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those who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony and when able to say at what place the offense has been committed, institute fresh proceedings against them.