Ex Parte Bollman and Swartwout

8 U.S. 75 (____) 4 Cranch 75

EX PARTE BOLLMAN AND EX PARTE SWARTWOUT

Supreme Court of United States.

C. Lee, for Swartwout.

Rodney, Attorney General, declined arguing the point on behalf of the United States.

Harper, for Bollman.

MARSHALL, Ch. J.^[*] 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 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. 53.) 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 goal, unless where they are in custody under or by colour 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."

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, they 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.

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 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 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 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 corpils shall in no case extend to prisoners in jail, unless where they are in custody under or by colour 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 court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, 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 favour 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. 175. 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 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.

JOHNSON, J.

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 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.

2dly. 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 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 authorised 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 thirty-third 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 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 they 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 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 beforementioned 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 thirty-third section of the judiciary act which relates to this subject is in the following words: — "And 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 offence, 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 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 were 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 defence 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.

The marshal of the district of Columbia, having returned, upon the habeas corpus, that he detained the prisoners by virtue of the before recited order of the circuit court of that district,

C. Lee, now moved that they should be discharged; or at least admitted to bail; and contended,

1. That from the record of the circuit court, and upon the face of the proceedings the imprisonment was illegal and oppressive; and

2. That if the commitment was not illegal upon its face, yet as the order of the court refers to the testimony on which it was founded, it will appear to be illegal upon the whole proceedings.

The commitment is not for trial at any particular time, before any particular court, nor in any particular place.

By the 3d article of the constitution of the United States, the trial of crimes shall be in the state where they shall have been committed; but when not committed in any state, the trial shall be at such place or places as congress may by law have directed. So by the 29th section of the judiciary act of 1789, vol. 1. p. 67. in all cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence; and by the 33d section of the same act, p. 73. offenders are to be arrested and imprisoned or bailed for trial before such court of the United States, as by that act has cognizance of the offence; and copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case, and if the commitment be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of the district where the delinquent is imprisoned to issue a warrant for the removal of the offender to the district in which the trial is to be had.

These are provisions for a speedy and fair trial, in obedience to the constitution; for it has always been considered as necessary to a fair trial that it should be where the witnesses may easily attend, and where the party is known. The 6th amendment to the constitution provides that the accused "shall enjoy the right to "a speedy and public trial by an impartial jury of the "state and district, wherein the crime shall have been "committed, which district shall have been previously "ascertained by law," &c.

By the act for the punishment of certain crimes, section 8 vol. 1. p. 103. it is enacted that "the trial of "crimes committed" "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 "first be brought."

By the English habeas corpus act, whose provisions are considered as extending to cases even out of the act, the prisoner may petition the court for trial at the first term, and if not then tried he is entitled to bail of course. If the commitment is in a district in which he cannot be tried, he will not be entitled to this privilege, for he is still to be removed to the place of trial. Hence it is necessary that the commitment should state the court before whom the trial is to be had. It is also necessary in order that the district judge may know where to send him. No person but the district judge has authority to send him to the place of trial, and if the commitment be not made by the district judge, it is impossible that he should judicially know where to send him, unless the place of trial be mentioned in the warrant of commitment.

It is also necessary that the accused may know where to collect his witnesses together.

The order of commitment ought also to have stated more particularly the overt act of treason. It is too vague and uncertain.

3. The testimony before the circuit court did not show probable cause.

By the 4th amendment to the constitution it is declared "that the right of the people to be secure in their "persons, houses, papers and effects, against unreasonable "searches and seizures, shall not be violated; and "no warrants shall issue, but upon PROBABLE CAUSE "supported by oath or affirmation."

All the facts necessary to constitute this probable cause must appear upon oath or affirmation. It is not necessary indeed that there should be positive proof of every fact constituting the offence; but nothing can be taken into the estimate, when forming an opinion of the probability that the fact was committed by the person charged, but facts supported by oath or affirmation.

No belief of a fact tending to show probable cause, no hearsay, no opinion of any person however high in office, respecting the guilt of the person accused, can be received in evidence on this examination.

The question then is whether these affidavits exhibit legal proof of probable cause.

If the testimony be vague or ambiguous as to the person, or as to the offence, the court will apply the maxim of law, that every person is to be adjudged innocent unless proved to be guilty.

The facts stated in general Wilkinson's two affidavits of the 14th and 26th of December, consist of the letters of col. Burr, the declarations of Swartwout, and the belief of general Wilkinson. Neither the letters of col. Burr, nor the declarations of Swartwout, contain any ground for probable cause to believe that the prisoners, or either of them is guilty of treason; and general Wilkinson's belief, as he himself states, is founded upon those facts.

Mr. Lee, went into a minute examination of those affidavits, to satisfy the court that the facts stated in them could at most prove an intent to set on foot an expedition against Mexico, in case of a war between this country and Spain. He contended that if the object was such an expedition at all events, and if they had intended to force their way through the United States, for the purpose of attacking Mexico, and even if they had done so, they would not have been guilty of treason, but merely of lawless violence. Even if they had plundered the bank at New-Orleans, or any private property, or had seized arms and vessels, the property of individuals, it would have been robbery, but not treason.

But the circumstance that no place of trial can be designated, is a sufficient reason for admitting them to bail. They certainly cannot be tried here, for it is not contended that they have here committed any offence; and this is not the district in which they were first apprehended or brought. They were seized by orders of a military officer 2,000 miles from this place, without any process of law or legal authority, and sent here to be disposed of by the Executive. They have been committed for trial, not before any court, or in any particular district, and their imprisonment will be perpetual, unless government can find out when and where the offence was committed, and devise some means of transmitting them to the place of trial.

Mr. Lee attempted to discredit the affidavits of General Wilkinson by the circumstance that they were made, as he contended, to vindicate and justify the illegal seizure and transportation of the prisoners. He contended also that those affidavits ought to be totally discarded, because the oath upon which a warrant of arrest or commitment is to be grounded, must be made before the magistrate who is about to issue the warrant. He must be satisfied of the probable cause. The laws were open in New-Orleans. General Wilkinson might have gone before a justice of peace there and made his oath, and obtained a warrant to arrest the prisoners. There was no necessity to proceed in this illegal and unprecedented manner.

F.S. Key, on the same side.

Unless this court can look behind the order for commitment, and examine the grounds upon which it was made, the writ of habeas corpus will be wholly useless; for every court or magistrate who commits a person to prison, will take care to cover himself under the strict forms of law.

The constitution declares that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

An adherence to rebels, is not an adherence to an enemy within the meaning of the constitution. Hence if the prisoners are guilty, it must be of levying war against the United States.

In England the books speak of two kinds of levying of war; — direct and constructive — (East's Cr. Law, 67.) But there is only one kind in this country; and ought not to be in England.

By using the word "only" the constitution meant to take away all pretence of constructive treason. Every man is to answer for his own acts only. If 100 men conspire, and only 50 actually levy war, the latter only are guilty as principals.

And what reason can be given why there should not be the same distinction between principal and accessory in treason, as in other crimes. In a republican government, whose basis is the affection of the people, it is unnecessary to guard against offences of this kind with the same vigilance as in a monarchy or a despotism whose foundation is fear. (4 Tucker's Bl. Appendix, p. 39.) But if this construction of the constitution be not correct, and if the English authorities are to be considered in full force, it must be shewn,

1st. That war has been levied — and

2d. That the prisoners are confederates in that war.

The affidavits of General Wilkinson are not authenticated so as to make them evidence. It does not appear that an oath was administered to him. The act to prescribe the mode of authenticating public acts, records and judicial proceedings, &c. is extended to the territory of Orleans, by the act erecting that territory. (Vol. 7. p. 117.) And even if this be not strictly a judicial proceeding, yet it is within the meaning of that act.

The certificate of the secretary of state^[*] only shows that it appears by the official returns to his office, that J. Carrick and George Pollock had been appointed justices of the peace for the county of Orleans; but not that they had taken the oaths necessary to qualify them to act.

But if these affidavits are examinable, they do not show any act of treason. They prove no assemblage of men, no military array. There is not a tittle of evidence that any two men have been seen together with treasonable intent, whether armed or not. The supposed letter from Col. Burr, speaks indeed of choice spirits, but he does not tell us they are invisible spirits.

The affidavits of Méade and Wilson relate only to rumours derived from General Wilkinson, whose business it was, if he could get such rumours there by no other means, to create them himself.

The territory of Orleans, if it was to be revolutionized, might be revolutionized withot levying war against the United States.

There is no evidence that the prisoners knew that Col. Burr had any treasonable projects in view. Even if he had such views, he might have held out to them, as he did to others, only the Spanish expedition.

Again, the bench-warrant issued in this case for the arrest of the prisoners was illegal. The court has no authority to issue a bench-warrant, but upon a presentment by a grand jury, or for an offence committed in the presence of the court. It is not a power inherent in the court, nor given by any law. The act of congress only gives to a judge out of court, or to a justice of peace, the power of arresting offenders. And it is a power inconsistent with a fair trial, because the court would thereby have prejudged the case, and decided upon the guilt of the prisoner. No such practice is known in Maryland, under whose laws the court below was acting.

February 17.

Jones, attorney for the district of Columbia, mentioned to the court, that Hiort, being better prepared upon points of practice, would make some observations in support of the form of the commitment.

MARSHALL, Ch. J. I understand the clear opinion of the court to be, (if I mistake it my brethren will correct me,) that it is unimportant whether the commitment be regular in point of form or not; for this court, having gone into an examination of the evidence upon which the commitment was grounded, will proceed to do that which the court below ought to have done.

Rodney, Attorney General.

The affidavit of General Wilkinson is sufficiently authenticated. The justices of peace in the territory of Orleans are officers of the United States — they are appointed by the governor of the territory, who is appointed by the President of the United States; and the secretary of the territory is bound by law to transmit copies of all the executive proceedings of the governor of the territory every six months to the President of the United States. (Laws U.S. vol. 7. p. 112, 113.) All the officers of the United States are bound to take notice of each other.

The act of congress respecting authentication of records, &c. is cumulative only. It does not repeal any former law.

There is some weight in the objection that the oath ought to be made before the magistrate who issues the warrant. But one magistrate is as competent as another to administer the oath. The constitution is silent on the subject; and if it be taken before a person competent to administer it, it satisfies the provision of the constitution. How else could a criminal be arrested in one part of the United States, when the witness lived in another?

It is true that none of the evidence now offered would be competent on the trial; nor even if it appeared in a proper shape, would it be sufficient to convict the prisoners. But the question is whether, in this incipient stage of the prosecution, it is not sufficient to show probable cause.

The expedition against Mexico would not be treason, unless it was to be accomplished by means which in themselves would amount to treason. But if the constituted authorities of the United States should be suppressed but for one hour, and the territory of Orleans revolutionized but for a moment, it would be treason.

What would be treason by adhering to an enemy, if done towards a rebel will be a levying of war. (3 Wilson's Lectures, 105. 4 Bl. Com. 92.)

In treason all are principals. There are no accessories. It has been argued, (and the respectable authority of Judge Tucker is cited,) that none are principals but those present at the treasonable act. The argument may have some weight, but it is a point at least doubtful, and therefore ought to be left to be decided on the trial.

It is true that we cannot at present say exactly when and where the overt act of levying war was committed, but from the affidavits we think it fair to infer that an army has been actually levied and arrayed. The declaration of one of the prisoners was, that Col. Burr "was levying an armed body of 7,000 men." How the fact has turned out to be since we do not know; and it is also true that we do not know that any men have been seen collected in military array. But Dr. Bollman informed General Wilkinson that he had seen a letter from Col. Burr, in which he says that he should be at Natchez with 2,000 men on the 20th of December, and that he would be followed by 4,000 more, and that he could have raised 12,000, as easily as 6,000, but he did not think that number necessary. If Col. Burr was actually levying an armed body of men, if he expected to be at Natches on the 20th of December with 2,000, and calculated upon being followed by 4,000 more, and if he found it so easy to raise troops, is there not a moral certainty that some troops at least have been raised and embodied.

It may be admitted that General Wilkinson was interested to make the worst of the story, but the declarations of the prisoners themselves are sufficient.

Jones, attorney for the district of Columbia, on behalf of the prosecution.

As to the objection that the commitment must be for trial in some court having jurisdiction over the offence.

It was uncertain whether any, and if any, what place was prescribed for the trial of this offence. But any court of the United States had jurisdiction to commit for trial. By the act of congress for the punishment of certain crimes, &c. vol. 1. p. 103. s. 8. "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." Although the first part of the section speaks of certain crimes committed "upon the high seas, or in any river, haven, bason or bay, out of the jurisdiction of any particular state," yet the last clause of the section is general, and in its terms applies to the trial of all crimes committed out of the jurisdiction of any particular state. This act of congress is the only exercise of the provision of the 3d article of the constitution respecting crimes committed not within any state. Unless this act of congress fixes the place of trial, there is no place prescribed, either by the law or the constitution, and the trial may as well be in the district of Columbia as elsewhere. But if this act of congress does fix the place, then, it is objected, that this district is neither that in which the prisoners were apprehended, nor that into which they were first brought.

The answer is, that the act of congress means the district in which they shall be legally apprehended, that is, arrested by process of law, It could not mean a mere military seizure. But whether the court below had or had not jurisdiction to try the prisoners, it clearly had jurisdiction to commit them; and if their commitment be irregular, this court will say how they ought to be committed. Laws U.S. vol. 1. p. 73. s. 33.

It is objected that, although the judges and justices have power to arrest, yet the courts have not, and therefore cannot issue a bench-warrant but upon the presentment of a grand jury, or for an offence committed in the presence of the court. And the practice of Maryland is cited. But it is stated that at Montgomery Court, in Maryland, very lately a venerable and ancient judge of that court did issue a bench-warrant for an offence not presented by the grand jury, nor committed in presence of the court.^[*]

It is not necessary that the commitment should state the place of trial, nor that they are committed for trial. If at the time of commitment it be uncertain where they ought to be tried, they may be committed generally, until discharged by due course of law. In England it is only necessary that the commitment should be to some jail in England. 2 Hawk. P.C. 120. b. 2. c. 16. s. 18.

As to the authentication of the affidavits of General Wilkinson, it being shewn that Pollock and Carrick were duly appointed justices of the peace, and having undertaken to act as such, it is to be presumed that they have taken the necessary oaths.

It is admitted that the constitution has prevented many questions as to the doctrine of treason. The intention of having a constitutional definition of the crime, was to put it out of the power of congress to invent treasons. But it was impossible to define what should in every case be deemed a levying of war. It is a question of fact to be decided by the jury from all the circumstances.

Warlike array is not necessary. It is only a circumstance. 1 East's Cr. Law, 66. According to the English books, a direct levying of war, is a war directly against the person of the king. A constructive levying of war, is war against the government.

If men have been levied, and arms provided, with a treasonable intent, this is a sufficient levying of war, without warlike array.

The affidavit of General Eaton establishes the treasonable intent in Colonel Burr. The question, then, is, whether that intent, or a knowledge of that intent, can be brought home to the prisoners? Mr. Jones here went into an argument to show the connexion of the prisoners with Colonel Burr, and their knowledge of his projects. He observed that his argument, on a former occasion, respecting the president's message to congress, had been misunderstood. A state of war is a matter of public notoriety, and he had considered the president's message as evidence of that notoriety, it being a communication from the supreme executive, in the course of his duty, to that department of government which alone could decide on the state of war.

He contended that no specific number, no sufficiency of force to accomplish the object, was necessary to constitute treason.

If soldiers are levied and officered, with a treasonable intent, and equipments prepared, so that they can readily lay hold of their arms; although no men are actually armed, although only five men in a detachment should march to assemble at a place of rendezvous, and although there should be no warlike array, yet it would be treason. Any thing which amounts to setting on foot a military expedition, with intent to levy war against the United States, is treason.

The distinction between those who are present at the overt act of levying war, and those who are confederated, adhering, acting and assisting, giving aid and comfort, is contrary to all analogy. In treason, all are principals.

In murder, if two conspire, and one is acting and assisting at such a distance as to give aid, he is equally guilty with him who gave the wound.

It has been insinuated that General Wilkinson is to be considered as particeps criminis. If that were the case, it would be no disqualification of his testimony.

Treason is a greater crime in republics than in monarchies, and ought to be more severely punished.

Harper, in reply, congratulated his country on the triumph of correct principles, in the abandonment, on the part of the prosecution, of the dangerous doctrine, that executive messages were to be received as evidence in a criminal prosecution.

[Jones. The sole purpose for which we introduced the president's message, was to show that the assemblage of a military force by Colonel Burr was a matter of notoriety. We did not attempt or wish to introduce it as direct evidence.]

Harper. To use an executive message in a court of justice, for any purpose of proof whatever, so as to aid in the commitment of a citizen under a criminal accusation; to introduce it as evidence of any fact; (of notoriety, for instance, which is a fact;) is to give it the effect of testimony, and is a direct violation of the constitution.

We object to the translation of the ciphered letter contained in General Wilkinson's affidavits, being admitted as evidence, because General Wilkinson has not sworn that it is a true translation, nor sent the original, with the key, so that the court can have a correct translation made. Nor is it proved that the original was written by Colonel Burr, or by his direction, nor that the prisoners were acquainted with its contents.

Another objection to the affidavits is, that they were not made for the purpose of procuring an arrest. They were not made before the judicial officer on whose warrant the proceedings of the court were to be founded; and who would have been bound to cross-examine the witness, to sift the facts, and to judge how far they were proved, and how far they were sufficient to justify the proceedings. But, after a military arrest, the affidavits are drawn up by the author of the arrest, without cross-examination or inquiry, and were sworn to by him, as the justification of his conduct. The persons whom he has thus arrested are sent to a distant part of the country, and these affidavits are sent after them, to operate as the ground of their commitment and detention. No person can lawfully be committed on testimony so taken. In cases of arrests and commitments, the general rules of evidence are no further to be departed from than the necessity of the case requires. On application to a magistrate for a warrant of arrest, the evidence must necessarily be ex parte, but no other departure from the common rules of evidence is justifiable, because not necessary. It is a general rule of law respecting testimony, that it shall be taken before the tribunal which is to act upon it, or under the direction of that tribunal; that the person who is to decide, shall also inquire; that the inquiry shall not be before one tribunal, and the judgment pronounced by another. This rule, so important to the safety of persons accused, is equally applicable to arrests and commitments, as to trials, and should therefore be equally observed. The party arrested and brought before the magistrate for commitment, has a right to be confronted with his accuser, and to cross-examine the witnesses produced against him, and by that means to explain circumstances which, at first view, might criminate him. But if the practice which is attempted in this case be sanctioned by this court; if a military officer, or any other person, is to be permitted to seize a man, and send him 2,000 miles from the place of arrest, and from the place of the alleged transaction, and to send after him an ex parte affidavit as the ground of his subsequent commitment, the great security provided by law for the protection of innocence and liberty is broken down.

Mr. Harper then went into a minute examination of the contents of the affidavits, and contended that, if they could be considered by this court as evidence, they did not prove that treason had been committed, nor that the prisoners had participated in any crime or offence whatever.

February 18.

Martin, on the same side.

The order for the commitment was erroneous in directing the prisoners to be committed to the prison of the court. It ought to have been to the marshal. 1 Salk. 348. Bethel's case. 5 Mod. 19. S.C.

This court cannot remand them, or commit them, upon this habeas corpus, for any crime but that for which they were committed in the court below; and can only commit them for trial before some court. The only power given by the 33d section of the judiciary act, is to cause offenders to "be arrested; and imprisoned or bailed, as the case may be, for trial before such court of the United States, as by this act has cognizance of the offence." The place of trial is to be decided by the place where the offence was committed.

The act of congress for the punishment of certain crimes, s. 8. vol. 1. p. 103. does not apply to crimes committed in any territory of the United States in which there are courts of the United States having cognizance of the offence. It applies only to offences committed upon the "high seas, or in any river, haven, bason, or bay, out of the jurisdiction of any particular state."

The courts of the United States erected is the territory of Orleans are competent to try the offence of treason against the United States committed within that territory. By the 8th section of the act of congress of 26th March, 1804, vol. 7. p. 117. erecting the territory of Orleans, a district court of the United States is established therein, having all the original powers and jurisdiction of a circuit court of the United States. And by the same act, the "act for the punishment of certain crimes against the United States," is extended to that territory.

It was therefore a wanton and unnecessary exertion of arbitrary power to send the prisoners here, where they cannot be tried. If there is any probability that a crime was committed by the prisoners, it is equally probable that it was committed in the territory of Orleans. It is at all events certain that it was not committed here. The word apprehended, in the act of congress, cannot mean a legal arrest only. If it did, it would be in the power of a military commander to seize a man, and appoint the tribunal by which he shall be tried.

If it is the duty of this court to commit the prisoners for trial, it is equally its duty to bind over the witnesses to appear at the time and place of trial to testify in the case, and to return copies of the process, together with the recognizances of the witnesses, to the office of the clerk of the court having cognizance of the offence. This shows that, upon every commitment, the witnesses must be in the presence of the tribunal committing.

This court cannot commit, unless they first ascertain in what court the trial is to be had.

There is no legal evidence that General Wilkinson ever made oath to his statement. The certificate of the secretary is only that it appears by the return of the secretary of the territory of Orleans, that Pollock and Carrick were justices. A copy of that return ought to be certified.

The court, not having made up an opinion, admitted the prisoners to bail until the next day. The Chief Justice stated that the court had difficulty upon two points, viz.

1. Whether the affidavit of General Wilkinson was evidence admissible in this stage of the prosecution; and,

2. Whether, if admissible, his statement of the contents of the substance of a letter, when the original was in his possession, was such evidence as the court ought to notice.

If the counsel had any authorities on these points, the court said they would hear them.

February 20.

The Chief Justice asked if the counsel had found any authorities on the points mentioned yesterday.

Rodney, Attorney General, said he had not; but he relied on general principles.

F.S. Key cited 3 T.R. 707. The King v. The Inhabitants of Eriswell, where the principal question was, whether the ex parte examination of the pauper taken before two justices, to whom no application was made for a removal of the pauper, was good evidence before two other justices, five years afterwards, upon an application for his removal, the pauper having in the mean time become insane. The judges of the court of king's bénch were equally divided. But Grose, J. said, "nothing can be more unjust, than that a person should be bound by evidence which he is not permitted to hear." "The common law did not permit a person accused to be affected by an examination taken in his absence, because he could not cross-examine." Buller, J. who was opposed to Grose, upon the principal question, admitted, "that if the taking the examination were not a judicial act, but was merely coram non judice, it is not evidence," and that "it must be a judicial act at the timè it was taken, or cannot become so at all."

Lord Kenyon, Ch. J. said the two justices who took the examination "were not applied to for the purpose of making an order of removal; the overseers called upon them for no other purpose than to examine the pauper; all the proceedings, therefore, were extrajudicial; and the examination on oath might just as well have been taken before the parish clerk, and would have been as much entitled to credit as this."

So in this case we say that, as General Wilkinson did not apply to justices Carrick and Pollock for a warrant to arrest Dr. Bollman and Mr. Swartwout, and as he did not make the affidavit for the purpose of obtaining from them such warrants, the whole proceedings before those justices were extrajudicial. The affidavits are not such as would support an indictment, if false. In the language of Lord Kenyon, they deserve no more credit than if they had been made before the parish clerk. If the affidavit be a judicial proceeding, it ought to be authenticated according to the act of congress. If it be not a judicial proceeding, it is not evidence.

MARSHALL, Ch. J. If a person makes an affidavit before a magistrate to obtain a warrant of arrest, such affidavit must necessarily be ex parte. But how is it on a motion to commit, after the person is taken? Must not the commitment be upon testimony given in presence of the prisoner?

Rodney, Attorney General. The first affidavit would be sufficient, unless disproved or explained by the prisoner on his examination.

Harper. The necessity of the case is the only ground of an exception to the general rule of evidence; and that necessity ceases when the party is taken.

February 21.

MARSHALL, Ch. J.^[*] 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 offences of minor 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 cónstitute 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, are distinct offences. 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 country. 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 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.

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 mere 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, 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 enterprize, 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 overrule this objection.

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 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 enterprize meditated by the former, has not been questioned. If this enterprize 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 mean clearly and necessarily to be employed, if such mean 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 co-operation, 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 the 15th of November with the first 500 or 1,000 men in light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of 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.

For what purpose seize on Baton Rouge; why engage Spain against this enterprize, 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 to an enterprize 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 enterprize, 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 mean 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 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 travelling 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." 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 offence, 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 enterprize 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 reason.

That both of the prisoners were engaged in a most culpable enterprize 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.

The law read on the part of the prosecution is understood to apply only to offences committed on the high seas, or in any river, haven, bason 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 offence was committed.

But in this case, a tribunal for the trial of the offence, 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 enterprize to be carried on from thence against the dominions of a foreign prince or state, with whom the United States are at peace.

There is a want of precision in the description of the offence 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 offence 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 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 offence has been committed, institute fresh proceedings against them.

NOTES

[*] The only judges present when these opinions were given were, Marshall, Ch. J. Washington, Johnson and Livingston, Justices. Cushing, J. and Chase, J. were prevented by ill health from attending.

[*] At February term, 1806, in this court.

[*] The secretary of state of the United States had certified under the seal of his office, that George Pollock and James Carrick, were appointed justices of the peace for the county of Orleans, in the territory of Orleans, in the year 1805, as appears by the official returns of the secretary of the said territory, "remaining in the office of this department."

[*] F.S. Key stated that he was present at the transaction alluded to. The facts were, that after the court adjourned, and as the judge was going out of the court-house, a man who had been waiting in the yard assaulted a lawyer, in the presence of the judge, for disrespectful language used by the lawyer in arguing a cause. The judge considered it as a contempt of court, and therefore directed a bench-warrant to issue.

[*] The other judges present were Chase, Washington and Johnson.

The opinion of Chief Justice Marshall upon the trial of Col. Burr, in the circuit court at Richmond, in the summer of 1807, elucidates and explains some passages in this opinion which were supposed to be in some degree doubtful. For this opinion see Appendix (B).