EX PARTE BOLLMAN AND EX PARTE SWARTWOUT

 

PRIOR HISTORY:

[**1]

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. n1

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, 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 them, to be there kept in safe custody until they shall be discharged in due course of law." n2

The oaths referred to in the order for commitment, were affidavits in writing, and were filed in the court below. n3

APPENDIX.

Note (A.)

DOCUMENTS,

ACCOMPANYING THE PRESIDENT'S MESSAGE OF JANUARY 22, 1897.

WILKINSON'S FIRST AFFIDAVIT.

UNITED STATES v. BOLLMAN AND SWARTWOUT.

I, JAMES WILKINSON, brigadier general and commander in chief of the army of the United States, to warrant the arrest of doctor Erick Bollman, on a charge of treason, misprision of treason, or such other offence against the government and laws of the United States, as the following facts may legally charge him with, on my honour as a soldier, and on the Holy Evangelists of Almighty God, do declare and swear, that on the sixth day of November last, when in command at Natchitoches, I received by the hands of a Frenchman, a stranger to me, a letter from doctor Erick Bollman, of which the following is a correct copy.

New-Orleans, September 27, 1806.

"SIR,

I HAVE the honour to forward to your excellency the enclosed letters, which I was charged to deliver to you by our mutual friend. I shall remain for some time at this place, and should be glad to learn [**4] where and when I may have the pleasure of an interview with you. Have the goodness to inform me of it, and please to direct your letter to me, care of or inclose it under cover to them.

I have the honour to be,

With great respect, Sir,

Your excellency's most obedient servant,

ERICK BOLLMAN.

Gen. WILKINSON."

Covering a communication in cypher from colonel Aaron Burr, of which the following is substantially as fair an interpretation as I have heretofore been able to make, the original of which I hold in my possession: "I (Aaron Burr) have obtained funds, and have actually commenced the enterprise. Detachments from different points and under different pretences, will rendezvous on the Ohio, 1st November. Every thing internal and external favours views; protection of England is secured. T. n1 is gone to Jamaica to arrange with the admiral on that station, and will meet at the Mississippi ††† England -- navy of the United States are ready to join, and final orders are given to my friends and followers; it will be an host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward 1st [**5] August, never to return; with him go his daughter; the husband will follow in October with a corps of worthies; send forth with an intelligent and confidential friend, with whom Burr may confer; he shall return immediately with further interesting details: this is essential to concert and harmony of movement; send a list of all persons known to Wilkinson west of the mountains, who could be useful, with a note delineating their characters.

By your messenger send me four or five of the commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully: already are orders to the contractor given to forward six months' provisions to points Wilkinson may name: this shall not be used until the last moment, and then under proper injunctions: the project is brought to the point so long desired: Burr guaranties the result with his life and honour, the lives, the honour, and fortunes of hundreds, the best blood of our country: Burr's plan of operations is to move down rapidly from the falls on the fifteenth of November, with the first five hundred or one thousand men, in light boats, now constructing for that purpose; to be at [**6] Natchez between the fifth and fifteenth of December, then to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge: on receipt of this send Burr an answer; draw on Burr for all expenses, &c.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, that in three weeks all will be settled. The Gods invite to glory and fortune: it remains to be seen, whether we deserve the boon: the bearer of this goes express to you; he will hand a formal letter of introduction to you from Burr, a copy of which is hereunto subjoined: he is a man of inviolable honour and perfect discretion; formed to execute rather than to project; capable of relating facts with fidelity, and incapable of relating them otherwise: he is thoroughly informed of the plans and intentions of †††, and will disclose to you as far as you inquire, and no further: he has imbibed a reverence for your character, and may be embarraissed in your presence; put him at ease and he will satisfy you: doctor Bollman, equally confidential, [**7] better informed on the subject, and more intelligent, will hand this duplicate.

29th Julu."

The day after my arrival at this city, the 26th of November last, I received another letter from the doctor, of which the following is a correct copy.

"New-Orleans, November 25, 1806.

SIR,

Your letter of the 16th inst. has been duly received; supposing that you will be much engaged this morning, I defer waiting on your excellency till you will be pleased to inform me of the time when it will be convenient to you to see me.

I remain with great respect,

Your excellency's most obedient servant,

ERICK BOLLMAN.

His excellency gen. WILKINSON, FAUXBOURG."

Marigny, the house between Madame Trevigne and M. Macarty.

On the 30th of the same month I waited in person on doctor E. Bollman, when he informed me that he had not heard from colonel Burr since his arrival here. That he (the said doctor E. Bollman) had sent dispatches to colonel Burr by a lieutenant Spence, of the navy, and that he had been advised of Spence's arrival at Nashville, in the state of Tennessee, and observed that colonel Burr had proceeded too far to retreat; that he (colonel Burr) had numerous and powerful friends in the [**8] United States, who stood pledged to support him with their fortunes, and that he must succeed. That he (the said doctor E. Bollman) had written to colonel Burr on the subject of provisions, and that he expected a supply would be sent from New-York, and also from Norfolk, where colonel Burr had strong connections. I did not see or hear from the doctor again until the 5th inst. when I called on him the second time. The mail having arrived the day before, I asked him whether he had received any intelligence from colonel Burr; he informed me that he had seen a letter from colonel Burr, of the 30th October, in which he (colonel Burr) gave assurances that he should be at Natchez with 2,000 men on the 20th December, inst. where he should wait until he heard from this place; that he would be followed by 4,000 men more, and that he (colonel Burr) if he had chosen, could have raised or got 12,000 as easily as 6,000, but that he did not think that number necessary. Confiding fully in this information, I became indifferent about further disguise. I then told the doctor that I should most certainly oppose colonel Burr if he came this way. He replied that they must come here for equipments [**9] and shipping, and observed that he did not know what had passed between colonel Burr and myself, obliqued at a sham defence, and waived the subject.

From the documents in my possession and the several communications, verbal as well as written, from the said doctor Erick Bollman, on this subject, I feel no hesitation in declaring under the solemn obligation of an oath, that he has committed misprision of treason against the government of the United States.

JAMES WILKINSON.

Signed and sworn to this 14th day of December, 1806, before me one of the justices of the peace of this county.

J. CARRICK.

"Philadelphia, July 25, 1806.

DEAR SIR,

Mr. Swartwout, the brother of colonel S. of New-York, being on his way down the Mississippi, and presuming that he may pass you at some post on the river, has requested of me a letter of introduction which I give with pleasure, as he is a most amiable young man, and highly respectable from his character and connections.I pray you to afford him any friendly offices which his situation may require, and beg you to pardon the trouble which this may give you.

With entire respect,

Your friend and obedient servant,

A. BURR.

His excellency general WILKINSON." [**10]

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, TO THE SENATE AND HOUSE OF REPRESENTATIVES.

I RECEIVED from Gen. Wilkinson, on the 23d inst. his affidavit, charging Samuel Swartwout, Peter V. Ogden, and James Alexander, with the crimes described in the affidavit, a copy of which is now communicated to both Houses of Congress.

It was announced to me at the same time, that Swartwout and Bollman, two of the persons apprehended by him, were arrived in this city, in custody each of a military officer. I immediately delivered to the attorney of the United States, in this district, the evidence received against them, with instructions to lay the same before the judges, and apply for their process to bring the accused to justice, and I put into his hands orders to the officers having them in custody, to deliver them to the marshal on his application.

TH: JEFFERSON.

January 26, 1807.

WILKINSON'S SECOND AFFIDAVIT.

I, JAMES WILKINSON, brigadier general and commander in chief of the army of the United States, to warrant the arrest of Samuel Swartwout, James Alexander, Esq. and Peter V. Ogden, on a charge of treason, misprision of treason, or such other offence against the government and [**11] laws of the United States, as the following facts may legally charge them with, on the honour of a soldier, and on the Holy Evangelists of Almighty God, do declare and swear, that in the beginning of the month of October last, when in command at Natchitoches, a stranger was introduced to me by colonel Cushing, by the name of Swartwout, who a few minutes after the colonel retired from the room, slipt into my hand a letter of formal introduction from colonel Burr, of which the following is a correct copy:

"Philadelphia, 25th July, 1806.

DEAR SIR,

Mr. Swartwout, the brother of colonel S. of New-York, being on his way down the Mississippi, and presuming that he may pass you at some post on the river, has requested of me a letter of introduction which I give with pleasure, as he is a most amiable young man, and highly respected from his character and connections. I pray you to afford him any friendly offices which his situation may require, and beg you to pardon the trouble which this may give you.

With entire respect,

Your friend and obedient servant,

A. BURR.

His excellency general WILKINSON."

Together with a packet which he informed me he was charged by the same person, to deliver [**12] me in private, this packet contained a letter in cypher from colonel Burr, of which the following is substantially as fair an interpretation as I have heretofore been able to make, the original of which I hold in my possession:

"I, Aaron Burr, have obtained funds and have actually commenced the enterprise. Detachments from different points and under different pretences, will rendezvous on the Ohio, 1st November. Every thing internal and external favours views: protection of England is secured: T ††† is going to Jamaica, to arrange with the admiral on that station; it will meet on the Mississippi ††† England ††† Navy of the United States are ready to join, and final orders are given to my friends and followers: it will be an host of choice spirits. Wilkinson shall be second to Burr only: Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward 1st August, never to return; with him go his daughter; the husband will follow in October, with a corps of worthics.

Send forth with an intelligent and confidential friend with whom Burr may confer; he shall return immediately with further interesting details: this is cssential to concert and harmony [**13] of movement: send a list of all persons known to Wilkinson, west of the mountains, who may be useful, with a note delineating their characters. By your messenger send me four of five of the commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders to the contractor given to forward six months' provisions to points Wilkinson may name: this shall not be used until the last moment, and then under proper injunctions: the project is brought to the point so long desired: Burr guarantion the result with his life and honour; with the lives, the honour and fortunes of hundreds, the best blood of our country. Burr's plan of operations is to move down rapidly from the falls on the 15th 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; there to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge: on receipt of this, send an answer; draw on Burr for all expenses, &c. The people of the country to which we are going are prepared to receive us: their agents [**14] now with Burr say, that if we will protect their religion, and will not subject them to a foreign power, that in three weeks all will be settled. The Gods invite to glory and fortune: it remains to be seen whether we deserve the boon: the bearer of this goes express to you; he will hand a formal letter of introduction to you from Burr: he is a man of inviolable honour and perfect discretion; formed to execute rather than to project; capable of relating facts with fidelity, and incapable of relating them otherwise: he is thoroughly informed of the plans and intentions of †††, and will disclose to you as far as you inquire, and no further: he has imbibed a reverence for your character, and may be embarrassed in your presence: put him at ease and he will satisfy you.

"29th July."

I instantly resolved to avail myself of the reference made to the bearer, and in the course of some days, drew from him (the said Swart wout) the following disclosure: "That he had been dispatched by colonel Burr from Philadelphia, had passed through the states of Ohio and Kentucky, and proceeded from Louisville for St. Louis, where he expected to find me, but discovering at Kaskaskias that I had descended [**15] the river, he procured a skiff, hired hands, and followed me down the Mississippi to Fort Adams, and from thence set out for Natchitoches, in company with captains Sparks and Hooke, under the pretence of a disposition to take part in the campaign against the Spaniards, then depending. That colonel 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 against the Mexican provinces, and that 500 men under colonel Swartwout and a colonel or major Tyler, were to descend the Alleghany, for whose accommodation light boats had been built and were ready." I inquired what would be their course: 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; that they expected to be ready to embark about the first of February, and intended to land at Vera Cruz, and to march from thence to Mexico." I observed that there were several millions of dollars in the bank of this place; to which he replied, "We know it full well;" and [**16] on remarking that they certainly did not mean to violate private property, he said they "merely meant to borrow, and would return it; that they must equip themselves in New-Orleans; that they expected naval protection from Great Britain; that the capt. ††† and the officers of our navy were so disgusted with the government that they were ready to join; that similar disgusts prevailed throughout the western country, where the people were zealous in favour of the enterprise, and that pilot boat built schooners were contracted for along our southern coast for their service; that he had been accompanied from the falls of Ohio to Kaskaskias, and from thence to Fort Adams, by a Mr. Ogden, who had proceeded on to New-Orleans with letters from colenel Burr to his friends there." Swartwout asked me whether I had heard from doctor Bollman; and on my answering in the negative, he expressed great surprise, and observed, "That the doctor and a Mr. Alexander had left Philadelphia before him, with dispatches for me, and that they were to proceed by sea to New-Orleans, where he said they must have arrived."

Though determined to deceive him if possible, I could not refrain tening Mr. Swartwout it [**17] was impossible that I could ever dishonour my commission; and I believe I duped him by my admiration of the plan, and by observing, "That although I could not join in the expedition, the engagements which the Spaniards had prepared for me in my front, might prevent my opposing it:" Yet I did the moment I had decyphered the letter, put it into the hands of colonel Cushing, my adjutant and inspector, making the declaration that I should oppose the lawless enterprise with my utmost force. Mr. Swartwout informed me he was under engagements to meet colonel Burr at Nashville the 20th of November, and requested of me to write him, which I declined; and on his leaving Natchitoches about the 18th of October, I immediately employed lieutenant T. A. Smith to convey the information, in substance, to the President, without the commitment of names; for, from the extraordinary nature of the project, and the more extraordinary appeal to me, I could not but doubt its reality, notwithstanding the testimony before me, and I did not attach solid belief to Mr. Swartwout's reports respecting their intentions on this territory and city, until I received confirmatory advice from St. Louis.

After my return [**18] from the Sabine, I crossed the country to Natchez, and on my descent of the Mississippi from that place, I found Swartwout and Peter V. Ogden at Fort Adams: with the latter I held no communication, but was informed by Swartwout, that he (Ogden) had returned so far from New-Orleans, on his route to Tennessee, but had been so much alarmed by certain reports in circulation that he was afraid to proceed. I inquired whether he bore letters with him from New-Orleans, and was informed by Swartwout that he did not, but that a Mr. Spence had been sent from New-Orleans through the country to Nashville, with letters for colonel Burr.

I reached this city the 25th ultimo, and on the next morning James Alexander, esq. visited me: he inquired of me aside whether I had seen doctor Bollman, and on my answering in the negative, he asked me whether I would suffer him to conduct Bollman to me, which I refused. He appeared desirous to communicate something, but I felt no inclination to inculpate this young man, and he left me. A few days after he paid me a second visit, and seemed desirous to communicate, which I avoided until he had risen to take leave; I then raised my finger, and observed, "Take [**19] care, you are playing a dangerous game." He answered, "It will succeed." I again observed, "Take care;" and he replied with a strong affirmation, "Burr will be here by the beginning of next month." In addition to these corroborating circumstances against Alexander, I beg leave to refer to the accompanying documents, A, B. From all which I feel no hesitation in declaring, under the solemn obligation of an oath, that I do believe the said Swartwout, Alexander, and Ogden, have been parties to, and have been concerned in the insurrection formed or forming in the states and territories on the Ohio and Mississippi rivers, against the laws and constitution of the United States.

JAMES WILKINSON.

Sworn to, and subscribed before me, this 26th day of December, in the year of our Lord, 1806. GEORGE POLLOCK, Justice of the Peace, for the country of Orleans.

The following are the depositions made in open court, and alluded to in the foregoing statement:

THE DEPOSITION OF WILLIAM EATON, ESQ.

Early last winter, col. Aaron Burr, late vice-president of the United States, signified to me, at this place, that, under the authority of the general government, he was organizing a secret expedition against [**20] the Spanish provinces on our south-western borders, which expedition he was to lead, and in which he was authorised to invite me to take the command of a division. I had never before been made personally acquainted with col. Burr; and, having for many years been employed in foreign service, I knew but little about the estimation this gentleman now held in the opinion of his countrymen and his government; the rank and confidence by which he had so lately been distinguished left me no right to suspect his patriotism. I knew him a soldier. In case of a war with the Spanish nation, which from the tenor of the president's message to both houses of congress seemed probable, I should have thought it may duty to obey so honourable a call of my country; and, under that impression, I did engage to embark in the expedition. I had frequent interviews with col. Burr in this city -- and, for a considerable time, his object seemed to be to instruct me by maps, and other information, the feasibility of penetrating to Mexico -- always carrying forward the idea that the measure was authorised by government. At length, some time in February, he began by degrees to unveil himself. He reproached [**21] the government with want of character, want of gratitude, and want of justice. He seemed desirous of irritating resentment in my breast, by dilating on certain injuries he felt I had suffered from reflections made on the floor of the house of representatives concerning my operations in Barbary, and from the delays of government in adjusting my claims for disbursements on that coast during my consular agency at Tunis; and he said he would point me to an honourable mode of indemnity. I now begin to entertain a suspicion that Mr. Burr was projecting an unauthorised military expedition, which, to me, was enveloped in mystery; and, desirous to draw an explanation from him, I suffered him to suppose me resigned to his counsel. He now laid open his project of revolutionising the western country, separating it from the union, establishing a monarchy there, of which he was to be the sovereign, and New-Orleans to be his capital; organising a force on the waters of the Mississippi, and extending conquest to Mexico. I suggested a number of impediments to his scheme -- such as the republican habits of the citizens of that country, and their affection towards our present administration of government; [**22] the want of funds; the resistance he would meet from the regular army of the United States on those frontiers; and the opposition of Miranda, in case he should succeed to republicanise the Mexicans.

Mr. Burr found no difficulty in removing these obstacles -- he said he had, the preceding season, made a tour through that country, and had secured the attachment of the principal citizens of Kentucky, Tennessee, and Louisiana, to his person and his measures; declared he had inexhaustible resources to funds; assured me the regular army would act with him, and would be reinforced by ten or twelve thousand men from the above mentioned states and territory, and from other parts of the union; said he had powerful agents in the Spanish territory; and, as for Miranda, said Mr. Burr, we must hang Miranda. He now proposed to give me the second command in his army. I asked him who should have the chief command? He said, General Wilkinson. I observed it was singular that he should count on general Wilkinson; the elevated rank and high trust he now held as commander in chief of our army and governor of a province, he would hardly put at hazard for any precarious prospects of aggrandizement. Mr. [**23] Burr said, general Wilkinson balanced in the confidence of government, was doubtful of retaining much longer the consideration he now enjoyed, and was consequently prepared to secure to himself a permanency. I asked Mr. Burr if he knew general Wilkinson? He answered yes, and echoed the question. I said I knew him well. "What do you know of him?" said Mr. Burr. I know, I replied, that general Wilkinson will act as lieutenant to no man in existence. "You are in an error," said Mr. Burr; "Wilkinson will act as lieutenant to me." From the tenor of repeated conversations with Mr. Burr, I was induced to believe the plan of separating the union, which he had contemplated, had been communicated to and approved of by general Wilkinson; (though I now suspect it an artful argument of seduction;) and he often expressed a full confidence that the general's influence, the offer of double pay and double rations, the prospect of plunder, and the ambition of achievement, would draw the army into his measures. Mr. Burr talked of the establishment of an independent government west of the Alleghany as a matter of inherent constitutional right of the people, a change which would eventually take [**24] place, and for the operation of which the present crisis was peculiarly favourable. There was, said he, no energy in the government to be dreaded, and the divisions of political opinions throughout the union was a circumstance of which we should profit. There were very many enterprising men among us, who aspired to something beyond the dull pursuits of civil life, and who would volunter in this enterprise, and the vast territory belonging to the United States, which offered to adventurers, and the mines of Mexico, would bring streugth to his standard from all quarters. I listened to the exposition of colonel Burr's views with seeming acquicscence. Every interview convinced me more and more that he had organized a deep laid plot of treason in the west, in the accomplishment of which he felt fully confident. Till, at length, I discovered that his ambition was not bounded by the waters of the Mississippi and Mexico, but that he meditated overthrowing the present government of our country. He said, if he could gain over the marine corps, and secure the naval commanders, Truxton, Preble, Decatur, and others, he would turn Congress neck and heels out of doors, assassinate the President, [**25] seize on the treasury and the navy, and declare himself the Protector of an energetic government. The honourable trust of corrupting the marine corps, and of sounding commodore Preble and captain Decatur, colonel Burr proposed confiding to me. Shocked at this proposition, I dropped the mask, and exclaimed against his views. He talked of the degraded situation of our country, and the necessity of a blow by which its energy and its dignity should be restored -- said, if that blow could be struck here at this time, he was confident of the support of the best blood of America. I told colonel Burr he deceived himself in presuming that he, or any other man, could excite a party in this country who would countenance him in such a plot of desperation, murder and treason. He replied, that he, perhaps, knew better the dispositions of the influential citizens of this country than I did. I told him one solitary word would destroy him. He asked, what word? I answered, Usurper! He smiled at my hesitation, and quoted some great examples in his favour. I observed to him, that I had lately travelled from one extreme of the union to the other; and, though I found a diversity of political opinion [**26] among the people, they appeared united at the most distant aspect of national danger. That, for the section of the union to which I belonged, I would vouch, should he succeed in the first instance here, he would within six weeks afterward have his throat cut by Yankee militia.

Though wild and extravagant Mr. Burr's last project, and though fraught with premeditated slaughter, I felt very easy on the subject, because its defeat he had deposited in my own hands. I did not feel so secure concerning that of disjointing the union. But the very interesting and embarrassing situation in which his communications placed me, left me, I confess, at a stand to know how to conduct myself with propriety. He had committed no overt act of aggression against law. I could draw nothing from him in writing, nor could I learn that he had exposed his plans to any person near me, by whom my testimony could be supported. He had mentioned to me no persons who were principally and decidedly engaged with him, except general Wilkinson, a Mr. Alston, who I found was his son-in-law, and a Mr. Ephraim Kibby, late a captain of rangers in general Wayne's army. Satisfied that Mr. Burr was resolute in pushing [**27] his project of rebellion in the west of the Alleghany, and apprehensive that it was too well and too extensively organized to be easily suppressed; though I dreaded the weight of his character when laid in the balance against my solitary assertion, I brought myself to the resolution to endeavour to defeat it by getting him removed from among us, or to expose myself to all consequences by a disclosure of his intentions. Accordingly, I waited on the President of the United States; and after some desultory conversation, in which I aimed to draw his view to the westaward, I used the freedom to say to the President I thought Mr. Burr should be sent out of this country, and gave for reason that I believed him dangerous in it. The President asked where he should be sent? I mentioned London and Cadiz. The President thought the trust too important, and seemed to entertain a doubt of Mr. Burr's integrity. I intimated that no one, perhaps, had stronger grounds to mistrust Mr. Burr's moral integrity, than myself; yet, I believed, ambition so much predominated over him, that, when placed on an eminence and put on his honour, respect to himself would insure his fideiity: His talents were unquestionable. [**28] I perceived the subject was disagreeable to the President; and to give it the shortest course to the point, declared my concern that if Mr. Burr were not in some way disposed of, we should, within eighteen months, have an insurrection, if not a revolution, on the waters of the Mississippi. The President answered, that he had too much confidence in the information, the integrity, and the attachment to the union, of the citizens of that country, to admit an apprehension of the kind. I am happy that events prove this confidence well placed. As nointerrogatories followed my expression of alarm, I thought silence on the subject, at that time and place, became me.But I detailed, about the same time, the whole projects of Mr. Burr to certain members of congress. They believed colonel Burr capable of any thing, and agreed that the fellow ought to be hanged; but thought his projects too chimerical, and his circumstances too desperate, to give the subject the merit of serious consideration. The total security of feeling in those to whom I had rung the tocsin, induced me to suspect my own apprehensions unseasonable, or at least too deeply admitted; and, of course, I grew indifferent about [**29] the subject.

Mr. Burr's visits to me became less frequent, and his conversation less familiar.He appeared to have abandoned the idea of a general revolution, but seemed determined on that of the Mississippi; and, although I could perceive symptoms of distrust in him towards me, he manifested great selicitude to engage me with him in the enterprise. Weary of his importunity, and at once to convince him of my serious attachments, I gave the following toast to the public: -- The United States -- Palsy to the brain that should plot to dismember, and leprosy to the hand that will not draw to defend our union!

I doubt whether the sentiment was better understood by any of my acquaintance than colonel Burr. Our intercourse ended here; we met but seldom afterward.I returned to my farm in Massachusetts, and thought no more of Mr. Burr, nor his empire, till sometime late in September or beginning of October, when a letter from Morris Belknap, of Marietta, to Timothy E. Danielson, fell into my hands at Brimfield, which satisfied me that Mr. Burr had actually commenced his preparatory operations on the Ohio. I now spoke publicly of the fact -- transmitted a copy of the letter from Belknap [**30] to the department of state, and about the same time forwarded, through the hands of the post-master general, to the President of the United States, a statement in substance of what is here above detailed concerning the Mississippi conspiracy of the said colonel Aaron Burr, which is said to have been the first formal intelligence received by the executive on the subject of the conspirator being in motion.

I know not whether my country will allow me the merit of correctness o conduct in this affair. The novelty of the duty might, perhaps, have embarrassed stronger minds than mine.The uprightness of my intentions I hope will not be questioned.

The interviews between colonel Burr and myself, from which the foregoing statement has resulted, were chiefly in this city, in the months of February and March, last year.

WILLIAM EATON.

Washington City, Jan. 26, 1807.

Sworn to in open court, this 26th day of January, 1807.

WILLIAM BRENT, Clerk.

DEPOSITION OF JAMES L. DONALDSON

In open court personally appears James Lowry Donaldson, who being duly sworn, deposeth and saith, that he was in the city of New-Orleans in the Orleans territory, and the environs of said city, from the 15th day [**31] of October to the 10th day of December, 1806, that during the latter part of this time he was frequently in the company of general James Wilkinson, and visited the general the day after his arrival at New-Orleans.On this occasion, this deponent received in confidence from general Wilkinson information to the following purport: that the general had undoubted and indisputable evidence of a treasonable design formed by Aaron Burr and others to dismember the union, by a separation of the western states and territories from the Atlantic states; that New-Orleans was in immediate danger, and that he had concluded a hasty compromise with the Spaniards, so as to be able to withdraw his troops instantly to this the immediate object of attack and great vulnerable point; that he had received a letter from Burr holding forth great inducements to him to become a party, of which he showed me the original in cypher, and another written paper purporting to be a decyphered copy of the letter. He expressed great indignation at the plot, and surprise that one so well acquainted with him as Burr should dare to make to him so degrading a proposal, and declared his determination of defeating the enterprise, [**32] or perishing in the attempt. He observed in addition that there were many agents of Mr. Burr then in the town, who had already been assiduous in their visits, and towards whom he was determined to act with cautious ambiguity, so as at the same time to become possessed of the whole extent of the plan, the persons engaged, and the time of its execution, and also to prevent any attempt on his person, of which he declared he had serious apprehensions.Of the number of these agents he was not aware, but mentioned the names of two of whom he was certain, Messrs. Bollman and Alexander. From time to time, as this deponent had interviews with general Wilkinson, he informed this deponent that he had received additional information respecting the movements and designs of Burr by means of these agents, of whom he considered Bollman as the principal. In the course of these transactions, this deponent was employed by general Wilkinson in the copying of certain papers and documents, and preparing certain dispatches for the general government, which the general intended to forward by the brig Thetis. While thus employed at the general's lodgings, this deponent has remarked upon two different occasions, [**33] a person knock for admittance at a door with a window in it opposite the table where this deponent was sitttng, who, this deponent was informed by general Wilkinson was doctor Bollman. Upon these occasions the general has suddenly risen from his seat, and accompanied this person in a number of turns up and down a balcony in the front of the house, apparently engaged in deep conversation. Upon the latter of these occasions the general, on his return into the chamber said to this deponent, "that is doctor Bollman, his infatuation is truly extraordinary; he persists in his belief that I am with Burr, and has this moment shewn me a letter from the latter, in which he says that he is to be at Natchez on the 20th December with 2,000 men, that 4,000 will follow in the course of a few days, and that he could with the same ease, have procured double that number." General Wilkinson then observed, that he had obtained all the information he wanted, and that the affair would not be kept much longer a secret from the public.

When this deponent left the city of New-Orleans, the inhabitants of that city were in a state of great alarm, and apprehended a serious attack from Mr. Burr and his confederates; [**34] this deponent understood that mercantile business was much embarrassed, and great fears were entertained of considerable commercial failures in consequence of the embargo which had been imposed; that general Wilkinson was taking strong measures of defence, and that 400 persons were then actually engaged in the fortifications of the city.

And further this deponent saith not.

JAMES L. DONALDSON.

Sworn to in open court.

WILLIAM BRENT, Clerk

January 26, 1807

DEPOSITION OF LIEUTENANT W. WILSON.

I left New-Orleans on my way to this city on the 15th of December last: at that time, and for some time preceding, the strongest apprehensions and belief universally prevailed among the inhabitants of that city, that Aaron Burr and his confederates had prepared an armed force, and were advancing to attack and plunder the city; in consequence of which the greatest alarms prevailed, a general stagnation of business ensued, and the danger was credited there as a matter of public notoriety; that brigadier general Wilkinson, with the army of the United States was at New-Orleans, occupied in the most active military preparations for the defence of the place; repairing the forts, mounting cannon, [**35] collecting ammunition, &c. All under the firm persuasion and belief that such an attack was meditated, and about very speedily to take place, by the said Burr; this deponent knows that the general was decidedly of opinion, from the most satisfactory information, that the said Burr and his confederates were advancing with an armed force against this place.

And further this deponent saith not.

WILLIAM WILSON.

Sworn to in open court this 27th day of January, 1807

WILLIAM BRENT, Clerk.

The deposition of ensign W. C. Mead is precisely similar to that of lieut. Wilson, except that the former states that he left New-Orleans on the 19th of December.

 

LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition:

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. Enlistment 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.

Quoere, 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 8th section of the act of Congress, "for the punishment of certain crimes against the United States," vol. 1, p. 103, 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 imply a legal arrest, to the exclusion of a military arrest or seizure.

 

SYLLABUS:

 

 

REPORTER'S NOTES

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. Enlistment 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 [**36] 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 travelling of individuals to the place of rendezvous is not sufficient; but the meeting of particular bodies of men, and their marching from places of partral, to a place of general rendezvous, is such an assemblage as constitutes a levying of war.

A person may be committed for a erime 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.

Quere, 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 8th section of the act of congress, "for the punishment of certain crimes against the United States," vol. 1. p. 103. 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 offences committed on the [**37] high seas, or in some river, haven, bason, 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 offences.

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

 

COUNSEL:

C. Lee, for Swartwout.

Notwithstanding the decisions of this court in Hamilton's case, 3 Dall. 17. and in Burford's case, ante, vol. 3. p. 448. we are now called upon to show that this court has power to issue a writ of habeas corpus.

By the constitution of the United States, art. 3. s. 2. the grant of jurisdiction to the courts of the United States is general, and extends to all cases arising under the laws of the United States. This court has either original or appellate jurisdiction of every case, with such exceptions and under such regulations as congress has made or shall make. If congress has not excepted any case, then it has cognizance of the whole.

The appellate jurisdiction given by the constitution to this court includes criminal as well as civil cases, and no act of congress has taken it away. This court derives [**38] its power and its jurisdiction not from a statute, but from the constitution itself. No legislative act is necessary to give powers to this court. It is independent of the legislature; and in all the late discussions upon the question of putting down courts, it was admitted on all hands that the legislature could not destory the supreme court.

But if this court has no criminal jurisdiction to hear and determine, yet they may have a criminal jurisdiction to a certain extent, viz. to inquire into the cause of commitment, and admit to bail.This court has no original jurisdiction, except in certain cases; yet it has power to issue a mandamus in cases in which in which it has no appellate jurisdiction by writ of error or appeal, and will issue a prohibition even in a criminal case, if a circuit court should undertake to try it in a state in which the crime was not committed. So also if a district court should be proceeding upon a matter out of its jurisdiction, this court would grant a prohibition.

By the judiciary act, s. 14. vol. 1. p. 58. "All the beforementioned courts" (and the supreme court was the court last mentioned in the preceding section) "shall have power to issue writs [**39] 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 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 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."

It has been suggested that the words "and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions," forbid the issuing of a habeas corpus, but in a case where it is necessary for the exercise of the court's jurisdiction. But the words "necessary," &c. apply only to the "other writs not specially provided for."

In order to restrict in some degree the general expression "all other writs," the subsequent words are used. [**40] The writ of habeas corpus was particularly named, because it would not (in all cases where it ought to be granted) come under the general denomination of writs necessary for the exercise of the jurisdiction of the court issuing it.

But admitting, for argument, that a writ of habeas corpus cannot issue but where it is necessary for the exercise of the jurisdiction of the court issuing it, yet the term "jurisdiction" means the whole jurisdiction given to the court; and as this court has, by the constitution, jurisdiction in criminal cases, which jurisdiction is not taken way by any statute, it is a writ necessary for the exercise of its jurisdiction. Again, by the 33d section of the same act, "upon arrests in criminal cases, where the punishment may be death, bail 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 the usages of law." By this section the supreme court has jurisdiction to admit a prisoner to bail in criminal cases punishable with death, and for that purpose to examine [**41] into the nature and circumstances of the offence, and of the evidence. For the exercise of this jurisdiction the writ of habeas corpus is necessary. There is no other writ, "agreeable to the usages of law," which will answer the purpose.

It is doubtful whether a judge of this court can issue the writ while the court is sitting, and in a district in which he has no authority to act as a circuit judge.

If it be said that the writ can only issue where it is in exercise of appellate jurisdiction, we say it is appellate jurisdiction which we call upon this court to exercise. The court below has made an illegal and erroneous order, and we appeal in this way, and pray this court to correct the error.

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

Harper, for Bollman.

There are two general considerations:

1. Whether this court has the power generally of issuing the writ of habeas corpus ad subjiciendum?

2. If it has the power generally, whether it extends to commitments by the circuit court?

1. The gneral power of issuing this great remedial writ, is incident to this court as a supreme court of record. It is a power given to such a courty [**42] by the common law. Every court possesses necessarily certain incidental powers as a court. This is proved by every day's practice. If this court possessed no powers but those given by statute, it could not protect itself from insult and outrage. It could not enforce obedience to its immediate orders. It could not imprison for contempts in its presentce. It could nor compel the attencance of a witness, nor oblige him to testify. It could not compel the attendance of jurors, in cases where it has original cognizance, nor punish them for improper conduct. These powers are not given by the constitution, nor by statute, but flow from the common law. This question is not connected with another, much agitated in this country, but little understood, viz. whether the courts of the United States have a common law jurisdiction to punish common law offences against the government of the United States. The power to punish offences against the government is not necessarily incident to a court. But the power of issuing writs of habeas corpus, for the purpose of relieving from illegal imprisonment, is one of those inherent powers, bestowed by the law upon every superior court of record, [**43] as incidental to its nature, for the protection of the citizen.

It being clear then that incidental powers belong to this in common with every other court, where can we look for the definition, enumeration and extent of those powers, but to the common law; to that code from whence we derive all our legal definitions, terms and ideas, and which forms the substratum of all our juridical systems, of all our legislative and constitutional provisions. It is not possible to move a single step in any judicial or legislative proceeding, or to execute any part of our statutes, or of our constitution, without having recourse to the common law. The constitution uses, for instance, the terms "trial by jury" and "habeas corpus." How do we ascertain what is meant by these terms? By a reference to the common law. This court has power, in some cases, to summon jurors, and examine witnesses. If an objection be made to the competence of a witness, or a juror be challenged, how do you proceed to ascertain the competence of the witness or the juror? You look into the common law. The common law, in short, forms an essential part of all our ideas. It informs us, that the power of issuing the writ [**44] of habeas corpus belongs incidentally to every superior court of record; that it is part of their inherent rights and duties thus to watch over and protect the liberty of the individual.

Accordingly we find that the court of common pleas in England, though possessing no criminal jurisdiction of any kind, original or appellate, has power to issue this writ of habeas corpus. This power it possessed by the common law, as an incident to its existence, before it was expressly given by the habeas corpus act. This appears from Bushell's case, reported in Sir Thomas Jones, 18. and stated, in Wood's case, 3 Wilson, 175. by the chief justice, in delivering the opinion of the court. Bushell's case was shortly this: A person was indicted at the Old Bailey, in London, for holding an unlawful conventicle. The jury acquitted him, contrary to the direction of the court on the law. For this some of the jurors, and Bushell among the rest, were fined and imprisoned by the court at the Old Bailey. Bushell then moved the court of common pleas for a writ of habeas corpus, which, after solemn argument and consideration, was granted by three judges against one. Bushell was brought up, and the case [**45] of his commitment appearing insufficient, he was discharged. This took place before the habeas corpus act was passed, and is a conclusive authority in favour of the doctrine for which we contend. Wood's case, 3 Wilson, 175. and 3 Bac. Ab. 3. are clear to the same point.

Whence does the court of common pleas derive this power? Not from its criminal jurisdiction; for it has none. Not from any statute; for when Bushell's case was decided there was no statute on the subject. Not from any idea that such a power is necessary for the exercise of its ordinary functions; for no such necessity exists, or has ever been supposed to exist. But from the great protective principle of the common law, which in favour of liberty gives this power to every superior court of record, as incidental to its existence.

The court of chancery in England possesses the same power by the common law, as appears from 3 Bac. Ab. 3. This is a still stronger illustration of the principle, for the court of chancery is still further removed, if possible, than the court of common pleas, from all criminal jurisdiction, still more exempt from the necessity of such a power for the exercise of its peculiar functions. [**46]

The court of exchequer also, as appears from the same authorities, though wholly destitute of criminal jurisdiction, possesses the power of relieving, by habeas corpus, from illegal restraint.

Hence it appears that all the superior courts of record in England are invested by the common law with this beneficial power, as incident to their existence. The reason assigned for it in the English law books is, that the king has always a right to know, and by means of these courts to inquire, what has become of his subjects. That is, that he is bound to protect the personal liberty of the people, and that these courts are the instruments which the law has furnished him for discharging his high duty with effect.

It may then be asked, whether the same reasons do not apply to our situation, and to this court. Have the United States, in their collective capacity, as sovereign, less right to know what has become of their citizens, than the king or government of England to inquire into the situation of his subjects? Are they under an obligation, less strong, to protect individual liberty? Have not the people as good a right as those of England to the aid of a high and responsible court for [**47] the protection of their persons?Is our situation less advantageous jin this respect than that of the English people? Or have we no need of a tribunal, for such purposes, raised by its rank in the government, by its independence, by the character of those who compose it, above the dread of power, above the seductions of hope and the influence of fear, above the sphere of party passions, factious views, and popular delusion? Of a tribunal whose members, having attained almost all that the constitution of their country permits them to aspire to, are exempted, as far as the imperfection of our nature allows us to be exempted, from all those sinister influences that blind and swerve the judgments of men -- have nothing to hope, and nothing to fear, except from their own consciences, the opinion of the public, and the awful judgment of posterity? It is in the hands of such a tribunal alone, that in times of faction or opression, the liberty of the citizen can be safe.Such a tribunal has the constitution created in this court, and can it be imagined that this wise and benefiicent constitution intended to deny to the citizens the valuable privilege of resorting to this court for the protection [**48] of their dearest rights?

On this ground alone the question might be safely rested; but there is another, not stronger indeed, but perhaps less liable to question.

Congress has expressly given this power to this court, by the 14th section of the act of 24th September, 1789, commonly called the judiciary act. This section, according to its true grammatical construction, and its apparent intent, contains two distinct providions. The first relates to writs of scire facias and habeas corpus; the second to such other writs as the court might find necessary for the exercise of their jurisdiction. As to writs of scire facias and habeas corpus, which are of the most frequent and the most beneficial use, congress seems to have though proper to make a specific and positive provision. It was clearly and obviously necessary that such writs should be issued, not merely to aid the court in the exercise of its ordinary jurisdiction, but for the general purposes of justice and protection. The authority, therefore, to issue these writs, is positive and absolute; and not dependent on the consideration whether they might be necessary for the ordinary jurisdiction of the courts. To render them [**49] dependent on that consideration, would have bee to deprive the courts of many of the most beneficial and important powers which such courts usually possess.

But the legislature foresaw that many other writs mights, in the course of proceedings, be found necessary for enabling the courts to exercise their ordinary jurisdiction, such as subpaenas, writs of venire facias, certiorari, fieri facias, and many others known to our law. To attempt a specific enumeration of these writs might have been productie of inconvenience: for it any had been omitted, there would have been doubts of the power to issue them. Congress, therefore, instead of a specific enumeration of them, wisely chose to employ a general description. This description is contained in the words, "all other writs -- which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."

The true grammatical construction of the sentence accords with this construction. The words of restrietion or description ("which may be necessary for the exercise of their respective jurisdictions." &c.) stand here as a relative, and must refer to the next antecedent. There are two [**50] antecedents: 1st. "Writs of scire facias and habeas corpus;" and 2d. "All other writs." The second is the next antecedent to which, of course, the relative terms "which may be necessary," &c. must relate and be confined. Those words therefore cannot, either in grammatical construction, or according to the plain object of the legislature, be considered as restricting the grant of power in the first part of the sentence; but, merely as explaining the extent of the power given in the second part.

It is clear then that this section bestows on this court the power to grant writs of habeas corpus without restriction. Does this power extend to the application now before the court?

The term habeas corpus is a generic term, and includes all kinds of writs of habeas corpus; as well the writ ad subjiciendum, as ad testificandum, or cum causa, &c.

But the 33d section of the same act must remove all doubt upon that point; for when it gives this court power to admit to bail in cases punishable with death, and commands this court to use their "discretion therein, regarding the nature and circumstances of the offence and of the evidence;" it takes it for granted that the prisoner is to be brought [**51] before the court for the purpose of inquiring into those circumstances. If this section does not give the power, it shows at least that the legislature considered it as given before by the 14th section. Again, the latter part of the 14th section gives to each of the justices of this court, and of the district courts, the power for which we contend. It cannot be presumed that congress meant to give each judge singly a power which it denied to the whole court. That it condifed more in the individual members of the court, than in the court itself. That is considered the weight, dignity, character, and independence of each individual member, as a more firm barrier against oppression than those of the tribunal itself, sitting for the exercise of the highest judicial functions known to our law.

This part of the statute is remedial and beneficial to the subject, and it is a sound maxim of law, that such statutes are to be construed liberally in favour of liberty.

Considering it as settled that congress intended to give this court the power to issue writs of habeas corpus ad subjiciendum, the next question is, whether congress had authority, by the constitution, to confer that power? [**52]

The authority of congress must be tested by the constitution, and if they should appear to this court to have exceeded the limits there prescribed, this court must consider their act void. The power of the judiciary to collate an act of congress with the constitution, when it comes judicially before them, and of declaring it void if against the constitution, is one of the best barriers against oppression, in the fluctuations of faction, and in those times of party violence which necessarily result from the operation of the human passions in a popular government. In the violence of those political storms which the history of the human race warns us to expect, this shelter may indeed be found insufficient; but weak as it may be, it is our best hope, and it is the part of patriotism to uphold and strengthen it to the utmost. But it is a power, of a delicacy inferior only to its importance; and ought to be exercised with the soundest discretion, and to be reserved for the clearest and the greatest occasions.

The question whether congress could confer upon this court the power of issuing the writ of habeas corpus ad subjiciendum, depends upon another question, viz. whether this power [**53] or jurisdiction be in its nature original or appellate. The original jurisdiction of this court being limited to certain specified cases, of which this is not one, it follows, that if the issuing such a writ of habeas corpus be an exercise of original jurisdiction, the power to issue it cannot be conferred on, or exercised by this court.

This principle was established by the case of Marbury v. Madison, (ante, vol. 1. p. 175.) where the court said that "to enable this court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms; and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true. Yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer, for the delivery [**54] of a paper, is in effect the same as to sustain an original action for that paper; and therefore seems not to belong to appellate, but to original jurisdiction."

This passage needs no comment. The criterion which distinguishes appellate from original jurisdiction, is that it revises and corrects the decisions of another tribunal; and a mandamus may be used when it is for the accomplishment of such a purpose.

The object of the habeas corpus now applied for, is to revise and correct the proceedings of the Court below, (under whose orders the prisoners stand committed,) so far as respects the legality of such commitment. If that court had given judgment against the applicants in the sum of one hundred dollars, the power to revise that judgment would have been appellate, and might have been given by congress to this court. From a decision which might take a few dollars from their pockets they might be relieved. Shall the relief be rendered impossible because the decision deprives them of all that can distinguish a freeman from the most abject slave -- of all that can render life desirable?

If the question, respecting the power of this court, under the constitution and the act of [**55] congress, if not under the common law, to issue the writ of habeas corpus ad subjiciendum, were still open, it ought, on these principles and authorities, to be decided in our favour. But it is not open. It has been twice solemnly adjudged in this court. First in the case of Hamilton, 2 Dallas, 17. not long after the court was organized; and very recently in the case of Burford. (Ante, vol. 3. p. 448.) We contend that the case is settled by these decisions, and that it is no longer a question whether this court has the power which it is now called upon to exercise.

The exercise of this power, the benefit of these decisions, the protection of the law thus established, we claim as a matter of right, which this honourable court cannot refuse.

Shall it be said that no part of our law is fixed and settled, except what is positively and expressly enacted by statute? On the contrary, is it not certain that by far the greatest portion of that law on which our property, our lives, and our reputations depend, rests solely on the decisions of courts? Shall it be said that all this important and extensive branch of the law is uncertain and fluctuating, dependent on the ever varying opinions [**56] and passions of men, and liable to change with every change of times and circumstances? Shall it be said that each individual judge may rightfully disregard the decisions of the court to which he belongs, and set up his own notions, his prejudices, or his caprice, in opposition to their solemn judgment? This is not the principle of our law; this is not the tenure by which we hold our rights and liberties. Stare decisis is one of its favourite and most fundamental maxims. It is behind this wise and salutary maxim that courts and judges love to take refuge, in times and circumstances that might induce them to doubt of themselves, to dread the secret operation of their own passions and prejudices, or those external influences, against which, in the imperfection of our nature, our minds can never be sufficiently guarded. In such times and circumstances, a judge will say to himself, "I know not how far I might be able, in this case, to form an impartial opinion. I know not how far my judgment may be blinded or misled by my own feelings or the passions of others, by the circumstances of the moment, or the views and wishes of those with whom I am connected. But here is a precedent [**57] established under circumstances which exclude all possibility of imporper bias. This precedent is therefore more to be relied on than my judgment; and to this I will adhere as the best and only means of protecting myself, my own reputation, and the safety of those who are to be affected by my decision, against the danger of those powerful, though imperceptible influences, from which the most upright and enlightened minds cannot be considered as wholly exempt."

There have, indeed, been instances where precedents destructive to liberty, and shocking to reason and humanity, established in arbitrary and factious times, have been justly disregarded. But when in times of quiet, and in cases calculated to excite no improper feelings, precedents have been established in favour of liberty and humanity, they become the most sacred as well as the most valuable parts of the law, the firmest bulwark for the rights of the citizens, and the surest guardian for the consciences and the reputation of judges.

Such are the precedents on which we rely.

The case of Hamilton was decided soon after the establishment of the government, when little progress had been made in the growth of party passions [**58] and interests, and when whatever of political feeling can be supposed to have existed in the court, was against the prisoner. Yet this beneficial power was exerted for his relief. He was brought before this court by habeas corpus, and was discharged. The precedent thus established was, by this court, fifteen years afterwards, in the case of Burford, declared to be decisive.

The case of Burford was wholly unconnected with political considerations, or party feelings. The application was made on behalf of an obscure individual, strongly suspected, though he could not be legally convicted, of a most odious and atrocious crime. The abhorrence of his supposed offence, the strong circumstances which appeared against him, the course of his life, his general character, and the universal belief entertained of his guilt, all combined to excite against him every honest feeling of the human heart. Yet he had the benefit of one of those precedents which we now claim; and in his case the authority of another and a more solemn decision was added to the doctrine for which we contend.

Again let it be asked, is not the law to be considered as settled by these repeated decisions? Are we still, [**59] as to this most important point, afloat on the troubled ocean of opinion, of feeling, and of prejudice? If so, deplorable indeed is our condition.

Misera est servitus, ubi lex est vaga aut incerta.

This great principle, stare decisis, so fundamental in our law, and so congenial to liberty, is peculiarly important in popular governments, where the influence of the passions is strong, the struggles for power are violent, the fluctuations of party are frequent, and the desire of suppressing opposition, or of gratifying revenge under the forms of law, and by the agency of the courts, is constant and active.

2. The second head of inquiry is, whether the power to issue writs of habeas corpus be restricted by the circumstance of the commitment having been made by the circuit court of the district of Columbia.

Before such a principle is admitted, let us inquire into its possible and even probable effects on the liberties of the people. Is it not manifest that it would deprive the citizens of the guardianship of the most respectable and independent courts, and place their personal liberty at the mercy of inferior tribunals? Do we not know that congress may institute as many inferior [**60] tribunals, and may assign to the judges of these tribunals such salaries as they may think fit? Does it not hence result that a succession of courts may be instituted, to the lowest of which may be assigned salaries so contemptible, and duties so unimportant or so odious, as necessarily and certainly to exclude every man of character, talents and respectability of every party? Will not such courts, therefore, be necessarily filled by the meanest retainers, the most obsequious flatters, and the most servile tools of those in power for the moment? Can any thing like independence or integrity be expected from such judges? Will they not act continually under the influence, not merely of their own party passions and prejudices, but of hope and of fear, those great perverters of the human mind? The precedent is already set that they may be turned out of office by the abolition of their courts; and their hopes of promotion to a higher station, and a better salary will depend on their servility and blind obedience to those in power. Let it be once established by the authority of this court, that a commitment on record by such a tribunal, is to stop the course of the writ of habeas corpus, [**61] is to shut the mouth of the supreme court, and see how ready, how terrible, and how irresistible an engine of oppression is placed in the hands of a dominant party, flushed with victory, and irritated by a recent conflict; or struggling to keep down an opposing party which it hates and fears. Does the history of the human passions warrant the conclusion, or the expectation, that such an engine will not be used? We unfortunately know, from the experience of every age, that there are few excesses into which men may not be hurried by the lust of power or the thirst of vengeance. We too are men of like passions, and it behoves us, ere we have reached these fatal extremes, to provide, as far as the imperfection of human nature will permit, against the dangers which have assailed others, and which threaten us. The best mode of making this provision, is to establish salutary maxims in quiet times, and to adhere to them steadily. Let it be now declared that there resides in this high tribunal (as respectable as our constitution can make it, and as independent as the nature of our government permits) a power to protect the liberty of the citizen, by the writ of habeas corpus, against the [**62] enterprizes of inferior courts, which may be constituted for the purposes of oppression or revenge, and you place one barrier more round our safety.

What stubborn maxim of law, what binding authority requires the admission of a principle so repugnant to all our feelings and to the spirit of the constitution? On what ground or reason of law can it be pretended that a commitment by the circuit court stops the course of the writ of habeas corpus?

Is it because the circuit court has competent jurisdiction to commit?This cannot be the reason, for every justice of the peace has competent jurisdiction to commit, and the reason, therefore, if it existed, would destroy the whole effect of the writ of habeas corpus.

Is it because the circuit court has competent jurisdiction to try the offence? This cannot be the reason, for in Bushell's case, formerly cied from 3 Wilson, 175. it appears that a commitment by the sessions at the Old Bailey, a criminal court of very high authority, and which had jurisdiction over the offence, did not prevent the court of common pleas from relieving by habeas corpus.

So also by the forest laws in England, in former times, the judge of the forest had jurisdiction [**63] for the punishment of offences within the forest; and yet it appears, from 2 Inst. 290. that a person committed by the judge of the forest for such an offence, might be relieved by habeas corpus from the superior courts.

It is well known, too, that, by the laws of England, the king has power to erect courts by special commission, with power to try and punish offences. From Wood's case, 3 Wilson, 173. it appears that a person committed by such commissioners, in a case which they had authority to try, may be relieved by habeas corpus. This, therefore, cannot be the reason.

Is it because the circuit court is a court of record? So is the court of Piepoudre. But can it be imagined that if that court were to commit a man in England, the power of relieving by habeas corpus from the superior courts would be thereby taken away? Congress may erect as many inferior courts of record as they please. Can it be imagined that by instituting such courts they can, in effect, suspend the writ of habeas corpus indefinitely, and in cases where the suspension is expressly forbidden by the constitution?

This power, moreover, has been shown to be appellate; and it is of the very essence of appellate [**64] power to review the decisions of inferior courts of record. Can it be imagined that such a decision may be reviewed where a small amount of property only is affected, and that there is no relief where it deprives a citizen of his liberty?

Between superior courts of record, of equal authority and co-ordinate rank, there may properly be a comity observed which would prevent them from attempting to interfere with the decisions of each other. Perhaps in England the court of common pleas would not attempt to release by habeas corpus, a person committed by the exchequer, or chancery, and vice versa. But this comity cannot exist between superior and inferior courts; and there is no doubt that the court of king's bench, which is a court superior to the common pleas and the exchequer, would grant a writ of habeas corpus, for any person imprisoned by either of those courts for a criminal matter.

But this point does not rest on general reasoning alone, however strong. It has been expressly adjudged by this court. The case of Burford, formerly cited, is a complete authority on this point, as well as on the former. Burford's case had been acted on judicially by the circuit court of this [**65] district. He stood committed under its decision. That court did not, indeed, commit him in the first instance, but he was brought before it on habeas corpus -- the order of commitment made by the justices of the peace was altered and modified, and he was committed by a new order from the circuit court. This recommitment was as complete an adjudication upon the subject as the commitment in the present case. One was as much a determination on record by the circuit court as the other; and one can, no more than the other, preclude the exercise of this court's power to relieve by habeas corpus.

Again, therefore, we claim the benefit of this decision. We again appeal to the great maxim stare decisis; we again deprecate the mischiefs that must ensue, if precedents in favour of liberty, made in times and under circumstances the most favourable to correct decision, should be disregarded in other times, and in situations where the existence of passion, prejudice and improper influence may be dreaded. We deprecate the dangers and mischiefs that must ensue, should the laws on which our dearest rights depend, be thus left to fluctuate on the ever varying tide of circumstances and events, [**66] and we trust that the protecting power of this high tribunal, will now fix this great land-mark of the constitution; and will place our liberties, as far as the imperfection of human things can permit, beyond the reach of opinion, of caprice, and of sinister views.

 

OPINIONBY:

MARSHALL

 

OPINION:

 

[*93] [***561] MARSHALL, Ch. J. n4 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 [**67] 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 [*94] 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. [**68] 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 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."

[*95] 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 [**69] 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, [**70] 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.

[*96] 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 [**71] 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 [***562] 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 [**72] those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable [*97] 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 [**73] 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 [*98] 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. [**74]

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 West-minister-hall, when a person is sued in some inferior jurisdiction, and is desirons 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 [**75] 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 [*99] 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 [**76] 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 [***563] 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 [**77] 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 [*100] 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 [**78] 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 [*101] 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, [**79] 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 revision that decision, and therefore appellate in its nature.

But this point also is decided in Hamilton's case and in Burford's case. n5

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, [**80] must be granted.

[*114contd] [***567]

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

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 [**81] 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 [*115] 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 trail; 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 [**82] 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, [***568] 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 [**83] had seen a letter from Col. Burr, in which he says that he should be at Natchez [*116] 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 Natchez 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 [**84] 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, [*117] 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 [**85] 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, in 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 laterly 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. n1

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 [*118] 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 [**87] 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 the had considered the president's message as evidence of that notoriety, it being 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 [***569] 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 [**88] that they can readily lay hold of their arms; although no men are [*119] 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 [**89] 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.

[*120] 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 [**90] 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 [**91] 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 [*121] 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, [**92] they did not prove that treason had been committed, nor that the prisoners had participated in any crime or offence whatever.

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, [**93] or bay, out of the jurisdiction of any particular state." [*122] The courts of the United States erected in the territory of Orleans are competent [***570] 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 [**94] 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 withnesses, 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.

[*123] 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, [**95] 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.

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 bench 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 [**96] were not a judicial act, but was merely coram non judice, it is [*124] not evidence," and that" it must be a judicial act at the time 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 [**97] 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.

[*125] MARSHALL, Ch. J. n8 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 [**98] 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 [***571] 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 [**99] the possibility of those calamities which result from the extension of treason to offences of minor [*126] 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, 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 [**100] 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 [*127] 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 [**101] 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 [**102] 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.

[*128] 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 [**103] 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 conspi acy 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 [***572] 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 [**104] 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, [*129] 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 [**105] 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. [**106]

[*130] 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. [**107] 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 [*131] 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 [**108] 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 [**109] by Baton Rouge.The people of the country to which we are going are prepared to receive us. [***573] 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.

[*132] 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 [**110] 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 [*133] [**111] 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 there 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 [**112] 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 [*134] 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 [**113] 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 [**114] 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." [*135] If the term levying in this place imports that they were assembled, [***574] 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 [**115] 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.

[*136] 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 [**116] 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 [**117] 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 [*137] 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.

[*470] [***684]

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

APPENDIX.

Note (B.)

OPINION

ON THE MOTION TO INTRODUCE CERTAIN EVIDENCE IN THE TRIAL OF AARON BURR, FOR TREASON, PRONOUNCET MONDAY, AUGUST 31.

THE question now to be decided has been [**118] argued in a manner worthy of its importance, and with an earnestness evincing the strong conviction felt by the counsel on each side that the law is with them.

A degree of eloquence seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver.

The testimony adduced on the part of the United States, to prove the overt act laid in the indictment, having shown, and the attorney for the United States having admitted, that the prisoner was not present when the act, whatever may be its character, was committed, and there being no reason to doubt but that he was at a great distance and in a different state, it is objected to the testimony offered on the part of the United States, to connect him with those who committed the overt act, that such testimony is totally irrelevant and must therefore be rejected.

The arguments in support of this motion respect in part the merits of the case as it may be supposed to stand independent of the pleadings, and in part as exhibited by the pleadings.

On the first division of the subject two points are made.

1st. That conformably [**119] to the constitution of the United States, no man can be convicted of treason who was not present when the war was levied.

2d. That if this construction be erroneous, no testimony can be received to charge one man with the overt acts of others, until those overt acts as laid in the indictment be proved to the satisfaction of the court.

[*471] The question which arises on the construction of the constitution, in every point of view in which it can be contemplated, is of infinite moment to the people of this country and to their government, and requires the most temperate and the most deliberate consideration.

"Treason against the United States shall consist only in levying war against them."

What is the natural import of the words "levying war?" And who may be said to levy it? Had their first application to treason been made by our constitution, they would certainly have admitted of some latitude of construction. Taken most literally, they are perhaps of the same import with the words raising or creating war, but as those who join after the commencement are equally the objects of punishment, there would probably be a general admission, that the term also comprehended making [**120] war, or carrying on war. In the construction which courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war might be comprehended. The various acts which would be considered as coming within the term, would be settled by a course of decisions, and it would be affirming boldly, to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war. There is no difficulty in affirming that there must be a war, or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did or did not involve the person committing it in the guilt and in the fact of levying war. If for example, an army should be actually raised for the avowed purpose of carrying on open war against the United States and subverting their government, the point must be weighed very deliberately, before a judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases, who never saw the army, but who, knowing its object, and leaguing himself with the rebels, supplied that army [**121] with provisions, or by a recruiting officer holding a commission in the rebel service, who though never in camp, executed the particular duty assigned to him.

But the term is not for the first time applied to treason by the constitution of the United States. It is a technical term. It is used in a very old statute of that country, whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context. It is therefore reasonable to suppose, unless it be incompatible with other expressions of the constitution, that the term "levying war," is used in that instrument in the same sense in which it was understood in England and in this country, to have been used in the statute of the 25th of Edward III. from which it was borrowed.

It is said that this meaning is to be collected [**122] only from adjudged cases. But this position cannot be conceded to the extent in which it is laid down. The [*472] superior authority of adjudged cases will never be controverted. But those celebrated elementary writers who have stated the principles of the law, whose statements have received the common approbation of legal men, are not to be disregarded. Principles laid down by such writers as Coke, Hale, Foster, and Blackstone, are not lightly to be rejected. These books are in the hands of every student. Legal opinions are formed upon them, and those opinions are afterwards carried to the bar, the bench, and the legislature. In the exposition of terms, therefore, used in instruments of the present day, the definitions and the dicta of those authors, if not contradicted by adjudications, [***685] and if compatible with the words of the statute, are entitled to respect. It is to be regretted that they do not shed as much light on this part of the subject as is to be wished.

Coke does not give a complete definition of the term, but puts cases which amount to levying war. "An actual rebellion or insurrection," he says, "is a levying of war." In whom? Coke does not [**123] say whether in those only who appear in arms, or in all those who take part in the rebellion or insurrection by real open deed.

Hale, in treating on the same subject, puts many cases which shall constitute a levying of war, without which no act can amount to treason, but he does not particularize the parts to be performed by the different persons concerned in that war, which shall be sufficient to fix on each the guilt of levying it.

Foster says, "the joining with rebels in an act of rebellion, or with enemies in acts of hostility, will make a man a traitor." "Furnishing rebels or enemies with money, arms, ammunition, or other necessaries will prima facie make a man a traitor."

Foster does not say that he would be a traitor under the words of the statute, independent of the legal rule which attaches the guilt of the principal to an accessary, nor that his treason is occasioned by that rule. In England this discrimination need not be made except for the purpose of framing the indictment, and therefore in the English books we do not perceive any effort to make it. Thus surrendering a castle to rebels, being in confederacy with them is said by Hale and Foster to be treason under [**124] the clause of levying war, but whether it be levying war in fact, or aiding those who levy it is not said. Upon this point Blackstone is not more satisfactory. Although we may find among the commentators upon treason enough to satisfy the inquiry, what is a state of internal war? yet no precise information can be acquired from them which would enable us to decide with clearness whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that doctrine which attaches to the accessary the guilt of his principal.

If in adjudged cases this question has been taken up and directly decided, the court has not seen those cases. The arguments which may be drawn from the form of the indictment, though strong, are not conclusive. In the precedent found in Tremaine, Mary Speake, who was indicted for furnishing provisions to the party of the Duke of Monmouth, is indicted for furnishing provisions to those who were levying war, not for levying war herself. It may correctly be argued, that had this act amounted to levying war, [*473] she would have been indicted for levying war, and the furnishing of provisions would have been laid as the overt [**125] act. The court felt this when the precedent was produced. But the argument, though strong, is not conclusive, because in England, the inquiry whether she had become a traitor by levying war, or by giving aid and comfort to those who were levying war, was unimportant, and because, too, it does not appear from the indictment that she was actually concerned in the rebellion, that she belonged to the rebel party, or was guilty of any thing further than a criminal speculation in selling them provisions.

It is not deemed necessary to trace the doctrine that in treason all are principals, to its source. Its origin is most probably stated correctly by Judge Tucker, in a work, the merit of which is with pleasure acknowledged. But if a spurious doctrine has been introduced into the common law, and has for centuries been admitted as genuine, it would require great hardihood in a judge to reject it. Accordingly, we find those of the English jurists who seem to disapprove the principle, declaring that it is now too firmly settled to be shaken.

It is unnecessary to trace this doctrine to its source for another reason. The terms of the constitution comprise no question respecting principal [**126] and accessary, so far as either may be truly and in fact said to levy war: Whether in England a person would be indicted in express terms for levying war, or for assisting others in levying war, yet if, in correct and legal language, he can be said to have levied war, and if it has never been decided that the act would not amount to levying war, his case may without violent construction be brought within the letter and the plain meaning of the constitution.

In examining these words, the argument which may be drawn from felonies, as for example, from murder, is not more conclusive. Murder is the single act of killing with malice aforethought. But war is a complex operation composed of many parts, co-operating with each other. No one man or body of men can perform them all if the war be of any continuance. Although, then, in correct and in law language, he alone is said to have murdered another who has perpetrated the fact of killing, or has been present aiding that fact, it does not follow that he alone can have levied war who has borne arms.All those who perform the various and essential military parts of prosecuting the war which must be assigned to different persons, may with [**127] correctness and accuracy be said to levy war.

Taking this view of the subject, it appears to the court, that those who perform a part in the prosecution of the war may correctly be said to levy war and to commit treason under the constitution. It will be observed that this opinion does not extend to the case of a person who performs no act in the prosecution of the war, who counsels and advises it, or who being engaged in the conspiracy fails to perform his part. Whether such persons may be implicated by the doctrine, that whatever would make a man an accessary in felony makes him a principal in treason, or are excluded, because that doctrine is inapplicable to the United States, the constitution having declared that treason shall consist only in levying war, and having made the proof of overt acts necessary to conviction, is a question of vast importance which it would be proper for the supreme court to take a fit occasion to decide, [*474] but which an inferior tribunal would not willingly determine unless the case before them should require it.

It may now be proper to notice the opinion of the supreme court in the case of the United States against Bollman and Swartwout. [**128] It is said that this opinion in declaring that those who do not bear arms may yet be guilty of treason, is contrary to law, and is not obligatory, because it is extra-judicial, and was delivered on a point not argued. This court is [***686] therefore required to depart from the principle there laid down.

It is true, that in that case after forming the opinion that no treason could be committed, because no treasonable assemblage had taken place, the court might have dispensed with proceeding further in the doctrines of treason. But it is to be remembered, that the judges might act separately, and perhaps at the same time, on the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur, and which were in some degree connected with the point before them.

The court had employed some reasoning to show that without the actual embodying of men, war could not be levied. It might have been inferred from this, that those only who [**129] were so embodied could be guilty of treason. Not only to exclude this inference, but also to affirm the contrary, the court proceeded to observe, "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 object, 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."

This court is told that if this opinion be incorrect it ought not to be obeyed, because it was extra-judicial. For myself, I can say that I could not lightly be prevailed on to disobey it, were I even convinced that it was crroneous, but I would certainly use any means which the law placed in my power to carry the question again before the supreme court, for reconsideration, in a case in which it would directly occur and be fully argued.

The court which gave this opinion was composed of four judges.At the time I thought them unanimous, but I have since had reason to [**130] suspect that one of them, whose opinion is entitled to great respect, and whose indisposition prevented his entering into the discussions, on some of those points which were not essential to the decision of the very case under consideration, did not concur in this particular point with his brethren. Had the opinion been unanimous, it would have been given by a majority of the judges.But should the three who were absent concur with that judge who was present, and who perhaps dissents from what was then the opinion of the court, a majority of the judges may overrule this decision. I should therefore feel no objection, although I then thought, and still think the opinion perfectly correct, [*475] to carry the point if possible again before the supreme court, if the case should depend upon it.

In saying that I still think the opinion perfectly correct, I do not consider myself as going further than the preceding reasoning goes. Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessaries to treason. But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy are [**131] declared to be traitors. To complete the definition both circumstances must concur. They must "perform a part," which will furnish the overt act, and they must be "leagued in the conspiracy." The person who comes within this description, in the opinion of the court, levies war. The present motion, however, does not rest upon this point; for, if under this indictment the United States might be let in to prove the part performed by the prisoner, if he did perform any part, the court could not stop the testimony in its present stage.

2d. The second point involves the character of the overt act which has been given in evidence, and calls upon the court to declare whether that act can amount to levying war. Although the court ought now to avoid any analysis of the testimony which has been offered in this case, provided the decision of the motion should not rest upon it, yet many reasons concur in giving peculiar propriety to a delivery, in the course of these trials, of a detailed opinion on the question, what is levying war?As this question has been argued at great length it may probably save much trouble to the counsel now to give that opinion.

In opening the case it was contended [**132] by the attorney for the United States, and has since been maintained on the part of the prosecution, that neither arms nor the application of force or violence are indispensably necessary to constitute the fact of levying war. To illustrate these positions several cases have been stated, many of which would clearly amount to treason. In all of them, except that which was probably intended to be this case, and on which no observation will be made, the object of the assemblage was clearly treasonable: its character was unequivocal, and was demonstrated by evidence furnished by the assemblage itself: there was no necessity to rely upon information drawn from extrinsic sources, or in order to understand the fact, to pursue a course of intricate reasoning and to conjecture motives. A force is supposed to be collected for an avowed treasonable object, in a condition to attempt that object, and to have commenced the attempt by moving towards it. I state these particulars because, although the cases put may establish the doctrine they are intended to support, may prove that the absence of arms, or the failure to apply force to sensible objects by the actual commission of violence on those [**133] objects, may be supplied by other circumstances, yet, they also serve to show that the mind requires those circumstances to be satisfied that war is levied.

Their construction of the opinion of the supreme court is, I think, thus far correct. It is certainly the opinion which was at the time entertained by myself, and which is still entertained. If a rebel army, avowing its hostility to the sovereign power, should front that of the government, should march and countermarch before it, should man oeuvre in its face, and should then disperse from any cause whatever without firing a gun, I confess I could not [*476] without some surprise, hear gentlemen seriously contend that this could not amount to an act of levying war. A case equally strong may be put with respect to the absence of military weapons. If the party be in a condition to [***687] execute the purposed treason without the usual implements of war, I can perceive no reason for requiring those implements in order to constitute the crime.

It is argued that no adjudged case can be produced from the English books where actual violence has not been committed. Suppose this were true. No adjudged case has, or it is [**134] believed, can be produced from those books in which it has been laid down, that war cannot be levied without the actual application of violence to external objects. The silence of the reporters on this point may be readily accounted for. In cases of actual rebellion against the government, the most active and influential leaders are generally most actively engaged in the war, and as the object can never be to extend punishment to extermination, a sufficient number are found among those who have committed actual hostilities, to satisfy the avenging arm of justice. In cases of constructive treason, such as pulling down meeting-houses, where the direct and avowed object is not the destruction of the sovereign power, some act of violence might be generally required to give the crime a sufficient degree of malignity to convert it into treason, to render the guilt of any individual unequivocal.

But Vaughan's case is a case where there was no real application of violence, and where the act was adjudged to be treason. Gentlemen argue that Vaughan was only guilty of adhering to the king's enemies, but they have not the authority of the court for so saying. The judges unquestionably treat [**135] the cruising of Vaughan as an overt act of levying war.

The opinions of the best elementary writers concur in declaring, that where a body of men are assembled for the purpose of making war against the government, and are in a condition to make that war, the assemblage is an act of levying war. These opinions are contradicted by no adjudged case, and are supported by Vaughan's case. This court is not inclined to controvert them.

But although in this respect, the opinion of the supreme court has not been misunderstood on the part of the prosecution, that opinion seems not to have been fully adverted to in a very essential point in which it is said to have been misconceived by others.

The opinion I am informed, has been construed to mean that any assemblage whatever for a treasonable purpose, whether in force, or not in force, whether in a condition to use violence, or not in that condition, is a levying of war. It is this construction, which has not indeed been expressly advanced at the bar, but which is said to have been adopted elsewhere, that the court deems it necessary to examine.

Independent of authority, trusting only to the dictates of reason, and expounding terms according [**136] to their ordinary signification, we should probably all concur in the declaration that war could not be levied without the employment and exhibition of force. War is an appeal from reason to the sword, and he who makes the appeal evidences the fact by the use of the [*477] means. His intention to go to war may be proved by words, but the actual going to war is a fact which is to be proved by open deed. The end is to be effected by force, and it would seem that in cases where no declaration is to be made, the state of actual war could only be created by the employment of force, or being in a condition to employ it.

But the term having been adopted by our constitution, must be understood in that sense in which it was universally received in this country, when the constitution was framed. The sense in which it was received is to be collected from the most approved authorities of that nation from which we have borrowed the term.

Lord Coke says, that levying war against the king was treason at the common law. "A compassing or conspiracy to levy war," he adds, "is no treason, for there must be a levying of war in fact." He proceeds to state cases of constructive levying war, [**137] where the direct design is not to overturn the government but to effect some general object by force. The terms he employs in stating these cases, are such as indicate an impression on his mind, that actual violence is a necessary ingredient in constituting the fact of levying war. He then proceeds to say, "an actual rebellion or insurrection is a levying of war within this act." "If any with strength and weapons invasive and defensive doth hold and defend a castle or fort against the king and his power, this is levying of war against the king." These cases are put to illustrate what he denominates "a war in fact." It is not easy to conceive "an actual invasion or insurrection" unconnected with force, nor can "a castle or fort be defended with strength and weapons invasive and defensive" without the employment of actual force. It would seem then to have been the opinion of Lord Coke, that to levy war there must be an assemblage of men in a condition and with an intention to employ force. He certainly puts no case of a different description.

Lord Hale says, (149. 6.) "what shall be said a levying of war is partly a question of fact, for it is not every unlawful or riotous assembly [**138] of many persons to do an unlawful act, though de facto they commit the act they intend, that makes a levying of war; for then every riot would be treason," &c. "but it must be such an assembly as carries with it speciem belli the appearance of war, as if they ride or march, vexillis explicatis, with colours flying, or if they be formed into companies, or furnished with military officers, or if they are armed with military weapons, as swords, guns, bills, halberds, pikes, and are so circumstanced that it may be reasonably concluded they are in a posture of war, which circumstances are so various that it is hard to describe them all particularly."

"Only the general expressions in all the indictments of this nature that I have seen are more guerrino arraiati, arrayed in a warlike manner."

He afterwards adds, "If there be a war levied as is above declared, viz. an assembly arrayed in warlike manner, and so in the posture of war for any treasonable attempt, it is bellum levatum, but not percussum."

It is obvious that Lord Hale supposed an assemblage of men in force, in a military posture, to be necessary to constitute the fact of levying war. The idea he appears to suggest, [***688] [**139] that the apparatus of war is necessary, has been [*478] very justly combated by an able judge who has writen a valuable treatise on the subject of treason; but it is not recollected that his position, that the assembly should be in a posture of war for any treasonable attempt, has ever been denied. Hawk. ch. 17. sec. 23. says, "That not only those who rebel against the king and take up arms to dethrone him, but also in many other cases, those who in a violent and forcible manner withstand his lawful authority are said to levy war against him, and therefore those that hold a fort or castle against the king's forces, or keep together armed numbers of men against the king's express command, have been adjudged to levy war against him."

The cases put by Hawkins are all cases of actual force and violence. "Those who rebel against the king and take up arms to dethrone him," in many other cases those "who in a violent and forcible manner withstand his lawful authority." "Those that hold a fort or castle against his forces, or keep together armed numbers of men against his express command."

These cases are obviously cases of force and violence.

Hawkins next proceeds to describe cases [**140] in which war is understood to be levied under the statute, although it was not directly made against the government. This Lord Hale terms an interpretative or constructive levying of war, and it will be perceived that he puts no case in which actual force is dispensed with.

"Those also, he says, who make an insurrection in order to redress a public grievance, whether it be a real or pretended one, and of their own authority attempt with force to redress it, are said to levy war against the king, although they have no direct design against his person, inasmuch as they insolently invade his prerogative, by attempting to do that by private authority which he by public justice ought to do, which manifestly tends to a downright rebellion. As where great numbers by force attempt to remove certain persons from the king," &c. The cases here put by Hawkins of a constructive levying of war, do in terms require force as a constituent part of the description of the offence.

Judge Foster, in his vaiuable treatise on treason, states the opinion which has been quoted from Lord Hale, and differs from that writer so far as the latter might seem to require swords, drums, colours, &c. what he terms [**141] the pomp and pageantry of war, as essential circumstances to constitute the fact of levying war. In the cases of Damaree and Purchase, he says, "the want of those circumstances weighed nothing with the court, although the prisoner's counsel insisted much on that matter." But he adds, "the number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, proper for the mischief they intended to effect. Furor arma ministrat."

It is apparent that Judge Foster here alludes to an assemblage in force, or, as Lord Hale terms it, "in a warlike posture;" that is, in a condition to attempt or proceed upon the treason which had been contemplated. The same author afterwards states at large the cases of Damaree and Purchase, from 8th State Trials, and they are cases where the insurgents not only assembled in force, in the posture of war, or in a condition to execute the treasonable design, [*479] but they did actually carry it into execution, and did resist the guards who were sent to disperse them.

Judge Foster states, sec. 4. all insurrections to effect certain innovations of a public and general concern by an [**142] armed force, to be, in construction of law, high treason within the clause of levying war.

The cases put by Foster of constructive levying of war, all contain as a material ingredient, the actual employment of force. After going through this branch of his subject, he proceeds to state the law in a case of actual levying war, that is, where the war is intended directly against the government.

He says, sec. 9. "An assembly armed and arrayed in a warlike manner for a treasonable purpose, is bellum levatum, though not bellum percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king's subjects under a French commission, France being then at war with us, was held to be adhering to the king's enemies, though no other act of hostility be proved."

"An assembly armed and arrayed in a warlike manner for any treasonable purpose" is certainly in a state of force; in a condition to execute the treason for which they assembled.The words "enlisting and marching," which are overt acts of levying war, do, in the arrangement of the sentence, also imply a state of force, though that state is not expressed in terms, for the succeeding [**143] words, which state a particular event as not having happened, prove that event to have been the next circumstance to those which had happened -- they are "without coming to a battle or action." "If men be enlisted and march," (that is, if they march prepared for battle, or in a condition for action, for marching is a technical term applied to the movement of a military corps,) it is an overt act of levying war, though they do not come to a battle or action. This exposition is rendered the stronger by what seems to be put in the same sentence as a parallel case with respect to adhering to an enemy. It is cruising under a commission from an enemy, without committing any other act of hostility. Cruising is the act of sailing in warlike form, and in a condition to assail those of whom the cruiser is in quest.

This exposition, which seems to be that intended by Judge Foster, is rendered the more certain by a reference to the case in the State Trials from which the extracts are taken. The words used by the chief justice are, "when men form themselves into a body and march rank and file with weapons offensive and defensive, this is levying of war with open force, if the design be public." [**144] Mr. Phipps, the counsel for the prisoner, afterwards observed, "Intending to levy war is not treason, unless a war be actually levied." To this the chief justice answered, "Is it not actually levying of war, if they actually provide arms and levy men, and in a warlike manner set out and cruise, and come with a design to destroy our [***689] ships?" Mr. Phipps still insisted, "it would not be an actual levying of war unless they committed some act of hostility." "Yes, indeed," said the chief justice, "the going on board and being in a posture to attack the king's ships." Mr. Baron Powis added, "but for you to say that because they did not actually fight it is not a levying of war, is it not plain what they did intend? That they came with that intention, that they came in that posture, that they came armed, and had guns and [*480] blunderbusses, and surrounded the ship twice; they came with an armed force, that is a strong evidence of the design."

The point insisted on by counsel in the case of Vaughan, as in this case, as, that war could not be levied without actual fighting. In this the counsel was very properly overruled; but it is apparent that the judges proceeded entirely [**145] on the idea that a warlike posture was indispensable to the fact of levying war.

Judge Foster proceeds to give other instances of levying war. "Attacking the king's forces in opposition to his authority upon a march or in quarters is levying war." "Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war. But a bare detainer, as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason."

The whole doctrine of Judge Foster on this subject, seems to demonstrate a clear opinion that a state of force and violence, a posture of war, must exist to constitute technically as well as really the fact of levying war.

Judge Blackstone seems to concur with his predecessors. Speaking of levying war, he says, "This may be done by taking arms not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. For the law does not, neither can it, permit any private man or set of men to interfere forcibly in matters of such high importance."

He [**146] proceeds to give examples of levying war, which show that he contemplated actual force as a necessary ingredient in the composition of this crime.

It would seem then from the English authorities, that the words "levying war," have not received a technical, different from their natural, meaning, so far as respects the character of the assemblage of men which may constitute the fact. It must be a warlike assemblage, carrying the appearance of force, and in a situation to practise hostility.

Several judges of the United States have given opinions at their circuits on this subject, all of which deserve and will receive the particular attention of this court.

In his charge to the grand jury, when John Fries was indicted, in consequence of a forcible opposition to the direct tax, Judge Iredell is understood to have said, "I think I am warranted in saying, that if in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the congress of the United States altogether, any forcible opposition calculated to carry that intention into effect, was a levying of war against the United States, and of course and [**147] act of treason." To levy war then, according to this opinion of Judge Iredell, required the actual exertion of force.

[*481] Judge Paterson, in his opinions delivered in two different cases, seems not to differ from Judge Iredell. He does not, indeed, precisely state the employment of force as necessary to constitute a levying of war, but in giving his opinion in cases in which force was actually employed, he considers the crime in one case as dependent on the intention, and in the other case he says, "combining these facts with this design," (that is, combining actual force with a treasonable design,) "the crime is high treason."

Judge Peters has also indicated the opinion that force was necessary to constitute the crime of levying war.

Judge Chase has been particularly clear and explicit.In an opinion which he appears to have prepared on great consideration, he says, "The court are of opinion, that if a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, that 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 [**148] the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persons, is wholly immaterial.

"The court are of opinion, 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 that it is altogether immaterial whether the force used be sufficient to effectuate the object. Any force connected with the intention will constitute the crime of levying of war."

In various parts of the opinion delivered by Judge Chase, in the case of Fries, the same sentiments are to be found. It is to be observed, that these judges are not content that troops should be assembled, in a condition to employ force; according to them, some degree of force must have been actually employed.

The judges of the United States, then, so far as their opinions have been quoted, seem to have required still more to constitute the fact of levying war, than has been required by the English books. Our judges seem to have required [**149] the actual exercise of force, the actual employment of some degree of violence. This, however, may be, and probably is, because in the cases in which their opinions were given, the design not having been to overturn the government, but to resist the execution of a law, such an assemblage would be sufficient for the purpose, as to require the actual employment of force to render the object unequivocal.

But it is said all these authorities have been overruled by the decision of the supreme court in the case of the United States against Swartwout and Bollman.

If the supreme court have indeed extended the doctrine of treason, further than it has heretofore [***690] been carried by the judges of England, or of this country, their decision would be submitted to. At least this court could go no further than to endeavour again to bring the point directly before them.It would [*482] however be expected that an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established. Had the intention [**150] been entertained to make so material a change in this respect, the court ought to have expressly declared, that any assemblage of men whatever, who had formed a treasonable design, whether in force or not, whether in a condition to attempt the design or not, whether attended with warlike appearances or not, constitutes the fact of levying war. Yet no declaration to this amount is made. Not an expression of the kind is to be found in the opinion of the supreme court. The foundation on which this argument rests is the omission of the court to state, that the assemblage which constitutes the fact of levying war ought to be in force, and some passages which show that the question respecting the nature of the assemblage was not in the mind of the court when the opinion was drawn, which passages are mingled with others, which at least show that there was no intention to depart from the course of the precedents in cases of treason by levying war.

Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered. In the case of the United States against Bollman and Swartwout, there was no evidence that even two men had ever met for the [**151] purpose of executing the plan, in which those persons were charged with having participated. It was therefore sufficient for the court to say that unless men were assembled, war could not be levied. That case was decided by this declaration. The court might indeed have defined the species of assemblage which would amount to levying of war; but, as this opinion was not a treatise on treason, but a decision of a particular case, expressions of doubtful import should be construed in reference to the case itself; and the mere omission to state that a particular circumstance was necessary to the consummation of the crime, ought not to be construed into a declaration that the circumstance was unimportant. General expressions ought not to be considered as overruling settled principles without a direct declaration to that effect. After these preliminary observations the court will proceed to examine the opinion which has occasioned them.

The first expression in it bearing on the present question is, "To constitute that specific crime for which the prisoner now before the court has been committed, war must be actually levied against the United States. However flagitious may be the crime [**152] of conspiracy 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."

Although it is not expressly stated that the assemblage of men for the purpose of carrying into operation the treasonable intent, which will amount to levying war, must be an assemblage in force, yet it is fairly to be inferred from the context, and nothing like dispensing with force appears in this paragraph. The expressions are, "to constitute the crime war must be actually levied." A conspiracy to levy war is spoken of as "a conspiracy to subvert by force the government of our country." Speaking in general terms of an assemblage of men for this, or for any other purpose, a person would naturally be understood as speaking of an assemblage in some degree adapted to the [*483] purpose. An assemblage to subvert by force the government of our country, and amounting to a levying of war, should be an assemblage in force.

In a subsequent paragraph the court [**153] says, "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 in order to effect by force a treasonable purpose, all those who perform any part, however minute, &c. and who are actually leagued in the general conspiracy, are traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."

The observations made on the preceding paragraph apply to this. "A body of men actually assembled, in order to effect by force a treasonable purpose," must be a body assembled with such appearance of force as would warrant the opinion that they were assembled for the particular purpose; an assemblage to constitute an actual levying of war should be an assemblage with such appearance of force as would justify the opinion that they met for the purpose.

This explanation, which is believed to be the natural, certainly not a strained explanation of the words, derives some additional aid from the terms in which the paragraph last quoted commences. "It is not the intention [**154] of the court to say that no individual can be guilty of treason who has not appeared in arms against his country." These words seem to obviate an inference which might otherwise have been drawn from the preceding paragraph. They indicate that in the mind of the court the assemblage stated in that paragraph was an assemblage in arms. That the individuals who composed it, had appeared in arms against their country. That is in other words, that the assemblage was a military, a warlike assemblage.

The succeeding paragraph in the opinion relates to a conspiracy, and serves to show that force and violence were in the mind of the court, and that there was no idea of extending the crime of treason by construction beyond the constitutional definition which had been given of it.

Returning to the case actually before the court, it is said, "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 [***691] execution would amount to levying of war against the United States"

Now what could reasonably [**155] be said to be an assemblage of a body of men for the purpose of overturning the government of the United States in New-Orleans by force? Certainly an assemblage in force; an assemblage prepared and intending to act with force; a military assemblage.

The decisions theretofore made by the judges of the United States, are then declared to be in conformity with the principles laid down by the supreme court. Is this declaration compatible with the idea of departing from those opinions on a point within the contemplation of the court? The [*484] opinions of Judge Paterson and Judge Iredell are said "to 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." This observation certainly indicates that the necessity of an assemblage of men was the particular point the court meant to establish, and that the idea of force was never separated from this assemblage.

The opinion of Judge Chase is next quoted with approbation. This opinion in terms requires the employment of force.

After stating the verbal communications said to have been made by Mr. Swartwout to general Wilkinson, [**156] the court says, "if these words import that the government of New-Orleans 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."

The words "any assemblage of men," if construed to affirm that any two or three of the conspirators who might be found together after this plan had been formed, would be the act of levying war, would certainly be misconstrued. The sense of the expressions "any assemblage of men," is restricted by the words "for this purpose." Now could it be in the contemplation of the court that a body of men would assemble for the purpose of revolutionizing New-Orleans by force, who should not themselves be in force?

After noticing some difference of opinion among the judges respecting the import of the words said to have been used by Mr. Swartwout, the court proceeds to observe: "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 for that purpose, previous to the arrest of the prisoner, [**157] in order to consummate the crime as to him?"

Could the court have conceived "an open assemblage" "for the purpose of overturning the government of New-Orleans by force" "to be only equivalent to a secret furtive assemblage without the appearance of force."

After quoting the words of Mr. Swartwout, from the affidavit, in which it was stated that Mr. Burr was levying an army of 7,000 men, and observing that the treason to be inferred from these words would depend on the intention with which it was levied, and on the progress which had been made in levying it, the court say, "the question then is, whether this evidence proves colonel Burr to have advanced so far in levying an army as actually to have assembled them."

Actually to assemble an army of 7,000 men is unquestionably to place those who are so assembled in a state of open force.

But as the mode of expression used in this passage might be misconstrued so far as to countenance the opinion that it would be necessary to assemble the whole army in order to constitute the fact of levying war, the court proceeds to say, "It is argued that since it cannot be necessary that the whole 7,000 men should be assembled, their commencing [**158] their march by detachments [*485] 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 there should be an actual assemblage; and therefore this evidence should make the fact unequivocal.

"The travelling of individuals to the place of rendevous, 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 position here stated by the counsel for the prosecution is, that the army "commencing its march by detachments to the place of rendezvous (that is of the army) must be sufficient to constitute the crime."

This position is not admitted by the court to be universally correct. It is said to be "correct with some qualification." What is that qualification?

"The travelling of individuals to the place of rendezvous," (and by this term is not to be understood one individual [**159] by himself, but several individuals either separately or together but not in military form) "would perhaps not be sufficient." Why not sufficient? "Because," says the court, "this would be an equivocal act and has no warlike appearance." The act, then, should be unequivocal and should have a warlike appearance. It must exhibit, in the words of Sir Matthew Hale, speciem belli the appearance of war.

This construction is rendered in some measure necessary when we observe that the court is qualifying the position, "That the army commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime." In qualifying this position they say, "the travelling of individuals would perhaps not be sufficient." Now, a solitary individual travelling to any point, with any intent, could not, without a total disregard of language, be termed a marching detachment. The court, therefore, must have contemplated several individuals travelling together; and the words being used in reference to the position they were intended to qualify, would seem to indicate the distinction between the appearances attending the usual movement of a company of men for civil purposes, [**160] and that military movement which might in correct language be denominated "marching by detachments."

The court then proceeded to say, "the meeting [***692] of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage."

It is obvious from the context, that the court must have intended to state a case which would in itself be unequivocal, because it would have a warlike appearance. The case stated is that of distinct bodies of men assembling at different places and marching from these places of partial to a [*486] place of general rendezvous. When this has been done, an assemblage is produced which would in itself be unequivocal. But when is it done? what is the assemblage here described? The assemblage formed of the different bodies of partial at a general place of rendezvous. In describing the mode of coming to this assemblage the civil term "travelling" is dropped, and the military term "marching" is employed. If this was intended as a definition of an assemblage which would amount to levying war, the definition requires an assemblage at a general place of rendezvous composed of bodies of men who [**161] had previously assembled at places of partial rendezvous. But this is not intended as a definition, for clearly if there should be no places of partial rendezvous, if troops should embody in the first instance, in great force for the purpose of subverting the government by violence, the act would be unequivocal, it would have a warlike appearance, and it would, according to the opinion of the supreme court properly construed, and according to the English authorities, amount to levying war. But this, though not a definition, is put as an example; and surely it may be safely taken as an example. If different bodies of men, in pursuance of a treasonable design plainly proved, should assemble in warlike appearance at places of partial rendezvous, and should march from those places to a place of general rendezvous, it is difficult to conceive how such a transaction could take place without exhibiting the appearance of war, without an obvious display of force. At any rate, a court in stating generally such a military assemblage as would amount to levying war, and having a case before them in which there was no assemblage whatever, cannot reasonably be understood in putting such an example, [**162] to dispense with those appearances of war which seem to be required by the general current of authorities. Certainly they ought not to be so understood when they say in express terms, that "it is 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 already within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide."

After this analysis of the opinion of the supreme court, it will be observed, that the direct question whether an assemblage of men which might be construed to amount to a levying of war, must appear in force or in military form, was not in argument or in fact before the court, and does not appear to have been in terms decided? The opinion seems to have been drawn without particularly adverting to this question, and therefore upon a transient view of particular expressions, might inspire the idea that a display of force, that appearances of war were not necessary ingredients to constitute the fact of levying war. But upon a more intent and more accurate investigation of this opinion, although [**163] the terms force and violence are not employed as descriptive of the assemblage, such requisites are declared to be indispensable as can scarcely exist without the appearance of war and the existence of real force. It is said that war must be levied in fact; that the object must be one which is to be effected by force; that the assemblage must be such as to prove that this is its object; that it must not be an equivocal act, without a warlike appearance; that it must be an open assemblage for the purpose of force. In the course of this opinion, decisions are quoted and approved, which require the employment of force to constitute the crime. It seems extremely difficult, if not impossible, to reconcile these various declarations with the idea that the supreme court considered a secret unarmed meeting, although that [*487] meeting be of conspirators, and although it met with a treasonable intent, as an actual levying of war. Without saying that the assemblage must be in force or in warlike form, they express themselves so as to show that this idea was never discarded, and they use terms which cannot be otherwise satisfied.

The opinion of a single judge certainly weights as nothing [**164] if opposed to that of the supreme court; but if he was one of the judges who assisted in framing that opinion, if while the impression under which it was framed was yet fresh upon his mind, he delivered an opinion on the same testimony, not contradictory to that which had been given by all the judges together, but showing the sense in which he understood terms that might be differently expounded, it may fairly be said to be in some measure explanatory of the opinion itself.

To the judge before whom the charge against the prisoner at the bar was first brought, the same testimony was offered with that which had been exhibited before the supreme court, and he was required to give an opinion in almost the same case. Upon this occasion he said, "War can only be levied by the employment of actual force. Troops must be embodied; men must be assembled in order to levy war." Again he observed, "The fact to be proved in this case is an act of public notoriety. It must exist in the view of the world, or it cannot exist, at all. The assembling of forces to levy war is a visible transaction, and numbers must witness it."

It is not easy to doubt what kind of assemblage was in the mind of the [**165] judge who used these expressions, and it is to be recollected that he had just returned from the supreme court, and was speaking on the very facts on which the opinion of that court was delivered.

The same judge in his charge to the grand jury who found this bill, observed, "To constitute the fact of levying war, it is not necessary that hostilities shall have actually commenced by engaging the military force of the United States, or that measures of violence against the government shall have been carried into execution. But levying war is a fact in the constitution of which force is an indispensable ingredient. Any combination to subvert [***693] by force the government of the United States, violently to dismember the union, to compel a change in the a liministration, to coerce the repeal or adoption of a general law, is a conspiracy to levy war, and if the conspiracy be carried into effect by the actual employment of force, by the embodying and assembling of men for the purpose of executing the treasonable design which was previously conceived, it amounts to levying of war. It has been held that arms are not essential to levying war provided the force assembled be sufficient [**166] to attain, or perhaps to justify attempting the object without them." This paragraph is immediately followed by a reference to the opinion of the supreme court.

It requires no commentary upon these words, to show, that in the opinion of the judge who uttered them, an assemblage of men which should constitute the fact of levying war must be an assemblage in force, and that he so understood the opinion of the supreme court. If in that opinion, there may be found in some passages, a want of precision, and indefiniteness of expression, [*488] which has occasioned it to be differently understood by different persons, that may well be accounted for when it is recollected that in the particular case there was no assemblage whatever. In expounding that opinion the whole should be taken together, and in reference to the particular case in which it was delivered. It is, however, not improbable that the misunderstanding has arisen from this circumstance. The court unquestionably did not consider arms as an indispensable requisite to levying war; an assemblage adapted to the object might be in a condition to effect or to attempt it without them. Nor did the court consider the actual [**167] application of the force to the object, at all times, an indispensable requisite; for an assemblage might be in a condition to apply force, might be in a state adapted to real war, without having made the actual application of that force. From these positions, which are to be found in the opinion, it may have been inferred, it is thought too hastily, that the nature of the assemblage was unimportant, and that war might be considered as actually levied by any meeting of men, if a criminal intention can be imputed to them by testimony of any kind whatever.

It has been thought proper to discuss this question at large, and to review the opinion of the supreme court, although this court would be more disposed to leave the question of fact, whether an overt act of levying war was committed on Blennerhassett's island to the jury under this explanation of the law, and to instruct them, that unless the assemblage on Blennerhassett's island was an assemblage in force; was a military assemblage in a condition to make war, it was not a levying of war, and that they could not construe it into an act of war, than to arrest the further testimony which might be offered to connect the prisoner with [**168] that assemblage, or to prove the intention of those who assembled together at that place. This point, however, is not to be understood as decided. It will, perhaps, constitute an essential inquiry in another case.

Before leaving the opinion of the supreme court entirely on the question of the nature of the assemblage which will constitute an act of levying war, this court cannot forbear to ask, why is an assemblage absolutely required? Is it not to judge in some measure of the end by the proportion which the means bear to the end? Why is it that a single armed individual, entering a boat and sailing down the Ohio, for the avowed purpose of attacking New-Orleans, could not be said to levy war?Is it not that he is apparently not in a condition to levy war? If this be so, ought not the assemblage to furnish some evidence of its intention and capacity to levy war before it can amount to levying war? And ought not the supreme court, when speaking of an assemblage for the purpose of effecting a treasonable object by force, be understood to indicate an assemblage exhibiting the appearance of force.

The definition of the attorney for the United States, deserves notice in this respect. [**169] It is "when there is an assemblage of men, convened for the purpose of effecting by force a treasonable object, which force is meant to be employed before the assemblage disperses, this is treason."

To read this definition without adverting to the argument, we should infer that the assemblage was itself to effect by force the treasonable object, not to join itself to some other bodies of men and then to effect the object by their combined force. Under this construction it would be expected the appearance [*489] of the assemblage would bear some proportion to the object, and would indicate the intention. At any rate that it would be an assemblage in force. This construction is most certainly not that which was intended, but it serves to show that general phrases must always be understood in reference to the subject matter, and to the general principles of law.

On that division of the subject which respects the merits of the case connected with the pleadings, two points are also made.

1st.That this indictment having charged the prisoner with levying war on Blennerhassett's island and containing no other over act, cannot be supported by proof that war was levied at that place [**170] by other persons, in the absence of the prisoner, even admitting those persons to be connected with him in one common treasonable conspiracy.

2dly. That admitting such an indictment could be supported by such evidence, the previous conviction of some person who committed the act which is said to amount to levying war, is indipensable to the conviction of a person who advised or procured that act.

As to the first point, the indictment contains two counts, one of which charges that the prisoner with a number of persons unknown, levied war on Blennerhassett's island, in the county of Wood, in the district of Virginia; and the other adds the circumstance of their proceeding from that island down the river, for the purpose of seizing New-Orleans by force.

In point of fact, the prisoner was not on Blennerhassett's island, nor in the county of Wood, nor in the district of Virginia.

In considering this point the court is led first to inquire whether an indictment for levying war must specify an overt act, or would be sufficient if it merely charged the prisoner in general terms with having levied war, omitting the expression of place or circumstance.

[***694]

The place in which [**171] a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence. That, at common law, an indictment would have been defective which did not mention the place in which the crime was committed, can scarcely be doubted. For this, it is sufficient to refer to Hawkins, B. 2. c. 25. sect. 84. and c. 23. sect. 91. This necessity is rendered the stronger by the constitutional provision that the offender, "shall be tried in the state and district wherein the crime shall have been committed," and by the act of congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed.

A description of the particular manner in which the war was levied, seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the [**172] accusation, and the circumstances which will be adduced against him. The general doctrine on the subject of indictments is full to this point. Foster, p. 149. speaking [*490] of the treason of compassing the king's death, says, "From what has been said it followeth that in every indictment for this species of treason, and indeed for levying war and adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defence."

In p. 220. Foster repeats this declaration. It is also laid down in Hawk. B. 8. c. 17. sect. 29. 1 Hale, 121. 1 East, 116. and by the other authorities cited, especially Vaughan's case. In corroboration of this opinion, it may be observed, that treason can only be established by the proof of overt acts, and that by the common law as well as by the statute of 7 of William III. those overt acts, only which are charged in the indictment can be given in evidence, unless, perhaps, as corroborative testimony after the overt acts are proved. That clause in the constitution, too, which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature [**173] and cause of the accusation," is considered as having a direct bearing on this point. It secures to him such information as will enable him to prepare for his defence.

It seems then to be perfectly clear, that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified by laying what is termed an overt act of levying war. The law relative to an appeal, as cited from Stamford, is strongly corroborative of this opinion.

If it be necessary to specify the charge in the indictment, it would seem to follow irresistibly, that the charge must be proved as laid.

All the authorities which require an overt act, require also that this overt act should be proved. The decision in Vaughan's case is particularly in point. Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. It would lead him from the true cause and nature of the accusation, instead of informing him respecting it.

But it is contended on the part of the prosecution that, although the accused had never been with the party which assembled at Blennerhassett's island, [**174] and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact.

It is therefore necessary to inquire whether in this case the doctrine of constructive presence can apply.

It is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy, and yet be legally, as well as actually, absent, while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, too violent to be inade without clear authority, to presume that even the chief of the rebel army was legally present at every such overt act. If the main rebel army with the chief at its head, should be prosecuting [*491] war at one extremity of our territory, say in New Hampshire, if this chief should be there captured and sent to the other extremity for the purpose of trial, if his indictment, instead of alleging [**175] an overt act which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New Hampshire, if such evidence would support such an indictment by the fiction that he was legally present though really absent, all would ask to what purpose are those provisions in the constitution which direct the place of trial, and ordain that the accused shall be informed of the nature and cause of the accusation?

But that a man may be legally absent who has counselled or procured a treasonable act, is proved by all those books which treat upon the subject, and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. Yet the indictment, upon general principles, would charge him according to the truth of the case. Lord Coke says, "if many conpire to levy war, and some of them do levy the same according to the conspiracy, this is high treason in all." Why? Because all were. legally present when the war was levied? No. "For in treason," continues [**176] Lord Coke, "all be principals, and war is levied." In this case the indictment, reasoning from analogy, would not charge that the absent conspirators were present, but would state the truth of the case. If the conspirator had done nothing which amounted to levying of war, and if by our constitution the doctrine that an accessary becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to [***695] say that this defect, if it be termed one, may be cured by an indictment stating the case untruly.

This doctrine of Lord Coke has been adopted by all subsequent wilters; and it is generally laid down in the English books that whatever will make a man an accessary in felony, will make him a principal in treason; but it is no where suggested that he is by construction to be considered as present when in point of fact he was absent.

Foster has been particularly quoted, and certainly he is precisely in point. "It is well known," says Foster, "that in the language of the case, there are no accessaries in high treason; all are principals. Every instance of incitement, aid, [**177] or protection, which in the case of felony will render a man an accessary before or after the fact, in the case of high treason, whether it be treason at common law or by statute, will make him a principal in treason." The cases of incitement and aid are cases put as examples of a man's becoming a principal in treason, not because he was legally present, but by force of that maxim in the common law, that whatever will render a man an accessary at common law will render him a principal in treason. In other passages the words "command" or "procure" are used to indicate the same state of things, that is, a treasonable assemblage produced by a man who is not himself in that assemblage.

In point of law then, the man who incites, aids, or procures a treasonable act, is not, merely in consequence of that incitement, aid or procurement, legally present when that act is committed.

[*492] If it does not result from the nature of the crime that all who are concerned in it are legally present at every overt act, then each case depends upon its own circumstances, and to judge how far the circumstances of any case can make him legally present who is in fact absent, the doctrine of constructive [**178] presence must be examined.

Hale, in his 1 vol. p. 615. says, "regularly no man can be a principal in felony unless he be present." In the same page he says, "an accessary before is he that being absent at the time of the felony committed, doth yet procure, counsel, or command another to commit a felony." The books are full of passages which state this to be the law. Foster, in showing what acts of concurrence will make a man a principal, says, "he must be present at the perpetration, otherwise he can be no more than an accessary before the fact."

These strong distinctions would be idle, at any rate they would be inapplicable to treason, if they were to be entirely lost in the doctrine of constructive presence.

Foster adds, p. 349. "when the law requireth the presence of the accomplice at the perpetration of the fact in order to render him a principal, it doth not require a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passeth." The terms used by Foster are such as would be employed by a man intending to show the necessity that the absent person should be near at hand, although from the nature of the thing no precise distance could [**179] be marked out. An inspection of the cases from which Foster drew this general principle will serve to illustrate it. (See Hale, 439.) In all these cases, put by Hale, the whole party set out together to commit the very fact charged in the indictment, or to commit some other unlawful act, in which they are all to be personally concerned at the same time and place, and are, at the very time when the criminal fact is committed, near enough to give actual personal aid and assistance to the man who perpetrated it. Hale, in p. 449. giving the reason for the decision in the case of the Lord Dacres, says, "they all came with an intent to steal the deer, and consequently the law supposes that they came all with the intent to oppose all that should hinder them in that design." The original case says this was their resolution. This opposition would be a personal opposition.This case, even as stated by Hale, would clearly not comprehend any man who entered into the combination, but who, instead of going to the park where the murder was committed, should not set out with the others, should go to a different park, or should even lose his way. See Hale, 534.

In both the cases here stated, the [**180] persons actually set out together, and were near enough to assist in the commission of the fact. That in the case of Pudsy the felony was, as stated by Hale, a different felony from that originally intended, is unimportant in regard to the particular principle now under consideration, so far as respected distance, as respected capacity to assist in case of resistance, it is the same as if the robbery had been that which was originally designed. The case in the original report shows that the felony committed was in fact in pursuance of that originally designed. Foster, 350. plainly supposes the same particular design, not a general design composed of many particular distinct facts.He supposes them to be co-operating with respect to that particular design. This may be illustrated by a case which is perhaps [*493] common. Suppose a band of robbers confederated for the general purpose of robbing. They set out together, or in parties, to rob a particular individual, and each performs the part assigned to him. Some ride up to the individual and demand his purse, others watch out of sight to intercept those who might be coming to assist the man on whom the robbery is to be committed. [**181] If murder or robbery actually take place, all are principals, and all in construction of law are present. But suppose they set out at the same time, or at different times, by different roads, to attack and rob different individuals or different companies; to commit distinct acts of robbery. It has never been contended that those who committed one act of robbery, or who failed altogether, were constructively present at the act of those who were associated with them in the common object of robbery, who were to share the plunder, but who did not assist at the particular fact. They do indeed belong to the general party, but they are not of the particular party which committed this fact. Foster concludes this subject by observing, that "in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary." That is, at the particular fact which is charged, he must be ready to render assistance to those who are committing that [***696] particular fact; he must, as is stated by Hawkins, be ready to give immediate and direct assistance.

All the cases to be found in the books go to the same point. [**182] Let them be applied to that under consideration.

The whole treason laid in this indictment is the levying of war in Blennerhassett's island, and the whole question to which the inquiry of the court is now directed is, whether the prisoner was legally present at that fact.

I say this is the whole question, because the prisoner can only be convicted on the overt act laid in the indictment.With respect to this prosecution, it is as if no other overt act existed. If other overt acts can be inquired into, it is for the sole purpose of proving the particular fact charged; it is as evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact.

The counsel for the prosecution have charged those engaged in the detence with considering the overt act as the treason, whereas it ought to be considered solely as the evidence of the treason; but the counsel for the prosecution seem themselves not to have sufficiently adverted to this clear principle, that though the overt act may not be itself the treason, it is the sole act of that treason which can produce conviction. It is the sole point in issue between the parties. And the only division [**183] of that point, if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged.

To return then to the application of the cases.

Had the prisoner set out with the party from Beaver for Blennerhassett's island, or, perhaps, had he set out for that place, though not from Beaver, and had arrived in the island, he would have been present at the fact; had he not arrived in the island, but had taken a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question [*494] compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law. In this case the accused would have been of the particular party assembled on the island, and would have been associated with them in the particular act of levying was said to have been committed on the island.

But if he was not with the party at any time before they reached the island; if he did not join them there, or intend to join them there; if his personal co-operation in the general plan was [**184] to be afforded elsewhere, at a great distance, in a different state; if the overt acts of treason to be performed by him were to be distinct overt acts; then he was not of the particular party assembled at Blennerhassett's island, and was not constructively present, aiding and assisting in the particular act which was there committed.

The testimony on this point, so far as it has been delivered, is not equivocal. There is not only no evidence that the accused was of the particular party which assembled on Blennerhassett's island, but the whole evidence shows he was not of that party.

In felony then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestibly an accessary, and not a principal.

But in treason, it is said, the law is otherwise, because the theatre of action is more extensive.

This reasoning applies in England as strongly as in the United States. While in '15 and '45 the family of Stuart sought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place, when actually at another; or as aiding [**185] in one transaction, while actually employed in another.

With the perfect knowledge that the whole nation may be the theatre of action, the English books unite in declaring, that he who counsels, procures, or aids treason, is guilty accessorially, and solely in virtue of the common law principle, that what will make a man an accessary in felony makes him a principal in treason. So far from considering a man as constructively present at every overt act of the general treason in which, he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with which he is charged.

What would be the effect of a different doctrine? Clearly that which has been stated. If a person levying war in Kentucky may be said to be constructively present and assembled with a party carrying on war in Virginia, at a great distance from him, then he is present at every overt act performed any where: he may be tried in any state on the continent, where any overt act has been committed; he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that [**186] he committed other acts.

This is, perhaps, too extravagant to be in terms maintained. Certainly it cannot be supported by the doctrines of the English law.

[*495] The opinion of Judge Paterson in Mitchell's case has been cited on this point. 2 Dal. 348.

The indictment is not specially stated; but from the case as reported, it must have been either general for levying war in the county of Alleghany, and the overt act laid must have been the assemblage of men and levying of war in that county; or it must have given a particular detail of the treasonable transactions in that county. The first supposition is the most probable; but let the indictment be in the one form or the other, and the result is the same. The facts of the case are, that a large body of men, of whom Mitchell was one, assembled at Braddock's field, in the county of Alleghany, for the purpose of committing acts of violence at Pittsburg. That there was also an assemblage at a different time at Couches fort, at which the prisoner also attended. The general and avowed object of that meeting was to concert measures for resisting the execution of a public law. At Couches fort the resolution was taken to attack [**187] the house of the inspector, and the body there assembled marched to that house and attacked it. It was proved by the competent number of witnesses, that he was at Couches fort armed, that he offered to reconnoitre the house to be attacked, that he marched with the insurgents towards the house, that he was with them after [***697] the action attending the body of one of his comrades who was killed in it; one witness swore positively that he was present at the burning of the house, and a second witness said that "it ran in his head that he had seen him there." That a doubt should exist in such a case as this is strong evidence of the necessity that the overt act should be unequivocally proved by two witnesses.

But what was the opinion of the judge in this case? Couches fort and Neville's house being in the same county, the assemblage having been at Couches fort, and the resolution to attack the house having been there taken, the body having for the avowed purpose moved in execution of that resolution towards the house to be attacked, he inclined to think that the act of marching was in itself levying war. If it was, then the overt act laid in the indictment was consummated by the [**188] assemblage at Couches, and the marching from thence, and Mitchell was proved to be guilty by more than two positive witnesses. But without deciding this to be the law, he proceeded to consider the meeting at Couches, the immediate marching to Neville's house, and the attack and burning of the house, as one transaction. Mitchell was proved by more than two positive witnesses to have been in that transaction, to have taken an active part in it, and the judge declared it to be unnecessary that all should have seen him at the same time and place.

But suppose not a single witness had proved Mitchell to have been at Couches, or on the march, or at Neville's. Suppose he had been at the time notoriously absent in a different state. Can it be believed by any person who observes the caution with which Judge Paterson required the constitutional proof of two witnesses to the same overt act, that he would have said Mitchell was constructively present, and might on that straining of a legal fiction be found guilty of treason? Had he delivered such an opinion, what would have been the language of this country respecting it? Had he given this opinion, it would have required all the correctness [**189] of his life to strike his name from that bloody list in which the name of Jefferies is enrolled.

[*496] But to estimate the opinion in Mitchell's case, let its circumstances be transferred to Burr's case. Suppose the body of men assembled in Blennerhassett's island had previously met at some other place in the same county, and that Burr had been proved to be with them by four witnesses; that the resolution to march to Blennerhassett's island for a treasonable purpose had been there taken; that he had been seen on the march with them; that one witness had seen him on the island; that another thought he had seen him there; that he had been seen with the party directly after leaving the island; that this indictment had charged the levying of war in Wood county generally; the cases would then have been perfectly parallel, and the decisions would have been the same.

In conformity with principle and with authority, then, the prisoner at the bar was neither legally nor actually present at Blennerhassett's island; and the court is strongly inclined to the opinion, that without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved. [**190]

But this opinion is controverted on two grounds.

The first is, that the indictment does not charge the prisoner to have been present.

The second, that although he was absent, yet, if he caused the assemblage, he may be indicted as being present, and convicted on evidence that he caused the treasonable act.

The first position is to be decided by the indictment itself. The court understands the allegation differently from the attorney for the United States. The court understands it to be directly charged, that the prisoner did assemble with the multitude and did march with them. Nothing will more clearly test this construction than putting the case into a shape which it may possibly take. Suppose the law to be, that the indictment would be defective unless it alleged the presence of the person indicted at the act of treason. If upon a special verdict facts should be found which amounted to a levying of war by the accused, and his counsel should insist that he could not be condemned because the indictment was defective in not charging that he was himself one of the assemblage which constituted the treason, or because it alleged the procurement defectively, would the attorney [**191] admit this construction of his indictment to be correct? I am persuaded that he would not, and that he ought not to make such a concession. If, after a verdict, the indictment ought to be construed to allege that the prisoner was one of the assemblage at Blennerhassett's island, it ought to be so construed now. But this is unimportant, for if the indictment alleges that the prisoner procured the assemblage, that procurement becomes part of the overt act, and must be proved as will be shown hereafter.

The second position is founded on 1 Hale, 214. 288. and 1 East, 127.

While I declare that this doctrine contradicts every idea I had ever entertained on the subject of indictments, since it admits that one case may be stated and a very different case may be proved, I will acknowledge that it is countenanced by the authorities adduced in its support. To counsel or advise [*497] a treasonable assemblage, and to be one of that assemblage, are certainly distinct acts, and therefore ought not to be charged as the same act. The great objection to this mode of proceeding is, that the proof essentially varies from the charge in the character and essence of the offence, and in the testimony [**192] by which the accused is to defend himself. These dicta of Lord Hale, therefore, taken in the extent in which they are understood by the counsel for the United States seem to be repugnant to the declarations we find every where, that an overt act must be laid, and must be proved. No case is cited by Hale in support of them, and I am strongly inclined to the opinion that, had the public received his corrected, instead of his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description. Laid down generally, and applied to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed. These principles are, that the [***698] indictment must give notice of the offence: that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, and if they will admit of being understood in a [**193] limited sense, not repugnant to his own doctrines, nor to the general principles of law, to understand them in that sense.

"If many conspire to counterfeit, or counsel or abet it, and one of them doth the fact upon that counselling or conspiracy, it is treason in all, and they may be all indicted for counterfeiting generally within the statute, for in such case, in treason, all are principals."

This is laid down as applicable singly to the treason of counterfeiting the coin, and is not applied by Hale to other treasons. Had he designed to apply the principle universally, he would have stated it as a general proposition; he would have laid it down in treating on other branches of the statute, as well as in the chapter respecting the coin; he would have laid it down when treating on indictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be found in Lord Hale, while on the doctrine of levying war, or on the general doctrine of indictments, militates against the opinion that he considered the proposition as more extensive than he has declared it to be. No court could be justified in extending the dictum of a judge beyond its [**194] terms, to cases in which he has expressly treated, to which he has not himself applied it, and on which he as well as others has delivered opinions which that dictum would overrule. This would be the less justifiable if there should be a clear legal distinction indicated by the very terms in which the judge has expressed himself between the particular case to which alone he has applied the dictum, and other cases to which the court is required to extend it.

There is this clear legal distinction. "They may," says Judge Hale, "be indicted for counterfeiting generally." But if many conspire to levy war, and some actually levy it, they may not be indicted for levying war generally. The books concur in declaring that they cannot be so indicted. A special overt act of levying war must be laid. This distinction between counterfeiting the coins, and that class of treasons among which levying war is placed, is taken in the statute of Edward III. That statute requires an [*498] overt act of levying war to be laid in the indictment, and does not require an overt act of counterfeiting the coin to be laid. If in a particular case where a general indictment is sufficient, it be stated [**195] that the crime may be charged generally according to the legal effect of the act, it does not follow, that in other cases where a general indictment would be insufficient, where an overt act must be laid, that this overt act need not be laid according to the real fact. Hale, then, is to be reconciled with himself, and with the general principles of law, only by permitting the limits which he has himself given to his own dictum, to remain where he has placed them.

In p. 238. Hale is speaking generally of the receiver of a traitor, and is stating in what such receiver partakes of an accessary.1st. "His indictment must be special of the receipt, and not generally that he did the thing, which may be otherwise in case of one that is procurer, counsellor or consenter."

The words "may be otherwise" do not clearly convey the idea that it is universally otherwise. In all cases of a receiver the indictment must be special on the receipt, and not general. The words it "may be otherwise in case of a procurer," &c. signify that it may be otherwise in all treasons, or that it may be otherwise in some treasons. If it may be otherwise in some treasons without contradicting the doctrines of [**196] Hale himself, as well as of other writers, but cannot be otherwise in all treasons without such contradiction, the fair construction is, that Hale used these words in their restricted sense; that he used them in reference to treasons, in which a general indictment would lie, not to treasons where a general indictment would not lie, but an overt act of the treason must be charged. The two passages of Hale thus construed, may perhaps be law, and may leave him consistent with himself. If appears to the court to be the fair way of construing them.

These observations relative to the passages quoted from Hale, apply to that quoted from East, who obviously copies from Hale, and relies upon his authority.

Upon this point Keeling, 26. and 1 Hale, 626. have also been relied upon. It is stated in both, that if a man be indicted as a principal and acquitted, he cannot afterwards be indicted as accessary before the fact. Whence it is inferred, not without reason, that evidence of accessorial guilt may be received on such an indictment. Yet no case is found in which the question has been made and decided. The objection has never been taken at a trial and overruled, nor do the books say it [**197] would be overruled. Were such a case produced its application would be questionable. Keeling says, an accessary before the fact is quodam modo, in some manner guilty of the fact. The law may not require that the manner should be stated, for in felony it does not require that an overt act should be laid. The indictment therefore may be general. But an overt act of levying war must be laid. These cases then prove in their utmost extent no more than the cases previously cited from Hale and East. This distinction between indictments which may state the fact generally, and those which must lay it specially, bear some analogy to a general and a special action on the case. In a general action, the declaration may lay the assumpsit according to the legal effect of the transaction, but in a special action on the case, the declaration must state the material circumstances truly, and they must be proved as stated. This distinction also derives some aid from a passage in Hale, 625. immediately preceding [*499] that which has been cited at the bar. He says, "If A. be indicted as principal, and B. as accessary before or after, and both be acquitted, yet B. may be indicted as principal, [**198] and the former acquittal as accessary is no bar.

The crimes, then, are not the same, and may not indifferently be tried under the same indictment. But why is it that an acquittal as principal may be pleaded in bar to an indictment as accessary, while an acquittal as accessary may not be pleaded in bar to an indictment as principal? [***699] If it be answered that the accessorial crime may be given in evidence on an indictment as principal, but that the principal crime may not be given in evidence on an indictment as accessary, the question recurs, on what legal ground does this distinction stand? I can imagine only this. An accessary being quodam modo a principal, in indictments where the law does not require the manner to be stated, which need not be special, evidence of accessorial guilt, if the punishment be the same, may possibly be received; but every indictment as an accessary must be special. The very allegation that he is an accessary must be a special allegation, and must show how he became an accessary. The charges of this special indictment, therefore, must be proved as laid, and no evidence which proves the crime in a form substantially different can be received. [**199] If this be the legal reason for the distinction, it supports the exposition of these dicta which has been given. If it be not the legal reason, I can conceive no other.

But suppose the law to be as is contended by the counsel for the United States. Suppose an indictment, charging an individual with personally assembling among others, and thus levying war, may be satisfied with the proof that he caused the assemblage. What effect will this law have upon this case?

The guilt of the accused, if there be any guilt, does not consist in the assemblage, for he was not a member of it. The simple fact of assemblage no more affects one absent man than another. His guilt then consists in procuring the assemblage, and upon this fact depends his criminality. The proof relative to the character of an assemblage must be the same whether a man be present or absent.In the general, to charge any individual with the guilt of an assemblage, the fact of his presence must be proved. It constitutes an essential part of the overt act. If then the procurement be substituted in the place of presence, does it not also constitute an essential part of the overt act? Must it not also be proved? Must [**200] it not be proved in the same manner that presence must be proved? If in one case the presence of the individual makes the guilt of the assemblage his guilt, and in the other case the procurement by the individual makes the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.

Collateral points may, say the books, be proved according to the course of the common law: but is this a collateral point? Is the fact, without which the accused does not participate in the guilt of the assemblage, if it was guilty, a collateral point? This cannot be. The presence of the party, where presence is necessary, being a part of the overt act, must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred, will satisfy the constitution and the law. If procurement [*500] take the place of presence, and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred, can satisfy the constitution and the law. The mind is not to be led to the conclusion that the individual was [**201] present, by a train of conjectures or inferences, or of reasoning: the fact must be proved by two witnesses. Neither where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences, or of reasoning; the fact itself must be proved by two witnesses, and must have been committed within the district.

If it be said that the advising or procurement of treason is a secret transaction which can scarcely ever be proved in the manner required by this opinion; the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. The more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself.

If then the doctrines of Keeling, Hale and East are to be understood in the sense in which they are pressed [**202] by the counsel for the prosecution, and are applicable in the United States, the fact that the accused procured the assemblage on Blennerhassett's island must be proved, not circumstantially, but positively by two witnesses, to charge him with that assemblage. But there are still other most important considerations, which must be well weighed before this doctrine can be applied to the United States.

The eighth amendment to the constitution has been pressed with great force, and it is impossible not to feel its application to this point. The accused cannot be truly said to be "informed of the nature and cause of the accusation," unless the indictment shall give him that notice which may reasonably suggest to him the point on which the accusation turns, so that he may know the course to be pursued in his defence.

It is also well worthy of consideration, that this doctrine, so far as it respects treason, is entirely supported by the operation of the common law, which is said to convert the accessary before the fact into the principal, and to make the act of the principal his act.The accessary before the fact is not said to have levied war. He is not said to be guilty under the statute. [**203] But the common law attaches to him the guilt of that fact which he has advised or procured, and, as contended, makes it his act. This is the operation of the common law, not the operation of the statute. It is an operation then which can only be performed where the common law exists to perform it. It is the creature of the common law, and the creature presupposes its creator. To decide then that this doctrine is applicable to the United States, would seem to imply the decision that the United States, as a nation, have a common law which creates and defines the punishment of crimes accessorial in their nature. It would imply the further decisions that these accessorial crimes are not, in the case of treason, excluded by the definition of treason given in the constitution. I will not pretend that I have not individually an opinion on these points, but [*501] it is one which I should give only in a case absolutely requiring it, unless I could confer [***700] respecting it with the judges of the supreme court.

I have said that this doctrine cannot apply to the United States, without implying those decisions respecting the common law which I have stated, because, should [**204] it be true, as is contended, that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage. If the adviser or procurer is within the definition of levying war, and independent of the agency of the common law, does actually levy war, then the advisement or procurement is an overt act of levying war. If it be the overt act on which he is to be convicted, then it must be charged in the indictment for he can only be convicted on proof of the overt acts which are charged.

To render this distinction more intelligible, let it be recollected, that although it should be conceded that since the statute of William and Mary, he who advises or procures a treason may in England be charged as having committed that treason, by virtue of the common law operation, which is said, so far as respects the indictment, to unite the accessorial to the principal offence, and permit them to be charged as one, yet it can never be conceded that he who commits one overt act under the statute of Edward, can be charged and convicted on proof of another [**205] overt act. If then procurement be an overt, act of treason under the constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender.

It may not be improper in this place again to advert to the opinion of the supreme court, and to show that it contains nothing contrary to the doctrine now laid down. That opinion is, that an individual may be guilty of treason "who has not appeared in arms against his country; that if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, 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."

This opinion does not touch the case of a person who advises or procures an assemblage, and does nothing further. The advising certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war, than of the actual levying of war. According to the opinion, it is not enough to be leagued in the conspiracy, [**206] and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. This part, it is true, may be minute: it may not be the actual appearance in arms, and it may be remote from the scene of action, that is, from the place where the army is assembled; but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part, however minute or remote, constitutes the overt act on which alone the person who performs it can be convicted.

The opinion does not declare that the person who has performed this remote and minute part may be indicted for a part which was in truth performed [*502] by others, and convicted on their overt acts. It amounts to this and nothing more, that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy, and who perform the various distinct parts which are necessary for the prosecution of war, do in the sense of the constitution levy war. It may possibly be the opinion of the supreme court, that those who procure a treason, and do nothing further, are guilty under the constitution; I only say that opinion has not yet been given; [**207] still less has it been indicated, that he who advises shall be indicted as having performed the fact.

It is then the opinion of the court, that this indictment can be supported only by testimony which proves the accused to have been actually or constructively present when the assemblage took place on Blennerhassett's island, or by the admission of the doctrine that he who procures an act may be indicted as having performed that act.

It is further the opinion of the court, that there is no testimony whatever which tends to prove that the accused was actually or constructively present when that assemblage did take place. Indeed the contrary is most apparent. With respect to admitting proof of procurement to establish a charge of actual presence, the court is of opinion, that if this be admissible in England on an indictment for levying war, which is far from being conceded, it is admissible only by virtue of the operation of the common law upon the statute, and therefore is not admissible in this country unless by virtue of a similar operation; a point far from being established, but on which, for the present, no opinion is given. If, however, this point be established, still the [**208] procurement must be proved in the same manner, and by the same kind of testimony which would be required to prove actual presence.

The second point in this division of the subject, is the necessity of adducing the record of the previous conviction of some one person who committed the fact alleged to be treasonable.

This point presupposes the treason of the accused, if any has been committed, to be accessorial in its nature. Its being of this description according to the British authorities, depends on the presence or absence of the accused at the time the fact was committed. The doctrine on this subject is well understood, has been most copiously explained, and need not be repeated. That there is no evidence of his actual or legal presence is a point already discussed and decided. It is then apparent that, but for the exception to the general principle which is made in cases of treason, those who assembled at Blennerhassett's island, if that assemblage was such as to constitute the crime, would be principals, and those who might really have caused that assemblage; although in truth the chief traitors, would in law be accessaries.

It is a settled principle in the law that the [**209] accessary cannot be guilty of greater offence than his principal The maxim is accessorius sequitur naturam sui principalis; the accessary follows the nature of his principal. Hence results the necessity of establishing the guilt of the principal before the accessary can be tried. [***701] For the degree of guilt which is incurred by counselling or commanding the commission of a crime depends upon the actual commission [*503] of that crime. No man is an accessary to murder unless the fact has been committed.

The fact can only be established in a prosecution against the person by whom a crime has been perpetrated. The law supposes a man more capable of defending his own conduct than any other person, and will not tolerate that the guilt of A. shall be established in a prosecution against B. Consequently, if the guilt of B. depends on the guilt of A.A. must be convicted before B. can be tried. It would exhibit a monstrous deformity, indeed, in our system, if B. might be executed for being accessary to a murder committed by A. and A. should afterwards, upon a full trial, be acquitted of the fact. For this obvious reason, although the punishment of a principal and accessary [**210] was originally the same, and although in many instances it is still the same, the accessary could in no case be tried before the conviction of his principal, nor can he yet be tried previous to such conviction, unless he requires it, or unless a special provision to that effect be made by statute.

If, then, this was a felony, the prisoner at the bar could not be tried until the crime was established by the conviction of the person by whom it was actually perpetrated.

Is the law otherwise in this case, because in treason all are principals?

Let this question be answered by reason and by authority.

Why is it that in felonies however atrocious, the trial of the accessary can never precede the conviction of the principal? Not because the one is denominated the principal and the other the accessary, for that would be ground on which a great law principle could never stand. Not because there was in fact a difference in the degree of moral guilt, for in the case of murder committed by a hardy villain for a bribe, the person plotting the murder and giving the bribe, is, perhaps, of the two the blacker criminal; and, were it other wise, this would furnish no argument for precedence in [**211] trial.

What, then, is the reason?

It has been already given. The legal guilt of the accessary depends on the guilt of the principal; and the guilt of the principal can only be established in a prosecution against himself.

Does not this reason apply in full force to a case of treason?

The legal guilt of the person who planned the assemblage on Blennerhassett's island depends, not simply on the criminality of the previous conspiracy, but on the criminality of that assemblage. If those who perpetrated the fact be nor traitors, he who advised the fact cannot be a traitor. His guilt, then, in contemplation of law, depends on theirs, and their guilt can only be established in a prosecution against themselves. Whether the adviser of this assemblage be punishable with death as a principal or as an accessary, his liability to punishment depends on the degree of guilt attached to an act which has been perpetrated by others, and which, if it be a [*504] criminal act, renders them guilty also. His guilt therefore depends on theirs, and their guilt cannot be legally established in a prosecution against him.

The whole reason of the law, then, relative to the principal and accessary, [**212] so far as respects the order of trial, seems to apply in full force to a case of treason committed by one body of men in conspiracy with others who are absent.

If from reason we pass to authority, we find it laid down by Hale, Foster, and East, in the most explicit terms, that the conviction of some one who has committed the treason must precede the trial of him who has advised or procured it. This position is also maintained by Leach in his notes on Hawkins, and is not, so far as the court has discovered, any where contradicted.

These authorities have been read and commented on at such length, that it cannot be necessary for the court to bring them again into view. It is the less necessary, because it is not understood that the law is controverted by the counsel for the United States.

It is, however, contended, that the prisoner has waived his right to demand the conviction of some one person who was present at the fact, by pleading to his indictment.

Had this indictment even charged the prisoner according to the truth of the case, the court would feel some difficulty in deciding that he had by implicacation waived his right to demand a species of testimony essential to his [**213] conviction. The court is not prepared to say that the act which is to operate against his rights did not require that it should be performed with a full knowledge of its operation.It would seem consonant to the usual course of proceeding in other respects, in criminal cases, that the prisoner should be informed that he had a right to refuse to be tried until some person who committed the act should be convicted, and that he ought not to be considered as waiving the right to demand the record of conviction, unless with the full knowledge of that right he consented to be tried. The court, however, does not decide what the law would be in such a case. It is unnecessary to decide it, because pleading to an indictment in which a man is pharged as having committed an act, cannot be construed to waive a right which he would have possessed, had he been charged with having advised the act. No person indicted as a principal can be expected to say I am not a principal, I am an accessary; I did not commit, I only advised the act.

The authority of the English cases on this subject depends in a great measure on the adoption of the common law doctrine of accessorial treasons. If that doctrine [**214] be excluded, this branch of it may not be directly applicable to treasons committed within the United States. If the crime of advising or procuring a levying of war be within the constitutional definition of treason, then he who advises or procures it must be indicted on the very fact, and the question whether the treasonableness of the act may be decided in the first instance in the trial of him who procured it, or must be decided in the trial of one who committed it, will depend upon the reason, as it respects the law [*505] of evidence, which produced the British decisions with regard to the trial of principal and accessary, rather than on the positive authority of those decisions.

This question is not essential in the present case, because it the crime be within the constitutional [***702] definition, it is an overt act of levying war, and to produce a conviction ought to have been charged in the indictment.

The law of the case being thus far settled, what ought to be the decision of the court on the present motion? Ought the court to set and hear testimony which cannot affect the prisoner, or ought the court to arrest that testimony? On this question much has been [**215] said -- much that may perhaps be ascribed to a misconception of the point really under consideration. The motion has been treated as a motion confessedly made to stop relevant testimony, and in the course of the argument, it has been repeatedly stated by those who oppose the motion, that irrelevant testimony may and ought to be stopped. That this statement is perfectly correct, is one of those fundamental principles in judicial proceedings which is acknowedged by all, and is founded in the absolute necessity of the thing. No person will contend that in a civil or criminal case, either party is at liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details of facts unconnected with the particular case. Some tribunal, then, must decide on the admissibility of testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it, for the question is whether they shall hear the testimony or not. Who, then, but the court can constitute it? It is of necessity the peculiar province of the court to judge of the admissibility of testimony.If the court admit improper or reject proper testimony, it is [**216] an error of judgment, but it is an error committed in the direct exercise of their judicial functions.

The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses.It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessaries should render it unnecessary; and there is not only no witness who has proved his actual or legal presence; but the fact of his absence is not controverted.The counsel for the prosecution offer to give in evidence subsequent transactions, at a different place, and in a different state, in order to prove what? The overt act laid in the indictment? That the prisoner was one of those who assembled at Blennerhassett's island? No, that is not alleged. It is well known that such testimony is not competent to establish such a fact. The constitution and law require that the fact should be established by two witnesses, not by the establishment [**217] of other facts from which the jury might reason to this fact. The testimony, then, is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses, in such manner that the question of fact ought to be left with the jury. The conclusion that in this state of things no testimony can be admissible, is so inevitable, that the counsel for the United States could not resist it. I do not understand them to deny, that if the overt act be not proved by two witnesses so as to be submitted to the jury, that all other testimony must be [*506] irrelevant, because no other testimony can prove the act.Now an assemblage on Blennerhassett's island is proved by the requisite number of witnesses, and the court might submit it to the jury, whether that assemblage amounted to a levying of war, but the presence of the accused at that assemblage being no where alleged except in the indictment, the overt act is not proved by a single witness, and of consequence, all other testimony must be irrelevant.

The only difference between this motion as made, and the motion in the form which the counsel [**218] for the United States would admit to be regular, is this. It is now general for the rejection of all testimony. It might be particular with respect to each witness as adduced. But can this be wished, or can it be deemed necessary? If enough is proved to show that the indictment cannot be supported, and that no testimony unless it be of that description which the attorney for the United States declares himself not to possess, can be relevant, why should a question be taken on each witness?

The opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion.

If a contradiction between the two opinions does exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact, of which the jury, aided by the court, must judge. To that declaration the court still adheres.

It was said that if the overt act was not proved by two witnesses, no testimony in its nature corroborative or confirmatory, was admissible, or could be relevant.

From that declaration there is certainly no departure. It has been asked, in allusion to the present case, if a general commanding an army should detach [**219] troops for a distant service, would the men composing that detachment be traitors, and would the commander in chief escape punishment?

Let the opinion which has been given answer this question. Appearing at the head of an army would, according to this opinion, be an overt act of levying war; detaching a military corps from it for military purposes might also be an overt act of levying war. It is not pretended that he would not be punishable for these acts, it is only said that he may be tried and convicted on his own acts, in the state where those acts were committed, not on the acts of others in the state where those others acted.

Much has been said in the course of the argument on points, on which the court feels no inclination to comment particularly, but which may, perhaps not improperly, receive some notice.

That this court dares not usurp power is most true.

That this court dares not shrink from its duty is not less true.

No man is desirous of placing himself in a disagreeable situation. Noman is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the [*507] bottom. But [**220] if he has no choice in the case; if there is no alternative presented to him but a dereliction [***703] of duty, or the opprobium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace.

That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that they would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.

The arguments on both sides have been intently and deliberately considered. Those which could not be noticed, since to notice every argument and authority would swell this opinion to [**221] a volume, have not been disregarded. The result of the whole is a conviction as complete as the mind of the court is capable of receiving on a complex subject, that the motion must prevail.

No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blennerhassett's island, can be admitted, because such testimony, being in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant, until there be proof of the overt act by two witnesses.

This opinion does not comprehend the proof by two witnesses that the meeting on Blennerhassett's island was procured by the prisoner. On that point the court, for the present, withholds its opinion for reasons which have been already assigned; and as it is understood from the statements made on the part of the prosecution, that no such testimony exists. If there be such, let it be offered and the court will decide upon it.

The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.

 

DISSENTBY:

JOHNSON

 

DISSENT:

 

[*101contd] [**222] [***563contd]

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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 [*102] 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 [**223] 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 [*103] may from time to time establish. The second section declares the extent of that power, and distinguishes [**224] its jurisdiction into original and appellate.

The original jurisdiction of this court is restricted to cases affecting ambassadors or other [***564] 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. [**225]

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 [*104] 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 hd 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 [**226] 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. [**227] 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 [*105] 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 [**228] 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 [**229] 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 [*106] 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 [***565] 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 [**230] 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 [**231] 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 [*107] 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 [**232] 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 [**233] 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.

[*108] February 16.

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 be law have directed. So [**234] 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.

[*109] 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 [**235] known. The 6th amendment to the constitution provides that the accused "shall enjoy the [***566] 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 [**236] 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.

[*110] 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 [**237] 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 [**238] that if the object was such an expendition at all events, and if they had intended [*111] 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 [**239] 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 whooly useless; for every court or magistrate who commits a person to [*112] 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, [**240] 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 [***567contd]

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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 [**241] 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 [*113] 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 n6 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 Meade 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 without 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 [*114] the presence of the court. It is not a power inherent in the court, [**243] 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.