This Court has power to issue the writ of habeas corpus ad
To constitute a levying of war, there must be an assemblage of
persons for the purpose of effecting by force a treasonable
purpose. Enlistments of men to serve against government is not
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.
whether, upon a motion to commit a person for
treason, an affidavit stating the substance of a letter in
possession of the affiant, be admissible evidence?
The clause of the eighth section of the act of Congress, "for
the punishment of crimes against the United States," which provides
"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
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
The word "apprehended" in that clause of the act does not simply
imply a legal arrest to the exclusion of a military arrest or
C. Lee moved for a habeas corpus to the Marshal of the District
of Columbia to bring up the body of Samuel Swartwout, who had been
committed by the Circuit Court of that District on the charge of
treason against the United States and for a certiorari to bring up
the record of the commitment, &c.
And on a subsequent day Harper made a similar motion in behalf
of Erick Bollman, who had also been committed by the same court on
a like charge.
On a former day (Feb. 5), C. Lee had made a motion for a habeas
corpus to a military officer to bring up the body of James
Alexander, an attorney at law at New Orleans, who, as it was said,
had been seized by an armed force under the orders of General
Wilkinson and transported to the City of Washington.
The order of the court below for their commitment was in these
"The prisoners, Erick Bollman and Samuel Swartwout, were brought
up to court in custody of the marshal,
Page 8 U. S. 76
arrested on a charge of treason against the United States, on
the oaths of General James Wilkinson, General William Eaton, James
L. Donaldson, Lieutenant William Wilson, and Ensign W. C. Mead, and
the court went into further examination of the charge, whereupon it
is ordered that the said Erick Bollman and Samuel Swartwout be
committed to the prison of this Court, to take their trial for
treason against the United States by levying war against it, to be
there kept in safe custody until they shall be discharged in due
course of law. *
The oaths referred to in the order for commitment, were
affidavits in writing, and were filed in the court below.
Page 8 U. S. 93
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
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
Courts which originate in the common law possess a jurisdiction
which must be regulated by their common law until some statute
shall change their established principles, but courts which are
created by written law and whose jurisdiction is defined by written
law cannot transcend that jurisdiction. It is unnecessary to state
the reasoning on which this opinion is founded, because it has been
repeatedly given by this Court, and with the decisions heretofore
rendered on this point no member of the bench has even for an
instant been dissatisfied. The reasoning from the bar in relation
to it may be answered by the single observation that for the
Page 8 U. S. 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
The 14th section of the judicial act (Laws U.S. vol. 1. p. 58)
has been considered as containing a substantive grant of this
It is in these words:
"That all the before mentioned courts of the United States shall
have power to issue writs of scire facias,
and all other writs not specially provided for by statute which may
be necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law. And that either of
the justices of the Supreme Court as well as judges of the district
courts shall have power to grant writs of habeas corpus for the
purpose of an inquiry into the cause of commitment. Provided that
writs of habeas corpus shall in no case extend to prisoners in gaol
unless where they are in custody under or by color of the authority
of the United States or are committed for trial before some court
of the same or are necessary to be brought into court to testify.
Page 8 U. S. 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 cause which they are capable of finally
It has been urged that in strict grammatical construction these
words refer to the last antecedent, which is "all other writs not
specially provided for by statute."
This criticism may be correct, and is not entirely without its
influence, but the sound construction which the court thinks it
safer to adopt is that the true sense of the words is to be
determined by the nature of the provision and by the context.
It may be worthy of remark that this act was passed by the first
Congress of the United States, sitting under a Constitution which
had declared "that the privilege of the writ of habeas corpus
should not be suspended unless when, in cases of rebellion or
invasion, the public safety might require it."
Acting under the immediate influence of this injunction, it must
have felt with peculiar force the obligation of providing efficient
means by which this great constitutional privilege should receive
life and activity, for if the means be not in existence, the
privilege itself would be lost, although no law for its suspension
should be enacted. Under the impression of this obligation, they
give, to all the courts, the power of awarding writs of habeas
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.
Page 8 U. S. 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
It has been argued that Congress could never intend to give a
power of this kind to one of the judges of this Court which is
refused to all of them when assembled.
There is certainly much force in this argument, and it receives
additional strength from the consideration that if the power be
denied to this Court, it is denied to every other court of the
United States; the right to grant this important writ is given in
this sentence to every judge of the circuit or district court, but
can neither be exercised by the circuit nor district court. It
would be strange if the judge, sitting on the bench, should be
unable to hear a motion for this writ where it might be openly
made, and openly discussed, and might yet retire to his chamber,
and in private receive and decide upon the motion. This is not
consistent with the genius of our legislation nor with the course
of our judicial proceedings. It would be much more consonant with
both that the power of the judge at his chambers should be
suspended during his term than that it should be exercised only in
Whatever motives might induce the legislature to withhold from
the Supreme Court the power to award the great writ of habeas
corpus, there could be none which would induce them to withhold it
from every court in the United States, and as it is granted to all
in the same sentence and by the same words, the sound construction
would seem to be that the first sentence vests this power in all
the courts of the United States; but as those courts are not always
in session, the second sentence vests it in every justice or judge
of the United States.
The doubt which has been raised on this subject may be further
explained by examining the character of the various writs of habeas
corpus and selecting those to which this general grant of power
must be restricted if taken in the limited sense of being merely
used to enable
Page 8 U. S. 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
This case may occur when a party having a right to sue in this
Court, as a state at the time of the passage of this act or a
foreign minister wishes to institute a suit against a person who is
already confined by the process of an inferior court. This
confinement may be either by the process of a court of the United
States or of a state court. If it be in a court of the United
States, this writ would be inapplicable because perfectly useless,
and consequently could not be contemplated by the legislature. It
would not be required in such case to bring the body of the
defendant actually into court, as he would already be in the charge
of the person who, under an original writ from this Court, would be
directed to take him into custody, and would already be confined in
the same jail in which he would be confined under the process of
this Court if he should be unable to give bail.
If the party should be confined by process from a state court,
there are many additional reasons against the use of this writ in
such a case.
The state courts are not in any sense of the word inferior
courts except in the particular cases in which an appeal lies from
their judgment to this Court, and in these cases the mode of
proceeding is particularly prescribed, and is not by habeas corpus.
They are not inferior courts because they emanate from a different
authority, and are the creatures of a distinct government.
2d. The writ of habeas corpus ad satisfaciendum,
"when a prisoner hath had judgment against him in an action and
the plaintiff is desirous to bring him up to
Page 8 U. S. 98
some superior court to charge him with process of
This case can never occur in the courts of the United States.
One court never awards execution on the judgment of another. Our
whole juridical system forbids it.
3d. Ad prosequendum, testificandum, deliberandum,
"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
4th and last. The common writ ad faciendum et
"which issues out of any of the courts of Westminster Hall when
a person is sued in some inferior jurisdiction and is desirous to
remove the action into the superior court, commanding the inferior
judges to produce the body of the defendant, together with the day
and cause of his caption and detainer (whence the writ is
frequently denominated an habeas corpus cum causa,
) to do
and receive whatever the King's court shall consider in that
behalf. This writ is grantable of common right, without any motion
in court, and it instantly supersedes all proceedings in the court
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
Page 8 U. S. 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.
itself proves that this was not the intention of the legislature.
It concludes with the following proviso,
"That writs of habeas corpus shall in no case extend to
prisoners in jail unless where they are in custody under or by
color of the authority of the United States or are committed for
trial before some court of the same or are necessary to be brought
into court to testify."
This proviso extends to the whole section. It limits the powers
previously granted to the courts, because it specifies a case in
which it is particularly applicable to the use of the power by
courts: where the person is necessary to be brought into court to
testify. That construction cannot be a fair one which would make
the legislature except from the operation of a proviso, limiting
the express grant of a power, the whole power intended to be
From this review of the extent of the power of awarding writs of
habeas corpus, if the section be construed in its restricted sense;
from a comparison of the nature of the writ which the courts of the
United States would, on that view of the subject, be enabled to
issue; from a comparison of the power so granted with the other
parts of the section, it is apparent that this limited sense of the
term cannot be that which was contemplated by the legislature.
But the 33d section throws much light upon this question. It
contains these words:
"And upon all arrests in criminal cases, bail shall be admitted
except where the punishment may be death, in which cases it shall
not be admitted but by the supreme or a circuit court or by a
Justice of the Supreme Court, or a judge of a district
Page 8 U. S. 100
court, who shall exercise their discretion therein regarding the
nature and circumstances of the offense and of the evidence and of
the usages of law."
The appropriate process of bringing up a prisoner, not committed
by the court itself, to be bailed is by the writ now applied for.
Of consequence, a court possessing the power to bail prisoners not
committed by itself may award a writ of habeas corpus for the
exercise of that power. The clause under consideration obviously
proceeds on the supposition that this power was previously given,
and is explanatory of the 14th section.
If, by the sound construction of the act of Congress, the power
to award writs of habeas corpus in order to examine into the cause
of commitment is given to this Court, it remains to inquire whether
this be a case in which the writ ought to be granted.
The only objection is that the commitment has been made by a
court having power to commit and to bail.
Against this objection the argument from the bar has been so
conclusive that nothing can be added to it.
If then this were res integra,
the court would decide
in favor of the motion. But the question is considered as long
since decided. The case of Hamilton is expressly in point in all
its parts, and although the question of jurisdiction was not made
at the bar, the case was several days under advisement, and this
question could not have escaped the attention of the Court. From
that decision the Court would not lightly depart. United
States v. Hamilton,
3 Dall. 17.
If the act of Congress gives this Court the power to award a
writ of habeas corpus in the present case, it remains to inquire
whether that act be compatible with the Constitution.
In the mandamus case, ante,
vol. 1. p. 5
U. S. 137
, Marbury v. Madison,
it was decided
that this Court would not exercise original jurisdiction except so
far as that jurisdiction was given by the Constitution. But so far
Page 8 U. S. 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 by which a citizen has been committed to jail.
It has been demonstrated at the bar that the question brought
forward on a habeas corpus is always distinct from that which is
involved in the cause itself. The question whether the individual
shall be imprisoned is always distinct from the question whether he
shall be convicted or acquitted of the charge on which he is to be
tried, and therefore these questions are separated, and may be
decided in different courts.
The decision that the individual shall be imprisoned must always
precede the application for a writ of habeas corpus, and this writ
must always be for the purpose of revising that decision, and
therefore appellate in its nature.
But this point also is decided in Hamilton's Case
in Burford's Case.
If at any time the public safety should require the suspension
of the powers vested by this act in the courts of the United
States, it is for the legislature to say so.
That question depends on political considerations, on which the
legislature is to decide. Until the legislative will be expressed,
this Court can only see its duty, and must obey the laws.
The motion, therefore, must be granted.
* The warrant by which they were brought before the court was as
"DISTRICT OF COLUMBIA, to-wit:"
"The United States of America to the Marshal of the District of
"Whereas there is probable cause, supported by the oath of James
Wilkinson, William Eaton, James Lowrie Donaldson, William C. Mead,
and William Wilson, to believe that Erick Bollman, commonly called
Doctor Erick Bollman, late of the City of Philadelphia in the state
of Pennsylvania, gentleman, and Samuel Swartwout, late of the City
of New York, in the State of New York, gentleman, are guilty of the
crime of treason against the United States of America."
"These are, therefore, in the name of the said United States, to
command you that you take the bodies of the said Erick Bollman and
Samuel Swartwout if they shall be found in the County of Washington
in your said district, and them safely keep so that you have their
bodies before the Circuit Court of the district of Columbia for the
County of Washington, now sitting at the Capitol, in the City of
Washington, immediately to answer unto the United States of America
of and concerning the charge aforesaid. Hereof fail not at your
peril, and have you then and there this writ. Witness the Honorable
WILLIAM CRANCH, Esq., Chief Judge of the said Court, this 27
"[Seal] WILLIAM BRENT, Clerk"
"Issued 27 January, 1807."
In this case, I have the misfortune to dissent from the majority
of my brethren. As it is a case of much interest, I feel it
incumbent upon me to assign the reasons upon which I adopt the
opinion that this Court has not authority to issue the writ of
habeas corpus now moved for. The prisoners are in confinement under
a commitment ordered by the Superior
Page 8 U. S. 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
Two questions were presented to the consideration of the
1st. Does this Court possess the power generally of issuing the
writ of habeas corpus?
2d. Does it retain that power in this case after the commitment
by the District Court of Columbia?
In support of the affirmative of the first of these questions,
two grounds were assumed.
1st. That the power to issue this writ was necessarily incident
to this Court as the supreme tribunal of the union.
2d. That it is given by statute, and the right to it has been
recognized by precedent.
On the first of these questions it is not necessary to ponder
long. This Court has uniformly maintained that it possesses no
other jurisdiction or power than what is given it by the
Constitution and laws of the United States or is necessarily
incident to the exercise of those expressly given.
Our decision must then rest wholly on the due construction of
the Constitution and laws of the union and the effect of precedent,
a subject which certainly presents much scope for close legal
inquiry, but very little for the play of a chastened
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
Page 8 U. S. 103
may from time to time establish. The second section declares the
extent of that power and distinguishes its jurisdiction into
original and appellate.
The original jurisdiction of this Court is restricted to cases
affecting ambassadors or other public ministers and consuls and
those in which a state shall be a party. In all other cases within
the judicial powers of the union, it can exercise only an appellate
jurisdiction. The former it possesses independently of the will of
any other constituent branch of the general government. Without a
violation of the Constitution, that division of our jurisdiction
can neither be restricted or extended. In the latter, its powers
are subjected to the will of the legislature of the union, and it
can exercise appellate jurisdiction in no case, unless expressly
authorized to do so by the laws of Congress. If I understand the
case of Marbury v. Madison,
it maintains this doctrine in
its full extent. I cannot see how it could ever have been
It is incumbent, then, I presume, on the counsel, in order to
maintain their motion, to prove that the issuing of this writ is an
act within the power of this Court in its original jurisdiction, or
that, in its appellate capacity, the power is expressly given by
the laws of Congress.
This it is attempted to do, by the fourteenth and thirtythird
sections of the Judiciary Act and the cases of Hamilton
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
Page 8 U. S. 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 had exercised a
jurisdiction it did not possess. Strange indeed would be the
doctrine that an inadvertency once committed by a court shall ever
after impose on it the necessity of persisting in its error. A case
that cannot be tested by principle is not law, and in a thousand
instances have such cases been declared so by courts of
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
upon the face of it evidence of its being entitled to little
consideration, and that the authority of it was annihilated by the
very able decision in Marbury v. Madison.
In this case, it
was decided that Congress could not vest in the Supreme Court any
original powers beyond those to which this Court is restricted by
the Constitution. That an act of Congress vesting in this Court the
power to issue a writ of mandamus in a case not within their
original jurisdiction and in which they were not called upon to
exercise an appellate jurisdiction was unconstitutional and void.
In the case of Hamilton,
the Court does not assign the
reasons on which it founds its decisions, but it is fair to presume
that it adopted the idea which appears to have been admitted by the
district attorney in his argument, to-wit that this Court possessed
a concurrent power with the district court in admitting to bail.
Now a concurrent power in such a case must be an original
Page 8 U. S. 105
power, and the principle in Marbury v. Madison
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
It is necessary to premise that the case of treason is one in
which this Court possesses neither original nor appellate
jurisdiction. The 14th section of the Judiciary Act, so far as it
has relation to this case, is in these words:
"All the before-mentioned courts [of which this is one] of the
United States shall have power to issue writs of scire
habeas corpus, and all other writs not specially
provided for by statute, which may be necessary for the exercise of
their respective jurisdictions and agreeable to the principles and
usages of law."
I do not think it material to the opinion I entertain what
construction is given to this sentence. If the power to issue the
writs of scire facias
and habeas corpus be not restricted
to the cases within the original or appellate jurisdiction of this
Court, the case of Marbury and Madison
rejects the clause
as unavailing, and if it relate only to cases within their
jurisdiction, it does not extend to the case which is now moved
for. But it is impossible to give a sensible construction to that
clause without taking the whole together; it consists of but one
sentence, intimately connected throughout, and has for its object
the creation of those powers which probably would have vested in
the respective courts without statutory provision as incident to
the exercise of their jurisdiction. To give to this clause the
construction contended for by counsel would be to suppose that the
legislature would commit the absurd act of granting the power of
issuing the writs of scire facias
and habeas corpus
without an object or end to be answered by them. This idea is not a
little supported by the next succeeding clause, in which a power is
vested in the individual judges to issue the writ of habeas corpus
expressly for the purpose of inquiring into the cause of
commitment. That part of the thirtythird section of the Judiciary
Act which relates to this subject is in the following words:
Page 8 U. S. 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 the supreme or a circuit court or by a justice
of the Supreme Court or a judge of a district court, who shall
exercise their discretion therein, regarding the nature and
circumstances of the offense and of the evidence and usage of
On considering this act, it cannot be denied that if it vests
any power at all, it is an original power. "It is the essential
criterion of appellate jurisdiction that it revises and corrects
the proceedings in a cause already instituted." I quote the words
of the Court in the case of Marbury v. Madison.
And so far is this clause from giving a power to revise and
correct, that it actually vests in the district judge the same
latitude of discretion by the same words that it communicates to
this Court. And without derogating from a respectability which I
must feel as deep an interest in maintaining as any member of this
Court, I must believe that the district court, or any individual
district judge, possesses the same power to revise our decision
that we do to revise theirs -- nay, more, for the powers with which
they may be vested are not so particularly limited and divided by
the Constitution as ours are. Should we perform an act which
according to our own principle we cannot be vested with power to
perform, what obligation would any other court or judge be under to
respect that act? There is one mode of construing this clause,
which appears to me to remove all ambiguity, and to render every
part of it sensible and operative. By the consent of his sovereign,
a foreign minister may be subjected to the laws of the state near
which he resides. This Court may then be called upon to exercise an
original criminal jurisdiction. If the power of this Court to bail
be confined to that one case, reddendo singula singulis,
if the power of the several courts and individual judges be
referred to their respective jurisdictions, all clashing and
interference of power ceases, and sufficient means of redress are
still held out to the citizen, if deprived of his liberty, and this
surely must have been the intention of the legislature. It never
could have been contemplated that the mandates of this Court
Page 8 U. S. 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 with our judicial characters, for on that
point the Constitution has left much to construction, and on such
an application the only doubt that could be entertained would be
whether we can exercise any power beyond the limits of our
respective circuits. On this question I will not now give an
opinion. One more observation, and I dismiss the subject.
In the case of Burford,
I was one of the members who
constituted the Court. I owe it to my own consistency to declare
that the Court was then apprized of my objections to the issuing of
the writ of habeas corpus. I did not then comment at large on the
reasons which influenced my opinion, and the cause was this: the
gentleman who argued that cause confined himself strictly to those
considerations which ought alone to influence the decisions of this
Court. No popular observations on the necessity of protecting the
citizen from executive oppression, no animated address calculated
to enlist the passions or prejudices of an audience in defense of
his motion, imposed on me the necessity of vindicating my opinion.
I submitted in silent deference to the decision of my brethren.
In this case I feel myself much relieved from the painful
sensation resulting from the necessity of dissenting from the
majority of the Court in being supported by the opinion of one of
my brethren, who is prevented by indisposition from attending.
Page 8 U. S. 125
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
The prisoners having been brought before this Court on a writ of
habeas corpus, and the testimony on which they were committed
having been fully examined and attentively considered, the Court is
now to declare the law upon their case.
This being a mere inquiry, which, without deciding upon guilt,
precedes the institution of a prosecution, the question to be
determined is whether the accused shall be discharged or held to
trial, and if the latter in what place they are to be tried, and
whether they shall be confined or admitted to bail. "If," says a
very learned and accurate commentator,
"upon this inquiry it manifestly appears that no such crime has
been committed, or that the suspicion entertained of the prisoner
was wholly groundless, in such cases only is it lawful totally to
discharge him. Otherwise he must either be committed to prison or
The specific charge brought against the prisoners is treason in
levying war against the United States.
As there is no crime which can more excite and agitate the
passions of men than treason, no charge demands more from the
tribunal before which it is made a deliberate and temperate
inquiry. Whether this inquiry be directed to the fact or to the
law, none can be more solemn, none more important to the citizen or
to the government; none can more affect the safety of both.
To prevent the possibility of those calamities which result from
the extension of treason to offenses of minor
Page 8 U. S. 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
To constitute that specific crime for which the prisoners now
before the court have been committed, war must be actually levied
against the United States. However flagitious may be the crime of
conspiring to subvert by force the government of our country, such
conspiracy is not treason. To conspire to levy war, and actually to
levy war, the distinct offenses. The first must be brought into
operation by the assemblage of men for a purpose treasonable in
itself or the fact of levying war cannot have been committed. So
far has this principle been carried that in a case reported by
Ventris and mentioned in some modern treatises on criminal law, it
has been determined that the actual enlistment of men to serve
against the government does not amount to levying war. It is true
that in that case the soldiers enlisted were to serve without the
realm, but they were enlisted within it, and if the enlistment for
a treasonable purpose could amount to levying war, then war had
been actually levied.
It is not the intention of the Court to say that no individual
can be guilty of this crime who has not appeared in arms against
his county. On the contrary, if war be actually levied -- that is
if a body of men be actually assembled for the purpose of effecting
by force a treasonable purpose -- all those who perform any part,
however minute or however remote from the scene of action, and who
are actually leagued in the general conspiracy, are to be
considered as traitors. But there must be an actual assembling of
men for the treasonable purpose to constitute a levying of war.
Crimes so atrocious as those which have for their object the
subversion by violence of those laws and those
Page 8 U. S. 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
is competent to provide for the case, and the framers of our
Constitution, who not only defined and limited the crime but with
jealous circumspection attempted to protect their limitation by
providing that no person should be convicted of it unless on the
testimony of two witnesses to the same overt act or on confession
in open court, must have conceived it more safe that punishment in
such cases should be ordained by general laws, formed upon
deliberation, under the influence of no resentments, and without
knowing on whom they were to operate than that it should be
inflicted under the influence of those passions which the occasion
seldom fails to excite and which a flexible definition of the crime
or a construction which would render it flexible might bring into
operation. It is therefore more safe as well as more consonant to
the principles of our Constitution that the crime of treason should
not be extended by construction to doubtful cases, and that crimes
not clearly within the constitutional definition should receive
such punishment as the legislature in its wisdom may provide.
To complete the crime of levying war against the United States,
there must be an actual assemblage of men for the purpose of
executing a treasonable design. In the case now before the Court, a
design to overturn the government of the United States in New
Orleans by force would have been unquestionably a design which, if
carried into execution, would have been treason, and the assemblage
of a body of men for the purpose of carrying it into execution
would amount to levying of war against the United States; but no
conspiracy for this object, no enlisting of men to effect it, would
be an actual levying of war.
In conformity with the principles now laid down have been the
decisions heretofore made by the judges of the United States.
Page 8 U. S. 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 United
States by force, they are only guilty of a high misdemeanor; but if
they proceed to carry such intention into execution by force, that
they are guilty of the treason of levying war, and the quantum of
the force employed neither lessens nor increases the crime --
whether by one hundred, or one thousand persons, is wholly
immaterial. . . . The court are of opinion [continued Judge Chase
on that occasion] that a combination or conspiracy to levy war
against the United States is not treason unless combined with an
attempt to carry such combination or conspiracy into execution;
some actual force or violence must be used in pursuance of such
design to levy war, but it is altogether immaterial whether the
force used is sufficient to effectuate the object -- any force
connected with the intention will constitute the crime of levying
The application of these general principles to the particular
case before the Court will depend on the testimony which has been
exhibited against the accused.
The first deposition to be considered is that of General Eaton.
This gentleman connects in one statement the purport of numerous
conversations held with Colonel Burr throughout the last winter. In
the course of these conversations were communicated various
criminal projects which seem to have been revolving in the mind of
the projector. An expedition against Mexico seems to have been the
first and most matured part of his plan, if indeed it did not
constitute a distinct and separate plan,
Page 8 U. S. 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
enterprise, and in explaining to him the means by which it was to
This deposition exhibits the various schemes of Col. Burr, and
its materiality depends on connecting the prisoners at the bar in
such of those schemes as were treasonable. For this purpose the
affidavit of General Wilkinson, comprehending in its body the
substance of a letter from Colonel Burr, has been offered, and was
received by the circuit court. To the admission of this testimony
great and serious objections have been made. It has been urged that
it is a voluntary, or rather an extrajudicial, affidavit, made
before a person not appearing to be a magistrate, and contains the
substance only of a letter, of which the original is retained by
the person who made the affidavit.
The objection that the affidavit is extrajudicial resolves
itself into the question whether one magistrate may commit on an
affidavit taken before another magistrate. For if he may, an
affidavit made as the foundation of a commitment ceases to be
extrajudicial, and the person who makes it would be as liable to a
prosecution for perjury as if the warrant of commitment had been
issued by the magistrate before whom the affidavit was made.
To decide that an affidavit made before one magistrate would not
justify a commitment by another might in many cases be productive
of great inconvenience, and does not appear susceptible of abuse if
the verity of the certificate be established. Such an affidavit
seems admissible on the principle that before the accused is put
upon his trial, all the proceedings are ex parte.
Court therefore overrules this objection.
Page 8 U. S. 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
The first of these objections is not supported by the law of the
case, and the second may be so readily corrected that the Court has
proceeded to consider the subject as if it were corrected,
retaining however any final decision, if against the prisoners,
until the correction shall be made. With regard to the third, the
magistrate must be presumed to have taken the requisite oaths,
since he is found acting as a magistrate.
On the admissibility of that part of the affidavit which
purports to be as near the substance of the letter from Colonel
Burr to General Wilkinson as the latter could interpret it, a
division of opinion has taken place in the Court. Two judges are of
opinion that as such testimony delivered in the presence of the
prisoner on his trial would be totally inadmissible, neither can it
be considered as a foundation for a commitment. Although in making
a commitment the magistrate does not decide on the guilt of the
prisoner, yet he does decide on the probable cause, and a long and
painful imprisonment may be the consequence of his decision. This
probable cause, therefore, ought to be proved by testimony in
itself legal, and which, though from the nature of the case it must
be ex parte,
ought in many other respects to be such as a
court and jury might hear.
Two judges are of opinion that in this incipient stage of the
prosecution an affidavit stating the general purport of a letter
may be read, particularly where the person in possession of it is
at too great a distance to admit of
Page 8 U. S. 131
its being obtained, and that a commitment may be founded on
Under this embarrassment it was deemed necessary to look into
the affidavit for the purpose of discovering whether, if admitted,
it contains matter which would justify the commitment of the
prisoners at the bar on the charge of treason.
That the letter from Colonel Burr to General Wilkinson relates
to a military enterprise mediated by the former has not been
questioned. If this enterprise was against Mexico, it would amount
to a high misdemeanor; if against any of the territories of the
United States or if in its progress the subversion of the
government of the United States in any of their territories was a
means clearly and necessarily to be employed, if such means formed
a substantive part of the plan, the assemblage of a body of men to
effect it would be levying war against the United States.
The letter is in language which furnishes no distinct view of
the design of the writer. The cooperation, however, which is stated
to have been secured points strongly to some expedition against the
territories of Spain. After making these general statements, the
writer becomes rather more explicit and says
"Burr's plan of operations is to move down rapidly from the
falls on 15 November with the first 500 or 1,000 men in light boats
now constructing for that purpose, to be at Natchez between 5 and
15 December, there to meet Wilkinson; then to determine whether it
will be expedient in the first instance to seize on or to pass by
Baton Rouge. The people of the country to which we are going are
prepared to receive us. Their agents now with Burr say that if we
will protect their religion and will not subject them to a foreign
power, in three weeks all will be settled."
There is no expression in these sentences which would justify a
suspicion that any territory of the United States was the object of
Page 8 U. S. 132
For what purpose seize on Baton Rouge; why engage Spain against
this enterprise if it was designed against the United States?
"The people of the country to which we are going are prepared to
receive us." This language is peculiarly appropriate to a foreign
country. It will not be contended that the terms would be
inapplicable to a territory of the United States, but other terms
would more aptly convey the idea, and Burr seems to consider
himself as giving information of which Wilkinson was not possessed.
When it is recollected that he was the governor of a territory
adjoining that which must have been threatened if a territory of
the United States was threatened, and that he commanded the army, a
part of which was stationed in that territory, the probability that
the information communicated related to a foreign country, it must
be admitted, gains strength.
"Their agents now with Burr say that if we will protect their
religion and will not subject them to a foreign power, in three
weeks all will be settled."
This is apparently the language of a people who, from the
contemplated change in their political situation, feared for their
religion and feared that they would be made the subjects of a
foreign power. That the Mexicans should entertain these
apprehensions was natural, and would readily be believed. They
were, if the representation made of their dispositions be correct,
about to place themselves much in the power of men who professed a
different faith from theirs and who, by making them dependent on
England or the United States, would subject them to a foreign
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
Page 8 U. S. 133
to an enterprise against any territory of the United States.
That the bearer of this letter must be considered as acquainted
with its contents is not to be controverted. The letter and his own
declarations evince the fact.
After stating himself to have passed through New York and the
western states and territories without insinuating that he had
performed on his route any act whatever which was connected with
the enterprise, he states their object to be, "to carry an
expedition into the Mexican provinces."
This statement may be considered as explanatory of the letter of
Col. Burr if the expressions of that letter could be thought
But there are other declarations made by Mr. Swartwout which
constitute the difficulty of this case. On an inquiry from General
Wilkinson, he said "this territory would be revolutionized where
the people were ready to join them, and that there would be some
seizing, he supposed, at New Orleans."
If these words import that the government established by the
United States in any of its territories was to be revolutionized by
force, although merely as a step to or a means of executing some
greater projects, the design was unquestionably treasonable, and
any assemblage of men for that purpose would amount to a levying of
war. But on the import of the words a difference of opinion exists.
Some of the judges suppose they refer to the territory against
which the expedition was intended; others to that in which the
conversation was held. Some consider the words, if even applicable
to a territory of the United States, as alluding to a revolution to
be effected by the people, rather than by the party conducted by
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
Page 8 U. S. 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
That the association, whatever may be its purpose, is not
treason has been already stated. That levying an army may or may
not be treason, and that this depends on the intention with which
it is levied and on the point to which the parties have advanced,
has been also stated. The mere enlisting of men, without assembling
them, is not levying war. The question then is whether this
evidence proves Col. Burr to have advanced so far in levying an
army as actually to have assembled them.
It is argued that since it cannot be necessary that the whole
7,000 men should have assembled, their commencing their march by
detachments to the place of rendezvous must be sufficient to
constitute the crime.
This position is correct, with some qualification. It cannot be
necessary that the whole army should assemble and that the various
parts which are to compose it should have combined. But it is
necessary that there should be an actual assemblage, and therefore
the evidence should make the fact unequivocal.
The traveling of individuals to the place of rendezvous would
perhaps not be sufficient. This would be an equivocal act, and has
no warlike appearance. The meeting of particular bodies of men and
their marching from places of partial to a place of general
rendezvous would be such an assemblage.
The particular words used by Mr. Swartwout are that Col. Burr
"was levying an armed body of 7,000 men."
Page 8 U. S. 135
If the term "levying" in this place imports that they were
assembled, then such fact would amount, if the intention be against
the United States, to levying war. If it barely imports that he was
enlisting or engaging them in his service, the fact would not
amount to levying war.
It is thought sufficiently apparent that the latter is the sense
in which the term was used. The fact alluded to, if taken in the
former sense, is of a nature so to force itself upon the public
view that if the army had then actually assembled, either together
or in detachments, some evidence of such assembling would have been
laid before the court.
The words used by the prisoner in reference to seizing at New
Orleans and borrowing perhaps by force from the bank, though
indicating a design to rob, and consequently importing a high
offense, do not designate the specific crime of levying war against
the United States.
It is therefore the opinion of a majority of the Court that in
the case of Samuel Swartwout, there is not sufficient evidence of
his levying war against the United States to justify his commitment
on the charge of treason.
Against Erick Bollman there is still less testimony. Nothing has
been said by him to support the charge that the enterprise in which
he was engaged had any other object than was stated in the letter
of Colonel Burr. Against him, therefore, there is no evidence to
support a charge of treason.
That both of the prisoners were engaged in a most culpable
enterprise against the dominions of a power at peace with the
United States those who admit the affidavit of General Wilkinson
cannot doubt. But that no part of this crime was committed in the
district of Columbia is apparent. It is therefore the unanimous
opinion of the court that they cannot be tried in this
Page 8 U. S. 136
The law read on the part of the prosecution is understood to
apply only to offenses committed on the high seas or in any river,
haven, basin, or bay not within the jurisdiction of any particular
state. In those cases there is no court which has particular
cognizance of the crime, and therefore the place in which the
criminal shall be apprehended, or, if he be apprehended where no
court has exclusive jurisdiction, that to which he shall be first
brought, is substituted for the place in which the offense was
But in this case, a tribunal for the trial of the offense,
wherever it may have been committed, had been provided by Congress,
and at the place where the prisoners were seized by the authority
of the commander in chief there existed such a tribunal. It would,
too, be extremely dangerous to say that because the prisoners were
apprehended not by a civil magistrate, but by the military power,
there could be given by law a right to try the persons so seized in
any place which the general might select and to which he might
direct them to be carried.
The act of Congress which the prisoners are supposed to have
violated describes as offenders those who begin or set on foot, or
provide, or prepare the means for any military expedition or
enterprise to be carried on from thence against the dominions of a
foreign prince or state with whom the United States is at
There is a want of precision in the description of the offense
which might produce some difficulty in deciding what cases would
come within it. But several other questions arise which a Court
consisting of four judges finds itself unable to decide, and
therefore, as the crime with which the prisoners stand charged has
not been committed, the Court can only direct them to be
discharged. This is done with the less reluctance because the
discharge does not acquit them from the offense which there is
probable cause for supposing they have committed, and if those
whose duty it is to protect the nation by prosecuting offenders
against the laws shall suppose
Page 8 U. S. 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 offense has been
committed, institute fresh proceedings against them.