U.S. Supreme Court
Ex Parte Bollman and Ex Parte Swartwout, 8 U.S. 4 Cranch 75 75 (1807)
Ex Parte Bollman and Ex Parte Swartwout
8 U.S. (4 Cranch) 75*
This Court has power to issue the writ of habeas corpus ad subjiciendum.
To constitute a levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistments of men to serve against government is not sufficient.
When war is levied, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors.
Any assemblage of men for the purpose of revolutionizing by force the government established by the United States in any of its territories, although as a step to or the means of executing some greater projects, amounts to levying war. The traveling of individuals to the place of rendezvous is not sufficient, but the meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous is such an assemblage as constitutes a levying of war.
A person may be committed for a crime by one magistrate upon an affidavit made before another. A magistrate who is found acting as such must be presumed to have taken the requisite oaths.
Quaere whether, upon a motion to commit a person for treason, an affidavit stating the substance of a letter in possession of the affiant, be admissible evidence?
The clause of the eighth section of the act of Congress, "for the punishment of crimes against the United States," which provides that
"The trial of crimes committed on the high seas or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought"
applies only to offenses committed on the high seas or in some river, haven, basin, or bay not within the jurisdiction of a particular state and not to the territories of the United States where regular courts are established competent to try those offenses.
The word "apprehended" in that clause of the act does not simply imply a legal arrest to the exclusion of a military arrest or seizure.
C. Lee moved for a habeas corpus to the Marshal of the District of Columbia to bring up the body of Samuel Swartwout, who had been committed by the Circuit Court of that District on the charge of treason against the United States and for a certiorari to bring up the record of the commitment, &c.
And on a subsequent day Harper made a similar motion in behalf of Erick Bollman, who had also been committed by the same court on a like charge.
On a former day (Feb. 5), C. Lee had made a motion for a habeas corpus to a military officer to bring up the body of James Alexander, an attorney at law at New Orleans, who, as it was said, had been seized by an armed force under the orders of General Wilkinson and transported to the City of Washington.
The order of the court below for their commitment was in these words:
"The prisoners, Erick Bollman and Samuel Swartwout, were brought up to court in custody of the marshal,
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. chanroblesvirtualawlibrary