Ex Parte Bollman and Swartwout
2 L. Ed. 554, 4 Cranch 75, 8 U.S. 75 (1807)
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Rule of Law:
The Supreme Court has the authority under statute to issue a writ of habeas corpus to review the commitment of a prisoner held under the order of any federal court. The constitutional crime of treason by levying war requires an actual assemblage of men for a treasonable purpose, not merely a conspiracy to do so.
Facts:
- Erick Bollman and Samuel Swartwout were civilians associated with a military enterprise being organized by former Vice President Aaron Burr.
- Swartwout delivered a ciphered letter from Burr to General James Wilkinson, the commander of the U.S. Army in New Orleans.
- The letter detailed Burr's plan to move down the Mississippi River with a body of men and mentioned seizing or passing Baton Rouge.
- In conversations with General Wilkinson, Swartwout stated that Burr was levying an armed body of 7,000 men and that the territory of Orleans would be "revolutionized."
- Bollman also communicated with Wilkinson regarding Burr's plans, which were ambiguous as to whether their objective was an invasion of Spanish Mexico or the separation of western U.S. territories.
- General Wilkinson, acting on his own military authority, arrested Bollman and Swartwout in New Orleans.
- The men were then transported to Washington, D.C. for legal proceedings.
- No evidence was presented showing that a body of men had actually assembled in a warlike manner to carry out Burr's plans.
Procedural Posture:
- Erick Bollman and Samuel Swartwout were arrested in New Orleans by military authority and transported to the District of Columbia.
- The prisoners were brought before the U.S. Circuit Court for the District of Columbia on a charge of treason against the United States.
- After an examination of evidence, including an affidavit from General James Wilkinson, the circuit court ordered the prisoners to be committed for trial on the charge of treason.
- The prisoners then moved the Supreme Court of the United States to issue a writ of habeas corpus to inquire into the cause of their commitment.
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Issue:
Does the Supreme Court have the authority to issue a writ of habeas corpus to examine the cause of commitment for prisoners held under an order from a federal circuit court on a charge of treason?
Opinions:
Majority - Marshall, Ch. J.
Yes. The Supreme Court has the authority to issue the writ of habeas corpus in this case. Section 14 of the Judiciary Act of 1789 provides a substantive grant of power to all federal courts to issue writs of habeas corpus. The Court's use of the writ to review the decision of an inferior court that has committed a citizen to jail is an exercise of its appellate jurisdiction, not its original jurisdiction, and is therefore consistent with the Constitution as interpreted in Marbury v. Madison. Upon reviewing the evidence, the Court finds it insufficient to establish probable cause for treason. To constitute treason by 'levying war,' there must be an actual assemblage of men for that purpose; a mere conspiracy to levy war or the enlisting of men is not sufficient. As there is no proof such an assemblage occurred, the prisoners must be discharged.
Dissenting - Johnson, J.
No. The Supreme Court does not have the authority to issue a writ of habeas corpus in this case. Issuing such a writ to inquire into a commitment ordered by a circuit court is an exercise of original, not appellate, jurisdiction. The Constitution strictly limits the Court's original jurisdiction, and Congress cannot expand it. The principle of Marbury v. Madison, which held that Congress could not grant the Court original power to issue a writ of mandamus, applies equally to the writ of habeas corpus. The statutory grant of power in the Judiciary Act must be read as applying only to cases already within the Court's established jurisdiction, which this is not.
Analysis:
Ex parte Bollman is a foundational case for both federal court jurisdiction and the law of treason. It firmly established the Supreme Court's power to issue the writ of habeas corpus as an instrument of appellate review over commitments by lower federal courts, reinforcing the Court's role as the ultimate guardian of federal law and individual liberty. The decision's narrow interpretation of the Treason Clause, requiring an 'actual assemblage of men' for levying war, set a high evidentiary bar for treason prosecutions. This has had a lasting impact, making treason convictions in the United States exceedingly rare and protecting political dissent from being easily criminalized as treason.
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