done towards a rebel, will be a levying of war. (3 Wil- Ex parte Bollson's Lectures, 105. 4 Bla. Com. 92.) In treason all are principals. There are no accessories. It has been argued (and the respectable authority of Judge Tucker is cited) that none are principals but those present at the treasonable act. The argument may have some weight, but it is a point at least doubtful, and therefore ought to be left to be decided on the trial. It is true that we cannot at present say exactly when and where the overt act of levying war was committed, but from the affidavits we think it fair to infer that an army has been actually levied and arrayed. The declaration of one of the prisoners was, that Col. Burr was levying an armed body of 7,000 men." How the fact has turned out to be since we do not know; and it is also true that we do not know that any men have been seen collected in military array. But Dr. Bollman informed General Wilkinson that he had seen a letter from Col. Burr, in which he says that he should be at Natchez *with 2,000 men on the 20th of December, and that he would be followed by 4,000 more, and that he could have raised 12,000 as easily as 6,000, but he did not think that number necessary. If Col. Burr was actually levying an armed body of men; if he expected to be at 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. But any It was uncertain whether any, and if any, what place was prescribed for the trial of this offence. court of the United States had jurisdiction to commit for trial by the act of congress for the punishment of certain crimes, &e. vol. 1. p. 103. s. 8. "The trial of crimes committed on the high seas, or in any place out man and Swartwout. *116 man and Swartwout. Ex parte Boll- 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 66 upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state," yet the last clause of the section is general, and in its terms applies to the trial of all crimes committed out of the jurisdiction of any particular state. This act of congress is the only exercise of the provision of the 3d article of the constitution respecting crimes committed not within any state. Unless this act of congress fixes the place of trial, there is no place prescribed, either by the law or the constitution, and the trial may as well be in the district of Columbia as elsewhere. But if this act of congress does fix the place, then it is objected, that this district is neither that in which the prisoners were apprehended, nor that into which they were first brought. *117 The answer is, that the act of congress means the district in which they shall be legally apprehended, that is, arrested by process of law. It could not mean a mere military seizure. But whether the court below had or had not jurisdiction to try the prisoners, it clearly had jurisdiction to commit them; and if their commitment be irregular, this court will say how they ought to be committed. Laws U. S. vol. 1. p. 73. s. 33. It is objected, that although the judges and justices have power to arrest, yet the courts have not, and therefore cannot issue a bench-warrant but upon the presentment of a grand jury, or for an offence committed in the presence of the court. And the practice of Maryland is cited. But it is stated that at Montgomery Court, in Maryland, very lately, a venerable and ancient judge of that court did issue a bench-warrant for an offence not presented by the grand jury, nor committed in presence of the court.(a) It is not necessary that the commitment should state (a) F. S. Key stated that he was present at the transaction alluded to. The facts were, that after the court adjourned, and as the judge was going out of the court-house, a man who had been waiting in the yard assaulted a lawyer in the presence of the judge, for disrespectful language used by the lawyer in arguing a cause. The judge considered it as a contempt of court, and there fore directed a bench-warrant to issue. man and Swartwout. the place of trial, nor that they are committed for trial. Ex parte BollIf 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 gaol 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 shown that Pollock and Carrick were duly appointed justices of the peace, and having *undertaken to act as such, it is to be presumed that they have taken the necessary oaths. It is admitted that the constitution has prevented many questions as to the doctrine of treason. The intention of having a constitutional definition of the crime, was to put it out of the power of congress to invent treasons. But it was impossible to define what should in every case be deemed a levying of war. It is a question of fact to be decided by the jury from all the circumstances. Warlike array is not necessary. It is only a circumstance. 1 East's Gr. Law, 66. According to the English books, a direct levying of war, is a war directly against the person of the king. A constructive levying of war, is war against the government. If men have been levied, and arms provided, with a treasonable intent, this is a sufficient levying of war, without warlike array. The affidavit of General Eaton establishes the treasonable intent in Col. 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 connection of the prisoners with Col. Burr, and their knowledge of his projects. He observed that his argument, on a former occasion, respecting the president's message to congress, had been misunderstood. A state of war is a matter of public notoriety, and he had considered the president's message as evidence of that notoriety, it being a communication from the supreme executive in the course of his duty, to that department of government which alone could decide on the state of war. He contended that no specific number, no sufficiency of force to accomplish the object, was necessary to constitute treason. *118 Ex parte Bollman and Swartwout. * 119 * 120 If soldiers are levied and officered, with a treasonable intent, and equipments prepared, so that they can readily lay hold of their arms; although no men are *actually armed; although only five men in a detachment should march to assemble at a place of rendezvous, and although there should be no warlike array, yet it would be treason. Any thing which amounts to setting on foot a military expedition, with intent to levy war against the United States, is treason. The distinction between those who are present at the overt act of levying war, and those who are confederated, adhering, acting and assisting, giving aid and comfort, is contrary to all analogy. In treason all are principals. In murder, if two conspire, and one is acting and assisting at such a distance as to give aid, he is equally guilty with him who gave the wound. It has been insinuated that General Wilkinson is to be considered as particeps criminis. If that were the case, it would be no disqualification of his testimony. Treason is a greater crime in republics than in mónarchies, and ought to be more severely punished. Harper, in reply, congratulated his country on the triumph of correct principles, in the abandonment, on the part of the prosecution, of the dangerous doctrine, that executive messages were to be received as evidence in a criminal prosecution. [Jones. The sole purpose for which we introduced the president's message, was to show that the assemblage of a military force by Col. Burr was a matter of notoriety. We did not attempt or wish to introduce it as direct evidence.] Harper. To use an executive message in a court of justice, for any purpose of proof whatever, so as to aid in the commitment of a citizen under a criminal accusation; to introduce it as evidence of any fact; (of notoriety, for instance, which is a fact;) is to give it the effect of testimony, and is a direct violation of the constitution. *We object to the translation of the ciphered letter contained in General Wilkinson's affidavits, being ad mitted 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 Col. Burr, or by his direction, nor that the prisoners were acquainted with its contents. Ex parte Boll Another objection to the affidavits is, that they were not made for the purpose of procuring an arrest. They were not made before the judicial officer on whose warrant the proceedings of the court were to be founded; and who would have been bound to cross-examine the witness, to sift the facts, and to judge how far they were proved, and how far they were sufficient to justify the proceedings. But, after a military arrest, the affidavits are drawn up by the author of the arrest, without cross-examination or inquiry, and were sworn to by him, as the justification of his conduct. The persons whom he has thus arrested are sent to a distant part of the country, and these affidavits are sent after them, to operate as the ground of their commitment and detention. No person can lawfully be committed on testimony so taken. In cases of arrests and commitments, the general rules of evidence are no further to be departed from than the necessity of the case requires. On application to a magistrate for a warrant of arrest, the evidence must necessarily be ex parte, but no other departure from the common rules of evidence is justifiable, because not necessary. It is a general rule of law respecting testimony, that it shall be taken before the tribunal which is to act upon it, or under the direction of that tribunal; that the person who is to decide, shall also inquire; that the inquiry shall not be before one tribunal, and the judgment pronounced by another. This rule, so important to the safety of persons accused, is equally applicable to arrests and commitments as to trials, and should, therefore, be equally observed. The party arrested and brought before the magistrate for commitment, has a right to, be confronted with his accuser, and to cross-examine the witnesses produced against him, and by that means to explain circumstances which, at first view, might criminate him. But if the practice *which is attempted in this case be sanctioned by this court; if a military officer, or any other person, is to be permitted to seize a man and Swartwout. * 121 |