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Federal Gazette & Baltimore Daily Advertiser 1807/01-1807/06 msa_sc3722_2_6_1-0199 Enlarge and print image (4M) |
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Federal Gazette & Baltimore Daily Advertiser 1807/01-1807/06 msa_sc3722_2_6_1-0199 Enlarge and print image (4M) |
| " OPINION! Of Jurtice JOHNSON, mi the motion"1 for a :EAS CORPUS, in ike case • f UNITED STATES; 'a;. SWARTWOU.T #¦ BOLLMAN. In this cast' I have the misfortune to dis- sent from th« majority of my brethren. As it is a case cf much interest, I feel it incum- bent upon in-- to assign'the reasons, upon ¦which I adopt the opinion, that this court lias not the authority to issue the v, habeas corpus now moved for. The pi ers are in confinement under a commitment ordered by the superior court of the district of Colombia, upon a charge of high trea- son. This motion has for its object, their discharge or admission to bail, wilder 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 r.o- tice such objections as occur to my mind jteainst mehts urged by the counsel for the prisoners. Two questions, were presented to the con- sideration of the court. 1st. Dees this court possess the power generally of issuing the writ of habeas corpus i 2d. Does it re- tain that power in this case after the com- mitment 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. su- preme tribunal of the union. 2dly. That it is givWi by statute, and the right to it has been recognized- by tent. On the first of these questions it is not necessary to ponder long, this court has uni- formly maintained that it possesses no other jurisdiction or power that! what is given it by tbetconstitution and laws of the United States, or is necessarily incident to the ex- ercise .of those expressly given. Our uecision must then rest-wholly on the due construction of the constitution and laws of the union, and the .effect of prece- dent, , which certainly presents much scope for close legal inquiry, but very little for the play of a chastened iruagina- taoit. Tire 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 may from time to time establish. The second jectioh declares tire extent of that power ishes its jurisdiction into an ori- ( ginal and appi usisdiction of this court is restricted to cases affecting ambassadors or lublic ministers and consuls, and those in which a state shall be a party. In all other cases vw judicial powers of the uni- on, it can exercise only an appellate juris- diction. The former it possesses independ- ently of the will of any other constituent branch of the general government. With- out a violation of the constitution, that divi- sion of our jurisdiction can neither be re- restricted ncr extended. In the latter its pow- ers are subjected to the will of the legisla- ture of the union, and it can exercise appel- late jurisdiction, in no case unless expressly authorised to do so by the laws of coi.ee rs. If I understand the case of Marbury and Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been corn roverted. It is incumbent then, I presume, on the counsel in or.'.i-r to maintain their motion, ?¦-> Drove that the Issuing! of this writ is an. act Vr>i ... ,.,. °>ji una com', in ils original jurisciicvi.ni, or that in its appellate capacity, the power is expressly given by the : r» t of congress; .This it is attempted to do, by the four- teenth and thirty-third sections ofthe judici- ary act, and the i ages of Batniiton an ford, which occurred in this court, the for- mer in 1735 the latter in 1806- How far their position is supported by that act and those cases, will now be the sub- j( ct of in y inquiry. With a very unnecessary display of ener- gy and pathos, this court has been impera- tively called upon to extend to the prisoners the benefit of precedent. Jam far, very far, from deny ins the general authority of adju- dication-. Uniformity in decisions is often as important as their abstract justice. But 1 deny riiat a court is precluded fiom the ri -;'u or exempted from the necessity of ex- amining into the correctness or consistency Af its own decisions or those of any oih.-r tribunal. If I need piecedentto support me in this doctrine, I will cite the example of ibis court, which in the case of the U.S. vs. Moore, February 1SG3, acknowledged that in the case ofthe U. S. vs. Simms, February 1B03, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine, that an inadvertency once commit- ted by a court shall ever after impose on it j the necessity of persisting m its error. A case that can .lot be tested by principle is not law, and in a thousand instances have suoh cases bent declared so by courts of justice. 'Die claim ofthe prisoners as founded on precedent 'stands thus. The case of I:,, ad Ion swiS strikingly similar to the present.—; The-prisoner had been committed by order of the district judge on-i of high treason. A writ pd by the supreme court, and the pri bailed by i neir ord utford was also strict!} - present ; but the writ in tl ase Inning been Issued . authoi it'y of tri* for lie-:', it is ] leiiaiipi! that il givi s .' : to the claim of the prisoners, but must, rest on the strength ofthe case upon which the court acted. It appears to my mind that the case of ii .mine, bears upon the, face of it evidence of its being entitled to Little consideration, & that the authority1 of it was annihilated by the very able decision in Marbury vs. son. In this case it was decided that ccn- .u'.dnot vest in the supreme court a 2iv oris qoiHl those to which this (Joint is restricted by the constatvrtlon. That an act of congress vesting in this court the power to issue a writ of mandamus in a case not within their o'ri| i ¦ jurisdiction) and in which they were not called upon to ¦ an appellate jurisdiction, was un uiionalaud void. In the case cf Ha- . the coutt does not assign the n til '.' founds us de- ision, but it is fair lo pieSUnie that the,j adopted the idea which llaveb'ttn admitted by the district i y in bis argument, to wit : that this ossesscd a concurrent power with the to bail. 'How a pcucurreut power ivi jructt a <;.;;.•; rau«t original power, and the principle in Marbu» ry and Madison applies as much to the issu- ing of a habeas corpus in a case of treason as .to the issuing of a mandamus in a case not mere remote from the Origi.al jurisdiction of ¦lit. (Having-thus d.setnbarrasscu the question from the effect of precedent, I pro- ceed to consider the construction of tire 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 posses- ses neither original nor appellate jurisdic- tion. The ,14th section of the judiciary act, so far as.it has relation to this case is in these words.:—" All thebeforemention- ed courts (of which this is one) ol the Unit- ed States shall have power t} issue writs of scire facias, habeas corpus, ard all other writs not specially provided for by statute, which may be necessary for the ex- ercise of their respective jurisdictions, and agreeable to the principles and usages ol law." I do not think it material to the opinion I entertain, what construction is' given to this sentence- Ii the power to is- sue the writs of scire facias and habeas cor- pus, be not restricted to the cases within the original or appellate jurisdiction of this court, the case of Marbury and Madison re- jects the clause as unavailing ; and if it re- late only to cases withintheir jurisdiction, it does not extend to the case which is now moved for. But it is impossible ro give a sensible construction to that clause without taking the whole together—it consists of but one sentence—intimately cunn'jctedthrough- out, and has for its object the creation of those powers which probably would have vested in the respective courts, without sta- tutory provision as incident to the exercise of their jurisdiction. To give to this clause the construction contended lor by counsel, would be to suppose that the legislature would commit the absurd act of granting the power of issuing the writs of scire faci- as and habeas corpus, without.an object or end to be answered by them. This idea is not a little supported by the next succeed- ing clause, in which a power is vested in the individual judges to issue the writ of habeas corpus, expressly for the purpose of enquir- ing into the cause of commitment. That part of the thirty-third section oi the judici- ary act, which relates to this subject, is in the following words: " And upon ail ar- rests in criminal cases, bail shall be admit- ted, 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 dis- cretion therein, regarding the nature and circumstances cf the offence, and of the evi- dence and usage of law,. On considering this act it cannot be de- nied that if it vests any power at all, it is an original power. " It is the essential criterion of appellate jurisdiction that it re- vises and corrects the proceedings in a cause already instituted." I quote the words of the court in the case of Mai bury vs. Madi- son. And so far is this clause from giy-ine; a r..v. iu rfeVtee aim carreer, mat if actually vests in the district judge the same latitude of discretion by the same words that it com- municates to this court. And without de- rogating from a respectability which I mutt feel as deep an interest in maintaining as any me-inbu of this couit, I must believe that the district court or any individual dis- beas corpus. I did not then comment at large on the reasons which influenced my opinion, and the cause was this : The gen- tleman who argued that cause, confined himself strictly to those considerations, which ought alone to influence the decisions of this court. No popular observations on - -easily of protecting the citizen from executive oppression, no animated address calculated to enlist the passions or preju- dices of an audience in defence of his mo- tion, imposed on me the necessity of vin- dicating my opinion. 1 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 majo- rity of the court, in being supported by the opinion of one of my brethren, who is pre- vented by indisposition from attending. SUPREME COURT OF TUB UNITED STAT E S, ' February Tesm, 1807. The United States J tat the d/.stric ict judie posi trict judje possess the sanis power to revise our decisions, that we do to revise theirs ; nay more, for the powers with which they may be vested, are net so paiticularly limited and divided by the constitution as ours are. Should we perform an act which, according to cur 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 con- struing this clause, which appear 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, redendo singula singulis, if the power of the several courts & individual judges be referred to their respective jurisdictions, allclashino & interference of power ceases, and sufficient me; as of redress aie still held cut to the citizen, if deprived of his liberty. And this)surely must havt been the intention of the legislature j it never could have been contemplated that the mandates of this court 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 re- membered that 1 am not disputing the pow- er ofthe 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 constitute n, 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 cf powers merely ministerial and not inconsistent with our judicial cha- racters, for on that point the constitution has ieii much to construction : and on such an application the only doubt that could be entertained would be, whether we can exercise any powers bey nd the limits of our respec- tive circuits. On this question I will not now give an opinion. One more observati- on and I dismiss the subject. in the ca*e ot Burford, I was one cf the members v. ho constituted the court.— it to my own consistency to declare, that the court were then apprized of my pbjectioas to the issuing of the writ cf ha- Boiiman and S'wurtnvout. Habeas Corpus on a commitment for trea- son. Chief justice Marshall, on the 2isfinstant, de- ihvend the following 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 commit- ted having been fully examined and atten- tively considered, the court is now to de- clare the law upon their cases. This being a mere enquiry wffiich with- out deciding upon guilt, precedes the insti- tution 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 whe- ther they shall be confined or admitted to bail. " If, says a very learned and accu- rate commentator, " upon this enquiry it ma- nifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is la-vful totally to dis- charge 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 ex- cite and agitate the passions of men than treason, no charge demands 'more from the tribunal before which it is made a deliberate and temperate enquiry. Whether this en- quiry be directed to the fact or to the law, none can be more solemn, none more im- portant to the citizen or to the government —none can more ailect the safety of both. To prevent the possibility of those cala- mities which result from the extension of treason to offences of minor importance, that great fundamental law which defines & limits the various departments of our go- vernment has given a rule on the subject both to the legislatuie and the courts of A- mcnci which neither ''in be perm'i-f*"' t« transcend. " Treason against the United States shall consist only ink>vy\ng 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 U. States. However flagitious may be the crime of conspiring to subvert by lorce thegovernment of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are dis- tinct 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 hr^ve been com- mitted. So far has this principle been carried that, in a case reported hy V; mm, and mentioned in some modern tn a'tises on criminal law, it has been determine! the actual enlistment of men to1 st jve again:: the government, does not amount to levying war. It is true, that in that case the sol- 1 nlistcd were to serve without therealm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war has 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 lor the purpose of effect- ing by force, a treasonable purpose, all those who perform any part, however minute or however remote Iroro the scene of action, and who are actually leagued in the general conspiracy, a"re to be considered as traitors. But there must be an actual assemblage of men tor the treasonable purpose, to consti- tute a levying of war. Crimes so atrocious as those which have for their object the subversion by violence of those laws and those 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 treas-i. The wisdom ofthe 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 piotect their limitation by providing that no person should he 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 ordain- ed by general 'law s formed upon delibera- tion, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted Wider the influence cf those passions which the occasion seldom fails to excite, and which a flexible defir. vtion of the crime, or a construction which would render it flex- ible, might bring into operation. It is therefore more sale as well as more conson- ant to the principles of our constitution that the crime of treason should not be extend- ed by construction to doubtful cases ; and that crimes not clearly within the constitu- tional definition should receive such punish- ment 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 over- turn the government of the United States in New-Orleans by force, would have been unquestionably a design which if carriei into execution would have been treason, and the assemblage of a body of men. for the purp ise of carrying it into execution, would arnount to levying of war against the United States, but no conspiracy fortius ob- ject, no enlisting of men to effect it, would ,be an actual levying of war. In conformity with the principles now laid down have beon the decisions hereto- fore made by tiie judges of the United States. The .opinions given by judge Paterson and judge Iredell in cases before them im- ply an. actual assembling of men though they rather designed to remark on the pur- pose to which the force was to be aplied 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 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 employ- ed, neither lessons nor increases the crime : whether by one hundred or one thousand persons is wholly immaterial. '" The court are ot 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 con- spiracy into execution ; come actual force or violence must be used in pursuance of such design to levy war ; but it is altoge- ther immaterial whether the force used is" sufficient to effectuate the object ; any force connected with the intention, wjll constitute the crime of levying war." The application of these general princi- ples to the particular case before the court will depend on -the testimony which has been exhibit«d against the accused. The first deposition to be considered is that of general Eaton. This gentleman connects in one statement the purport of num.i-cua o,.iw„r„!iciu(io liulU with ColoAfcl Burr throughout the last, winter. In the course of these conversations were commu- nicated various criminal projects which Seem to have been revolving in the mind of the projector. An expedition against Mex- ico seems to have been lliehrst and most ma- tured part of his plan, if indeed it did not constitute a distinct and separate plan, upon the success, of which other schemes still more culpable, bat not yet well digested, might depend. Maps and other information preparatory to its execution, arid which would rather indicate tliat it was the imme- diate object, had been procured, and for a considerable time, in repeated conversations the whole efforts of colonel Burr were di- rected to prove to the witness, who was to have held a high commund under him,' the practicability of the enterprize, and in ex- plaining to him the means by which it was to be effected. This deposition exhibits the various schemes of colonel Burr, and its materiality depends on connecting the prisoners at the bar in such of those schemes as were treasonable. For tins purpose the affidavit of general Wilkinson comprehending in its body the substance of a letter from colonel Burr, lias been offered, and was received by the cir- cuit court. .To the admission of this testi- mony great and serious objections have been made. It has been urged that it is a volun- tary, or rather an extra-judicial 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 extra- judicial, resolves it-elf into the question whether one magistrate may commit, on an affidavit taken before another magistrate. For if he may, an affidavit made as the foun- dation of a commitment, ceases to be extra- judicial, and the person who makes it would be as liable to a prosecution for perjury as if the warrant of commitment had been issu- ed by the magistrate before whom the affi- davit was made. To decide that an affidavit made before one magistrate would not justify a commit- ment by another might in many cases be produc; ive of great inconvenience, and does net appear susccptiable of abuse if the veri- ty of the certificate be ^established. Such an affidavit seems admissible on the princi- ple that before the accused is put upon his trial, all the proceedings are cxpaite. The court therefore over-rule this objection. That which questions the character of the person who has on this occasion admi- nistered the oath is next to be considered. The certificate from the office of the de- partment of slats has been deemed insuffici- ent by the counsel for the prisoners, because the law does not require the appointment of magistrates for the territory of New-Or- leans to be certified to that office, because the certificate is in itself informal, and be- cause it does not appear that the magistrate d t-y-fhe act of had taker, the oath" congress. first of these objections is not sun- pcrted by the law of the case, and the sc- co-nd may bi so readily- coneccd that the court has proceeded to cnosjPer the subject as if it were conecled, ret ii-ai;;', howftver, any final decision, if against Hie prisoner*?, until the c< rrection shall be mad,.. With regard to the third the .magistrate mu-t be presumed to have taken the requisite oath.;, since he is found acting as a magistrate. ¦On the admissibility '>f that part of the. affidavit which purports to be as near the substance of the letter from colonel Bur; tii general Wilkinson as the latter could in- terpret it, a division of opinion has taken place in the conn, two judges are of opini- nion 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 commit- ment. Although in malting a commitment the magistrate does not decide on the guilt of the prisoner, yet ho does decide on'the. probable cause, and a long and painful im- prisonment may be the consequence of hW decision. Tiiis probable cause therefore ought to be proved by testimony in itself le- gal, and which though from the nature of the case it must be exparte, oiaffit, in most 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 affi- davit stating the general purport of a letter may be lead, particularly where the person. in possession ol it is at to© great a distan, e to admit of its being obtained, and that a commitment may be founded on it. Uudct this embarrassment it was deemed necessaiy to look into the affidavit for the purpose of discovering whether if admitted, it contains matter which would justify the commitment of lire prisoners at the bar on charge of treason. . [To be continued.] ¦.•/hUSSYPORT, "February 17, Arrived ship Pomona, capt. Adams, 170 days from Calcutta, piece goods, sugar, &c. valued at 230,000 dollars, the richest ship that ever came over our bar. Jan. 29, was overhauled by the Jvjtish sloop of w„r Bermuda, had the letters opened, and John Driver, Win, Hall, and Th. Stephens, with American protections, were pressed. NEW-YORK, February 24. Particulars cf tlie taking of CURRACOA, extracted from a Jamaica paper of Janu- ary 21. On Saturday last arrived at Port-Royal, his majesty's frigate Anson, of 40 guns, cap- tain Lydiard, from Curracoa, with iJCO pri- soners, and the colors captured at that island, which was taken In the most extraordinary and gallant manner, by a squadron of frigates consisting of the Arethusa, 38 guns, Capt. Brisbane Latona, 38 Wood Anson, o outing, this event will rank among the fli-st of heroic actions —it is indeed perfect, ly in unison with every thing glorious in the past, St an example of eveiy thing great to the future. As our squadron did not possess the of laying regular siege to the place, captain Brisbane came to the determination of sail- ing into the poit, and storming frrts hither- to considered as impregnable, or perishing in the attempt, for retreat was impossible. The timecbosen was day-dawn bnthentbrnihg of the 1st of Jan. when all the boats werehoisted out and the squadron stood in with a strong breeze, the Arethusa leading. The enemy were panic-struck at such unexpected te- merity ; all was confusion— he.ie solditrs without officers—there officers without sol- diers ; alarm drums beating in ail directi- ons ; a British squadron in their very harb r, and within pistol-shot of their batteries, be- fore sun-rise. Troops collected at Otra Ban^ dy were prevented from crossing the wa- ter, our ships interposing ; not more than 3 broadsides were fired from our frigates when the ships'companies and officers of tne Are- thusa and Anson, with the marines ofthe Latona, headed by captains Brisbane ard Lydiard, were landed, Fort-Amsterdam stormed, and all the out-\voiks had British colors flying before eight o'clock, Fort-Re- public on the hill, and Carracas fort except- ed. The Fisgard had orders to act against Otra Bandy, two battelies distinct from the main land, she took possession of, to one of which the men absolutely swam, thee"nemy b>ag previously dislodged. The guns of Fort-Amsterdam were fired but once ; on our people storming the place they did not act in a body, but retreated in confusion, lirmg round corners and from houses. The milit'a amounting to 3000, had not time to collect, nor could they cioss the water in boats.— The Dutch frigate Kenau Hasslar, was board- ed by capt. Brisbane, the Latona warped a- longside & took possession, when capt. Bris- bane proceeded for the shore. The Surinam corvette was boarded from the larboard boW ofthe Anson, while her starboard gun-; were firing at the batteries. The Fly Fish, a large.national schooner, was boaili- ed by the boats of the Arethusa ; the offi- cers and crews of those v I F ight most gallantly : Commodore Cornelius Veil?. killed ; the captain of the Surinam mortal ¦ ly wounded, and the first lieutenant dan: ously, besides several ethers. The moment the town, b'ort Amsterdam, & ;. wefe coi pletely in captain Brisbane's ion, a lieutenant .of marines was sent with ¦. I of truce, requiring Fort Republic to sui der. The officer discontinued firing, but would not surrender without an Order from lieutenant-general J. P. Changuibn, tha ' governor, who wasfat thl with all his staff, in Foit ...... We understand that captain Brisbane desired th« council to be collected, and gave them five minutes to capitulate for land, but as they untreated for a longer period, it was extended to half an bee,-. , time, the most active ttions were made for storming this :; fort. Tl)i hjn's PiS] arrt, commanded by captain Bolton", wi ":. "j fie nets of tb*;:sfluad,roii; with«Scu! 'vta lik/is |