Ex parte Bollman and Ex parte Swartwout

• Court: U.S. Supreme Court
• Writing for the Court: MARSHALL
• Citation: Ex parte Bollman and Ex parte Swartwout, 8 U.S. 75, 4 Cranch 75, 2 L.Ed. 554 (1807)
• Decision Date: 01 February 1807
• Parties: EX PARTE BOLLMAN AND EX PARTE SWARTWOUT

8 U.S. 75

4 Cranch 75

2 L.Ed. 554

EX PARTE BOLLMAN AND EX PARTE SWARTWOUT

February Term, 1807

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.¹

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 them, to be there kept in safe custody until they shall be discharged in due course of law.'²

The oaths referred to in the order for commitment, were affidavits in writing, and were filed in the court below.³

C. Lee, for Swartwout.

Notwithstanding the decisions of this court in Hamilton's case, 3 Dall. 17. and in Burford's case, ante, vol. 3. p. 448. we are now called upon to show that this court has power to issue a writ of habeas corpus.

By the constitution of the United States, art. 3. s. 2. the grant of jurisdiction to the courts of the United States is general, and extends to all cases arising under the laws of the United States. This court has either original or appellate jurisdiction of every case, with such exceptions and under such regulations as congress has made or shall make. If congress has not excepted any case, then it has cognizance of the whole.

The appellate jurisdiction given by the constitution to this court includes criminal as well as civil cases, and no act of congress has taken it away. This court derives its power and its jurisdiction not from a statute, but from the constitution itself. No legislative act is necessary to give powers to this court. It is independent of the legislature; and in all the late discussions upon the question of putting down courts, it was admitted on all hands that the legislature could not destroy the supreme court.

But if this court has no criminal jurisdiction to hear and determine, yet they may have a criminal jurisdiction to a certain extent, viz. to inquire into the cause of commitment, and admit to bail. This court has no original jurisdiction, except in certain cases; yet it has power to issue a mandamus in cases in which it has no appellate jurisdiction by writ of error or appeal, and will issue a prohibition even in a criminal case, if a circuit court should undertake to try it in a state in which the crime was not committed. So also if a district court should be proceeding upon a matter out of its jurisdiction, this court would grant a prohibition.

By the judiciary act, s. 14. vol. 1. p. 58. 'All the beforementioned courts' (and the supreme court was the court last mentioned in the preceding section) 'shall have power to issue writs of scire facias, 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.' 'And 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 colour 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.'

It has been suggested that the words 'and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions,' forbid the issuing of a habeas corpus, but in a case where it is necessary for the exercise of the court's jurisdiction. But the words 'necessary,' &c. apply only to the 'other writs not specially provided for.'

In order to restrict in some degree the general expression 'all other writs,' the subsequent words are used. The writ of habeas corpus was particularly named, because it would not (in all cases where it ought to be granted) come under the general denomination of writs necessary for the exercise of the jurisdiction of the court issuing it.

But admitting, for argument, that a writ of habeas corpus cannot issue but where it is necessary for the exercise of the jurisdiction of the court issuing it, yet the term 'jurisdiction' means the whole jurisdiction given to the court; and as this court has, by the constitution, jurisdiction in criminal cases, which jurisdiction is not taken away by any statute, it is a writ necessary for the exercise of its jurisdiction. Again, by the 33d section of the same, act, 'upon arrests in criminal cases, where the punishment may be death, bail 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 offence, and of the evidence,

and the usages of law.' By this section the supreme court has jurisdiction to admit a prisoner to bail in criminal cases punishable with death, and for that purpose to examine into the nature and circumstances of the offence, and of the evidence. For the exercise of this jurisdiction the writ of habeas corpus is necessary. There is no other writ, 'agreeable to the usages of law,' which will answer the purpose.

It is doubtful whether a judge of this court can issue the writ while the court is sitting, and in a district in which he has no authority to act as a circuit judge.

If it be said that the writ can only issue where it is in exercise of appellate jurisdiction, we say it is appellate jurisdiction which we call upon this court to exercise. The court below has made an illegal and erroneous order, and we appeal in this way, and pray this court to correct the error.

Rodney, Attorney General, declined arguing the point on behalf of the United States.

Harper, for Bollman.

There are two general considerations:

1. Whether this court has the power generally of issuing the writ of habeas corpus ad subjiciendum?

2. If it has the power generally, whether it extends to commitments by the circuit court?

1. The general power of issuing this great remedial writ, is incident to this court as a supreme court of record. It is a power given to such a court by the common law. Every court possesses necessarily certain incidental powers as a court. This is proved by every day's practice. If this court possessed no powers but those given by statute, it could not protect itself from insult and outrage. It could not enforce obedience to its immediate orders. It could not imprison for contempts in its presence. It could not compel the attendance of a witness, nor oblige him to testify. It could not compel

the attendance of jurors, in cases where it has original cognizance, nor punish them for improper conduct. These powers are not given by the constitution, nor by statute, but flow from the common law. This question is not connected with another, much agitated in this country, but little understood, viz. whether the courts of the United States have a common law jurisdiction to punish common law offences against the government of the United States. The power to punish offences against the government is not necessarily incident to a court. But the power of issuing writs of habeas corpus, for the purpose of relieving from illegal imprisonment, is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of the citizen.

It being clear then that incidental powers belong to this in common with every other court, where can we look for the definition, enumeration and extent of those powers, but to the common law; to that code from whence we derive all our legal definitions, terms and ideas, and which forms the substratum of all our juridical systems, of all our legislative and constitutional provisions. It is not possible to move a single step in any judicial or legislative proceeding, or to execute any part of our statutes, or of our constitution, without having recourse to the common law. The constitution uses, for instance, the terms 'trial by jury' and 'habeas corpus.' How do we ascertain what is meant by these terms? By a reference to the common law. This court has power, in some cases, to summon jurors, and examine witnesses. If an objection be made to the competence of a witness, or a juror be challenged, how do you proceed to ascertain the competence of the witness or the juror? You look into the common law. The common law, in short, forms an essential part of all our ideas. It informs us, that the power of issuing the writ of habeas corpus belongs incidentally to every superior court of record; that it is part of their inherent rights and duties thus to watch over and protect the liberty of the individual.

Accordingly we find that the court of common pleas in England, though possessing no criminal jurisdiction

of any kind, original or appellate, has power to issue this writ of habeas corpus. This power it possessed by the common law, as an incident to its existence, before it was expressly given by the habeas corpus act. This appears from Bushell's case, reported in Sir Thomas...