Ex parte Bollman and Swartwout. * 110 *111 3. The testimony before the circuit court did not show probable cause. *By the 4th amendment to the constitution it is declared, "that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon PROBABLE CAUSE supported by oath or affirmation.' All the facts necessary to constitute this probable cause must appear upon oath or affirmation. It is not necessary, indeed, that there should be positive proof of every fact constituting the offence; but nothing can be taken into the estimate, when forming an opinion of the probability that the fact was committed by the person charged, but facts supported by oath or affirmation. No belief of a fact tending to show probable cause, no hearsay, no opinion of any person, however high in office, respecting the guilt of the person accused, can be received in evidence on this examination. The question, then, is, whether these affidavits exhibit legal proof of probable cause. If the testimony be vague or ambiguous as to the person, or as to the offence, the court will apply the maxim of law, that every person is to be adjudged innocent unless proved to be guilty. The facts stated in General Wilkinson's two affidavits of the 14th and 26th of December, consist of the letters of Col. Burr, the declarations of Swartwout, and the belief of General Wilkinson. Neither the letters of Col. Burr, nor the declarations of Swartwout, contain any ground for probable cause to believe that the prisoners, or either of them is guilty of treason: and General Wilkinson's belief, as he himself states, is founded upon those facts. Mr. Lee went into a minute examination of those affidavits, to satisfy the court that the facts stated in them could at most prove an intent to set on foot an expedition against Mexico, in case of a war between this country and Spain. He contended that if the object was such an expedition at all events, and if they had intended to force their way through the United States, for the purpose of attacking Mexico, and even if they had done so, they would not have been guilty of man and treason, but merely of lawless violence. Even if they Ex parte Boll had plundered the bank at New Orleans, or any private Swartwout. property, or had seized arms and vessels, the property of individuals, it would have been robbery, but not treason. But the circumstance that no place of trial can be designated, is a sufficient reason for admitting them to bail. They certainly cannot be tried here, for it is not contended that they have here committed any offence; and this is not the district in which they were first apprehended or brought. They were seized by orders of a military officer 2,000 miles from this place, without any process of law or legal authority, and sent here to be disposed of by the executive. They have been committed for trial, not before any court, or in any particular district, and their imprisonment will be perpetual, unless government can find out when and where the offence was committed, and devise some means of transmitting them to the place of trial. Mr. Lee attempted to discredit the affidavits of General Wilkinson by the circumstance that they were made, as he contended, to vindicate and justify the illegal seizure and transportation of the prisoners. He contended also that those affidavits ought to be totally discarded, because the oath upon which a warrant of arrest or commitment is to be grounded, must be made before the magistrate who is about to issue the warrant. He must be satisfied of the probable cause. The laws were open in New Orleans. General Wilkinson might have gone before a justice of peace there and made his oath, and obtained a warrant to arrest the prisoners. There was no necessity to proceed in this illegal and unprecedented manner. F. S. Key, on the same side. Unless this court can look behind the order for commitment, and examine the grounds upon which it was made, the writ of habeas corpus will be wholly useless; for every court or magistrate who commits a person to *prison, will take care to cover himself under the strict forms of law. The constitution declares that treason against the United States shall consist only in levying war against *112 Ex parte Boll- them, or in adhering to their enemies, giving them aid man and Swartwout. #113 and comfort. An adherence to rebels is not an adherence to an enemy, within the meaning of the constitution. Hence, if the prisoners are guilty, it must be of levying war against the United States. In England the books speak of two kinds of levying of war; direct and constructive. (East's Cr. Law, 67.) But there is only one kind in this country; and ought not to be in England. By using the word "only," the constitution meant to take away all pretence of constructive treason. Every man is to answer for his own acts only. If 100 men conspire, and only 50 actually levy war, the latter only are guilty as principals. And what reason can be given why there should not be the same distinction between principal and accessory in treason, as in other crimes. In a republican go'vernment, whose basis is the affection of the people, it is unnecessary to guard against offences of this kind with the same vigilance as in a monarchy or a despot. ism whose foundation is fear. (4 Tucker's Bl. Appen dix, p. 39.) But if this construction of the constitution be not correct, and if the English authorities are to be considered in full force, it must be shown, 1st. That war has been levied; and, 2d. That the prisoners are confederates in that war. The affidavits of General Willkinson are not authenticated so as to make them evidence. It does not ap pear that an oath was administered to him. The act to prescribe the mode of authenticating public acts, records and judicial proceedings, &c. is extended to the territory *of Orleans, by the act erecting that territory. (Vol. 7. p. 117.) And even if this be not strictly a judicial proceeding, yet it is within the meaning of that act. The certificate of the secretary of state(a) only shows that it appears by the official returns to his office, that (a) The secretary of state of the United States had certified under the seal of his office, that George Pollock and James Carrick were appointed justices of the peace for the county of Orleans, in the territory of Orleans, in the year 1805, as appears by the official returns of the secretary of the said territory, "remaining in the office of this department." man and J. Carrick and George Pollock had been appointed jus- Ex-parte Rolltices of the peace for the county of Orleans; but not Swartwout. that they had taken the oaths necessary to qualify them to act. But if these affidavits are examinable they do not show any act of treason. They prove no assemblage of men nor military array. There is not a tittle of evidence that any two men have been seen together with treasonable intent, whether armed or not. The supposed letter from Col. Burr speaks indeed of choice spirits, but he does not tell us they are invisible spirits. The affidavits of Meade and Wilson relate only to rumours derived from General Wilkinson, whose business it was, if he could get such rumours there by no other means, to create them himself. The territory of Orleans, if it was to be revolutionized, might be revolutionized without levying war against the United States. There is no evidence that the prisoners knew that Col. Burr had any treasonable projects in view. Even if he had such views, he might have held out to them, as he did to others, only the Spanish expedition. Again, the bench-warrant issued in this case for the arrest of the prisoners was illegal. The court has no authority to issue a bench-warrant, but upon a presentment by a grand jury, or for an offence committed in *the presence of the court. It is not a power inherent in the court, nor given by any law. The act of congress only gives to a judge out of court, or to a justice of peace, the power of arresting offenders. And it is a power inconsistent with a fair trial, because the court would thereby have prejudged the case, and decided upon the guilt of the prisoner. No such practice is known in Maryland, under whose laws the court below was acting. February 17. Jones, attorney for the district of Columbia, mentioned to the court, that Hiort, being better prepared upon points of practice, would make some observations in support of the form of the commitment. MARSHALL, Ch. J. I understand the clear opinion. VOL. IV. *114 man and Swartwout. Ex parte Boll- of the court to be, (if I mistake it my brethren will correct me,) that it is unimportant whether the commitment be regular in point of form, or not; for this court, having gone into an examination of the evidence upon which the commitment was grounded, will proceed to do that which the court below ought to have done. *115 Rodney, Attorney-General. The affidavit of General Wilkinson is sufficiently authenticated. The justices of peace in the territory of Orleans are officers of the United States; they are appointed by the governor of the territory, who is appointed by the President of the United States; and the secretary of the territory is bound by law to transmit copies of all the executive proceedings of the governor of the territory every six months to the President of the United States. (Laws U.S. vol. 7. p. 112, 113.) All the officers of the United States are bound to take notice of each other. The act of congress respecting authentication of records, &c. is cumulative only. It does not repeal any former law. There is some weight in the objection that the oath ought to be made before the magistrate who issues the *warrant. But one magistrate is as competent as another to administer the oath. The constitution is silent on the subject; and if it be taken before a person competent to administer it, it satisfies the provision of the constitution. How else could a criminal be arrested in one part of the United States, when the witness lived in another ? It is true that none of the evidence now offered would be competent on the trial; nor even if it appeared in a proper shape, would it be sufficient to convict the priBut the question is whether, in this incipient stage of the prosecution, it is not sufficient to show probable cause. soners. The expedition against Mexico would not be treason, unless it was to be accomplished by means which in themselves would amount to treason. But if the constituted authorities of the United States should be suppressed but for one hour, and the territory of Orleans revolutionized but for a moment, it would be treason. What would be treason by adhering to an enemy, if |