Smith v. Carrington. 4 C.

contained in the charge of the judge who tries the cause, is settled in this court.1

That the opinion which the record ascribes to the judge in this case is incorrect, unless some other part of the charge shall have so explained it as to give to the words a meaning different from that which is affixed to them taken by themselves, is the opinion of this

court.

The judges instructed the jury, "that the case wholly turned upon the point whether or not the defendants had given due and seasonable notice of the change of the destination of the said ship," and that if they were of opinion that due and seasonable notice had been given, they ought to find against the plaintiffs, on the question of their right to recover the premium advanced by them for the defendants.

Due and seasonable notice must have been given as soon after the destination of the vessel was changed as it could have been given, whether the premium had or had not been advanced by the plaintiffs before they received it; or this direction must have left it to the jury to determine whether notice was or was not due and seasonable, although it might have not been received by the plaintiffs before they had actually advanced for the defendants the sum in contest.

On the first exposition, these words would amount to a clear misdirection of the jury; because, if the plaintiffs had paid to the underwriters, at the request of the defendants, the premium of insurance, before they received notice countermanding the directions to make

such payment, the right given by subsequent circumstances [73] to the insured to demand its return from the underwriters, could not affect the claim of the plaintiffs on the defendants for money fairly advanced by them for the use of the defendants. If the latter construction be adopted, there was still a misdirection on the part of the court. The judge ought not to have left it expressly to the jury to decide, whether notice given immediately after the change of the destination of the vessel could be due and seasonable notice, unless it was received before the premium was advanced.

It is, however, not material to the present cause to determine, whether this exception does or does not exhibit a misdirection to the jury, since we are unanimously of opinion, that for admitting a paper purporting to be the copy of a letter from Edward Carrington to Smith & Ridgeway, to go to the jury, which was not proved to be a copy, the judgment must be reversed.

1 Church v. Hubbart, 2 C. 239.

Judgment reversed.

Ex parte Bollman and Ex parte Swartwout. 4 C.

PENDLETON AND WEBB v. WAMBERSIE, et al.

4 C. 73.

An assignee of one copartner, may maintain a bill for an account, against the other partners and the agent of the partnership, which was formed to deal in lands.

APPEAL from the circuit court of the United States for the district of Georgia. The bill stated the formation of a partnership to buy and sell lands; that through an agent, sundry lands of the firm had been sold, and others were still held by or on account of the partnership; that one of the partners had by deed assigned his interest in the concern to one McQueen, who assigned it to the complainants. It made the other partners and the agent parties, and prayed for an

account.

The defendants demurred for want of equity in the bill, and the court below sustained the demurrer, and decreed that the bill be dismissed, with costs.

But this court, without argument, overruled the demurrer, reversed the decree, and remanded the cause for further proceedings.

*Ex parte BOLLMAN and Ex parte SWARTWOUT. [*75 ]

4 C. 75.

Under the 14th section of the Judiciary Act, (1 Stats. at Large, 81,) this court has power to issue a writ of habeas corpus to examine into the cause of a commitment by the circuit court for the District of Columbia.

It is the revision of a decision of an inferior court, confining a person for trial, and therefore is the exercise of appellate jurisdiction.

To constitute treason war must be actually levied.

A conspiracy to subvert the government by force, is not treason.

If a body of men be actually assembled for the purpose of effecting by force a treasonable design, all who perform any part, however minute, and however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors.

The mere enlistment of men, who are not assembled, is not a levying of war.

An affidavit made before one magistrate may justify a commitment by another.

If an offence be committed on land, the offender must be tried by the court having jurisdiction over that territory where the offence was committed.

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

*

[ *76 ] 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."

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

[ *93 ]

MARSHALL, C. J.,2 delivered the opinion of the court.

1 On a former day, (Feb. 5,) C. Lee had made a motion for a habeas corpus to a military officer to bring up the body of James Alexander, an attorney at law at New Orleans, who, as it was said, had been seized by an armed force under the orders of General Wilkinson, and transported to the city of Washington.

CHASE, J. then wished the motion might lay over to the next day. He was not prepared to give an opinion. He doubted the jurisdiction of this court to issue a habeas corpus in any case.

JOHNSON, J. doubted whether the power given by the act of congress, of issuing the writ of habeas corpus, was not intended as a mere auxiliary power to enable courts to exercise some other jurisdiction given by law. He intimated an opinion that either of the judges at his chambers might issue the writ, although the court collectively could not.

CHASE, J. agreed that either of the judges might issue the writ, but not out of his peculiar circuit.

MARSHALL, C. J. The whole subject will be taken up de novo, without reference to precedents. It is the wish of the court to have the motion made in a more solemn manner to-morrow, when you may come prepared to take up the whole ground. [But in the mean time Mr. Alexander was discharged by a judge of the circuit court.]

2 The only judges present when these opinions were given were, MARSHALL, C. J., WASHINGTON, JOHNSON, and LIVINGSTON, Justices. CUSHING, J. and CHASE, J. were prevented by ill health from attending.

Ex parte Bollman and Ex parte Swartwout. 4 C.

As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.

Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort [94] may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves and their members from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.

To enable the court to decide on such question, the power to determine it must be given by written law.

The inquiry, therefore, on this motion will be, whether by any statute compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this

court.

The 14th section of the Judiciary Act1 has been considered as containing a substantive grant of this power.

It is in these words: "That all the before-mentioned courts of the United States 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 that 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 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 color of the

the

Ex parte Bollman and Ex parte Swartwout.

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."

[ *95 ] The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some causes which they are capable of finally deciding.

It has been urged, that in strict grammatical construction, these words refer to the last antecedent, which is, "all other writs not specially provided for by statute."

This criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context.

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.

It has been truly said that this is a generic term, and includes every species of that writ. To this it may be added, that when used singly when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution.

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[ *96 ] The section proceeds to say, that "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."

It has been argued that congress could never intend to give a power of this kind to one of the judges of this court, which is refused to all of them when assembled.

There is certainly much force in this argument, and it receives additional strength from the consideration, that if the power be denied to this court, it is denied to every other court of the United States;