I cannot doubt that means to obtain information have been taken on the part of the prosecution; if it existed, I cannot doubt the practicability of obtaining it; and its nonproduction, at this late hour, does not, in my opinion, leave me at liberty to give to those suspicions which grow out of other circumstances, that weight to which at an earlier day they might have been entitled.

I shall not therefore insert in the commitment the charge of high treason. I repeat, that this is the less important, because it detracts nothing from the right of the attorney to prefer an indictment for high treason, should he be furnished with the necessary testimony.

The chief justice having delivered his opinion, observed, that, as colonel Burr would be put on his trial for carrying on a military expedition against a nation with whom the United States were at peace, his case was of course bailable.

Mr. Wickham wished to say something as to the sum in which colonel Burr should be recognised to appear.

CHIEF JUSTICE.-I have thought a good deal on the subject, but have formed no very deliberate opinion. Bail ought certainly to be required in a sum sufficiently serious to insure the appearance of the party, but not so large as to amount to oppression. It has occurred to me, that, under all the circumstances of the case, ten thousand dollars would be about right, and would avoid the two extremes.

Mr. HAY.-I have no doubt of Mr. Burr's ability to procure bail for any sum which might be exacted, even without asking for it. I do not think ten thousand dollars adequate; nor would I ask a larger sum if I did not think it could be obtained without subjecting colonel Burr to any kind of inconvenience. From the facility with which bail was offered a few days ago, I have discovered a disposition in certain gentlemen of this place to relieve colonel Burr from the humiliation of an imprisonment.

Mr. WICKHAM.-I should suppose, sir, that five or six thousand dollars would be sufficient. It should be recollected, that colonel Burr is to give bail to answer the charge of a misdemeanor only. He is here among strangers. Perhaps, in no part of the United States, has colonel Burr fewer acquaintances than in Richmond. And however easy it might be for him to procure bail among his friends or connexions, I am very apprehensive he will not be able to obtain it here for so

large a sum as ten thousand dollars. With respect to his ability to procure bail for any amount, as stated by Mr. Hay, I do expect that that observation, like some others of that gentleman, is not well warranted. Upon this point I am unable to express any decided opinion, as it is a subject with which I am personally unacquainted. But as to the spirit, which, it is insinuated by Mr. Hay, has been shown by certain gentlemen to relieve colonel Burr, I am enabled explicitly to state the opinions of others, of a very different nature. It is true that two gentlemen stepped forward a few days ago, and relieved colonel Burr from the horrors of a dungeon. Their sole object was to assist a gentleman in distress, who had been dragged here by a military force more than a thousand miles. Gentlemen might be willing to be bound for two days, who would reluctantly engage for a longer time. Besides, I have heard several gentleman of great respectability, who did not doubt but colonel Burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country. I hope this sentiment is incorrect; but it certainly will have its influence. I doubt very much whether he can procure bail, considering his remote situation from his friends, and the apprehensions just mentioned.

Mr. HAY.-I did state, sir, my belief to be, that colonel Burr could find bail for any sum which might be demanded. Mr. Wickham has been pleased to say, that this observation, like some others of mine, is not well warranted. I therefore consider it my duty to state candidly and correctly the reasons which have induced me to form that opinion. In the first place; two gentlemen, having no acquaintance with colonel Burr, on the first day of the examination voluntarily stepped forward, and offered themselves as his bail. This proves the prevailing sentiment among certain gentlemen. This sentiment, we may fairly presume, is not confined to those two gentlemen alone. Secondly; I have been well informed, that colonel Burr could give bail in one hundred thousand dollars. Mr. Wickham has not mentioned names, nor shall I state the source of my information. I do not pretend to say, that this large sum should be required. But when it is considered, that, at the next court, evidence of assembling troops may be adduced, which will constitute the crime of treason, and prevent the appearance of colonel Burr, I do think that a sum sufficiently large should be fixed on to insure that object.

Colonel BURR.-I had no expectation, sir, that any thing would be taken into consideration but the subject immediately

before you. Possibilities have, however, been gone into, which are surely out of the question. With respect to my ability to find bail, I very much doubt it. Only one person ever told me that he was willing to be my bail; and I much question whether it will be in my power to procure bail at this time for any sum. It is true, that, by the courtesy of two gentlemen, I was relieved for twenty-four hours. A man may be willing to be bail for a day, or for two days, who would not engage for a longer time. I am sensible, too, that many will be restrained by the circumstances mentioned by my counsel. Gentlemen are unwilling to expose themselves to animadversion.

As to my pecuniary circumstances, it is pretty well known that government has ordered my property to be seized, and that the order has been executed. My property to the amount of upwards of forty thousand dollars has been lost, and my credit has consequently been much impaired.

CHIEF JUSTICE.-If colonel Burr had been in the circle of his friends, it might have made a difference as to the sum in which bail would be required. It is supposed that, under his present circumstances, bail to the amount of ten thousand dollars may be given. On a mere question as to bail, in this stage of the business, and from the proofs already adduced, the charge of treason ought not to be considered.

If bail for ten thousand dollars cannot be had, I will hear an application to reduce the sum.

Mr. HAY. As long as that impression remains, no person will offer till the sum shall be reduced to its minimum.

CHIEF JUSTICE.-I shall certainly not very readily yield to an application to reduce the sum. And should it be made, you shall have notice of it.

The judge adjourned till three o'clock, in order to give the prisoner an opportunity to procure bail. At the hour appointed, he again attended at the capitol, when colonel Burr, with five securities, entered into a recognisance in the sum of ten thousand dollars for his appearance at the next circuit court of the United States for the Virginia district, which will commence on the 22d day of May next.

OPINION

OF SUPREME COURT OF THE UNITED STATES,

Delivered by Chief Justice Marshall, on the 21st of February, 1807, referred to in the trials of colonel Burr.

The United States

US.

Bollman and Swartwout.

Habeas corpus, on a commitment for treason.

THE prisoners having been brought before this court on a writ of habeas corpus, and the testimony on which they were committed having been fully examined and attentively considered, the court is now to declare the law upon their case.

This being a mere inquiry, which, without deciding upon guilt, precedes the institution 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 whether they shall be confined, or admitted to bail. "If," says a very learned and accurate commentator, "upon this inquiry it manifestly 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 lawful totally to discharge 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 excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or the law, none can be more solemn; none more important to the citizen or to the government; none can more affect the safety of both.

To prevent the possibility of those calamities which result from the extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our government, has given a rule on the subject, both to the legislature and the courts of America, which neither can be permitted to transcend.

"Treason against the United States shall consist only in levying 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 United States. However flagitious may be the crime of conspiring to subvert by force the go

vernment of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct 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 have been committed. So far has this principle been carried, that in a case reported by Ventris, and that mentioned in some modern treatise on criminal law, it has been determined, that the actual enlistment of men to serve against the government does not amount to levying war. It is true, that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had 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 for the purpose of effecting by force, a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute 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 are not ripened into treason. The wisdom of the 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 protect their limitation, by providing, that no person should be 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 ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a con struction which would render it flexible, might bring into operation. It is therefore more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide.