advanced so far in levying an army, as actually to have assembled them.

It is argued, that since it cannot be necessary that the whole 7,000 men should have assembled, their commencing their march by detachments to the place of rendezvous, must be sufficient to constitute the crime.

This position is correct, with some qualification. It cannot be necessary that the whole army should assemble, and that the various parts which are to compose it should have combined. But it is necessary there should be an actual assemblage, and therefore this evidence should make the fact unequivocal.

The travelling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particu lar bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage. The particular words used by Mr. Swartwout are, that colonel Burr was levying an armed body of 7,000 men. If the term levying, in this place, imports that they were assembled, then such fact would amount, if the intention be against the United States, to levying war. If it barely imports that he was enlisting or engaging them in his service, the fact would not amount to levying war.

It is thought sufficiently apparent, that the latter is the sense in which the term was used. The fact alluded to, if taken in the former sense, is of a nature to force itself upon the public view, that, if the army had been actually assembled, either together, or in detachments, some evidence of such assembling would have been laid before the court.

The words used by the prisoner in reference to seizing at New-Orleans, and borrowing perhaps by force from the bank, though indicating a design to rob, and consequently importing a high offence, do not designate the specific crime of levying war against the United States.

It is, therefore, the opinion of a majority of the court, that, in the case of Samuel Swartwout, there is not sufficient evidence of his levying war against the United States to justify his commitment on the charge of treason.

That both the prisoners were engaged in a most culpable enterprize against the dominions of a power at peace with the United States, those who admit the affidavit of general Wilkinson cannot doubt. But that no part of this crime was committed in the district of Columbia, is apparent. It is therefore the unanimous opinion of the court, that they cannot be tried in this district.

The law read on the part of the prosecution is understood

to apply only to offences committed on the high seas, or in any river, haven, bason, or bay, not within the jurisdiction of any particular state. In these cases there is no court which has particular cognizance of the crime, and therefore the place in which the criminal shall be apprehended, or, if he be appre hended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offence was committed.

But in this case, a tribunal for the trial of the offence, wherever it may have been committed, had been provided by congress; and at the place where the prisoners were seized by the authority of the commander in chief, there existed such a tribunal. It would too be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the general might select, and to which he might direct them to be carried.

The acts of congress, which the prisoners are supposed to have violated, describe as offenders those who begin or set on foot, or provide or prepare the means for any military expedition or enterprize to be carried on from thence against the dominions of a foreign prince or state, with whom the United States are at peace.

There is a want of precision in the description of the offence, which might produce some difficulty in deciding what cases would come within it. But several other questions arise, which a court, consisting of four judges, finds itself unable to decide; and therefore, as the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance, because the discharge does not acquit them from the offence, which there is probable cause for supposing they have committed; and if those whose duty it is to protect the nation by prosecuting offenders against the laws shall suppose those who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offence has been committed, institute fresh proceedings against them.

The order of the court was as follows:

The United States

ES.

Swartwout.

On a writ of habeas corpus.

The arguments of the attorney general, and of the attorney of the United States for the district of Columbia,

and the arguments of the counsel for the prisoner having been heard; and the record of the circuit court for the county of Washington, containing the order by which the said Samuel Swartwout was committed on the charge of treason in levying war against the United States, and the testimony on which the said commitment was made, having been inspected and attentively considered, the court is of opinion that that testimony does not furnish probable cause for supposing that the said Samuel Swartwout levied war against the United States, and doth therefore direct, that he be forthwith discharged from the custody of the marshal.

The same order with regard to Bollman.

THE TRIAL

OF

COLONEL AARON BURR.

CITY OF RICHMOND, FRIDAY, 22d May, 1807. Court of the United States for the fifth circuit and district of Virginia.

PRESENT-JOHN MARSHALL, chief justice of the United States; and CYRUS GRIFFIN, judge of the district of Virginia.

The court was opened at half past twelve o'clock; when colonel Aaron Burr appeared, with his counsel, Messrs. Edmund Randolph, John Wickham, Benjamin Botts, and John Baker.

Counsel for the prosecution; Messrs. George Hay, district attorney, William Wirt, and Alexander Mac Řae.

The clerk having called the names of the gentlemen who had been summoned on the grand jury, Mr. Burr's counsel demanded a sight of the panel; which was shown to them: when Mr. Burr addressed the court to the following effect:

May it please the court,

BEFORE any further proceeding with regard to swearing the jury, I beg leave to remark some irregularity that has taken place in summoning part of the panel. This is the proper time to make the exception. I understand that the marshal acts not under an act of congress, but a law of the state of Virginia, by which he is required to summon twenty-four freeholders of the state to compose the grand jury. When he has summoned that number, his function is completed. He cannot on any account summon a twenty-fifth. If, therefore, it can be made to appear, that the marshal has struck off any part of the original panel, and substituted other persons in their stead, the summons is illegal. Such is the law and the dictate

of true policy; for in important cases, like the present, a different course would produce the most injurious consequences. I consider it proper to ask the marshal and his deputies, what persons they have summoned, and at what periods: whence it may be known, whether some have not been substituted in place of others struck off the panel. When we have settled this objection, I shall proceed to exceptions of a different na

ture.

Mr. BOTTS observed, that it was the 29th section of the judicial act, which refers to the state law, besides a distinct act, which enumerates other duties; that neither of these laws specified any particular mode by which marshals were to summon juries in different districts. By the first section of the Virginia act, the sheriff is to summon twenty-four freeholders, any sixteen of whom appearing are to constitute a grand jury. The first section does not state that he is to make a return, but a distinct section inflicts a penalty, if he violate the duties prescribed by the first section; that is, if he fail "to summon a grand jury, and return a panel of their names." Colonel Burr is anxious to have nothing more than a fair trial. The reports circulated, and prejudices excited against him, justify a strict attention to his rights. He therefore asks the strictest scrutiny into past and subsequent measures. An important interest is involved in the authority of the grand jury. And if there be any irregularity in the marshal's summons, it ought now to be rectified. By the act of Virginia, a sheriff, and by the act of congress a marshal, are mere ministerial officers bound to discharge certain duties. He is to summon twentyfour jurors. When that act is done, it is irrevocable, and his duty at an end. This court only possesses the authority to excuse any of those who have been summoned, and to direct the marshal to substitute others, till the necessary quorum be completed.

Mr. Botts further observed, that he had no intention of casting the slightest imputation on the marshal for his conduct in this transaction; that his honourable character placed him above suspicion, and the fault, if any, must have arisen from official misconceptions; that he did not propose to interrogate major Scott in any manner that might possibly criminate him; but that the court had a right to inquire, and, if any error was committed, to correct it. That if he was overruled in this-motion, he would then crave leave of the court to produce testimony as to the facts: that he took it for granted, that if a single moment intervened between the summoning of a juror and the meeting of a court, the court alone had the power to discharge him; that with regard to the present panel it would