## Facts

- Erick Bollman and Samuel Swartwout were seized by military force in New Orleans and transported to Washington, D.C., in connection with alleged participation in Aaron Burr’s western scheme.
- Federal prosecutors sought a bench warrant in the Circuit Court for the District of Columbia, charging treason by “levying war” against the United States, relying on ex parte affidavits and the President’s message to Congress describing the alleged conspiracy.
- The circuit court ordered Bollman and Swartwout committed to jail to await trial for treason by levying war.
- Bollman and Swartwout filed original petitions in the Supreme Court for writs of habeas corpus, challenging the legality of their commitment and seeking discharge (or bail).
- The Supreme Court considered both whether it had statutory authority to issue habeas in this posture and whether the alleged conduct satisfied the constitutional definition of treason.

## Issues

1. Whether the Supreme Court had authority under the Judiciary Act of 1789 to issue writs of habeas corpus to inquire into the legality of a federal criminal commitment.
2. Whether the facts alleged constituted treason under Article III—specifically “levying war” against the United States—or instead amounted only to a conspiracy or preparatory conduct.
3. If treason was not shown, whether the petitioners were entitled to discharge from custody on the treason commitment.

## Decision

- The Court held it had statutory power under § 14 of the Judiciary Act of 1789 to issue the writ of habeas corpus to inquire into the cause of a federal commitment.
- The Court held that treason by “levying war” requires an actual assemblage of persons to effect a treasonable purpose by force; conspiracy, planning, recruitment, or travel to a rendezvous is insufficient without such an assemblage.
- Applying that standard, the Court found the record did not establish an overt act of levying war by Bollman or Swartwout, and their detention for treason was unlawful.
- The Court ordered the petitioners discharged from custody on that commitment.
- Justice Johnson dissented, disputing the majority’s jurisdictional analysis.

## Legal Principles

- Federal courts may issue habeas corpus only when authorized by written law; habeas authority is not inherent merely from Article III.
- Section 14 of the Judiciary Act of 1789 authorizes federal judges, including the Supreme Court, to grant habeas to inquire into the cause of commitment in cases within federal authority.
- Treason is limited to the constitutional definition in Article III; courts should not expand it beyond those bounds.
- “Levying war” requires an assemblage of persons for the purpose of effecting by force a treasonable objective; preparatory acts (agreement, enlistment, recruitment, attempted inducement of officers, or individual travel) do not alone satisfy the overt-act requirement.
- An assemblage aimed at overthrowing by force the United States’ authority in a territory can constitute levying war, but detention for treason requires evidence connecting the accused to such an assemblage.

## Conclusion

The Supreme Court recognized habeas corpus as available only by statutory grant, found that § 14 of the Judiciary Act empowered the Court to review federal commitments, and narrowly construed treason by “levying war” to require an actual forceful assemblage; because the evidence showed at most conspiracy and recruitment, Bollman and Swartwout were discharged.


Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)