Treason.

number of jurors to be summoned, on a consi- | two witnesses are necessary to produce convic deration of all the circumstances under which tion, it may not be so strictly and absolutely ne the venire is issued. The United States v. The Insurgents of Pennsylvania, 2 Dall. 335.

177. The caption and the indictment seem naturally to form an instrument; and copies of both should be delivered to the prisoner, under the provisions of the act of congress. Ibid.

178. The places of abode of the jurors and witnesses should be furnished to the prisoner. Ibid.

180. If the object of an insurrection was to prevent the execution of the act of congress by force and intimidation, the offence, in legal estimation, is high treason, by levying war. The United States v. Mitchell, 2 Dall. 348.

181. An act committed with a felonious intention, cannot be given in evidence upon the trial of an indictment for high treason. Ibid. 357.

cessary to authorize an indictment being found a true bill. Although there must be two witnesses to the general charge of treason, yet it seems that one witness may be sufficient to prove oue act, and another to prove another act Ibid. 196.

In the

189. What is the natural import of the words "levying war," and who may be said to levy it? Had their first application to treason been 179. The court have established it as a prin- made in the constitution of the United States, ciple, that no laches shall be imputed to the pri- they would certainly have admitted of some soner charged with treason, for taking time to latitude of construction. Taken most literally, send into the counties where the witnesses for they are perhaps of the same import with the the prosecution reside, after he has received no-words, raising or creating war; but as those who tice of their names. The United States v. Stew-join after the commencement are equally the art, 2 Dall. 343. objects of punishment, there would be, probably, a general admission that the terms also comprehended making war, or carrying on war. construction which courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war, might be comprehended. The various acts, which would be considered as coming within the term, would be settled by a course of decisions; and it would be affirming boldly to say, that those only who actually constitute a portion of the military force appearing in arms, could be considered as levying war. There is no difficulty in affirming that there must be a war, or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did, or did not, involve the person committing it in the guilt and in the fact of levying war. If, for example, an army should be actually raised for the avowed purpose of carrying on open war against the United States, and subverting their government; the point must be weighed very deliberately, before a judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases, who never saw the army, but who, knowing its object, and leaguing himself with the rebels, supplied that army with provisions; or by a recruiting officer, holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him. 2 Burr's Trial, 401.

182. The defendant was indicted for treason in adhering to the enemies of the United States, in going from the British squadron to the state of Delaware, with intention of procuring provisions for the squadron. The court held that the going from the British squadron to the shore, for the purpose of peaceably procuring provisions for the enemy, did not amount to an act of treason; as this conduct rested in intention, which is not punishable by our laws. The United States v. Pryor, 3 Wash. C. C. R. 234.

183. Áliter, if a person has carried provisions towards the enemy, with intent to supply him, although defeated in the intention. Ibid.

182. If the prisoner's intention had been to procure provisions for the enemy, by uniting with him in acts of hostility against the citizens of the United States, his progressing towards the shore would have been an overt act of adhering to the enemy, though nothing should have been accomplished. Ibid.

185. A resistance of the execution of a law of the United States, accompanied by force, for a private purpose, is not treason. To constitute that offence, the object of the resistance must be of a public and general character. The U. S. v. Hoxie, 1 Paine, 265.

186. The people of America have declared by the constitution of the United States, that treason "shall consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort." This high crime consists of overt acts, which must be proved by two witnesses, or by the confession of the party in open court. 1 Burr's Trial, 14.

190. But the term is not for the first time applied to treason by the constitution of the United States. It is a technical term. It is used in a very old statute of that country, whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution, in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particu larly terms of art, is completely ascertained; 187. An intention to commit treason, is an those by whom they are employed must be con offence entirely distinct from the actual commis-sidered as employing them in their ascertained sion of that crime. War can only be levied by the employment of actual force; troops must be embodied, men must be assembled, in order to levy war. Ibid.

188. Although the constitution declares that

meaning, unless the contrary be proved by the context. It is therefore reasonable to suppose, unless it be incompatible with other expressions of the constitution, that the term "levying war" is used in that instrument in the same sense in

Treason.

which it was understood in England, and in this country, to have been used in the statute of the 25th of Edward III., from which it was borrowed. Ibid. 402.

191. Those who perform a part in the prosecution of the war, may correctly be said to levy war, and to commit treason under the constitution. It will be observed, that this opinion does not extend to the case of a person who performs no act in the prosecution of the war-who counsels and advises it; or who, being engaged in the conspiracy, fails to perform his part. Whether such persons may be implicated by the doctrine, that whatever would make a man an accessory in felony, makes him a principal in treason, or are excluded, because that doctrine is inapplicable to the United States; the constitution having declared that treason shall consist only in levying war, and having made the proof of overt acts necessary to conviction; is a question of vast importance, which it would be proper for the supreme court to take a fit occasion to decide; but which an inferior tribunal would not willingly determine, unless the case before them should require it. Ibid. 405.

warranted in saying that if, in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the congress of the United States altogether, any forcible opposition, calculated to carry that intention into effect, was a levying of war against the United States, and of course an act of treason." To levy war then, according to this opinion of Judge Iredell, required the actual exertion of force. Ibid. 413.

196. Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered. In the case of the United States against Bollman and Swartwout, there was no evidence that even two men had ever met for the purpose of executing the plan, in which those persons were charged with having participated. It was therefore sufficient for the court to say, that unless men were assembled, war could not be levied. That case was decided by this declaration. The court might indeed have defined the species of assemblage which would amount to levying of war; but, as this opinion was not a treatise on treason, 192. In cases of constructive treason, such as but a decision of a particular case, expressions pulling down meeting-houses, where the direct of doubtful import should be construed iu referand avowed object is not the destruction of the ence to the case itself; and the mere omission Sovereign power, some act of violence might be to state that a particular circumstance was negenerally required to give to the crime a suffi-cessary to the consummation of the crime, ought cient degree of malignity to convert it into trea- not to be construed into a declaration that the son, to render the guilt of any individual une- circumstance was unimportant. General exquivocal. Ibid. 408. pressions ought not to be considered as overruling settled principles, without a direct declaration to that effect. Ibid. 415.

193. The opinions of the best elementary writers concur in declaring that where a body of men are assembled for the purpose of making war against the government, and are in a condition to make that war, the assemblage is an act of levying war. These opinions are contradicted by no adjudged case, and are supported by Vaughan's case. Ibid.

197. It seems to be perfectly clear, that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified, by laying what is termed an overt act of levying war. Ibid.

Independent of authority, trusting only to the 198. It is conceived by the court to be possidictates of reason, and expounding terms accord-ble, that a person may be concerned in a treaing to their ordinary signification, we should pro- sonable conspiracy, and yet be legally as well as bably all concur in the declaration, that war actually absent while some one act of the treacould not be levied without the employment and son is perpetrated. If a rebellion should be so exhibition of force. War is an appeal from rea- extensive as to spread through every state in the son to the sword; and he who makes the appeal Union, it will scarcely be contended that every evidences the fact by the use of the means. individual concerned in it, is legally present at His intention to go to war may be proved by every overt act committed in the course of that words; but the actual going to war is a fact rebellion. It would be a very violent presumpwhich is to be proved by open deed. The end tion indeed, too violent to be made without clear is to be effected by force; and it would seem authority, to presume that even the chief of the that in cases where no declaration is to be made, rebel army was legally present at every such the state of actual war could only be created by overt act. If the main rebel army, with the the employment of force, or being in a condition chief at its head, should be prosecuting war at to employ it. But the term, having been adopted one extremity of our territory, say in New Hampby our constitution, must be understood in that shire-if this chief should be there captured and sense in which it was universally received in sent to the other extremity for the purpose of this country, when the constitution was framed. trial-if his indictment, instead of alleging an The sense in which it was received is to be col-overt act, which was true in point of fact, should lected from the most approved authorities of that nation from which we have borrowed the term. Ibid. 409.

195. In his charge to the grand jury when John Fries was indicted, in consequence of a forcible opposition to the direct tax, Judge Iredell is understood to have said, "I think I am

allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New Hampshire-if such evidence would support such an indictment by the fiction that he was legally present, though really absent, all

Treason.-Violation of the Neutrality of the United States.

would ask to what purpose are those provisions 15. Violation of the Neutrality of the United States. in the constitution, which direct the place of trial, and ordain that the accused shall be informed of the nature and cause of the accusation? Ibid. 425.

Criminal Law.

213. The commission must have been accepted and exercised within the jurisdiction where prosecuted. Ibid.

214. To begin to set on foot is also an offence. Ibid.

and during the voyage from Baltimore to St. |trict of people or association of people, to carry Thomas, was armed, or in a condition to commit on war against any people or state with whom hostilities, in order to find the defendant guilty we are at peace, is an offence. Charge to the of the offence charged in the indictment. Ibid. Grand Jury, 2 M'Lean's C. C. R. 2. 208. The defence consists, principally, in the intention with which the preparations to commit hostilities were made. These preparations, according to the very terms of the act, must be made within the limits of the United States: and it is equally necessary that the intention, with respect to the employment of the vessel, should be formed before she leaves the United States. And this must be a fixed intention: not conditional or contingent, depending on some future arrangements. This intention is a question belonging, exclusively, to the jury to decide. It is the material point on which the legality or criminality of the act must turn, and decides whether the adventure is of a commercial or warlike character. Ibid.

209. The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports: it only requires the owners to give security that such vessels shall not be employed by them to commit hostilities against foreign powers at peace with the United States. Ibid.

210. The collectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power at peace with the United States. All the latitude, therefore, necessary for commercial purposes is given to our citizens; and they are restrained only from such acts as are calculated to involve the country in war. If the defendant was knowingly concerned in fitting out the vessel within the United States, with the intent that she should be employed to commit hostilities against a state, or prince, or people, at peace with the United States, that intention being defeated by what might afterwards take place in the West Indies, would not purge the offence which was previously consummated. It is not necessary that the design or offence should be carried into execution in order to constitute the offence. Ibid.

215. To contribute money, clothing for the troops, provisions, arms, &c., is a violation of the law. ĺbid. 3.

216. The criminal intent must be shown. Ibid. 217. The acts must have been done, to consti. tute the offence, within the district where indictment shall be found. Ibid. 4.

218. Respect for the laws essential to the maintenance of our government. lbid.

CRIMINAL LAW.

1. A warrant of commitment by two justices of the peace of the county of Alexandria, must state some certain good cause for the same, supported by oath. The discharge of the prisoner from confinement, the warrant being illegal, does not prevent the justice proceeding de novo, if the prisoner is really a person of ill fame, and who ought to-find sureties for his good behaviour. Ex parte Burford, 3 Cranch, 448; 1 Cond. Rep. 594.

2. Where, by a law of Virginia, a penalty was imposed for keeping a gaming table, and the same was given to any person who should sue for the same, an indictment in the name of the United States for the offence, cannot be sustained; but the penalty must be sued for in the form authorized by the law. The United States v. Simms, 1 Cranch, 252; 1 Cond. Rep. 305.

3. The courts of the United States have no common law jurisdiction in cases of libel on the government of the United States. The United States v. Hudson and Goodwin, 7 Cranch, 32; 2 Cond. Rep. 405.

4. The clause of the eighth section of the act of congress, "for the punishment of crimes against the United States," which provides that "the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought," applies only to offences committed on the high seas, or in some river, haven, basin, or bay, not within the jurisdiction of a particular state; and not to the territories of the United States, where regular courts are established competent to try those offences. Ex parte Bollman and Swartwout, 4 Cranch, 75; 2 Cond. Rep. 33.

211. The indictment charges that the defendant was concerned in fitting out the Bolivar, with intent that she should be employed in the service of a foreign people, that is to say, in the service of the United Provinces of Rio de la Plata. It was in evidence that the United Provinces of Rio de la Plata had been regularly acknowledged as an independent nation, by the executive department of the United States, before the year 1827. It was argued that the word "people" is not applicable to nation or power. 5. To an action of trespass against the serBy the court:-The objection is one purely tech-geant-at-arms of the house of representatives of nical, and we think not well founded; the word the United States, for an assault and battery and "people," as here used, is merely descriptive of false imprisonment, it is a legal justification and the power in whose service the vessel was to be bar, to plead that a congress was held and sitemployed, and it is one of the denominations ting during the period of the trespasses comapplied by the act of congress to a foreign power. plained of, and that the house of representatives had resolved that the plaintiff had been guilty of a breach of the privileges of the house, and

Ibid.

212. Accepting a commission from any disVOL. I.-44

Criminal Law.

of a high contempt of the dignity and authority | cess to carry into execution the judgment of the of the same; and had ordered that the speaker court. This falls within his general superinshould issue his warrant to the sergeant-at-arms, tending authority over the prosecution. Levy commanding him to take the plaintiff into cus- Court of Washington v. Ringgold, 5 Peters, 451. tody, wherever to be found, and to have him 10. The third section of the act of congress, before the said house, to answer to the said entitled "an act more effectually to provide for charge; and that the speaker did accordingly the punishment of certain crimes against the issue such a warrant, reciting the said resolution United States, and for other purposes," passed and order, and commanding the sergeant-at-arms March 3, 1825, is to be limited to the laws of to take the plaintiff into custody, &c., and deli- the several states in force at the time of its vered the said warrant to the defendant; by enactment. The United States v. Paul, 6 Peters, virtue of which warrant the defendant arrested 141. the plaintiff, and conveyed him to the bar of the 11. The defendant was indicted for robbing house, where he was heard in his defence touch- the mail of the United States, and putting the ing the matter of the said charge; and the exa- | life of the driver in jeopardy, and the conviction mination being adjourned from day to day, and and judgment pronounced upon it extended to the house having ordered the plaintiff to be de- both offences. After this judgment no prosecutained in custody, he was accordingly detained tion could be maintained for the same offence, by the defendant, until he was finally adjudged or for any part of it, provided the former conto be guilty, and convicted of the charge afore-viction was pleaded. United States v. Wilson, 7 said, and ordered to be forthwith brought to the Peters, 150. bar, and reprimanded by the speaker, and then discharged from custody; and after being thus reprimanded, was actually discharged from the arrest and custody aforesaid. Anderson v. Dunn, 6 Wheat. 204; 5 Cond. Rep. 66.

6. An indictment under the crimes act of 1790, ch. 35, sec. 37, for infracting the law of nations by offering violence to the person of a foreign minister, is not a case "affecting ambassadors, other public ministers, and consuls," within the second section of the third article of the constitution of the United States. The circuit courts have jurisdiction of such an offence under the eleventh section of the judiciary act of 1789, ch. 20. The United States v. Ortega, 11 Wheat. 467; 6 Cond. Rep. 394.

7. Query, Whether the jurisdiction of the supreme court is not only original, but exclusive of the circuit court, "in cases affecting ambassadors, other public ministers, and consuls," within the true construction of the second section of the third article of the constitution. Ibid. 8. A petition was presented by Tobias Watkins for a habeas corpus, for the purpose of inquiring into the legality of his confinement in the jail of the county of Washington, by virtue of a judgment of the circuit court of the United States of the District of Columbia, rendered in a criminal prosecution instituted against him in that court. The petitioner alleged that the indictments under which he was convicted and sentenced to imprisonment, charge no offence for which the prisoner was punishable in that court, or of which that court could take cognizance, and consequently, that the proceedings were coram non judice: Held, that the supreme court has no jurisdiction in criminal cases which could reverse or affirm a judgment rendered in the circuit court in such a case, where the record is brought up directly by writ of error. Ex parte Tobias Watkins, 3 Peters, 201.

9. The district attorney is specially charged with the prosecution of all delinquents for crimes and offences, and these duties do not end with the judgment or order of the court. He is bound to provide the marshal with all necessary pro

12. The power of pardon in criminal cases has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance. We adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. Ibid.

13. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any parti cular case of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted upon. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and would overturn those rules which have been settled by the wisdom of ages. Ibid.

14. There is nothing peculiar in a pardon which ought to distinguish it in this respect from other facts; no legal principle known to the court will sustain such a distinction. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed that no being, condemned to death, would reject a pardon; but the rule must be the same in capital cases, and in misdemeanours. A pardon may