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. 192. In cases of constructive treason, such as pulling down meeting-houses, where the direct and avowed object is not the destruction of the sovereign power, some act of violence might be generally required to give to the crime a sufficient degree of malignity to convert it into treason, to render the guilt of any individual unequivocal. Ibid. 408. 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. Independent of authority, trusting only to the dictates of reason, and expounding terms according to their ordinary signification, we should probably all concur in the declaration, that war could not be levied without the employment and exhibition of force. War is an appeal from reason to the sword; and he who makes the appeal evidences the fact by the use of the means. His intention to go to war may be proved by words; but the actual going to war is a fact which is to be proved by open deed. The end is to be effected by force; and it would seem that in cases where no declaration is to be made, the state of actual war could only be created by the employment of force, or being in a condition to employ it. But the term, having been adopted by our constitution, must be understood in that sense in which it was universally received in this country, when the constitution was framed. The sense in which it was received is to be collected 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 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, but a decision of a particular case, expressions of doubtful import should be construed iu reference to the case itself; and the mere omission to state that a particular circumstance was necessary to the consummation of the crime, ought not to be construed into a declaration that the circumstance was unimportant. General expressions ought not to be considered as overruling settled principles, without a direct declaration to that effect. Ibid. 415. 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. 198. It is conceived by the court to be possible, that a person may be concerned in a treasonable conspiracy, and yet be legally as well as actually absent while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every state in the Union, it will scarcely be contended that every individual concerned in it, is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, too violent to be made without clear authority, to presume that even the chief of the rebel army was legally present at every such overt act. If the main rebel army, with the chief at its head, should be prosecuting war at one extremity of our territory, say in New Hampshire-if this chief should be there captured and sent to the other extremity for the purpose of trial-if his indictment, instead of alleging an overt act, which was true in point of fact, should 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 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. 199. If it be true that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage. If the adviser or procurer be within the constitutional definition of levying war, and independently of the agency of the common law, do actually levy war, then the advisement or procurement is an overt act of levying war. If it be the overt act on which he is to be convicted, then it must be charged in the indictment; for he can only be convicted on proof of the overt acts that are charged. Ibid. 438. 200. If the overt act laid in the indictment is not proved by two witnesses, no testimony, in its nature corroborative or confirmatory, is admissible or can be relevant. Ibid. 444. 201. It is a settled principle in the law, that the accessory cannot be guilty of a greater offence than his principal. The maxim is accessorious sequitur naturam sui principalis; the accessory follows the nature of his principal. Hence results the necessity of establishing the guilt of the principal before the accessory can be tried; for the degree of guilt which is incurred by counselling or commanding the commission of a crime, depends upon the actual commission of that crime. No man is an accessory to murder, unless the fact has been committed. Ibid. 440. 202. The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution, and of the act of congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence, but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions at a different state, in order to prove-what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blannerhassett's island? No: that is not alleged. It is well known that such testimony is not competent to establish such a fact. The constitution and law require that the fact should be established by two witnesses; not by the establishment of other facts from which the jury might reason to this fact. The testimony then is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses, in such manner that the question of fact ought to be left with the jury. Ibid. 443. 15. Violation of the Neutrality of the United States. 203. It is a violation of the act of June 5th, 1794, ch. 226, to concert an expedition from the United States to commit hostilities against a power at peace with the United States; and it is unimportant that such expedition originated beyond seas, if carried on from this country. It is unimportant whether the persons engaged in such a purpose engage the whole vessel to themselves, or depart from the United States as passengers. Ex parte Needham et al., 1 Peters' C. C. R. 487. 204. The previous knowledge or approbation of the president, of the illegal act of a citizen, can afford him no justification for the breach of a constitutional law. Trial of Smith and Ogden, 237. 205. To bring a case within the 5th sec. of the act of June 5th, 1794, ch. 226, made perpetual by the act of April 24th, 1800, ch. 189, prohibiting any person, within the territory or jurisdiction of the United States, from providing or preparing the means of a military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, with whom the United States are at peace; it is immaterial whether or not the vessel, at the identical time of sailing, is in complete readiness for hostile engagement. If the vessel sailed with the means and intent to carry it on, such an enterprise is within the act. Ibid. 240. 206. Indictment under the third section of the act for the punishment of certain crimes against the United States, &c., passed April 20, 1818. The indictment charged the defendant with being knowingly concerned in the fitting out, in the port of Baltimore, a vessel, with intent to employ her in the service of a foreign "people," The United provinces of Buenos Ayres, against the subjects of the emperor of Brazil, with whom the United States were at peace. The vessel went from Baltimore to St. Thomas, and was there fully armed. She afterwards cruised under the Buenos Ayrean flag. To bring the defendant within the words of the act, it is not necessary to charge him with being concerned in fitting out and arming the vessel: the words of the act are, "fitting out or arming," either will constitute the offence. It is sufficient if the indictment charges the offence in the words of the act. The U. S. v. John B. Quincy, 6 Peters, 445. 207. It is true that with respect to those who have been denominated at the bar, "the chief actors," the law would seem to make it necessary that they should be charged with "fitting out and arming." The words may require that both shall concur, and the vessel be put in a condition to commit hostilities in order to bring her within the law; but an attempt to fit out and arm is made an offence. This is certainly doing something short of a complete fitting out and arming. To attempt to do an act does not, either in law or common parlance, imply a completion of the act or any definite progress towards it. Any effort or endeavour to effect it, will satisfy the terms of the law. It is not necessary that the vessel, when she left Baltimore for St. Thomas, 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. 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. By the court:-The objection is one purely technical, and we think not well founded; the word "people," as here used, is merely descriptive of the power in whose service the vessel was to be employed, and it is one of the denominations applied by the act of congress to a foreign power. Ibid. 212. Accepting a commission from any disVOL. I.-44 215. To contribute money, clothing for the troops, provisions, arms, &c., is a violation of the law. Ibid. 3. 216. The criminal intent must be shown. Ibid. 217. The acts must have been done, to constitute 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. 5. To an action of trespass against the sergeant-at-arms of the house of representatives of the United States, for an assault and battery and false imprisonment, it is a legal justification and bar, to plead that a congress was held and sitting during the period of the trespasses complained 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 Criminal Law. Court of Washington v. Ringgold, 5 Peters, 451. 10. The third section of the act of congress, entitled "an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," passed March 3, 1825, is to be limited to the laws of the several states in force at the time of its enactment. The United States v. Paul, 6 Peters, 141. 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 custody, wherever to be found, and to have him before the said house, to answer to the said charge; and that the speaker did accordingly issue such a warrant, reciting the said resolution and order, and commanding the sergeant-at-arms to take the plaintiff into custody, &c., and delivered the said warrant to the defendant; by virtue of which warrant the defendant arrested 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 à 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 particular 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 Criminal Law. be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment. Ibid. 15. The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought "judicially before the court, by plea, motion, or otherwise." Ibid. 16. The reason why a court must, ex officio, take notice of a pardon by act of parliament is, that it is considered as a public law, having the same effect on the case as if the general law, punishing the offence, had been repealed or annulled. Ibid. 17. As the jurisdiction of the supreme court is appellate, it must be shown to the court that the court has the power to award a habeas corpus before one will be granted. Ex parte Milburn, 9 Peters, 704. 18. George Milburn was imprisoned in the jail of the county of Washington, upon a bench warrant issued by the circuit court of the United States for the District of Columbia, to answer an indictment pending against him for keeping a faro bank; an offence which, by an act of congress, is punishable by imprisonment at hard labour in the penitentiary of the district. He had been arrested on a former capias issued on the same indictment, upon which he gave a recognisance of bail, with sureties, in the sum of one hundred pounds, Maryland currency, according to the statute of Maryland; conditioned to appear in court at the return day of the process, &c. He did not appear, and the recognisance was forfeited, and a scire facias was issued against him and his sureties, returnable to December term, 1833. At the same term, another writ of capias was issued against him, returnable immediately, and returned "non est inventus." At June vacation, 1834, another writ of capias was issued against him, returnable to November term, 1834, on which he was arrested, and from which arrest he was discharged on a habeas corpus by the chief justice of the circuit court; on the ground that the writ of capias improperly issued. On a return of this discharge by the marshal, a bench warrant was issued by order of a majority of the judges of the circuit court, and on which he was in custody. He applied for a writ of habeas corpus to this court, to obtain his discharge. Held, that he was properly in custody. The rule for the habeas corpus was refused. Ibid. 19. No prosecution for perjury, under the bankrupt law, can be maintained after the repeal of the law. The United States v. Passmore, 4 Dall. 372. 20. An offence against a temporary statute cannot be punished after the expiration of the act, unless a particular provision be made by law for that purpose. The Irresistible, 7 Wheat. 551; 5 Cond. Rep. 343. 21. The word "apprehended," in that clause of the act for the punishment of crimes, does not simply imply a legal arrest, to the exclusion of a military arrest or seizure. Ex parte_Bollman and Swartwout, 4 Cranch, 75; 2 Cond. Rep. 33. 22. The fear which the law recognises as an excuse for the perpetration of a crime, must proceed from an immediate and actual danger, threatening the very life of the party. United States v. Vigol, 2 Dall. 347. 23. The law punishes the attempt, not the intention, to defraud the revenue by false invoices. The United States v. Riddle, 5 Čranch, 311; 2 Cond. Rep. 266. 24. An offer of a bribe, made in a letter directed to New York, and put into the post-office in Philadelphia, will sustain an indictment in the. district of Pennsylvania. The United States v. Worrall, 2 Dall. 388. 25. A conclusion of an indictment, founded on a statute "contrary to the true intent and meaning of the act of congress of the United States, in such case made and provided," is good; and is equivalent to a conclusion "against the form of the statute in such case made and provided." United States v. Smith, 2 Mason's C. C. R. 143. 26. The circuit court has power to discharge a jury impannelled to try the issue in a criminal cause, whenever it is necessary for the purposes of justice; and there is no exception in capital cases. United States v. Coolidge, 2 Gallis. C. C. R. 364. 27. The grand jury, having received testimony from a person not on oath, the indictment was quashed. Ibid. 28. Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed, and decided, during the trial, before the jury; but, generally speaking, they ought regularly to be considered only upon a motion to quash the indictment, or in an arrest of judgment, or on demurrer. United States v. Gooding, 12 Wheat. 460; 6 Cond. Rep. 572. 29. In criminal proceedings the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute. Ibid. 30. Each count in an indictment is a substantive charge; and if the finding of the jury conform to any one of the counts, which, in itself, will support the verdict, it is sufficient, and judgment may be given thereon. United States v. Furlong, 5 Wheat. 184; 4 Cond. Rep. 623. 31. Though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal, as well as other statutes; and they are not to be construed so strictly as to defeat the obvious intention of the legislature. The United States v. Wiltberger, 5 Wheat. 76; 4 Cond. Rep. 593. 32. The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt; but its observance is essential to the preservation of innocence. The Hoppet v. United States, 7 Cranch, 389; 2 Cond. Rep. 542. 33. In the act of April 30th, 1790, ch. 36, the description of places contained in the eighth section, within which the offences therein enumerated must be committed, in order to give the courts of the Union jurisdiction over them, |