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was disclosed to show, that the indictments would be presented in Philadelphia; and it was a mere speculation afterwards to suppose that another place would be appointed for the trials, particularly as all the jurors and witnesses had actually been summoned.

By the Court:-The only argument of weight in support of the present motion, is that which relates to the period of furnishing the prisoners with the names of the witnesses; but it is of itself conclusive; for, unless an opportunity were afterwards given to investigate the characters, and trace the conduct of the witnesses, it would be nugatory and delusive to furnish the list of their names. The act directs notice to be given; this must be intended for the purpose alluded to, and, for the attainment of that purpose, time is undoubtedly necessary.

It must, therefore, be considered as a rule in this case, and in all other cases of a similar nature, that a reasonable time shall be allowed after a list of the names of the witnesses is furnished to the prisoners, for the purpose of bringing testimony from the counties in which those witnesses live.

The trials of Stewart and Wright were accordingly postponed; and it was then agreed that they should not be brought on till the trial of the other prisoners who were ready for trial was concluded; but so much time was consumed in this previous business, that the judge declared they could not longer protract the sitting of the court on account of other circuits, and therefore directed the cases of Stewart and Wright to be continued generally till the next term. It appeared, however, that on the preceding day, Mr. Lewis had informed the attorney for the district, that he would proceed to trial in the case of Stewart, with the testimony already in his possession, though he expected other witnesses; and on this ground, as the court was about to break up, he moved that Stewart should be admitted to bail.

But, by the Court:-It was Stewart's own fault, not the fault of the prosecutor, that the trial was postponed. He has now the same witnesses that he had at the time of the postponement; but the judges cannot, consistently with their other duties, enter on the trial. It is true, that we have established it as a principle, that no laches should be imputed to the prisoner, for taking time to send into the counties where the witnesses for the prosecution reside, after he has received notice of their names, but that is not the case at present. Stewart has no claim upon the legal discretion of the Court; and, indeed, the circumstances must be very strong, which will, at any time, induce us to admit a person to bail, who stands charged with High Treason.

THE UNITED STATES vs. PORTER.

Indictment for High Treason, committed in the county of Alleghany, in the State of Pennsylvania, by levying war against the United States. After a long examination of witnesses, it was discovered, that the defendant, though he was at Couche's Fort, had taken no part in the insurrection, that, in fact, he was not the person, liable to the charge, but another person of the same name; and thereupon the jury, by direction of the Court, found a verdict of Not Guilty.

The only occurrence, therefore, which it is material to notice on this trial, was the following. There were two of the Petit Jury (Thomas Coates and William Callady) who being called, and not challenged, alleged sickness in excuse for not serving, and they were, for the present, set apart. But the whole panel having been eventually drawn out of the balloting-box, without furnishing twelve names unchallenged, and those jurors persevering in their excuse, the counsel for the prisoner retracted his challenge of another juror, who was, thereupon, qualified by order of the Court.

THE UNITED STATES vs. VIGOL.

Indictment for High Treason, in levying war against the United States. The prisoner was one of the most active insurgents in the Western counties of Pennsylvania, and had accompanied the armed party, who attacked the house of the excise officer (Reigan's) in Westmoreland with guns, drums, &c., insisted upon his surrendering his official papers, and extorted an oath from him, that he would never act again in the execution of the excise law. The same party then proceeded to the house of Wells, the excise officer, in Fayette county, swearing that the excise law should never be carried into effect, and that they would destroy Wells and his house. On their arrival, Wells had fled, and concealed himself; whereupon they ransacked the house, burned it, with all its contents, including the public books and papers, and afterwards discovering Wells, seized, imprisoned, and compelled him to swear that he would never act again as excise officer. Witnesses were likewise examined to establish that the general combination and scope of the insurrection, were to prevent the execution of the excise law by force; and in the course of the evidence, the duress of the Marshal of the district, the assembling at Couche's, the burning of General Neville's house, &c., were prominent features.

As no question of law arose upon the trial, but the case rested entirely on a proof of the overt acts by two witnesses, Mr. Levy and Mr. Lewis, for the defendant, and the Attorney of the District, agreed without argument, to submit to the decision of the jury, under the charge of the Court, which was delivered to the following effect.

Patterson, Justice:-The first point for consideration, is the evidence, which has been given to establish the case stated in the indictment; the second point turns upon the criminal intention of the party; and from these points (the evidence and intention) the law arises.

With respect to the evidence, the current runs one way. It harmonizes in all its parts. It proves that the prisoner was a member of the party, who went to Reigan's house, and afterwards to the house of Wells, in arms, marshalled and arrayed, and who, at each place, committed acts of violence and devastation.

With respect to the intention, likewise, there is not, unhappily, the slightest possibility of doubt. To suppress the office of excise, in the fourth survey of this State, and particularly in the present instance, to compel the resignation of Wells, the excise officer, so as to render null

and void, in effect, an act of Congress, constituted the apparent, the avowed object of the insurrection, and of the outrages which the prisoner assisted to commit.

Combining these facts, and this design, the crime of High Treason is consummate in the contemplation of the Constitution and law of the United States.

The counsel for the prisoner have endeavoured, in the course of a faithful discharge of their duty, to extract from the witnesses some testimony, which might justify a defence upon the ground of duress and terror, but in this they have failed, for the whole scene exhibits a disgraceful unanimity; and, with regard to the prisoner, he can only be distinguished for a guilty pre-eminence in zeal and activity. It may not, however, be useless on this occasion, to observe, that the fear, which the law recognizes as an excuse for the perpetration of an offence, must proceed from an immediate and actual danger, threatening the very life of the party. The apprehension of any loss of property, by waste or fire; or even an apprehension of a slighter remote injury to the person, furnish no excuse. If, indeed, such circumstances could avail, it would be in the power of every crafty leader of tumults and rebellions to indemnify his followers, by uttering previous menaces; an avenue would be forever open for the escape of unsuccessful guilt; and the whole fabric of society must inevitably, be laid prostrate.

A technical objection has, also, been suggested in favour of the prisoner. It is said, that the offence is not proved to have been committed on the day, nor the number of the insurgent party to be so great as the indictment states. But both these exceptions, even if well founded in fact, are immaterial in point of law. The crime is proved, and laid to have been committed, before the charge was presented; and whether it was committed by one hundred, or five hundred, cannot alter the guilt of the defendant. If, however, the jury entertains any doubt upon the matter, they may find it specially. Verdict guilty.*

THE UNITED STATES vs. MITCHELL.

Indictment for High Treason for levying war against the United States. It was alleged that the prisoner was one of the party assembled at Couche's Fort armed; that he proceeded thence to General Neville's and assisted at the burning of the General's house, that he attended with great zeal at the meeting of Braddock's Field, and that on the day prescribed for signing a submission to the government he was intoxicated, refused to sign himself, and was active in dissuading others

The court having waited about an hour for the jury (till half past ten o'clock at night) adjourned till 11 o'clock the next morning. Just after the adjournment took place, the jury requested to see Foster's Crown Law and the Acts of Congress, which, by consent, were accordingly sent to them. I am told (says Mr. Dallas) that they remained together till between three and four o'clock in the morning, when they wrote, signed, and sealed up their verdict and adjourned. On the next morning (the 23d of May, 1795) they appeared at the bar; and, being called over, offered the written verdict, sealed up, to the clerk. But the court said that the paper could not be received. The foreman then pronounced the verdict, viva voce, and again offered the written verdict; but the court repeated, "we cannot open, or receive it." Nothing was said publicly of the jury's having adjourned. The defendant was eventually pardoned.

from signing. The circumstance of the prisoners being at Couche's was proved by a number of witnesses; his being at Braddock's Field by one witness, and his own confession; but there was only one positive. witness to the fact of his having been to the burning of General Neville's house, though a second witness said "it ran in his head that he had seen him there," and a third declared he had passed him on the march thither. The scope of the testimony as it respected the general object of the insurrection, and as it particularly applied to the prisoner, will be found sufficiently stated in the course of the arguments and charge.

The attorney of the district (Mr. Rawle) having closed the evidence, proceeded to state the law, in support of the prosecution. So frequently and fully has the offence of levying war against the government been defined, that a doubt can be hardly raised upon the subject. Kings, it is true, have endeavoured to augment the number, and to perplex the descriptions of treasons, as an instrument to enlarge their powers, and to oppress their subjects; but in republics, and particularly in the American Republic, the crime of treason is naturally reduced to a single head, which divides itself into these constitutional propositions. 1st. Levying war against the government; and 2d. Adhering to its enemies and giving them aid and comfort. In other words, exciting internal, or waging external war against the State. The second branch of the crime, thus designated, renders it unlawful and treasonable for any citizen to adhere to a foreign public enemy, whether assailing the frontiers, or penetrating into the heart of our country. But while such a co-operation endangers the success and prosperity of the community, the effects of domestic insurrection (which the first branch of the division contemplates) strike at the root of its existence; and, in free countries above all, must be prevented, or corrected by the most vigilant and efficient sanctions of the law.

What constitutes a levying of war, however, must be the same in technical interpretation, whether committed under a republican or a regal form of government, since either institution may be assailed and subverted by the same means. Hence we are enabled in the first stage of our own experience, to acquire precise and satisfactory ideas upon the subject, from the matured experience of another government, which has employed the same language to describe the offence, and is guided by the same rules of judicial exposition. By the English authorities it is uniformly and clearly declared, that raising a body of men to obtain by intimidation or violence the repeal of a law, or to oppose and prevent by force or terror the execution of the law, is an act of levying war. Doug. 570. Again; an insurrection with an avowed design to suppress public offices, is an act of levying war, and, although a bare conspiracy to levy war may not amount to that species of treason; yet, if any of the conspirators actually levy war, it is treason in all the persons that conspired; and in Fost. 218, it is even laid down, that an assembly armed and arrayed in a warlike manner for a treasonable purpose is bellum levatum, though not bellum percussum. Those, likewise, who join afterwards, though not concerned at first in the plot, are as guilty as the original conspirators; for in treason all are principals, and whenever a lawless meeting is convened,

whether it shall be treated as riot or treason, will depend on the quo animo. 4 Bl. Com. 81. 1 Hale P. C. 133, 4. Fost. 213, 210, 215, 218. 1 Hawk. P. C. 37. 4 Bl. Com. 35. 1 Hal. P. C. 440. 8 St. Tr. 247. 2 St. Tr. 586, 7. Keil. 19. Keil. 19. 3 Inst. 9. The evidence, unfortunately, leaves no room for excuse or extenuation, in the application of the law to the prisoners' cases. The general and avowed object of the conspiracy at Couche's Fort, was to suppress the offices of excise in the Fourth Survey. As an important measure for that purpose, it was agreed to go to Gen. Neville's house, and to compel him to surrender his office and official papers. Some of the persons who were at Couche's Fort, went accordingly, to General Neville's and terminated a course of lawless and outrageous proceedings, by burning his house. The prisoner is proved by four witnesses to have been at Couche's Fort; and so far from opposing the expedition to General Neville's, he offered himself to reconnoitre. Being thus originally combined with the conspirators, in a treasonable purpose, to levy war, it was unnecessary that the purpose should be afterwards executed, in order to convict them all of treason, and much less is it necessary to his conviction, that he should have been present at the burning of General Neville's house, which was the consummation of their plot, or that the burning should be proved by two witnesses. But he is, likewise, discovered, by one of the witnesses at least, within a few rods of the General's, at the moment of the conflagration, and he is seen marching in the cavalcade, which escorted the dead body of their leader, in melancholy triumph, from the scene of action to Barclay's house. It is not necessary to consider the meeting at Braddock's Field, as an independent treason, though the avowed intention was to attack the garrison at Pittsburg, and to expel certain public officers from the town; but the conduct of the prisoner on that occasion, concurring in every violent proposition that was made; and his refractory and seditious deportment on the day prescribed for signing the declaration of submission to the laws, are corroborative demonstrations of that mala mens, that dark and dreary turbulence of soul, which is regardless of every social, moral, and religious obligation.*

The counsel for the prisoner (Mr. E. Tilghman and Mr. Thomas) premised, that they did not conceive it to be their duty to show, that the prisoner was guiltless of any description of crime against the United States, or the State of Pennsylvania. But they contended, that he had not committed the crime of high treason, and ought, therefore, to be acquitted upon the present indictment. The adjudications in England upon the various descriptions of treason, have been worked, incautiously, into a system, by the destruction of which, at this day, the government itself would be seriously affected; but even there, the best judges, and the ablest commentators, while they acquiesce in the decisions that have already taken place, furnish a strong caution against the too easy ad

* Patterson, Justice. Before the defence is opened, I wish to direct the attention of the pri soner's counsel to two considerations. 1st. Whether the conspiracy to levy war at Couche's Fort was not, in legal contemplation, an actual levying of war? 2d. Whether the proceedings at General Neville's house, were not a continuation of the act which originated at Couche's Fort? For, several witnesses have proved, that the prisoner was at Couche's Fort, and one positive witness has proved, that he was at General Neville's house.

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