This was an indictment for High Treason, which was set forth in
the following words:
'The Jurors for the Commonwealth of
Pennsylvania, upon their oaths and affirmations, do present, That
Abraham Carlisle, late of the city of Philadelphia, in the county
of Philadelphia, carpenter; being an inhabitant of and belonging to
and residing within the State of Pennsylvania, and under the
protection of its laws, and owing allegiance to the same State, as
a false traitor against the same, not having the fear of God before
his eyes, but being moved and seduced by the instigation of the
Devil, the fidelity which to the same State he owed wholly
withdrawing, and with all his might intending the peace and
tranquillity of this Commonwealth of Pennsylvania to disturb, and
war and rebellion against the same to raise and move, and the
government and independency thereof, as by law established, to
subvert, and to raise again and restore the government and tyranny
of the king of Great Britain within the same Commonwealth: On the
first day of January, in the year of our Lord one thousand seven
hundred and seventy eight, and at divers days and times, as well
before as after, at the city of Philadelphia, in the county
aforesaid, with force and arms, did falsely and traiterously take a
commission or commissions from the king of Great Britain, and then
and there, with force and arms did falsely and treacherously also
take a commission or commissions from general Sir William Howe,
then and there acting under the said king of Great Britain, and
under the authority of the same king, to wit, a commission to watch
over and guard the gates of the city of Philadelphia, by the said
Sir William Howe, erected and set up for the purpose of keeping and
maintaing the possession of the said city, and of shutting and
excluding the faithful and liege inhabitants and subjects of this
State and of the United States from the said city: And then and
there also maliciously and traiterously, with a great multitude of
traitors and rebels, against the said Commonwealth, (whose names
are as yet unkown to the jurors) being armed and arrayed in a
hostile manner, with force and arms did falsely and traiterously
assemble and join himself against this Commonwealth, and then and
there, with force and arms, did falsely and traiterously, and in a
warlike and hostile manner, array and [ Respublica v. Carlisle
1 U.S. 35
(1778)
dispole himself against this Commonwealth; and then and there,
in pursuance and execution of such his wicked and traiterous
intentions and purposes aforesaid, did falsely and traiterously
prepare, order, wage and levy a public and cruel war against this
Commonwealth; then and there committing and perpetrating a
miserable and cruel slaughter of and amongst the faithful and liege
inhabitants thereof; and then and there did, with force and arms,
falsely and traiterously aid and assist the king of Great Britian,
being an enemy at open war against this State, by joining his
armies, to wit, his army under the command of general Sir William
Howe, then actually invading this State; and then and there
maliciously and traiterously, (with divers other Traitors to the
jurors aforesaid unknown,) with force and arms, did combine, plot
and conspire to betray this State and the United States of America
into the hands and power of the king of Great Britian, being a
foreign enemy to this State and to the United States of America, at
open war against the same; and then and there did, with force and
arms, maliciously and traiterously give and send intelligence to
the same enemies for that purpose, against the duty of his
allegiance, against the form of the act of Assembly in such case
made and provided, and against the peace and dignity of the
Commonwealth of Pennsylvania.' The Attorney General offering a
witness to prove, that the Defendant had taken a quantity of salt
from persons whom he termed Rebels, as they were passing out of the
city of Philadelphia; and that he had a power of granting passes;
his counsel objected, that this was impertinent to the overt act
laid in the indictment, and therefore not admissible. 2 Wils. 148.
9. It was urged that at common law, no evidence could be given of a
fact, which was not stated in the declaration. L. N. P. 21. 192. 3.
And that this caution, with respect to the allegata et probata, in
a civil cause, ought, a sortiori, to be exercised in a capital
prosecution. The overt act must be particularly laid, and strictly
proved. 1 H. H. P. C. 121. For, justice requires that the Defendant
should be fully apprized of the charge, so that he may have an
opportunity of encountring it with his evidence. When, indeed, one
overt act is established, evidence may be given of another overt
act, relative to the same treason, but not before. The only overt
act laid in the present indictment, is taking a commission; and it
is no proof of the Defendant's taking a commission, that he seized
the salt in question, or possessed a power or authority to let
people out of the city. Merely to say, likewise, that he was aiding
and assisting the enemy, without laying something more, is no
offence; to ascertain the crime, it must be by joining the armies
of the enemy; by furnishing them with provisions; by enlising, or
procuring others to enlist in their troops, or by carrying on a
traiterous correspondence with them. The aiding and assisting is
the Treason, but these are the over act, which must be laid and
proved, in order to convict the Defendant of the charge. The
Attorney General, in reply, observed, that by the pleadings in a
civil action, the issue must be redused to a single point; and he
admitted that in all indictments for treason, an overt act must be
laid
Page 1 U.S. 35,
37
and proved. But, he contended, that it was unnecessary to fill
the indictment with a detail of the whole evidence in support of
the prosecution; for, if the charge is reduced to a reasonable
certainty, it is all that justice can require, and it is all that
is to be found in any former precedent. Divers overt acts may,
also, be laid in the same indictment; and, though some of them are
faulty, if one be well proved, it is sufficient to entitle the
Commonwealth to a verdict. Where a person was charged with
compassing the king's death, evidence was allowed to be given of
the prisoner's assembling with forty men, though that overt act was
not laid in the indictment. Fost. 245. id. 9. 10. 22. As to what
amounts to levying war, it is said Id. 216. that the joining with
rebels in an act of rebellion, or with enemies in an act of
hostility, will make a man a traitor. So, likewise, shutting gates
against the king, or his troops, in confederacy with enemies, or
rebels, comes within the same description of treason. Id. 218. and
the same overt act may be applied to several distinct branches of
treason, Id. 196, 7. 8. where, it appears, the lord Preston's
taking boat at Surry stairs, with the intention of carrying
treasonable papers into France, for treasonable purposes, was a
sufficient overt act in Middlesex, to maintain the indictment
there. Id. 217. 218. The form of the present indictment is similar
to that against Eneas M'Donald. Id. 5. The charge of levying war is
made in the same manner, as in the proceedings against the rebels
in the year 1746. And the arraying and marching are also laid
agreeably to the terms of all the precedents.
The Chief Justice delivered the opinion of the Court to the
following effect:
M'Kean, Chief Justice.
There are * three species of treason in Pennsylvania: First, To
take a commission or commissions from the king of Great Britain, or
any under his authority; secondly, To levy war against the State or
Government thereof; and thirdly, Knowingly and willingly to aid and
assist any enemies at open war against this State, or the United
States of America. With respect to this third species of treason,
the Legislature has further explained the meaning of the words,
aiding and assisting, to be, 'by joining the armies of the enemy,
or by enlisting, or procuring, or persuading others to enlist for
that purpose; or by furnishing such enemies with arms or
ammunition, provision, or any other article, or articles, for their
aid or comfort, or by carrying on a traiterous correspondence with
them.' All these several species of treason are laid in this
indictment.
Page 1 U.S. 35,
38
It is here particularly stated, that the Defendant took a
commission, under the king of Great-Britain, to watch and guard the
gates of the city of Philadelphia; and the offence is certain
enough in this description, though, without some overt act, it
would not be sufficient for a conviction. In order to prove an
overt act, however, evidence has been offered to show, that the
prisoner had a power of granting passes into, and out of the city,
which was at that time in the possession of the enemy. In Fost. 10.
a witness deposed, that one Berwick was confined in the room
assigned for the rebel officers taken at Carlisle by the duke of
Cumberland; and this was deemed a sufficient proof of his holding a
commission. The Court, on the present occasion, however, are of
opinion, that the evidence which is offered, ought to be received,
but not as conclusive proof of the Defendant's having taken a
commission. Nor will the evidence of seizing the salt, or any act
of disarming the inhabitants whom the Defendant called Rebels,
apply to this species of treason; however they may support the
allegation, of his having joined the armies of the king of
Great-Britain.
We think it is sufficient, also, to lay in the indictment, that
the Defendant sent intelligence to the enemy, without setting forth
the particular letter, or its contents: And, though the charge of
levying war is not, of itself, sufficient; yet assembling, joining
and arraying himself with the forces of the enemy, is a sufficient
over act, of levying war.
BY THE COURT: Let the witness be sworn.
The Attorney General and Reed, for the Commonwealth-Ross and
Wilson for the Defendant.
The Defendant being convicted by the verdict of the Jury, his
counsel filed the following reasons in arrest of judgment:
1st. For that the indictment is vague and uncertain, there being
no overt-act expressly or particularly ascertained, as the prisoner
is advised it ought to be.
2ndly. For that the formal part of the indictment is not drawn
with sufficient precision.
3rdly. For that the several facts are so uncertainly charged,
that the prisoner could not be apprized of the particulars urged
against him. And
4thly. That the whole wants form and substance.
These reasons were elaborately discussed on the 5th of October,
1778, by the same counsel on both sides: But, upon mature
consideration, they were finally over-ruled BY THE COURT, who gave
judgment for the Commonwealth; and the Defendant, a short time
afterwards, was accordingly executed.
Footnotes
[
Footnote *] An act of Assembly
passed the 3rd December, 1782, has encreased the number of
treasons, by declaring, that 'erecting, or endeavouring to erect a
new and independant government within this Commonwealth' and also
'setting up any notice, written or printed, calling the people
together for that purpose,' are acts of high treason. See 3 St.
Law, 122.
