Page:United States Reports, Volume 1.djvu/47

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36
CASES ruled and adjudged in a


1778.

" difpofe himfelf againft this Commonwealth ; and then and there,

" in purfuance and execution of fuch his wicked and traiterous inten-

"tions and purpofes aforefaid, did falfely and traiteroufly prepare, or-

"der, wage and levy a public and cruel war againft this Common-

wealth ; then and there committing and perpetrating a miferable

" and cruel flaughter of and amongft the faithful and liege inhabitants

" thereof; and then and there did, with force and arms, falfely and

" traiteroufly aid and aflift the king of Great-Britain, being an enemy

"at open war againft this State, by joining his armies, to wit, his

" army under the command of general Sir William Howe, then actual-

" ly invading this State ; and then and there malicioufly and traiterouf-

" ly, (with divers other Traitors to the jurors aforefaid unknown,)

" with force and arms, did combine, plot and confpire to betray this

"State and the Untied States of America into the hands and power of

" the king of Great-Britain, being a foreign enemy to this State and to,

" the United States of America, at open war againft the fame ; and

" then and there did, with force and arms, malicioufly and traiterouf

" ly give and fend intelligence to the fame enemies for that purpofe,

"againft the duty of his allegiance ; aganift the form of the act of Af-

" fembly in fuch cafe made and provided, and againft the peace and

" dignity of the Commonwealth of Pennƒylvania. "


The Attorney General offering a witnefs to prove, that the Defendant had taken a quantity of falt from perfons whom he termed Rebels, as they were paffing out of the city of Philadelphia ; and that he had a power of granting paffes ; his counfel objected, that this was impertinent to the overt act laid in the indictment, and therefore not admifible. 2 Wils. 148. 9. It was urged that at common law, no evidence could be given of a fact, which was not ftated in the declaration. L. N. P. 21. 192. 3. And that this caution, with refpect to the allegata et probata, in a civil caufe, ought, a fortiori, to be exercifed in a capital profection. The overt act muft be particularly laid, and ftrictly proved. 1 H. H. P. C. 121. For, juftice requires that the Defendant fhould be fully apprized of the charge, fo that he may have an opportunity of encountring it with his evidence. When, indeed, one overt act is eftablifhed, evidence may be given of another of overt act relative to the fame treafon, but not before. The only overt act laid in the prefent indictment, is taking a commiffion ; and it is no proof of the Defendant's taking a commiffion, that he feixed the falt in queftion, or poffeffed a power or authority to let people out of the city.–Merely to fay, likewife, that he was aiding and affifting the enemy, without laying fomething more, is no offence ; to afcertain the crime, it muft be by joining the armies of the enemy ; by furnifhing them with provifions ; by enlifting, or procuring others to enlift in their troops, or by carrying on a traiterous correfpondence with them. The aiding and affifting is the Treafon, but thefe are the overt acts, which muft be laid and proved, in order to convict the Defendant of the charge.

The Attorney General, in reply, obferved, that by the pleadings in a civil action, the iffue muft be redued to a fingle point ; and he admitted that in all indictments for treafon, an overt act muft be laid