RESPUBLICA v. CARLISLE - 1 U.S. 35 (1778)


U.S. Supreme Court

RESPUBLICA v. CARLISLE, 1 U.S. 35 (1778)

1 U.S. 35 (Dall.)

Respublica
v.
Abraham Carlisle

Court of Oyer and Terminer, at Philadelphia

September Sessions, 1778

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 [1 U.S. 35, 37]




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