2 U.S. 348 (1795)

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U.S. Supreme Court


2 U.S. 348 (F.Cas.) 2 Dall. 348

The United States v. Mitchell Circuit Court, Pennsylvania District April Term, 1795

Indictment for High Treason, by levying war against the United States. It was alledged, that the prisoner was one of the party that assembled at Couche's Fort, armed; that he proceeded thence to Gen. Neville's, and assisted at the burning of the general's house; that he attended with great zeal at the meeting at Bradock'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 from signing. The circumstance of the prisoner's being at Couche's was proved by a number of witnesses; his being at Bradock's field, by one witness and his own confession; but there was only one positive witness to the fact of his having been at the burning of general Neville's house, tho' a second witness said 'it ran in his head that he had seen him there,' and a third declared that 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 (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 hardly be 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 2ndly. Adhering to its enemies, 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

Page 2 U.S. 348, 349

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 and terror, the execution of a 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 H. H. 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. 3 Inst. 9. The evidence, unfortunately, leaves no room for excuse, or extenuation, in the application of the law to the prisoner's case. 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 General Neville's house, and to compel him to surrender his office, and his 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 [2 U.S. 348, 350]

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