United States v. Mitchell

Syllabus

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 Diftrift (RaíaleJ having clofed the evidence, proceeded to ftate the law, in fupport of the profecuticn. So frequently and fully has the offence of levying war againft the government been defined, that a doubt can hardly be raifed •upon the fubjeft. Kings, it is true, have endeavoured to augment the number, and to perplex the deferiptions, of treafons, as án inftrument to enlarge their powers, and to opprpfs their fubjedts ; but in Republics, and, particularly, in the American Republic, the crime ®f treafon is naturally reduced to a fingle head, which divides itfelf into thefe Conftitutional propofitions :. ift. Levying war againft the government, and 2dly. Adhering to its enemies, giving them aid and comfort:—In other words, exciting internal, or waging external,, war, againft the State. The fecond branch of the crime, thus defignated, renders it unlawful and treafonable for any citizen to adhere to a foreign, public, enemy, whether affailing. the frontiers, or penetrating into the heart, of our country. But while fuch ', co-operation endangers the fucccfs and profperity of the community, the ef

fects 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 fanctions 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

power a mob may easily be converted into a conspiracy ; and a riot aggravated into High Treason. Such, however, is not the sense which Congress has expressed upon this very subject ; for, if a bare opposition to the execution of a law can be considered as constituting a traiterous offence, as levying war against the government, it must be equally to, in relation to every other law, as well as in relation to the excise law ; and in relation to the Marshall of a Court, as much as in relation to the Supervisor of a District : And yet, in the Penal Code of the United States, the offence of wilfully obstructing, resisting, or opposing, any officer, in serving, or attempting to serve any process, is considered and punished merely as a misdemeanor. (1 Vol. Swift’s Edit. p. 109. s. 22.) Let it be granted, that to compel Congress to repeal a law, by violence, or intimidation, is treason (and the English authorities rightly confirmed, claim no greater concession) it does not follow, that resisting the execution of a law, or attempting to coerce an officer into the resignation of his commission, will amount to the same, offence. Let it be granted, also, that an insurrection, for the avowed purpose of suppressing all the excise offices in the United States, may be confirmed into an act of levying war against the government (and the English authorities speak expressly of the universality of the object, as an essential characteristic of this species of treason) it does not follow that an attempt to oblige one officer to resign or to suppress all the offices in one district, will be a crime of the same denomination, 1 Hal. P. C. 135. Nor can another doctrine, urged in support of the prosecution, be fairly recognized. It is laid down in all the books, which have been cited, it is admitted by the attorney general, that a bare conspiracy to levy war, does not amount to treason ; but, it is contended, that if, at any time afterwards, a part of the conspirators should execute the plot, the whole of them, will be involved in the guilt and punishment. Thus, no opportunity is left for repentance ; the motives which restrain the absentees from attending at the scene of action, however pure, can furnish no excuse ;—and they are doomed to answer for the conduct of others, which they may, in fact, disapprove, and which they cannot, in any degree, controul. The state of the evidence, however, renders it unavoidable, that this ground should be taken ; for, unless the proceedings at Couche’s Fort and at Gen. Neville's house can be to combined and interwoven as to form one action, there are not two witnesses to prove that the prisoner was at the latter place; and the conduct at the former, could only amount, under the most rigid construction, to a conspiracy to levy war, not to an actual levying of war against the government. With the necessity for two witnesses to an overt act of treason, it is not in the power of Judges or Juries to, dispense ;—it is a shield

from oppression with which the Constitution furnishes the prisoner; and it cannot be supplied by vague conjectures, founded on the feeble recollection of a witness; nor by idle declarations of the party himself, in a state of intoxication; a state that does not justify the perpetration of a crime, but may fairly be supposed to deprive the criminal of a knowledge of the extent of his confession. 2 Hawk. 604. in not. Fost. C. L. 240. 4 Bl. C. 356. 1 Dall. Rep. 39 . 40.

If this view of the law is correct, it will be easy to shew, that its operation upon the facts, will entitle the prisoner to an acquittal. By the meeting at Bradock’s field no act of treason was committed ; nor was any plan for levying war contrived. The people assembled there upon a general invitation, founded on the calamitous state of the country ; and, though they proposed banishing certain citizens (who were not public officers of the United States) from Pittsburgh (which cannot surely be deemed treason) they neither executed that project, nor committed any other outrage ; but after some menaces and an idle parade, dispersed to their respective homes. The prisoner was certainly at Bradock’s field; but no treason being committed there, his attendance is not a foundation for the present indictment. It may be admitted, likewise, that at Bradock's field, he made some vaunting declarations of a traiterous intention ; but a traiterous intention there, is no proof of his having levied war against the government at another time, and in another place. With respect to the criminal proceedings at Gen. Neville’s house (which after all amount to the crime of arson, and not of treason) it is agreed that only one positive witness proves the fact of the prisoner’s having been there ; but even that witness states, that the Prisoner was alone, at the distance of 30 or 40 rods ; and it is not recollected whether he had a gun. Then it only remains to consider the effect of the prisoner’s presence at Couche’s Fort ; for, his being seen in a cavalcade on the road for Gen. Neville's, and his conduct on the day prescribed for signing the submission to government, when he was notoriously drunk, may prove him to be a very bad man, but will not be sufficient to maintain a charge of High Treason. It does not, then, appear by the testimony of two witnesses, that the meeting at Couche's Fort was convened for the purpose of accomplishing a compulsory repeal of the excise laws, or a suppression of the excise offices. The meeting seems to have originated merely in a wish to consider what it was best to do in the actual state of the country. On that point a committee was chosen, or rather was self-created ; and the members determined to send a flag to Gen.Neville. It does not appear with what view the flag was to be sent; but it will not be presumed, when the evidence is silent, to be with a view to attack the General’s house, to force a repeal of the excise

law, or to compel the officer’s resignation ; and even the fact itself is only proved by one witness. Besides, the conduct of the committee, however culpable, will not be sufficient to involve the whole assembly in the guilt of Treason. It is true, that the prisoner expressed his willingness to reconnoitre Gen. Neville's house ; but this expression, likewise, is only proved by one witness ; and even if it were proved by fifty witnesses, it does not amount to an overt act of Treason by levying war; nor does it appear that he ever did reconnoitre, or furnish intelligence to the committee. The proof against Porter (ant. p. 345) was as strong, and yet he was acquitted. Upon the whole, if the proceedings at Couche’s Fort and Gen. Neville’s house, must be considered as one action, that action must take its colour, quality, and character, from what was done at the latter place ; and as there are not two witnesses to the overt act committed there, it is immaterial what was the conduct of the prisoner at Couche’s Fort. The perpetration is the gift of the crime ; and he only is to be adjudged guilty, who joined in the actual perpetration.

The Attorney General of the United States (Bradford) in reply. It is essential to the security of life, liberty, and property, that the powers of government should exist under some modification; and under whatever modification they exist, an attempt to defeat or destroy them, must be Treason. If, however, the principles asserted in the course of the prisoner’s defence should prevail, a flagrant attempt to obstruct the legitimate operations of the government, to prevent the execution of its laws, and to coerce its officers into a dereliction of their trust, must no longer be regarded as High Treason; every man engaged in the administration of the public affairs has erred in considering the insurrection as any thing more than a common, contemptible, riot ; Vigol, who has been convicted, ought to have been acquitted ; and all the prisoners committed upon the same charge, ought instantly to be released ! But this doctrine and its consequences will not be found compatible with our Constitution ; and cannot receive the countenance of a Court of Justice.

To proceed, however, in a more minute analysis of the defence; it has been argued, that Congress has provided a specific punishment, for the offence of resisting or obstructing the service of process, obviously distinguishing it from Treason ; and that it is as much Treason to resist the execution of one law as another ; to resist the Marshall of a Court, as much as the Supervisor of a District. The analogy is, in a great measure, just: In either case, if the resistance is made by a few persons, in a particular instance, and under the impulse of a particular interest, the offence would not amount to High Treason ; but, if, in either case, there is a general rising of a whole County, to

prevent the officer from discharging his duty in relation to the public at large, the offence is, unquestionably, High Treason. Thus an opposition was lately made to the appointment of a particular Judge in Mifflin County, and he was, forcibly, driven from the Bench ; but the offence was prosecuted merely as a riot, upon this principle of discrimination, that the design was not to prevent the Governor from appointing any Judge, but only to displace an unpopular individual.

Again, it has been urged, that the criminal intention must point to the suppression of all the excise offices in the United States, or it cannot amount to High Treason. If it is meant by this argument, that the insurgents of Pennsylvania must have contemplated a march from Georgia to New Hampshire, it is extravagant and absurd : but, in another view, it is perfectly correct ; for, if it was intended that, by their lawless carreer and example, Congress should be forced into a repeal of the obnoxious law, it necessarily followed, that, from the same cause, the offices of excise would be suppressed throughout the Union. That universality of object, which the books require, was inseparable from the nature of the opposition ; for, it was impossible to contemplate the repeal of the excise law in one Survey, or in one State, without effecting it in every Survey, and in every State.

The truth is, however, that the insurgents did not entertain a personal dislike for Gen. Neville; but in every stage of their proceedings, at Couche's Fort, at the General’s house, and at Bradock’s field, they were actuated by one single, traiterous, motive, a determination, if practicable, to frustrate and prevent the execution of the excise law. The whole was one great insurrection ; and it is immaterial at what point of time, or place, from its commencement to its termination, any man became an agent in carrying it on. Many persons, indeed, may have attended innocently at Couche’s Fort (as was the case with Porter) but those would not remain long, after the purpose of the meeting was developed. To render any man criminal, he must not only have been present, but he must have taken part with the insurgents ; yet, whether he was present at Couche’s Fort, on the march to Gen. Neville’s, or at the burning of the General’s house, if his intention was traiterous, his offence was treason. 3 Inst. 9. The overt act laid in the indictment (which is drawn from the most approved precedents) is levying war; and war may be levied, though not actually made. Fost. 218. It is agreed that this overt act must be proved by two witnesses; but there is a difference as to what constitutes. the act itself. Now, it is manifest from every authority, that to assemble in a body, armed, and arrayed, for some treasonable purpose, is an act of levying war; this was the case at Couche’s Fort; and the prisoner's active attendance there is proved by a number of witnesses. It is not

required that every witness should have seen him at the same spot, at the same moment, and in the same act ; but if they see him at the place and time of rendezvous, exhibiting the same species of traiterous conduct, the law is satisfied. The conspiracy to levy war being effected, all the conspirators are guilty, though they did not all attend at Gen Neville’s house. 1 Hal. P. C. 132. F ost. 213. 215. Besides, the meeting at Bradock’s field is a distinct and substantive act of Treason; and the prisoner is proved by four witnesses to have been there. The design of the meeting, was, avowedly, to oppose the execution of the excise law, to over awe the government, to involve others in the guilt of the insurrection, to prevent the punishment of the delinquents, to banish unpopular individuals from the town, and to attack the garrison of Pittsburg. The hasty declarations of the quo animo, proceeding from the prisoner himself, ought not to have much weight, were they not so strongly corroborated by other testimony.