| U.S. Circuit Court for the District of Eastern Pennsylvania | Oct 15, 1851
(charging jury).
[Before proceeding to notice more particularly the questions of law or fact arising in this case, or the defendant’s complicity in the transaction, suffer me to advert to some matters, which, though only historically known to us, yet having passed before our eyes as citizens of the commonwealth, may have a tendency to create in our minds some bias on this subject, but which should not be permitted to affect your verdict, whatever your private sentiments and feelings may happen to be. Without intimating any opinion as to the guilt or innocence of the prisoner at the bar, it must be admitted that the testimony in this -case has clearly established that a most horrible outrage upon the laws of the country has been committed. A citizen of a neighboring state, while in the exercise of his undoubted rights guaranteed to him by the constitution and laws of the United States, has been foully murdered by an armed mob of negroes. Others have been shot down, beaten, wounded. and have, with difficulty, escaped with their lives. An offieei of the law. in the execution of his duty, has been openly repelled by force and arms. All this has been done in open day, in the face of a portion of the citizens of this commonwealth, whose bounden duty it was. as good citizens, to support the execution of the laws without any opposition on their part, without any attempt at interference to preserve the peace; and who. if they did not directly encourage or participate in the outrage. looked carelessly and coldly on. These, I say. are facts established in this case beyond contradiction. That it is the duty, either of the state of Pennsylvania, or of the United States, or of both. to bring to condign punishment those who have eom-mitted this flagrant outrage on the peace and dignity of both, cannot be doubted. It is now more than sixty years since the adoption of the constitution of the United States. Under its benign influence we have become a great and powerful nation; happy and prosperous at home, feared and respected abroad. And why has this Confederacy obtained such an immeasurable superiority over the other republics on this continent'.' It is because here we have a moral, virtuous, and a religious people, and a firm, fearless, and impartial administration of the laws; because, here, the minority upholds the constitutions and laws imposed, by the majority; because we have not here pronuncia-mentos, rebellions, and civil wars, caused by the lust of power, by the ignorance of faction or fanaticism, which in other countries have marred every attempt at free government. That the people of the great state of Pennsylvania have a loyalty, fidelity, and love to this Union, and the constitution and laws which have so exalted us as a nation, canuot be doubted; and yet I grieve t<> admit that the only trials and convictions on record for armed and treasonable resistance to the laws of the United States since the adoption of the constitution have their venue laid in Pennsylvania. But these were more than fifty years ago, and before we had become accustomed to the working of a new and untried experiment in self-government, or anticipated its glorious results. It is not our purpose to excuse or vindicate those early outbreaks of popular insubordination, which were soon suppressed by military force, and the impartial execution of the laws by courts and juries. But without, at present, expressing any opinion whether the present outrage is to be classed under the legal category of riot, murder, or treason, we think it due to the reputation of the people of this commonwealth to say that (with the exception of a few individuals of perverted intelligence, some small districts or neighborlioods whose moral atmosphere has been tainted and poisoned by male and female vagrant lecturers and conventions.) no party in polities, no sect of religion of any respectable numbers or character, can be found within our borders who have viewed with approbation, or looked with any other than feelings of abhorrence, upon this disgraceful tragedy. It is not in this hall of independence that meetings of infuriated fanatics and unprincipled demagogues have been held to counsel a bloody resistance to the laws of the land. It is not in this city that conventions are held denouncing the constitution, the laws, and the Bible. It is not here that the pulpit has been desecrated by seditions exhortations, teaching that theft is meritorious, murder excusable, and treason a virtue. The guilt of this foul murder rests not alone on the deluded individuals who were its immediate perpetrators, but the blood taints with even
[In making these remarks, we prefer to speak the truth in plain language, without seeking for bland euphuisms or flattering terms of respect for the promulgators of principles which we verily believe are not only dangerous to the peace, prosperity, and happiness of the citizens of these United States, and tending to the dissolution of the Union, but subversive of all human government. I have adverted to these matters, which must have forced themselves on our minds and attention before the commencement of this trial, in order to warn you also against suffering them to bias your minds in this ease. This defendant must stand or fall by the evidence in the cause, and not be made the scape-goat or sacrifice for the offences of others, unless he be proved to have participated in them. But if that shall have been made to appear by the evidence, it will be no excuse or defence for him that others are equally guilty with himself. It is due to him, however, to say that there is no evidence before us that the prisoner attended any of these conventions got up to fulminate curses against the constitution and laws of the country, to libel its best citizens, and to exhort to a seditious and bloody resistance to the execution of its laws. You will have observed that this bill of indictment charges the defendant with treason in resisting the execution of a certain law of congress concerning fugitives from labor, which has been the subject of much controversy and agitation, and on which it may be proper to make a few remarks before we proceed to the more immediate merits of the case.
[The learned counsel for the prisoner, having a due regard for the high character which they sustain in their profession, have not made the objection to this law which has been so clamorously urged by many presses and agitators, that it is unconstitutional. It is true some ecclesiastical assemblies in the North, treating it. we presume, as a question of theology or orthodoxy, have ventured to anticipate the decision of the legal tribunals on this subject. But, highly as we respect their opinions on all questions properly within their cognizance, we cannot receive their decisions as binding precedents on questions arising under the constitution.
[The constitution enacts that “no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This is the supreme law of the land, binding not only the respective states as such, but on the conscience and conduct of every individual citizen of the United States. It is well known that, without this clause, the assent of the Southern states could never have been obtained to this compact of union. And if. contrary to good faith, it should be practically nullified. —if individuals or state legislatures in the North can succeed in thwarting and obstructing the execution of this article of our confederation, and the rights guaranteed to the South thereby, they have no right to complain if the people of the South should treat the constitution as virtually annulled by the consent of the North, and seek secession from any alliance with open and avowed covenant breakers. Every compact must have mutuality; it must bind in all its parts and all its parties, or it binds none. Tnose states in the North whose legislation has made it a penal offence for their judicial and executive officers to lend their assistance in the execution of this clause of the constitution, and compels them to disregard their solemn oath to support it, have proceeded as far. and perhaps farther, in the path of nullification and secession than any Southern state has yet done. I know it is attempted to justify such legislation by casting the blame on the supreme court of the United States, and quoting certain dicta of some of the judges in the case of Prigg v. Pennsylvania [16 Pet. (41 U. S.) 539], The question before the court in that case, and the only question which could be decided, was this, and this only: “That the master of a fugitive, having a right, under the constitution, to arrest his slave without writ, and take him away, any state legislation which interfered with or obstructed that right, and (as in the case before the court) punished the master or his agent as a kidnapper, was void." How such a decision can justify such legislation it is not easy to perceive.
[The act of congress of 1792 [1 Stat. 275], which was first made to enforce this clause of the constitution, was found to be defective and inoperative, and chiefly because it provided no legal .process or public officer to make the arrest of the fugitive, and bring him before the magistrate. The forcible arrest and seizure of a man without any writ or semblance of legal authority justly became odious, because it was liable to very great abuse. -There was nothing to distinguish the arrest of a master from the seizure of the vile kidnapper and man-stealer. The act of 1850 remedies this evil. It gives the master legal process and an officer of the law to make the arrest, and. moreover, gives the party arrested the benefit of a hearing and the decision of a judicial officer before he can be deported. The free colored mau. who was before liable to capture by kidnappers*, is better protected by this law than he was before. In this foatwv alone is there any chaiacteristic difference be
[It is true that the number of persons whose consciences affect to be governed by such a law is very small. But there is a much larger number who take up opinions on trust or by contagion, and have concluded this must be a very pernicious and unjust enactment, for no other reason than because the others shout their disapprobation with such violence and vituperation. And possibly some might be found who affect to join the chorus with some slight hopes that they may be able to ride into place and power on the waves created by continual agitation. It may not be said of this law. or perhaps of any other, that it is perfect, or the best that could possibly be enacted, or that it is incapable of amendment. But this may truly be said, that while there are so many discordant opinions on the subject, it is not probable that a better compromise will be made, and most probably none of us will live to see any act on this subject made to please every one.
[Let it suffice for the present to say to you. gentlemen of the jury, that this law is constitutional; that the question of its constitutionality is to be settled by the courts, and not by conventions either of laymen or ecclesiastics; that we are as much bound to support this law as any other, and that public armed opposition to the execution of this law is as much treason as it would be against any other act of congress to be found in our statute book. ,
[Let us now proceed to examine more particularly the specific charge laid in this bill of indictment, the evidence given to support them, and the questions of law involved in the case. The bill of indictment charges that the prisoner, Castner Han way, wickedly intending and devising the ■ peace and tranquility of the United States to disturb, and prevent the execution of the laws thereof, to wit ‘"An act respecting fugitives from justice and persons escaping from the service of their masters,” approved February 12, 1793, and another act, supplementary to the same, passed on the 16th of September. 1850, did. on the 11th of September, 1851, wickedly and traitorously intend to levy war against the United States. It then sets forth five several overt acts. (1) That with a large number of persons armed and arrayed with warlike weapons, with purpose to oppose and prevent, by means of intimidation and violence, the execution of the said laws, he did wickedly and traitorously levy war against the United States. (2) That in pursuance of said purpose, the prisoner and others, so armed and traitorously assembled to prevent the execution of said laws, did with force and arms traitorously resist one Henry H. Kline, an officer of the United States, duly appointed, from executing lawful process, and wickedly and traitorously did prevent, by force and intimidation, the execution of the said laws. (3) The third is the same with the second, with this .addition, that they assaulted Kline, and liberated from his custody persons arrested by him, who owed service and labor to Edward Gor-sueh, under the laws of Maryland, thereby traitorously preventing the execution of said laws. (4) That the prisoner, with the others, did traitorously meet, conspiré, and consult to oppose, resist, and prevent by force the execution of said law. (5) That in pursuance of said traitorous intention, he prepared divers books, letters, resolutions, addresses, &c.. which he caused to be dispersed, containing incitements and eneour-agements to fugitives and others to resist, oppose, and prevent by violence and intimidation the execution of said laws.]
Whether the allegations of this bill of indictment are supported by evidence, is the matter which you are sworn to try. In as-sistiug you to arrive at a correct conclusion on these points, it is not the intention of the court to intimate an opinion on any disputed fact. But there are certain facts in the case which have not been disputed by the learned counsel, and which, in speaking of this case, we may assume to have been satisfactorily proved, as they have not been denied. They are these: That Mr. Edward Gorsuch, a citizen of Maryland, was the owner of certain slaves, or persons held to labour by the laws of that state. That these slaves had escaped and fled into "Pennsylvania, and were known to be lurking in the neighbourhood of the village of Christiana, Lancaster county. That Mr. Gorsuch came to Philadelphia in
Without at present further noticing the history of the transaction, or expressing any opinion of the conduct of the white people in the neighbourhood, on the occasion, we may say that the evidence has clearly shown that the participants in this transaction are guilty of riot and murder at least. Whether the crime amounts to treason or not will be presently considered.
Two questions present themselves for your inquiry: (1) Was the defendant, Han way, a participant in the offences proved to have been committed'/ Did he aid, abet or assist the negroes in this transaction, without regard to the grade or description of the of-fence committed? (2) And secondly, if he did, was the offence treason against the United States, as alleged in this bill of indictment? The first of these questions is one wholly of fact, and for your decision alone. The last is a mixed question of law and fact. On the law, you have a right to look to the court, for a correct definition of what constitutes treason, but whether the defendant has committed an offence which comes within that category, is, of course, a matter of fact for your decision. When a murder is committed, all who are present, aiding, abetting and assailing, are equally guilty with him who gave the fatal stroke. An abettor of a murder in order to be held liable as a principal in the felony, must be present at the transaction; if he is absent, he may be an accessory. But in treason all are principals, and a man may be guilty of aiding and abetting, though not present. “If one man -watch while another breaks into a house at night and robs it, both are guilty of burglary.” "If A. comes and kills a man and B. rims with an intent to assist him. if there should be occasion, though in fact he doth nothing, yet he is a principal; being present as well as A.” “If divers persons come with one assent to do mischief, as to kill, rob or beat, and one doth it, they are all principals in the felony.” “It many be present, and one only gives the stroke, whereby the party dies, they are all principals.” “Thus if two fight a duel, and one of them is killed, the seconds who are present, are- both guilty of murder.” “If A. and B. be fighting, and C. a man of full age comes by chance, and is a looker-on only, and assists neither, he is not guilty of murder or manslaughter, but it is a misprision for which he shall be fined, unless he uses means to apprehend the felon.” Lastly, “if divers persons come in one company, to do any unlawful thing, as to kill, rob, or beat a man. or to commit a riot, or to do any other trespass, and one of them m doing thereof kill a man, this shall be adjudged murder in them all that are present of that party, abetting him, and consenting to the act, or ready to aid him, although they did but look on.”
I liave given you these examples from the
What inference the jury may draw from the evidence in this case of the conduct of this prisoner, is for them to say, after carefully weighing the arguments which have been so ably urged by the learned counsel.
With these remarks we submit this point of the case to the jury, after reading to them, if they desire it. the testimony of the witnesses bearing more directly on this question. If you should find that the defendant Castner Hanway did not aid, assist or abet in the perpetration of the offence, you will return a verdict of not guilty, without regard to the grade of the offence; whether riot, murder, or treason. But if you should find that he has so aided and abetted, so as thereby to become a principal in the transaction according to the rules of law which we have just stated, you will next have to inquire whether the offence as proved, amounts to the crime of “treason against the United Suites.’’
The bill charges the defendant with “wickedly and traitorously intending to levy war against the United States:” and the jury must find the act or acts to have been com-' mitted ivith such intention.. For although the prisoner may have been guilty of riot, robbery, murder, or any other felony, he cannot be found guilty under this bill of indictment, unless you find that he intended to levy war against the United States, or that the acts were committed by himself and others in pursuance of some conspiracy or pre-concert for that purpose; and this is a question of fact for the decision of the jury. But in the decision of it. the jury should regard the construction of the constitution as given them by the court as to what is the true meaning of the words “levying war.” Treason against the United States, is defined by the constitution itself. Congress has no power to enlarge, restrain, construí' or define the offence. Its construction is entrusted to the court alone. By this instrument it is declared that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act. or on confession in open court.” What constitutes “levying war against the
The term “levying war.” says Chief Justice Marshall (Burr's Trial, vol. 2. p. 402). “is not for the first time applied to treason by the constitution of the United States. It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution, in the sense which has been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art. is completely ascertained, those by whom they are employed, must be considered as employing them in their ascertained meaning, unless the contrary is proved by the context.” Since the adoption of the constitution but few cases of indictment for treason have occurred. and most of them not many years afterwards. Many of the English cases, then considered good law and quoted by the best text writers as authorities, have since been discredited, if not overruled, in that country. The better opinion there at present seems to be, that the term "levying war" should be confined to insurrections and rebellions for the purpose of overturning the government by force and arms. Many of the cases of constructive treason quoted by Foster, Hale, and other writers, would perhaps now be treated merely as aggravated riots or felonies. But for the purposes of the present ease, it is not necessary to pursue this subject fitrther. or to look beyond the cases decided in our own country. The subject is one of too serious importance to allow this court to indulge in speculations, or wander from the safe path of precedent.
In England, all insurrections to imprison the king, or to force him to change his measures, or to remove evil counsellors; to attack his troops in opposition to his authority; to carry off or destroy his stores, provided for defence of the realm; if done conjointly with and in aid of rebels or enemies, and not only for lucre or some private and malicious motive; to hold a fort or castle against the king or his troops, if actual force be used in order to keep possession; to join with rebels freely and voluntarily; to rise for the purpose of throwing down by force, all enclosures; alter the law or religion, &c.; to effect innovations of a public and general concern, by an armed force, or for any other purpose which usurps the government in matters of a public and general nature. All these acts have been. deemed “a levying of war.” So also have insurrections to redress by force national grievances; or to reform real or imaginary evils of a public nature, and in which the insurgents had no private or special interest, or by intimidation to force the repeal of a law. But when the object of an insurrection is of a local or private nature, not having a direct tendency to destroy all property and all government, by numbers and armed force, it will not amount to treason. In the case of Ex parte Bollinan and Swartwout, in the supreme court of the United States (4 Cranch [8 U. S.] 75. 126-128), it is declared “that it is more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases;” “that to constitute the specific offence, war must be actually levied against the United States;” that “to conspire to levy war, and actually to levy war, are distinct offences;” and that “to complete the crime of levying war, there must be an actual assemblage of men for the purpose.” This case also recognized the doctrine which had been previously laid down by Judge Chase in Fries's Case [Case No. 5.127]. that “if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States, by force, they are guilty only of a high misdemeanor; but if they proceed to carry such intention into execution by force, they are guilty of the treason of levying war, and the quantum of the force employed neither lessens nor increases tin* crime, whether by one hundred or one thousand persons, is wholly immaterial:” and that "a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levj' war; but it is altogether immaterial whether the force used is sufficient to effectuate the .object: any force, connected with the intention, will constitute the crime of 'levying war.’ ” In Mitchell’s Case [Id. 15,788] it was decided that to resist or prevent by armed force, the execution of a par
In the application of these principles of construction to the case before us, the jury will observe, that the “levying of war,” against the United States, is not necessarily to be judged of alone by the number or array of troops. But there must be a conspiracy to resist by force, and an actual resistance by force of arms or intimidation by numbers. The conspiracy and the insurrection connected with it must be to effect something of a public nature, to overthrow the government, or to nullify some law of the United Stares, and totally to hinder its execution, or compel its repeal. A baud of smugglers may be said to set the laws at defiance, and to have conspired together for that purpose, and to resist by armed force, the execution of the revenue laws; they may have battles with the officers of the revenue, in which numbers may be slain on both sides, and yet they will not be guilty of treason, because it is not an insurrection of a public nature, but merely for private lucre or advantage. A whole neighbourhood of debtors may conspire together to resist the sheriff and his officers. in executing process on their property—they may perpetrate their resistance by force of arms—may kill the officer and his assistants —and yet they will be liable only as felons, and not as traitors. Their insurrection is of a private, nci of a public nature; their object is to hinder or remedy a private, not a public grievance. A number of fugitive slaves may infest a neighbourhood, and may be encouraged by the neighbours in combining to resist the capture of any of their number; they may resist with force and arms, their master or the public officer, who may come to arrest them; they may murder and rob them; they are guilty of felony and liable to punishment, but not as traitors. Their insurrection is for a private object, and connected with no public purpose. It is true that constructively they may be said to resist the execution of tlx; fugitive slave law, but in no other sense than the smugglers resist the revenue laws, and the anti-renters the execution laws. Their insurrection, their violence, however great their numbers may be, so long as it is merely to attain some personal, or private end of their own, cannot be called levying war. Alexander the Great may be classed with robbers by moralists, but still the political distinction will remain between war and robbery. One is public and national, the other private and personal.
Without desiring to invade the prerogatives of the jury in judging the facts of this case, the court feel bound to say, that they do not think the transaction with which the prisoner is charged with being connected, rises to the dignity of treason or a levying of war. Not because the numbers of force was insufficient. But (1) for want of any proof of previous conspiracy to make a general and public resistance to any law of the United States; (2) because there is no evidence that any person concerned in the transaction knew there were such acts of congress, as those with which they are charged with conspiring to resist by force and arms, or had any other intention than to protect one another from what they termed “kidnappers” (by which slang term they probably included not only actual kidnappers.but all masters and owners seeking to «'capture their slaves, and the officers and agents assisting therein).
The testimony of the prosecution shows that notice had been given that certain fugitives were pursued; the riot, insurrection, tumult, or whatever you may call it. was but a sudden “conclamatio" or running together, to prevent the capture of certain of their friends or companions, or to rescue them if arrested. Previous to this transaction, so far as we are informed, no attempt had been made to arrest fugitives in the neighbourhood under the new act of congress by a public officer. Heretofore arrests had been made not by the owner in person, or his agent properly authorized, or by an officer of the law. Individuals without any authority, but incited by cupidity, and the hope of obtaining the reward offered for the return of a fugitive, had
I cannot conclude this charge to the jury, without availing myself of the occasion which it offers, to express the satisfaction which the court has in seeing here the attorney general of the state of Maryland and the private counsel associated with him: for although the ordinary officers of the United States are deserving of all praise for the vigilance, ability and learning they have shown in bringing offenders to justice, the indignation felt by the people of Maryland at the calamitous and disgraceful murder of Mr. (rorsuch. are most natural indeed; and we receive their representatives here, in defence of the law, with cordial respect and readiness, in the hope that it may efface all angry feeling between the people of these two states, and foster those of respect and friendship.
[The act of 1850, passed to secure them in the enjoyment of their acknowledged rights, had been received with a shout of disapprobation, in certain parts of the country. Meetings had been held in many places in the North, denouncing the law, and advising a traitorous resistance to its execution; conventions of infuriated fanatics had incited to acts of rebellion, and even the pulpit had been defiled with furious denunciations of the law. and exhortations to a rebellious resistance to it. The government was perfectly justified in supposing that this transaction was but the first overt act of a treasonable conspiracy extending over many of the Northern states to resist by force of arms the execution of this article of the constitution and the laws framed in pursuance of it. In making these arrests, and having this investigation, the officers of government have done no more than their strict duty. The activity, zeal, and ability which have been exhibited by the learned attorney of the United States in endeavoring to bring to condign punishment the perpetrators of this gross offence, are deserving of all praise. It has given great satisfaction to the court also that the learned attorney general of Maryland, and the very able counsel associated with him, have taken part in this prosecution. And I am persuaded that, notwithstanding the unfortunate and disgraceful occurrence which has taken place, and the just feelings of indignation felt by the people of Maryland, caused by it, that this meeting of that state by its representative here with the people of Pennsylvania will tend to efface all angry feelings, and foster those of respect and friendship between the people of these adjoining states. And though the duty of punishing the perpetrators of this outrage may have to be transferred, in whole or in part, to the courts of Lancaster county, we have an assurance, from the activity and zeal already exhibited by the law officers of that county, that it will be performed with all fidelity. With these remarks the case is committed to you.
[The jury found for the defendant.]
[Frota 4 Am. Law J. (N. S.i 4ii8.J
| From 4 Am. Law J. (N. S.) 458.]
[From 4 Am. Law J. (N. S.) 458.]
[From 4 Am. Law J. (N. S.) 458.]