all known to the attorney for the crown, yet each indictment charges each prisoner to have levied war with persons unknown.

But let us examine the authorities to which he has referred. He cited the cases of Hewet and Mordaunt. I have examined those cases. They are not indictments for levying war. They charge the prisoners among other things, with having procured and delivered military commissions to several persons, who are named in behalf of Charles II. The indictment against each of them does indeed state, that the prisoner did plot and endeavour to stir up war against the protector and commonwealth; that he published and declared Charles Stuart, and held intelligence and correspondence with him. The indictment against Hewet charges, that he did these things with others named, and conferred with and delivered commissions from Charles II. to John Stapely and Henry Mallory. The indictment against Mordaunt differs only in this, that he declared the treasons previously specified by overt act, that is, by conspiring with John Stapely and Henry Mallory how to effect the same; and that he did deliver commissions to several persons in the name of and as from the said Charles Stuart: but neither indictment states that the prisoner levied war with such and such persons or that he levied war at all. Their offence, from the nature of it, required the naming of Charles II. and those to whom commissions were delivered. Hewet refused to plead and denied the authority of those who tried him. He wished to see or hear read the commission by which they tried him, which was refused him. They entered up his having refused to plead and then passed sentence upon him. I have already said, that in treason for levying war, the most usual form is to charge the war to have been levied with persons unknown, and that in cases where some of the persons were certainly known. The gentleman then says, that it is not enough to charge the prisoner with levying war, but that in the overt act we should have set out the particular acts which were done by the prisoner and the evidence by which we mean to charge him. I deny, sir, that this is law. The overt act does not make the treason: it is only evidence of it, and is inserted merely to shew what is intended to be proved against the prisoner; it is introduced in the indictment to warn him of some particular act that will be proved against him, in order that he may prepare to meet and repel it with his defence. Whether or not we should have set out the particular acts done by the prisoner, is a question of law and must be decided by authority. I refer you to 8th State Trials 218, 219. Foster 213, 214, 194, 220. 1 East's Crown Law 121, 116. 1 Hale 122. 4 State Trials 722. Lowick's case, 4 State Trials 696-7. Rockwood's case. In all of them you will find

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this principle clearly laid down, that whenever the treason of levying war is charged in the indictment, only one overt act need be charged, and that it is unnecessary to charge any more. Let me read the form of the indictment in one of these authorities: Foster 213, 214, the case of Damaree and Purchase, for destroying the meetinghouses of protestant dissenters. The indictments charged, that the prisoners, "withdrawing their allegiance, &c. and conspiring and intending to disturb the peace, &c. did traitorously compass, imagine and intend to levy and raise war, rebellion and insurrection against the queen, within the kingdom; and that in order to complete and effect those their traitorous intentions and imaginations, they, on the with a multitude of people, to the number of five hundred, armed and arrayed in a warlike manner, &c. then and there traitorously assembled, did traitorously ordain, prepare and levy war against the queen, against the duty of their allegiance, &c." Now sir, in this indictment there is no particular act charged. The overt act charged is, that five hundred men, armed and arrayed in a warlike manner, assembled, &c. and ordained and levied war, &c. Now in those cases, the acts which those men did, and which constituted their crime, were pulling down meetinghouses; but in the indictment there is not a word of meetinghouses or any other houses; and the court upon solemn argument and after a conference decided unanimously that the indictment was sufficient and let in the particular evidence under it; and as to the overt act, stating the evidence on which we mean to rely, it is expressly declared by East, page 121, on the authority of a variety of cases which he cites, that "it is not necessary, that the whole detail of the evidence should be set out." "It is sufficient that the charge be stated with reasonable certainty, so that the prisoner may be apprised of the nature of it."

Mr. Randolph, when he came to speak on this part of the subject, went back to the time of the reign of Elizabeth, when, as he says, not a single beam of judicial light had touched the English horizon, and quoted a case decided in that reign, which is more in detail than the song of Chevy Chase or Pope's History of the Parish Clerk. The indictment, which he read from the State Trials, exhibits indeed a legal curiosity; but the inference that this detail is necessary is refuted by express authority. East, vol. 1. p. 124, 125, on various authorities informs us, that it is sufficient in that species of treason (compassing the king's death) to lay as the overt act, that A and B met and proposed the king's death; besides what becomes of this inference from an indictment so much in detail, at a time when not a ray of judicial light had touched the British horizon, when in these days of VOL. II.

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more splendor, it would be sufficient to state generally, that the several persons accused met and compassed the death of the king; for modern indictments exhibit nothing of this tedious detail. An inference from these modern indictments, that this detail is not necessary, is certainly as fair as an inference from the ancient indictments, that it is necessary. Thus your inferences are in conflict and destroy each other. I refer you to the cases of Lacock and Rookwood, first cited for another purpose, to shew that this minute and circumstantial form of indictment is exploded.

East, 1 vol. page 116, is still more particular on this subject. After stating, that in every indictment for high treason, the particular species of treason must be charged, in the very terms of the statute of Edward, as the substantial offence, he adds, that "then some overt act must be laid, as the means made use of to effectuate the traitorous purpose." "The overt acts so laid are in truth the charge to which the prisoner must apply his defence; and therefore, it is in no case sufficient to allege that the prisoner compassed the king's death, or that he levied war against him or adhered to his enemies; for upon a charge so general and indefinite, he cannot know what he is to defend. The particular acts of the compassing and adherence must be set forth; and in the other instance (that of levying war) it must be alleged, that he assembled with a multitude armed and arrayed in a warlike manner, and levied war;" and thus it is alleged in our indictment. East proceeds. "The indictment against Purchase and Damaree, for pulling down meetinghouses, charged that they, with a multitude to the number of five hundred, to the jury unknown, armed and arrayed in a warlike manner, with clubs and stones and other arms offensive and defensive, levied war against the queen. No exception was taken to the indictment by Damaree's counsel; but on behalf of Purchase it was objected, that there ought to have been an overt act laid of the treason, because there being such a variety of facts which amount to levying war, if the particular facts intended to be brought forward against the prisoner were not alleged, he could not know how to make his defence. But it was resolved by all the judges upon conference, that the indictment was good; and that levying war being an overt act of itself, no other overt act need be alleged." The indictments in those cases are, as I have already noticed, substantially stated by Foster 213, 214; and the indictments themselves are to be found in 8 State Trials 218, 219. Though the real crime was pulling down meetinghouses, nothing is said of them in the indictment.

Here Mr. WICKHAM begged leave to interrupt Mr. Wirt, in order to explain, as he said Mr. Wirt had misunderstood him.

My argument, said he, was not that a special indictment was necessary in every case, but that whenever an absentee was charged and was to be made liable by relation for the acts of another, the manner of his being connected with that other should be stated in the indictment. For instance, I put the case of Blannerhassett. I never said that such an indictment as is now before the court would not be good against Blannerhassett, who was present at the time and place, when and where the overt act is charged to have been committed. I believe I was understood by the court, because an explanation to the same effect was given before to another gentleman who had misconceived the argument.

Mr. WIRT.-I am obliged to the gentleman for his explanation, but I did not misunderstand him. He states, that whenever a man is to be charged with levying war by relation, the indictment should specify the particular act which constitutes the treason. I answer, that if the accused have borne a part which constitutes treason, he is sufficiently and properly charged in this indictment. I have shewn, that in every case where a prisoner has acted a part which amounted to treason, whether he be absent or present, he may be indicted generally, because he is a principal in the treason; and wherever a person accused is a principal in the treason of levying war, it is sufficient to charge that he did levy war. It is a general definition, authorized by the constitution; and if it be objected, that such an indictment would be too general, because there would be no overt act laid, I answer, that it is sufficient to state in such an indictment for levying war, that a multitude (amounting to a particular number specified) armed and arrayed in a warlike manner, assembled and levied war, &c. and this construction is not only authorized by the constitution, but consistent with adjudged cases. The gentleman said, that he referred to a number of authorities, to shew that persons, attempted to be made traitors by relation, were specially proceeded against. I suspect that he will find no case to support his doctrine. He will find no case where a man, made a traitor by relation, has his acts detailed in the indictment. He will find no case, in which the conduct of a party accused amounts to levying war, where the indictment charges him more specially than our indictment charges the prisoner. But if such a case could be found, it would not be material; because the question is not what the practice is, but what the law is. In all the modern cases, since the British horizon has been enlightened by judicial wisdom, the indictments have been as we contend.

CHIEF JUSTICE. Do you mean to say, that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blanperhassett's island?

Mr. WIRT.-I mean to say, that the count is general in modern cases; that we are endeavouring to make the accused a traitor by connexion, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances.

Mr. WICKHAM.-I do deny that there ever was a case, in which it was attempted to charge a person who was not present, as a principal in levying war, in the same manner as if he had been present, in which the count was general as it is termed. He says, that the modern practice is to charge an absentee as present, and the acts of one person as those of another, by relation. I say that it has never been attempted in any case, except that of sir Nicholas Throgmorton. If there be such a case let it be shewn; and if such attempts were to be made, I hope they would be discountenanced by every tribunal in this country.

Mr. WIRT insisted that Mr. Wickham was mistaken; that there is not a single dictum against the doctrine for which he contended, and authorities remained yet untouched; none had been yet produced. He then proceeded. Whenever the conduct of a man amounts to levying war, the indictment need not say any more, than that he did levy war. It is alleged that we ought to be more special in our indictment. I refer you to the Apprentices' case, 2 State Trials 581, to shew that under the general indictment for levying war, they go in England into the circumstances of the case at large; and 2d, I answer to Mr. Wickham's cases, that neither of them, as before observed, is for levying war. Hewet and Mordaunt were indicted for giving commissions to officers of the exiled king; and this is not charged as accessorial to any greater act, as levying war. The indictments are restricted to the simple facts which I have stated, and contemplate no ulterior act. How then can it be said that those acts are of an accessorial nature, when the sole guilt in the case is consummated by the acts themselves which are charged, without borrowing any portion of that guilt from any subsequent occurrence?

The other case, that of Cornish, charges him with promising assistance to the duke of Monmouth; and here his indictment stops. It does not look to any thing else (as Monmouth's inva