GRIEK. Circuit Justice
(charging jury). 3 [We must commend the patient attention which you have thus far given to this most important and interesting case. It has taken up much of your time, and caused you some personal inconvenience, but not more, perhaps, than the importance of the issue, both as respects the interests of the public and your duty to the prisoner whom you have in charge, has necessarily required. It has been the anxious desire of the court, notwithstanding the pressure of other duties, to give ample time and opportunity for [122]*122the careful and full investigation of the facts and law bearing on the case, not only because it is the first of a numerous list of cases of the same description, which involve the issue of life and death to the parties immediately concerned, but because we know that the public eye is fixed upon us, and demands at our hands the unprejudiced and impartial performance of the solemn duties which we have been called to execute. The prisoner at the bar has a right to require of you that you should not permit the atrocity of the transaction, or your horror of the offence with which he is charged, or your proper desire to vindicate the insulted laws of the country, to cause you to forget your duties to him, and convict him without full and satisfactory proof of his guilt. The government, also, while it cannot desire the sacrifice of an innocent individual for the purpose of public example, has a right to demand of you a firm, a fearless, an unflinching performance of your duty, and that the verdict you shall render shall be a true verdict, according to the evidence which you have heard, and the law as explained to you by the court.
[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 [123]*123deeper d.ve the skirts of those who promulgate doctrines subversive of all morality and all government. This murderous tragedy is but the necessary development of principles and the natural fruit from seed sown by others, whom the arm of the law cannot reach.
[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[124]*124tween this act and the act of 1793 LI Stat. 302]. to which it is-a supplement. No objection had ever been urged to that act. that it was unconstitutional, because it did not give the alleged fugitive a jury trial. In no cases of extradition either of fugitives from justice or from' labor, where the only question to be decided is the identity of the person whose reclamation is sought, had it ever been heard that the country or state to which he fled was to try the question of liis guilt or innocence, or pass upon his rights and duties in the state from which he fled. And yet this newly-discovered argument is the only one which has ever been urged, with any pretence even to plausibility, by those who make so great clamor against this act. The truth is. the shout of disapprobation with which this act has been received by some has been caused, not because it is injurious or dangerous to the rights of freemen of color in the United States, or is unconstitutional; but because it is an act which can be executed, and the constitutional rights of the master in some measure preserved. The real objection with these persons is to the constitution itself, which is supposed to be void in this particular from the effect of some ‘"higher law,” whose potential influence can equally annul all human and all divine law.
[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.] 4
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 [125]*125September last, and obtained warrants, for the arrest of these fugitives, from a commissioner of this court, having authority by law to issue such warrants. That these warrants were put into the hands of Kline, an officer duly authorized to execute them. That on the morning of the 11th of September, about daylight, Kline, accompanied by Gorsuch, his son, nephew, and cousin, and two other persons, citizens of Maryland, proceeded to the house of one Parker. That a person who was recognized as one of the fugitives for whom the warrants had been issued, was seen to come out of the house. That the fugitive on seeing the officer and his company, immediately fled into the house and up stairs, leaving the door open behind him. That Mr. Gorsuch pursued him, followed by the officer. That a number of negroes were collected up stairs, armed in various ways and determined to resist the capture of the fugitives. That a gun was fired by one of them at Mr. Gorsuch, and others of his assistants were struck with missiles thrown from the upper windows. That a pistol was 'then fired by the officer, not aimed at the negroes, but rather to frighten them and let them know their assailants were armed. That a parley was then held between the parties, and the negroes informed that the officer had legal process in his hands for their arrest. That the negroes demanded time for the puipose, as was supposed, of ofGering terms of surrender, but in reality, perhaps, to gain time for the arrival of assistance from the neighbourhood. That aftér some lapse of time, the defendant arrived on the ground, and at the same time, or soon after, large numbers of negroes began to collect around with various weapons of offence, such as guns, clubs, scythes, and corn-cutters, That on the arrival of these reinforcements, the persons in the house set up a yell of defiance. That the officer made known his character, and exhibited his writs to the defendant, and another white man who had arrived on the ground, and demanded their assistance in executing the warrants, which was refused. That the officer deeming the attempt to execute his writs in the face of a numerous aimed and angry mob of negroes hopeless, made no further attempt to do so, being content to escape with his life. That the mob of armed negroes, now amounting to near or over one hundred persons, mime-diately made an attack upon the party who attended the officer. Mr. Gorsuch was then shot down, beaten with clubs, and murdered on the spot. His son, who came to his assistance, was shot and wounded, and with difficulty escaped with his life. That the nephew was surrounded and beaten, but escaped with his life; and that on the preceding evening, notice had been given in the neighbourhood, by a negro who had followed the officer from Philadelphia, that an arrest of the fugitives was intended, and that the concourse and riot of the morning, was evidently by preconcert and in consequence of such information.
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 [126]*126books, in order iliat you may form some idea as to the nature of what the law treats as criminal; and what it regards as aiding, abetting and countenancing the perpetration of an offence. In the present case, Hanway was confessedly present. But did he come to aid, abet, countenance or encourage the rioters? If so, he was guilty of every act committed by any individual engaged in the riot—whether it amount to felony or treason. There is no evidence of any previous connection of the prisoner with this party, before the time the offence was committed— that he had counselled, advised or exhorted the negroes to come together with arms and resist the officer of the law or murder his assistants. There is no evidence, even, that the prisoner was a member of any of these associations or conventions, which occasionally or annually infest the neighbouring village of West Chester, for the purpose of railing at and reviling the constitution and laws of the land, and denouncing those who execute them as no better than a Scroggs and a Jeffries—who stimulate and exhort poor negroes to the perpetration of offences, which they know must bring them to the penitentiary or the gallows. The fact of his interference, whether active or passive, of his aiding, counselling or abetting the perpetrators of this offence, has been argued from his language and conduct during its perpetration in his presence. His acts, his declarations and his conduct, are fair subjects for your careful examination, in order to judge of his intentions or his guilty complicity with those whose hands perpetrated the offence. If. as the counsel for the United States have argued, he countenanced or encouraged, aided or abetted the offenders in the commission of the offence, he is equally guilty with them. If, on the contrary, as is argued by his counsel, he came there without any knowledge of what was about to take place, and took no part by encouraging, countenancing, or aiding the perpetrators of the of-fence—if he merely stood neutral through l'ear of bodily harm, or because he was conscientiously scrupulous about assisting to arrest a fugitive from labour, and therefore merely refuse to interfere, while he did not aid or encourage the offenders, he may not have acted the part of a good citizen: he may be liable to punishment for such neutrality by fine and imprisonment, but he cannot be said to be liable as a principal in the riot, murder and treason, committed by the others—and much more so if. as lias been argued, his only interference was to preserve the lives of the officer and his attendants. A man may have such conscientious principles on the subject of non-resistance, as to stand by with indifference and neutrality, when his father or friend is attacked by a madman, and in case of his death may not be liable as an aider or abettor in the murder or manslaughter. We may wonder at his philosophic indifference, though we cannot admire the man.. So a man who is a mere spectator in a contest where a mob of rioters are resisting an officer of the law in the execution of his duty, may refuse assistance, countenance or aid to either side. In so doing he is not acting the part of an honest, loyal citizen; he may be liable to be punished for a misdemeanor for his refusal to interfere, but such conduct will not necessarily make him liable as a principal in the riot or murder committed. But such conduct is a fair subject for the consideration of a jury, in connection with other circumstances, to show preconcert and guilty complicity with the rioters, murderers or traitors.
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 [127]*127government,” is a question whieli has been the subject of much discussion, whenever an indictment has been tried under this article of the constitution. The offence is described in very few words, and in their application to particular cases, much difference of opinion may be expected. We derive our laws as well as our language from England. As we would apply to English dictionaries and classical writers, to ascertain the proper meáning of a particular word, so when we would inquire after the true definition of certain legal phraseology we would naturally look to the text writers and judicial decisions which we know that the framers of our constitutions would regard as the standard authorities in questions of legal definition. Otherwise the language of the constitution on this subject might be subject to any construction which the passion or caprice of a court and jury might choose to give it in times of public excitement. At one time the constitution might be nullified by a narrow construction, and at another time the life and liberty of the citizen be sacrificed by a latitudinous one.
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[128]*128ticular statute of the United States, is a levying war against the United States, and consequently treason, within the true meaning of the constitution. And in Fries’s Case, already mentioned, “that an insurrection or rising of any body of people within the United States, to attain by force or violence any object of a great public nature, or of public, (or national) and general concern, is a levying of war against the United States.” “That any such insurrection or rising to resist or prevent by force or violence the execution of any statute of the United States.” “under any pretence, as that the statute was unjust, burthensome, oppressive or unconstitutional, is a levying of war against the United States within the constitution.” And in a case in the circuit court of New York (U. S. v. Hoxie [Case No. 15,407]) it was declared that if the intention be, to prevent by force of arms, the execution of any act of congress altogether, any forcible opposition calculated to carry that intention into effect, is levying war against the United States. But the resistance of the execution of a law of the United States accompanied with any degree of force, if for a private purpose, is not treason. To constitute that offence, the object of the resistance must be of a public and general nature. I do not think it necessary to quote further from the decisions of my predecessors. It will suffice to say that the late charge of my Brother Kane to the grand jury, in the circuit court [Fed. Cas. Append.], contains what I believe to be a correct statement of the decisions on this subject. and that I fully concur in the doctrines stated, and the sentiments expressed in it.
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 [129]*129heretofore undertaken to seize them by force and violence, to invade the sanctity of private dwellings at night, and insult the feelings and prejudices of the people. It is not to he wondered at that a people subject to such inroads, should consider odious the perpetrators of such deeds and denominate them kidnappers—and that the subject of this treatment should have been encouraged in resisting such aggressions, where the rightful claimant could not be distinguished front the odious kidnapper, or the fact be ascertained whether the person seized, deported or stolen in this manner, was a free man or a slave. But the existence of such feelings is no evidence of a determination or conspiracy by the people to publicly resist any legislation of congress, or levy war against the United States. That in consequence of such excitement, such an outrage should have been committed, is deeply to be deplored. That the persons engaged in it are guilty of aggravated riot and murder cannot be denied. But riot and murder are offences against the state government. It would be dangerous precedent for the court and jury in this case to extend the crime of treason by construction to doubtful cases, and our decision would probably operate in the end to defeat the purposes of the law. which the government seeks to enforce.
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.
5 [The time may come when, with an elective judiciary, deiiendent on the will of the majority (which is here the sovereign power), may use such a precedent to justify the foulest oppression and injustice, and the tragedies enacted by a Scroggs and a Jeffries be repeated, and again sully the page of history. But I would not be doing justice to all parties concerned in this prosecution, if I did not express my cordial approbation of the course pursued by the authorities of the United States and state of Maryland on this occasion. This is the second instance in which a citizen of Maryland, in the legitimate pursuit of rights, guaranteed to him by the constitution, has been foully murdered on the soil of Pennsylvania. As might be expected, it created a great excitement, and a just feeling of indignation in the breasts of tlie people of Maryland.
[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.] 6
7 [Mr. J. W. Ashmead said that the prisoner was also charged on four other bills for misdemeanor; but as he had passed through such an ordeal, he purposed entering a nolle prosequi on those bills. If the state does not hold him for anything else, I move for his discharge
[CIUEi:. Circuit Justice, said, that, on motion, the prisoner was discharged.] 7