Page:United States Reports, Volume 1.djvu/47

 36 dipoe himelf againt this Commonwealth; and then and there, in puruance and execution of uch his wicked and traiterous intentions and purpoes aforeaid, did falely and traiterouly prepare, order, wage and levy a public and cruel war againt this Commonwealth; then and there committing and perpetrating a mierable and cruel laughter of and amongt the faithful and liege inhabitants thereof; and then and there did, with force and arms, falely and traiterouly aid and ait the king of Great-Britain, being an enemy at open war againt this State, by joining his armies, to wit, his army under the command of general Sir William Howe, then actually invading this State; and then and there maliciouly and traiterouly, (with divers other Traitors to the jurors aforeaid unknown,) with force and arms, did combine, plot and conpire to betray this State and the United States of America into the hands and power of the king of Great-Britain, being a foreign enemy to this State and to, the United States of America, at open war againt the ame; and then and there did, with force and arms, maliciouly and traiterouly give and end intelligence to the ame enemies for that purpoe, againt the duty of his allegiance; aganit the form of the act of Aembly in uch cae made and provided, and againt the peace and dignity of the Commonwealth of Pennylvania.”

The Attorney General offering a witnes to prove, that the Defendant had taken a quantity of alt from perons whom he termed Rebels, as they were paing out of the city of Philadelphia; and that he had a power of granting paes; his counel objected, that this was impertinent to the overt act laid in the indictment, and therefore not admiible. 2 Wils. 148. 9. It was urged that at common law, no evidence could be given of a fact, which was not tated in the declaration. L. N. P. 21. 192. 3. And that this caution, with repect to the , in a civil caue, ought, , to be exercied in a capital proecution. The overt act mut be particularly laid, and trictly proved. 1 H. H. P. C. 121. For, jutice requires that the Defendant hould be fully apprized of the charge, o that he may have an opportunity of encountring it with his evidence. When, indeed, one overt act is etablihed, evidence may be given of another overt act, relative to the ame treaon, but not before. The only overt act laid in the preent indictment, is taking a commiion; and it is no proof of the Defendant’s taking a commiion, that he eized the alt in quetion, or poeed a power or authority to let people out of the city.—Merely to ay, likewie, that he was aiding and aiting the enemy, without laying omething more, is no offence; to acertain the crime, it mut be by joining the armies of the enemy; by furnihing them with proviions; by enliting, or procuring others to enlit in their troops, or by carrying on a traiterous correpondence with them. The aiding and aiting is the Treaon, but thee are the overt acts, which mut be laid and proved, in order to convict the Defendant of the charge.

The Attorney General, in reply, oberved, that by the pleadings in a civil action, the iue mut be redued to a ingle point; and he admitted that in all indictments for treaon, an overt act mut be laid and