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"The Jurors for the Commonwealth of Pennƒlvania, upon their

"oaths and affirmations, do prefent, That Abraham Carliƒle, late "of the city of Philadelphia, in the county of Philadelphia carpen-

"ter; being an inhabitant of and belonging to and refiding within

"the State of Pennsƒlvania, and under the protection of its laws, and

"owing allegiance to the fame State, as a falfe traitor againft the

"fame, not having the fear of God before his eyes, but being moved

"and feduced by the inftigation of the Devil, the fidelity which to

"the fame Sate he owed wholly withdrawing, and with all his

"might intending the peace and tranquility of this Commonwealth

"of Pennƒylvania to difturb, and war and rebellion againft the fame

"to raife and move, and the government and independency thereof,

"as by law eftablifhed, to fubvert, and to raife again and reftore the

"government and tyranny of the king of Great Britain within the

"fame Commonwealth : On the firft day of January, in the year of

"our Lord one thoufand feven hundred a feventy eight, and at di-

"vers days and times, as well before as after, at the city of Phila-

"delphia, in the county aforefaid, with force and arms, did falfely and

"traiteroufly take a commiffion or commiffions from the king of

" Great Britain, and then and there, with force and arms, did falfely

" and treacheroufly alfo take a commiffion or commiffions from ge-

" neral Sir William Howe, then and there acting under the faid king

"of Great Britain, and under the authority of the fame king, to wit,

" a commiffion to watch over and guard the gates of the city of Phi-

‘‘ ladelphia, by the faid Sir William Howe, erected and fet up for the

" purpofe of keeping and maintaining the poffeffion of the faid city,

" and fubjects of this Stat and of the United States from the faid

" city : And then and there alfo malicioufly and traiteroufly, with

" a great multitude of traitors and rebels, againft the faid Common-

" wealth, (whofe names are as yet unknown to the jurors) being

" armed and arrayed in a hoftile manner, with force and arms did

" fafely and traiteroufly affemble and join himself againft this Com-

" monwealth, and then and there, with force and arms, did falfely

" and traiteroufly, and in a warlike and hoftile manner, array and ​

1778.

" difpofe himfelf againft this Commonwealth ; and then and there,

" in purfuance and execution of fuch his wicked and traiterous inten-

"tions and purpofes aforefaid, did falfely and traiteroufly prepare, or-

"der, wage and levy a public and cruel war againft this Common-

wealth ; then and there committing and perpetrating a miferable

" and cruel flaughter of and amongft the faithful and liege inhabitants

" thereof; and then and there did, with force and arms, falfely and

" traiteroufly aid and aflift the king of Great-Britain, being an enemy

"at open war againft this State, by joining his armies, to wit, his

" army under the command of general Sir William Howe, then actual-

" ly invading this State ; and then and there malicioufly and traiterouf-

" ly, (with divers other Traitors to the jurors aforefaid unknown,)

" with force and arms, did combine, plot and confpire to betray this

"State and the Untied 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 againft the fame ; and

" then and there did, with force and arms, malicioufly and traiterouf

" ly give and fend intelligence to the fame enemies for that purpofe,

"againft the duty of his allegiance ; aganift the form of the act of Af-

" fembly in fuch cafe made and provided, and againft the peace and

" dignity of the Commonwealth of Pennƒylvania. "

The Attorney General offering a witnefs to prove, that the Defendant had taken a quantity of falt from perfons whom he termed Rebels, as they were paffing out of the city of Philadelphia ; and that he had a power of granting paffes ; his counfel objected, that this was impertinent to the overt act laid in the indictment, and therefore not admifible. 2 Wils. 148. 9. It was urged that at common law, no evidence could be given of a fact, which was not ftated in the declaration. L. N. P. 21. 192. 3. And that this caution, with refpect to the allegata et probata, in a civil caufe, ought, a fortiori, to be exercifed in a capital profection. The overt act muft be particularly laid, and ftrictly proved. 1 H. H. P. C. 121. For, juftice requires that the Defendant fhould be fully apprized of the charge, fo that he may have an opportunity of encountring it with his evidence. When, indeed, one overt act is eftablifhed, evidence may be given of another of overt act relative to the fame treafon, but not before. The only overt act laid in the prefent indictment, is taking a commiffion ; and it is no proof of the Defendant's taking a commiffion, that he feixed the falt in queftion, or poffeffed a power or authority to let people out of the city.–Merely to fay, likewife, that he was aiding and affifting the enemy, without laying fomething more, is no offence ; to afcertain the crime, it muft be by joining the armies of the enemy ; by furnifhing them with provifions ; by enlifting, or procuring others to enlift in their troops, or by carrying on a traiterous correfpondence with them. The aiding and affifting is the Treafon, but thefe are the overt acts, which muft be laid and proved, in order to convict the Defendant of the charge.

The Attorney General, in reply, obferved, that by the pleadings in a civil action, the iffue muft be redued to a fingle point ; and he admitted that in all indictments for treafon, an overt act muft be laid ​

and proved. But, he contended, that it was unneceffary to fill the indictment with a detail of the whole evidence in fupport of the profecution ; fro, if the charge is reduced to a reafonable certainty, it is all that juftice can require, and it is all to be found in any former precedent. Divers overt acts may, alfo, be laid in the fame indictment ; and, though fome of them are faulty, if one be well proved, it is fufficient to entitle the Commonwealth to a verdict. When a perfon was charged with compaffing the king's death, evidence was allowed to be given of the prisoner's affembly with forty men, though that overt act was not laid in the indictment. Foʃt. 245. id. 9. 10. 22. As to what amounts to levying war, it is faid Id. 216. that the joining with rebels in an act of rebellion, or with enemies in an act of hoftility, w. 'l make a man a traitor. So, likewife, fhutting gates againft the king, or his troops, is confederacy with enemies, or rebels, comes within the fame defcription of treafon. Id. 218. and the fame overt act may be applied to feveral diftinct branches of treafon, Id. 196. 7. 8. where, it appears, that lord Preʃton's taking 'boat at Surry ftairs, with the intention of carrying treafonable papers into France, for treafonable purpofes, was a fufficient overt act in Middleʃex, to maintain the indictment there. Id. 217. 218. The form of the prefent indictment is fimilar to that againft Eftates M' Donald. Id. 5. The charge of levying war is made in the fame manner, as in the proceedings againft the rebels in the year 1746. And the arraying and marching are alfo laid agreeably to the terms of all the precedents.

The CHIEF JUSTICE delivered the opinion of the Court to the following effect:

m'kean, Chief Juftice. There are^[♦] three fpecies of treafon in Pennƒylvania: Firʃt, To take a commiffion or commiffions from the king of Great-Britian, or any under his authority ; ʃecondly, To levy war againft the State or Government thereof ; and thirdly, Knowingly and willingly to aid and affift any enemies at open war againft this State, or the United States of America. With refpect to this third fpecies of treafon, the Legiflature has further explained the meaning of the words, aiding and aʃʃiʃting, to be, "by joining the ar-

"mies of the enemy, or by enlifting, or procuring or perfuading

" others to enlift forthat purpofe ; or by furnifhing fuch enemies

" with arms or ammunition, provifion, or any other article, or ar-

"ticles for their aid or comfort, or by carrying on a traiterous cor-

" refpondence with there."–All thefe feveral fpecies of treafon are laid in this indictment. ​

1778.

It is here particularly ftated, that the Defendant took a commiffion, under the king of Great-Britain, to watch and guard the gates of the city of Philadelphia ; and the offence is certain enough in this defcription, though, without fom overt act, it would not be fufficient for a conviction. In order to prove an overt act, however, evidence has been offered to fhew, that the prifoner had a power of granting paffes into, and out of the city, which was at that time in the poffeffion of the enemy. In Foƒt. 10. a witnefs depofed, that one Berwick, was confined in the room affigned for the rebel officers taken at Carliƒle by the duke of Cumberland ; and this was deemed a fufficient proof of his holding a commiffion. The Court, on the prefent occafion, however, are of opinion, that the evidence which is offered, ought to be received, but not as conclufive proof of the Defendant's having taken a commiffion. Nor will the evidence of feizing the falt, or any act of difarming the inhabitants whom the Defendant called Rebels apply to this fpecies of treafon ; however they may fupport the allegation, of his having joined the armies of the king of Great-Britain.

We think it is fufficient, alfo, to lay in the indictment, that the Defendant fent intelligence to the enemy, without fetting forth the particular letter, or its contents: And, though the charge of levying war is not, of it itfelf, fufficient ; yet affembling, joining and arraying himfelt with the forces of the enemey, is a fufficient overt act, of levying war.

by the court:–Let the witnefs be fworn.

The Attorney General and Reed, for the Commonwealth–Rofs and Wilƒon for the Defendant.

The Defendant being convicted by the verdict of the Jury, his counfel filed the following reafons in arreft of judgment :

1ft. For the indictment is vague and uncertain, their being no overt-act expreƒsly or particularly afcertained, as the prifoner is advifed it ought to be.

2dly. For that the formal part of the indictment is not drawn with fufficent precifion.

3dly. For that the feveral facts are fo uncertainly charged, that the prifoner could not be apprized of the particulars urged againft him. And

4thly.That the whole wants form and fubftance.

Thefe reafons were elaborately difcuffed on the 5th of October, 1778, by the fame counfel on both fides: But, upon mature confideration, they were finally over-ruled by the court, who gave judgment for the Commonwealth ; and the Defendant, a fhort time afterwards was accordingly executed.