# Respublica v. Carlisle

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Respublica versus Abraham Carlisle.
This was an indictment for High Treason, which was set forth in the following words:
The Attorney General offering a witness to prove, that the Defendant had taken a quantity of salt from persons whom he termed Rebels, as they were passing out of the city of Philadelphia; and that he had a power of granting passes; his counsel objected, that this was impertinent to the overt act laid in the indictment, and therefore not admissible. 2 Wils. 148. 9. It was urged that at common law, no evidence could be given of a fact, which was not stated in the declaration. L. N. P. 21. 192. 3. And that this caution, with respect to the allegata et probata, in a civil cause, ought, a fortiori, to be exercised in a capital prosecution. The overt act must be particularly laid, and strictly proved. 1 H. H. P. C. 121. For, justice requires that the Defendant should be fully apprized of the charge, so that he may have an opportunity of encountring it with his evidence. When, indeed, one overt act is established, evidence may be given of another overt act, relative to the same treason, but not before. The only overt act laid in the present indictment, is taking a commission; and it is no proof of the Defendant’s taking a commission, that he seized the salt in question, or possessed a power or authority to let people out of the city.—Merely to say, likewise, that he was aiding and assisting the enemy, without laying something more, is no offence; to ascertain the crime, it must be by joining the armies of the enemy; by furnishing them with provisions; by enlisting, or procuring others to enlist in their troops, or by carrying on a traiterous correspondence with them. The aiding and assisting is the Treason, but these are the overt acts, which must be laid and proved, in order to convict the Defendant of the charge.
The Attorney General, in reply, observed, that by the pleadings in a civil action, the issue must be redued to a single point; and he admitted that in all indictments for treason, an overt act must be laid ​ and proved. But, he contended, that it was unnecessary to fill the indictment with a detail of the whole evidence in support of the prosecution; for, if the charge is reduced to a reasonable certainty, it is all that justice can require, and it is all to be found in any former precedent. Divers overt acts may, also, be laid in the same indictment; and, though some of them are faulty, if one be well proved, it is sufficient to entitle the Commonwealth to a verdict. When a person was charged with compassing the king’s death, evidence was allowed to be given of the prisoner’s assembling with forty men, though that overt act was not laid in the indictment. Fost. 245. id. 9. 10. 22. As to what amounts to levying war, it is said Id. 216. that the joining with rebels in an act of rebellion, or with enemies in an act of hostility, willl make a man a traitor. So, likewise, shutting gates against the king, or his troops, in confederacy with enemies, or rebels, comes within the same description of treason, Id. 218. and the same overt act may be applied to several distinct branches of treason, Id. 196, 7. 8. where, it appears, that lord Preston’s taking ’boat at Surry stairs, with the intention of carrying treasonable papers into France, for treasonable purposes, was a sufficient overt act in Middlesex, to maintain the indictment there. Id. 217. 218. The form of the present indictment is similar to that against Eneas M’Donald. Id. 5. The charge of levying war is made in the same manner, as in the proceedings against the rebels in the year 1746. And the arraying and marching are also 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 Justice. There are three species of treason in Pennsylvania: First, To take a commission or commissions from the king of Great-Britain, or any under his authority; secondly, To levy war against the State or Government thereof; and thirdly, Knowingly and willingly to aid and assist any enemies at open war against this State, or the United States of America. With respect to this third species of treason, the Legislature has further explained the meaning of the words, aiding and assisting, to be,
   “by joining the armies of the enemy, or by enlisting, or procuring or persuading others to enlist for that purpose; or by furnishing such enemies with arms or ammunition, provision, or any other article, or articles, for their aid or comfort, or by carrying on a traiterous correspondence with them.”
All these several species of treason are laid in this indictment.
​ It is here particularly stated, that the Defendant took a commission, 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 description, though, without some overt act, it would not be sufficient for a conviction. In order to prove an overt act, however, evidence has been offered to shew, that the prisoner had a power of granting passes into, and out of the city, which was at that time in the possession of the enemy. In Fost. 10. a witness deposed, that one Berwick was confined in the room assigned for the rebel officers taken at Carlisle by the duke of Cumberland; and this was deemed a sufficient proof of his holding a commission. The Court, on the present occasion, however, are of opinion, that the evidence which is offered, ought to be received, but not as conclusive proof of the Defendant’s having taken a commission. Nor will the evidence of seizing the salt, or any act of disarming the inhabitants whom the Defendant called Rebels apply to this species of treason; however they may support the allegation, of his having joined the armies of the king of Great-Britain.
We think it is sufficient, also, to lay in the indictment, that the Defendant sent intelligence to the enemy, without setting forth the particular letter, or its contents: And, though the charge of levying war is not, of it itself, sufficient; yet assembling, joining and arraying himself with the forces of the enemy, is a sufficient overt act, of levying war.
By the Court:—Let the witness be sworn.
The Attorney General and Reed, for the Commonwealth—Ross and Wilson for the Defendant.
The Defendant being convicted by the verdict of the Jury, his counsel filed the following reasons in arrest of judgment:
1st. For the indictment is vague and uncertain, their being no overt-act expressly or particularly ascertained, as the prisoner is advised it ought to be.
2dly. For that the formal part of the indictment is not drawn with sufficent precision.
3dly. For that the several facts are so uncertainly charged, that the prisoner could not be apprized of the particulars urged against him. And
4thly. That the whole wants form and substance.
These reasons were elaborately discussed on the 5th of October, 1778, by the same counsel on both sides: But, upon mature consideration, they were finally over-ruled by the Court, who gave judgment for the Commonwealth; and the Defendant, a short time afterwards, was accordingly executed.