Article 3, Section 3, Clauses 1 and 2

Document 12

Respublica v. Carlisle

1 Dall. 35 Pa. 1778

The Chief Justice delivered the opinion of the court to the following effect:

McKean, 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: 2. To levy war against the state or government thereof: and 3. 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 traitorous 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 show 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 (Berwick's Case), 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 itself, sufficient; yet assembling, joining and arraying himself with the forces of the enemy, is a sufficient overt act of levying war.

The Founders' Constitution
Volume 4, Article 3, Section 3, Clauses 1 and 2, Document 12
The University of Chicago Press

Easy to print version.