The following charge to the Grand Jury of the United States District
Court, in reference to the Slave-hunting affray in Lancaster county, and
preparatory to their finding bills of indictment against the prisoners,
was delivered on Monday, September 28, by Judge Kane:
"Gentlemen of the Grand Jury:--It has been represented to me,
that since we met last, circumstances have occurred in one of
the neighboring counties in our District, which should call for
your prompt scrutiny, and perhaps for the energetic action of
the Court. It is said, that a citizen of the State of Maryland,
who had come into Pennsylvania to reclaim a fugitive from labor,
was forcibly obstructed in the attempt by a body of armed men,
assaulted, beaten and murdered; that some members of his family,
who had accompanied him in the pursuit, were at the same time,
and by the same party maltreated and grievously wounded; and
that an officer of justice, constituted under the authority of
this Court, who sought to arrest the fugitive, was impeded and
repelled by menaces and violence, while proclaiming his
character, and exhibiting his warrant. It is said, too, that the
time and manner of these outrages, their asserted object, the
denunciations by which they were preceded, and the simultaneous
action of most of the guilty parties, evinced a combined purpose
forcibly to resist and make nugatory a constitutional provision,
and the statutes enacted in pursuance of it: and it is added, in
confirmation of this, that for some months back, gatherings of
people, strangers, as well as citizens, have been held from time
to time in the vicinity of the place of the recent outbreaks, at
which exhortations were made and pledges interchanged to hold
the law for the recovery of fugitive slaves as of no validity,
and to defy its execution. Such are some of the representations
that have been made in my hearing, and in regard to which, it
has become your duty, as the Grand Inquest of the District, to
make legal inquiry. Personally, I know nothing of the facts, or
the evidence relating to them. As a member of the Court, before
which the accused persons may hereafter be arraigned and tried,
I have sought to keep my mind altogether free from any
impressions of their guilt or innocence, and even from an
extra-judicial knowledge of the circumstances which must
determine the legal character of the offence that has thus been
perpetrated. It is due to the great interests of public justice,
no less than to the parties implicated in a criminal charge,
that their cause should be in no wise and in no degree
prejudged. And in referring, therefore, to the representations
which have been made to me, I have no other object than to point
you to the reasons for my addressing you at this advanced period
of our sessions, and to enable you to apply with more facility
and certainty the principles and rules of law, which I shall
proceed to lay before you.
If the circumstances, to which I have adverted, have in fact
taken place, they involve the highest crime known to our laws.
Treason against the United States is defined by the
Constitution, Art. 3, Sec. 3, cl. 1, to consist in "levying war
against them, or adhering to their enemies, giving them aid and
comfort." This definition is borrowed from the ancient Law of
England, Stat. 25, Edw. 3, Stat. 5, Chap. 2, and its terms must
be understood, of course, in the sense which they bore in that
law, and which obtained here when the Constitution was adopted.
The expression, "levying war," so regarded, embraces not merely
the act of formal or declared war, but any combination forcibly
to prevent or oppose the execution or enforcement of a provision
of the Constitution, or of a public Statute, if accompanied or
followed by an act of forcible opposition in pursuance of such
combination. This, in substance, has been the interpretation
given to these words by the English Judges, and it has been
uniformly and fully recognized and adopted in the Courts of the
United States. (See Foster, Hale, and Hawkins, and the opinions
of Iredell, Patterson, Chase, Marshall, and Washington, J.J., of
the Supreme Court, and of Peters, D.J., in U.S. vs. Vijol, U.S.
vs. Mitchell, U.S. vs. Fries, U.S. vs. Bollman and Swartwout,
and U.S. vs. Burr).
The definition, as you will observe, includes two particulars,
both of them indispensable elements of the offence. There must
have been a combination or conspiring together to oppose the law
by force, and some actual force must have been exerted, or the
crime of treason is not consummated. The highest, or at least
the direct proof of the combination may be found in the declared
purposes of the individual party before the actual outbreak; or
it may be derived from the proceedings of meetings, in which he
took part openly; or which he either prompted, or made effective
by his countenance or sanction,--commending, counselling and
instigating forcible resistance to the law. I speak, of course,
of a conspiring to resist a law, not the more limited purpose to
violate it, or to prevent its application and enforcement in a
particular case, or against a particular individual. The
combination must be directed against the law itself. But such
direct proof of this element of the offence is not legally
necessary to establish its existence. The concert of purpose may
be deduced from the concerted action itself, or it may be
inferred from facts occurring at the time, or afterwards, as
well as before. Besides this, there must be some act of
violence, as the result or consequence of the combining.
But here again, it is not necessary to prove that the individual
accused was a direct, personal actor in the violence. If he was
present, directing, aiding, abetting, counselling, or
countenancing it, he is in law guilty of the forcible act. Nor
is even his personal presence indispensable. Though he be absent
at the time of its actual perpetration, yet, if he directed the
act, devised, or knowingly furnished the means for carrying it
into effect, instigated others to perform it, he shares their
guilt.
In treason there are no accessories. There has been, I fear, an
erroneous impression on this subject, among a portion of our
people. If it has been thought safe, to counsel and instigate
others to acts of forcible oppugnation to the provisions of a
statute, to inflame the minds of the ignorant by appeals to
passion, and denunciations of the law as oppressive, unjust,
revolting to the conscience, and not binding on the actions of
men, to represent the constitution of the land as a compact of
iniquity, which it were meritorious to violate or subvert, the
mistake has been a grievous one; and they who have fallen into
it may rejoice, if peradventure their appeals and their counsels
have been hitherto without effect. The supremacy of the
constitution, in all its provisions, is at the very basis of our
existence as a nation. He, whose conscience, or whose theories
of political or individual right, forbid him to support and
maintain it in its fullest integrity, may relieve himself from
the duties of citizenship, by divesting himself of its rights.
But while he remains within our borders, he is to remember, that
successfully to instigate treason, is to commit it. I shall not
be supposed to imply in these remarks, that I have doubts of the
law-abiding character of our people. No one can know them well,
without the most entire reliance on their fidelity to the
constitution. Some of them may differ from the mass, as to the
rightfulness or the wisdom of this or the other provision that
is found in the federal compact, they may be divided in
sentiment as to the policy of a particular statute, or of some
provision in a statute; but it is their honest purpose to stand
by the engagements, all the engagements, which bind them to
their brethren of the other States. They have but one country;
they recognize no law of higher social obligation than its
constitution and the laws made in pursuance of it; they
recognize no higher appeal than to the tribunals it has
appointed; they cherish no patriotism that looks beyond the
union of the States. That there are men here, as elsewhere, whom
a misguided zeal impels to violations of law; that there are
others who are controlled by false sympathies, and some who
yield too readily and too fully to sympathies not always false,
or if false, yet pardonable, and become criminal by yielding,
that we have, not only in our jails and almshouses, but
segregated here and there in detached portions of the State,
ignorant men, many of them without political rights, degraded in
social position, and instinctive of revolt, all this is true. It
is proved by the daily record of our police courts, and by the
ineffective labors of those good men among us, who seek to
detach want from temptation, passion from violence, and
ignorance from crime.
But it should not be supposed that any of these represent the
sentiment of Pennsylvania, and it would be to wrong our people
sorely, to include them in the same category of personal,
social, or political morals. It is declared in the article of
the constitution, which I have already cited, that '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.' This and the corresponding language in the act of
Congress of the 30th of April, 1790, seem to refer to the proofs
on the trial, and not to the preliminary hearing before the
committing magistrate, or the proceeding before the grand
inquest. There can be no conviction until after arraignment on
bill found. The previous action in the case is not a trial, and
cannot convict, whatever be the evidence or the number of
witnesses. I understand this to have been the opinion
entertained by Chief Justice Marshall, 1 Burr's Trial, 195, and
though it differs from that expressed by Judge Iredell on the
indictment of Fries, (1 Whart. Am. St. Tr. 480), I feel
authorized to recommend it to you, as within the terms of the
Constitution, and involving no injustice to the accused. I have
only to add that treason against the United States, may be
committed by any one resident or sojourning within its
territory, and under the protection of its laws, whether he be a
citizen or an alien. (Fost. C.L. 183, 5.--1 Hale 59, 60, 62. 1
Hawk. ch. 17, § 5, Kel. 38).
Besides the crime of treason, which I have thus noticed, there
are offences of minor grades, against the Constitution and the
State, some or other of which may be apparently established by
the evidence that will come before you. These are embraced in
the act of Congress, on the 30th of Sept., 1790, Ch. 9, Sec. 22,
on the subject of obstructing or resisting the service of legal
process,--the act of the 2d of March, 1831, Chap. 99, Sec. 2,
which secures the jurors, witnesses, and officers of our Courts
in the fearless, free, and impartial administration of their
respective functions,--and the act of the 18th of September,
1850, Ch. 60, which relates more particularly to the rescue, or
attempted rescue of a fugitive from labor. These Acts were made
the subject of a charge to the Grand Jury of this Court in
November last, of which I shall direct a copy to be laid before
you; and I do not deem it necessary to repeat their provisions
at this time.
Gentlemen of the Grand Jury: You are about to enter upon a most
grave and momentous duty. You will be careful in performing it,
not to permit your indignation against crime, or your just
appreciation of its perilous consequences, to influence your
judgment of the guilt of those who may be charged before you
with its commission. But you will be careful, also, that no
misguided charity shall persuade you to withhold the guilty from
the retributions of justice. You will inquire whether an offence
has been committed, what was its legal character, and who were
the offenders,--and this done, and this only, you will make your
presentments according to the evidence and the law. Your
inquiries will not be restricted to the conduct of the people
belonging to our own State. If in the progress of them, you
shall find, that men have been among us, who, under whatever
mask of conscience or of peace, have labored to incite others to
treasonable violence, and who, after arranging the elements of
the mischief, have withdrawn themselves to await the explosion
they had contrived, you will feel yourselves bound to present
the fact to the Court,--and however distant may be the place in
which the offenders may have sought refuge, we give you the
pledge of the law, that its far-reaching energies shall be
exerted to bring them up for trial,--if guilty, to punishment.
The offence of treason is not triable in this Court; but by an
act of Congress, passed on the 8th of August, 1845, Chap. 98, it
is made lawful for the Grand Jury, empanelled and sworn in the
District Court, to take cognizance of all the indictments for
crimes against the United States within the jurisdiction of
either of the Federal Courts of the District. There being no
Grand Jury in attendance at this time in the Circuit Court, to
pass upon the accusations I have referred to in the first
instance, it has fallen to my lot to assume the responsible
office of expounding to you the law in regard to them. I have
the satisfaction of knowing, that if the views I have expressed
are in any respect erroneous, they must undergo the revision of
my learned brother of the Supreme Court, who presides in this
Circuit, before they can operate to the serious prejudice of any
one; and that if they are doubtful even, provision exists for
their re-examination in the highest tribunal of the country."
On the strength of Judge Kane's carefully-drawn up charge the Grand Jury
found true bills of indictment against forty of the Christiana
offenders, charged with treason. James Jackson, an aged member of the
Society of Friends (a Quaker), and a well-known non-resistant
abolitionist, was of this number. With his name the blanks were filled
up; the same form (with regard to these bills) was employed in the case
of each one of the accused. The following is a