A History of the Trial of Castner Hanway and Others, for Treason, at Philadelphia in November, 1851 / With an Introduction upon the History of the Slave Question

by Member of the Philadelphia bar

“In the present case the defendant was present, as proved by several witnesses, and not denied. Did he come to aid, abet, and countenance or encourage the rioters? If so, he was guilty of every act committed by any individual engaged in the riot—whether it amounts to felony or treason. There is no evidence of any previous connexion of the prisoner with this party, before the time the offence was committed; that he counselled, advised, or exhorted the negroes to come together with arms, and resist the officer of the law, or murder his assistants. His acts, his declarations, and his conduct are fair subjects for your careful examination, in order to judge of his intentions or his guilty complicity with those whose hands perpetrated the offence. If he came there without any knowledge of what was about to take place, and took no part, by encouraging, countenancing or aiding the perpetrators of the offence,—if he merely stood neutral, through fear of bodily harm, or because he was conscientiously scrupulous about assisting to arrest a fugitive from labor, and therefore merely refused to interfere, while he did not aid or encourage the offenders, he may not have acted the part of a good citizen, he may be liable to punishment for such neutrality, by fine and imprisonment, but he cannot be said to be liable as a principal in the riot, murder and treason committed by the others—and much more so if his only interference was to preserve the lives of the officer and his assistants.”

If you should find that the defendant did not aid, abet or assist in the perpetration of the offence, you will return a verdict of not guilty, without regard to the grade of the offence, whether riot, murder or treason.

But if you should find that he has so aided and abetted, so as thereby to become a principal according to the rules of law, you will next have to inquire whether the offence, as proved, amounts to “Treason against the United States.”

This is defined by the Constitution itself. Congress has no power to enlarge, restrain, construe, or define the offence. By this instrument it is declared, “Treason against the U. S. shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

What constitutes “levying war against the Government” is a question which has been a subject of much discussion.

“The term ‘levying war,’” says Chief Justice Marshall, “is not for the first time applied to treason by the Constitution of the U. S. It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution, in the sense which has been affixed to it by those from whom we borrowed it.”

Since the adoption of the Constitution, but few cases of indictment for treason have occurred, and most of those not many years afterwards. Many of the English cases then considered good law and quoted by the best text writers as authorities, have since been discredited, if not overruled in that country. The better opinion then seems to be, that the term “levying war,” should be confined to insurrections and rebellions, for the purpose of overturning the government by force and arms. Many of the cases of constructive treason quoted by Foster, Hale, and other writers, would perhaps now be treated merely as aggravated riots or felonies.

But for the purposes of the present case, it is not necessary to look beyond the cases decided in our own country.

After quoting several American authorities, he continued. “The resistance to the execution of a law of the United States, accompanied with any degree of force, if for a private purpose, is not treason. To constitute that offence, the object of the resistance must be of a public and general nature.”

In the application of these principles to the case before us, the Jury will observe that the “levying of war” against the United States is not necessarily to be judged of alone, by the number or array of troops. But there must be a conspiracy to resist by force, and an actual resistance by force of arms, or intimidation by numbers. This conspiracy and the insurrection connected with it, must be to effect something of a public nature, to overthrow the government, or to nullify some law of the United States, and totally to hinder its execution or compel its repeal.