United States v. Frederick Hoxie. vince a Court and Jury of this high criminal jurisdiction, that, between this and levying of war, there is no difference. Can it be seriously thought, that an American Jury, with the constitution of the United States as a guide to their interpretation, or even on the cases which have been cited, can be brought, by ingrafting construction on construction, to leave far behind them, English Judges and English Juries, in their exposition of the crime of treason? Gentlemen cannot perceive the tendency of the doctrine which it is now asked of us to sanction. On which of the precedents cited do they rely for our support, or expect us to decide, that an opposition to law, so feeble, so transitory, so free from every traitorous intention, so destitute of every appearance of war, and so evidently calculated for the sole purpose of private gain, was making war against the United States? In what can we discover the treasonable mind, which common sense, as well as all the authorities tell us, is of the very essence of this offence? Can it be collected from the employment of ten or twelve muskets? Some Judges have said, how correctly is here of little moment, that the quantum of force is immaterial. But, when we find it so very small and despicable, it furnishes strong evidence of some intent, very far short of that of measuring their strength with the United States: unless, we can believe, that a force, if it deserve that name, scarcely competent to the reduction of a single family, were meditating hostilities and rebellion against a government, defended by several millions of freemen. But, there is no necessity of any forced interpretation, to arrive at the real intention of these parties. Their conduct shows it to have been of a private nature, and that no further violence was contemplated, than to smuggle a raft which had been seized by the Collector, and was then lying at a small distance from a guard, into Canada; for, they forthwith proceeded thither, and having left it a little beyond the line, they returned di United States v. Frederick Hoxie. rectly to the United States, not at the head of an army, but peaceably and quietly, each man to his own home, not suspecting that they had a war on their hands, with any power, and least of all with the government of their own country. Again-Whence is it collected, that their intention was to intimidate Congress into a repeal of the embargo laws, or to resist their execution generally? If Congress were in session, which was not the case, can gentlemen seriously believe, that means so inadequate would have been employed for purposes which an organized, numerous, and well disciplined army would have found it difficult to accomplish? If you look at the insurrections in 1794, and in 1799, you will be struck with the great difference between the cases which arose out of those occurrences, and the one on which you are now to decide. There is hardly a feature of resemblance; and yet, you are seriously expected to condemn the prisoner, as a traitor, for forcing some lumber from the posSession of a Collector, because Mitchel, Vigol, and Fries, (who, by the bye, were all pardoned,) were convicted as such, for being concerned in insurrections, which threatened the existence of government, were well calculated to intimidate the legislature, and for a time actually suspended the operation of certain laws which were deemed obnoxious in a large district of country. It may not be very easy (unless open war and the broad face of rebellion be the criterion,) to fix the exact boundary between treason and some other offences, which partake, more or less, of an opposition to government. But, difficult as this may be, every one will at once perceive a very wide separation, between regular and numerous assemblages of men, scattered over a large portion of country, under known officers, and in every respect armed and marshalled in military and hostile array, for the avowed purpose, not only of disturbing and arresting the course of public law, in a whole United States v. Frederick Hoxie. district, by forcibly compelling the officers of government to resign, but by intimidation and violence, of coercing its repeal, and a sudden, transient, weak, unmilitary, and unsystematized resistance, and that in a solitary instance, and for the single object of personal emolument. As obvious is the distinction, between a large armed force, embodied in the heart of our country, with designs inimical to government and the laws, assuming an attitude of defiance, and opposition to any force which might be set against it, and a few dozen men, who, having committed an offence on the very confines of the United States, were in the act of flying to another government, and whose hostility, such as it was, could have no other motive, than that of favouring their escape. These cases cannot be considered as parallel, without destroying, at once, every distinction between trespasses, riots, and treaNot an instance can be found in England, during a period of several hundred years, which have elapsed since the statute of treasons, in which an act like the present, was determined to be treason. sons. Has the prisoner, then, it may be asked, been guilty of no offence? His conduct, no doubt, was highly culpable, and, if the Courts of the United States have no common law jurisdiction in criminal cases, as some have thought, the legislature may declare such acts a crime, and assign to it such punishment as may be thought proper. It is not very clear, indeed, that the offence, which is now dignified with the name of treason, is not already provided for, by an act of Congress, which punishes the resisting or impeding of any officer of the customs, or any person assisting him, in the execution of his duty, with a fine of four hundred dollars. By another act, whoever shall knowingly oppose any officer of the United States, in the execution of process, or shall beat or wound him in such service, shall be fined and imprisoned; and, provision is made, by the same law, for the pu United States v. Frederick Hoxie. nishment of those who, by force, rescue a prisoner after or before conviction for a capital crime. It may also be remarked, that to kill a Sheriff in the discharge of his duty, and who is as much clothed with the authority of law, as the Collector or his agents were here, whatever be the number concerned, or the weapons employed, has always been held in England and this country, murder, and not treason. These laws of Congress have been mentioned, and others of a like nature might be referred to, to satisfy you, that the legislature never supposed an act of this kind treason, or they would only have declared its punishment; and, although, if it be treason by the constitution, no act of Congress can make it otherwise; still, a legislative understanding of that instrument, if not conclusive, is entitled to very respectful attention. The Court, may here again ask, whether it be a greater crime, to take from the keeping of one public officer, where no death ensues, a property however valuable, than to force from the custody of another, a person whose life had been declared to be forfeited to the laws of his country; or, to kill a Sheriff in the execution of his duty? In all these instances, the laws are opposed, and in the last case, with the aggravation of homicide; but as no traitorous intent exists in either, and no war is made against the United States, neither of them can fall within the meaning of treason. But as so much stress is laid on the opinions of our own Judges, whose attention has been judicially drawn to a consideration of this crime, you will bear with me a little longer, while I show you how very little ground there is for this reliance, and how dangerous a sense you are required to put on these decisions. Nothing will be more easy than to rescue their characters from the reproaches which would adhere to them, if they had really declared, (for such is the language of United States v. Frederick Hoxie. this prosecution,) that every opposition to a public law, no matter how momentary, how slight, in what shape, or for what purpose, amounted to treason. Not one of them has said any such thing, nor intimated a sentiment of the kind. Judge Patterson and Judge Iredell, who led the way on this occasion, and of whose valuable services death has since deprived their country, were as eminent for their abilities, as venerable for their erudition, and as much admired and beloved for their humanity and virtues, as any men that ever ascended the bench of justice; and it would be a subject of mournful retrospect for them, if such contemplations could now employ their thoughts, that the authorities of their names should be resorted to, for introducing a doctrine which, if here, they would resist with all the energy of talents, and weight of character, for which they were both illustrious. You are already acquainted with the occasions on which these opinions were delivered, and have seen how totally the resemblance fails, between them and the one which has called us together. These opinions have also, in part, been stated to you; but, permit me, now, to read other passages, from them, which apply more directly to the case before us. If a statement of facts like the present, had been submitted to Judge Iredell, and he had been obliged to examine and decide on them, he could not have expressed himself in terms more appropriate, or have delivered an opinion more exactly suited to them, or more in favour of the prisoner, than the one which he gave on the occasion which has been already referred to after describing what resistance, and with what intent, to a public law, amounted to treason, he proceeds," But if the intention be merely to defeat its operation in a particular instance, or through the agency of a particular officer, from some private or personal motive, it does not amount to the crime of treason The particular motive must be the sole ingredient in the case; for, if combined with a general view, |