1778.
diſpoſe himſelf againſt this Commonwealth; and then and there, in purſuance and execution of ſuch his wicked and traiterous intentions and purpoſes aforeſaid, did falſely and traiterouſly prepare, order, wage and levy a public and cruel war againſt this Commonwealth; then and there committing and perpetrating a miſerable and cruel ſlaughter of and amongſt the faithful and liege inhabitants thereof; and then and there did, with force and arms, falſely and traiterouſly aid and aſſiſt the king of Great-Britain, being an enemy at open war againſt this State, by joining his armies, to wit, his army under the command of general Sir William Howe, then actually invading this State; and then and there maliciouſly and traiterouſly, (with divers other Traitors to the jurors aforeſaid unknown,) with force and arms, did combine, plot and conſpire to betray this State and the United States of America into the hands and power of the king of Great-Britain, being a foreign enemy to this State and to, the United States of America, at open war againſt the ſame; and then and there did, with force and arms, maliciouſly and traiterouſly give and ſend intelligence to the ſame enemies for that purpoſe, againſt the duty of his allegiance; aganiſt the form of the act of Aſſembly in ſuch caſe made and provided, and againſt the peace and dignity of the Commonwealth of Pennſylvania.”
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 laidand
