The two first named when arraigned severally pleaded not guilty, the third pleaded not guilty, and also put in a plea to the jurisdiction of the court.
Tin; attorney for the United States objected to the double plea put in by Alexander; but it being after the hour of adjournment, the court adjourned till the next day. when the prisoners again being severally arraigned. Mr. Mitchell, one of their counsel, asked leave to withdraw their pleas, intimating that he did not then know what to advise his clients to plead. In order to give the accused full opportunity to make their defense. the court granted leave accordingly. under the impression ■ that .their counsel meant to plead other pleas. Tin1 accused being severally called on to answer were advised by their counsel to stand mute, and thus did stand mute, thus refusing to plead.
The attorney for the United States moved the court to proceed to the trial in the same manner as if the accused had pleaded not guilty, according to the twenty-ninth section of the act for the punishment of certain crimes against the United States. To this the counsel for the prisoners objected, contending that this mode of proceeding was applicable only to the trial of the crimes specified in the act for the punishment of certain crimes against the United States, and could not be extended by construction to the crime of robbing the mail, made capital by an act of congress subsequently passed.
On the part of the prosecution it was argued that by the act to establish the judicial courts of the United States, full power and authority are given to the circuit courts of the United States to try all crimes and offenses cognizable under the authority of the United States, and that the manner of conducting the trial prescribed by the twenty-ninth section of the act, for the punishment of certain crimes, is applicable to all eases arising under laws subsequently passed, inflicting the punishment of death for the commission of any crime or offense. That standing mute by a criminal accused of a capital offense amounts to a constructive confession of guilt. That the privileges ot a person accused of a capital offense by the twentieth section of the same act are general. and extend to the trial of all crimes made capital, whether specified in that act or not. and that the mode of trial must be the same. That by the thirty-fourth section of the act to establish the judicial courts of the United States, which provides that the laws of the several states, except when the constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases when they apply; the laws of the state of Maryland, and the practice of the courts under them, would justify the court in pronouncing the prisoner guilty on his standing mute.
The question presented to the court is a novel one in the courts of the United States, but it is a question in the decision of which they cannot doubt the power and authority of the court to proceed to the trial of the accused. By the constitution of the United States it is declared that the trial of all crimes, except in cases of impeachment, shall be by jury. The act aforementioned, to establish the judicial courts of the United States, gives to the circuit court exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except when a different provision could be made. The act regulating the post-oftice establishment by the thirty-fifth section grants authority to the judicial courts of the several states, under certain restrictions. to try all causes of action arising under, and all offenses against that act: but this grant of power is permissive, and does *156not impair the authority of the courts of the United States to try certain causes under that act. Without this grant of power to the courts of the states the jurisdiction of the courts of the United States would have been exclusive; with it their jurisdiction is concurrent. By the constitution a fair ancl impartial trial by jury in all criminal prose-tions is secured to every citizen of the United States. After all these solemn and salutary regulations, it would be strange indeed if the accused could by any management evade a trial by jury. The courts of the United States have not common-law jurisdiction in criminal cases. They will not punish an offense at common law unless made punishable by statute. But they will resort to the common law for a construction of common-law phrases. Standing mute according to' the ancient common law of England, from whence we have derived most of our institutions, was. in many cases, tantamount to a confession of guilt. And now, by statutes passed at different times, standing mute in all cases amounts to a constructive confession, and is equivalent to conviction. Bobbery is felony by the common law. It is made felony by the laws of the United States, and punishable with death whether committed on land or water. Bob-, liery of the mail, if committed with the use of weapons which jeopard the life of the carrier, is felony, and punishable with death. How is the criminal to be tried? Let the constitution and laws of the United States furnish the answer—-by jury. This mode of trial is secured by-the constitution to.the accused in all criminal prosecutions; and the laws of the United States give full power and authority to the courts of the United States to try all offenders, and the trial is imperatively directed to be by jury. Xet the counsel for the prisoners contend that by standing mute the criminal can evade a trial altogether. As well might they contend that if the plea to the jurisdiction had not been withdrawn, and the court had passed their judgment of respondeat ouster, and the accused had refused to answer, there would have been an end of the trial, standing mute and refusing to answer being substantially the same. The penance or peine forte et dure, to compel an answer, is unknown to the laws of the United States. The act for the punishment of certain crimes directs that if any person indicted of any of the offenses, other than treason, set forth in the act. for which the punishment is declared to be death, shall stand mute, or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury, the court shall, notwithstanding, proceed to the trial as if he had plead not guilty, and render judgment accordingly. The act for regulating the postoffice establishment inflicts the punishment of death on persons who may rob the mail, if attended with the aggravated circumstance before mentioned. The nineteenth section declares that on conviction the person committing such robbery shall suffer death. But how is he to be convicted? On trial by jury, conducted in the manner provided by law. The act for the punishment of certain crimes directs the manner, and if the person arraigned shall* stand mute, or will not answer the indictment. or challenge peremptorily above the number of twenty persons of the jury, the court shall, notwithstanding, proceed to th“ trial as if he had pleaded not guilty. It is admitted that penal statutes should be construed strictly: that Is. they shall be construed according to the strict letter in favor of the person accused, if there be any ambiguity in the language of the statute. But who ever heard of a construction that would prevent a trial altogether until the present time? Such a construction is calculated not only to defeat the purposes of justice, but. to prostrate the constitution and laws of the Union.
Several acts of congress supplementary to the act to punish certain crimes have been passed at different times, inflicting heavy penalties for breaches of the law; and an act passed on the March 8d. 1817 [8 Stat. 383], prescribes the punishment of death for all offenses committed within the Indian boundaries, which before that time was punishable with death, if committed in any other part of the United States. In order to a just construction, it is proper to consider the whole system of criminal jurisprudence as-established by the United States in our view.’ All the laws should be taken in pari materia. The objection will then be removed, and the court may proceed on the trial.
If the laws of Maryland are to be regarded as the rule of decision, the result will be the same. The declaration of rights adopts the common law of England, and the trial by jury according to the course of that law; and als.o all the English statutes existing at the time of their first emigration, and which by experience had been found applicable to their local and other circumstances, and such others as had been since made in England or Great Britain, and had been introduced, used and practiced by the courts of law or equity. As early as the year 1008 there are two cases on record in which criminals standing mute were sentenced by the court to be hanged. In the first case the crime was murder; in the second petit treason. By the act of 1737, c. 2, and 1744, c. 20. breaking open a tobacco house or other outhouse, and stealing goods and' chattels to the value of five shillings sterling, and horse stealing are made felony and punishable with death; and if the accused shall stand mute, etc., the court may pronounce sentence against him. By the act of 1777, c. 20, if a person indicted for high treason shall stand mute, etc., the court may pronounce sentence of death against him. and all his estate is forfeited. Tlie chancellor of the state in his report, in *157pursuance of the direction of the legislature, of English statutes adopted and made applicable to Maryland, includes the statute of 12 Geo. III. c. 20. by which standing mute, in all (tases of felony-and piracy, is equivalent to conviction.
No new offense is created by the act of congress regulating the postofiice establishment. Robbing is the generic term, anil robbing is felony at the common law, and punishable as such. The state of Maryland, by an act passed in the year 1800, has adopted in substance, and almost in words, the provisions of the twenty-ninth section of the act of congress to punish certain crimes. It is provided by that act that in all cases of treason or felony, if the person accused shall stand mute, or will not answer to the indict • ment, the court shall proceed to the trial as if he had pleaded not guilty, and give judgment accordingly. Hence it appears that if the laws of the United States have not provided for the case, and the laws of Maryland are to be regarded as the rule of decision, standing mute, prior to the year 1809, would be equivalent to conviction. Subsequent to that period, the trial would proceed as if the accused had pleaded not guilty.
The court orders that the trial proceed by jury, as if the prisoner had pleaded not guilty.
4 [Mr. Kell [after the witnesses had been examined, and the evidence closed] then read the 19th section of the post-office law. (Act April 30, 1810, § 19): “That if any person shall rob any carrier of the mail of the United States, or other person entrusted therewith, of such mail, or of part thereof, such' offender or offenders shall, on conviction, be imprisoned not exceeding ten years; and if convicted a second time of a like offence, he or they shall suffer death; or if in effecting such robbery of the mail the first time, the offender shall wound the person having custody thereof, or put his life in jeopardy, by the use of dangerous weapons, such offender or offenders shall suffer death.” I-Ie then proceeded to inquire what is the putting’life in jeopardy by the use of dangerous weapons?
[(1) The weapons used.
[(2) The manner of using them.
[(3) The alarm of the carrier.
[It appears, said Mr. Kell, all necessary to constitute the offence is proven. The party meet the driver in the night, on the highway, proclaim themselves highway robbers; that they are armed with double barrelled pistols and a dirk: that the pistols are cocked. It was then ascertained that they were armed with pistols which were presented towards the driver and passenger; and soon after, that they had a dirk. The exhibition of such weapons, the purpose for which such exhibition was made, does create danger and risk of life; in other words, it does jeopardize life. It certainly was a putting the life of the driver, (as well as of Mr. Ludlow,) in jeopardy. Did it not diminish their personal safety, and expose them to hazard? It perhaps is not necessary that the driver should have apprehended his life to be in danger. If it were so, the language and requisites of the law are fully proven; he stood in the predicament of a man whose life was in danger, and under the fear and apprehension of danger, he parted with the mail. The prayer presents the case in the fairest and most favourable manner for the accused. The weapons used are such as are eminently calculated to endanger life, or put it in jeopardy; the pistols were cocked and presented, with the declaration, “If you resist, we will blow your brains out.” This, ’tis true, the driver says he did not hear, but he heard and saw enough to produce fear, and therefore gave up the mail; can it be thought by any deliberate mind that such acts, tor such a purpose, do not endanger life, or put it in jeopardy? Can it be said that the life of a man situated as was that of the carrier of the mail, at the time of this transaction, was not in danger? It is not neees-sary that the pistol be discharged; intimidation and danger, by such means, are sufli-cient to constitute the offence; the jeopardy of life takes place at the moment when the weapons are presented.
[With this view and consideration of the subject. Mr. Kell felt himself authorized to ask the opinion and direction of the court, contained in the prayer submitted to them.
[Gen. H. M. Winder hoped the court would not deem it irregular or improper for him, after what had occurred, to suggest his views to the court as amicus curia* on the question now propounded by the counsel for the United States. Indeed, having been called upon by the prisoner, although at too late a period to be preparad to advise him preparatory to or in the conduct of the trial, yet he had deemed it his duty to listen attentively, and he thought, if anything occurred to his mind of real importance to the prisoner, he was bound in duty, both to the court and the prisoner, to state it. He had never seen the clause of the act of congress until the trial commenced, and received from th'at perusal a very strong impression that the evi-deuce did not support those counts in the iu-dictment which charges the prisoner with a capital offence. This impression had been strengthened by the little reflection he had been able to bestow upon it. and more strongly confirmed by what lie had heard on the part of the United States. The words of the act of congress are. “if in effecting snoti robbery.” &c. See 2 Wheeler. Cr. Cas. 311.
[Now the life of the carrier must be put in actual jeopardy to bring the offence within that alternative of the clause; no appreliension of danger, or being put in fear of his life. satisfies the words of tin* act. The terms of *158tlie prayer to the court are a fair and just statement of the extent to which the testimony in this case can be urged, and by the very terms of tlie prayer no jeopardy of life is even supposed. It simply states, that if the prisoner exhibited dangerous weapons calculated to take life, thereby putting the carrier in fear of his life, and thus obtaining. &<:. Can it be supiiosed, for a moment, that this is what was meant by congress when they say, “put the life of the carrier in jeopardy"? It would be to attribute to congress the most loose and unskilful use of terms, to make the apprehension of danger the existence of danger, the fear of jeopardy actual jeopardy. It is wholly impossible to contend that the words do not import an actual jeopardy; and if they do, surely the assumed state of proof in this prayer does not amount to actual jeopardy.
[If the position contended for be true, it will follow that a man may lie guilty under this part of the act where no jeopardy of life has occurred; and if the prayer exhibits the just interjiretation of the act of congress, a robber may put the life of the carrier in actual jeopardy without being guilty; for if he raises a fear of life, by having dangerous weapons, without doing any act which could possibly put life in jeopardy, he is guilty; but if a robber, in the dark, without the carrier's knowledge, snaps a loaded pistol or gun within killing distance, with intent to kill the carrier, no body will doubt but here was actual- jeopardy; but the carrier could not possibly have any fear of life, since he had no knowledge of it; and if the mail should be immediately stopped by the robber and his associates, without farther acts of intimidation, the party would not. be guilty under this clause. Can it be imagined that a construction leading to such absurdity can be just?
[To support the construction contended for, il is necessary to confound fear of life with jeopardy of life. Xow. since a man may be in great fear of his life, where there is not the least jeopardy of life, so there may be great jeopardy of life without The least fear of .life. To say that congress, therefore, meant fear of life by jeopardy of life, is inadmissible. especially in a criminal statute. But farther, this jeopardy of life must, by the express terms of the act. be created by the use of dangerous weapons. What is the use of dangerous weapons which can occasion jeopardy of life? Certainly they must be so used, as that life may be destroyed; as if a man strike at another with a sword, or tire or snap a loaded pistol or gun at him within reaching distance; this is clearly a use of the weapon that puts life in jeopardy. But if a man has a sword by his side, or a pistol in his licit. and he stops the mail, and says to the carrier. “You see I am tinned: deliver the mail.” the. carrier might justly be said to deliver the mail in such case for fear of life. But can it be said that in effecting this' robbery the carrier's life was put in jeopardy by the use of dangerous weapons? It is impossible that it can.
[Then if there be no ambiguity in the words of the statute,—which It is respectfully believed there is not,—how can any interpretation. especially in such case as this, be admitted different from these words? The ttse of dangerous weapons to produee fear of life, may be very different from the use of dangerous weapons to put life in jeopardy; but nothing in this act can render a man guilty but such a use of t líese as puts life in jeopardy. Tlie facts in this case ought, therefore. to warrant the counsel for the United States to ask the court to direct the jury that if they believe tlie prisoner had dangerous weapons, which he used so as to put tlie carrier’s life in jeopardy, then lie is guilty, otherwise the court cannot instruct the jury to find a verdict of guilty on this point.
[General Winder concluded by remarking to tlie court that this view of the subject appeared to his mind very strong, anti be thought could not but have strong weight, with every unprejudiced mind; and since upon so hasty a view of the question, such strong motives of doubt, to say the least, bad occurred, lie trusted the court would, in the forlorn case of the prisoner, being without counsel prepared to assist him, incline to the side of mildness; but at all events, if the learned attorney general should be able to Incline the balance against the prisoner, he respectfully submitted.! whether the question was not so doubtful as to require the court to put it In a situation to receive the deliberate judgment of the supreme court, before tlie life of the prisoner should lie taken.
[E. L. Finley. Esq.—He contended that congress, in using the words, “jeopardy of life," did not intend that tlie mere presentation of a pistol or dirk at the mail driver, without wounding him, should lie such a “jeopardy of life" as would subject the par-tyto the punishment of death: that the words, “wound tlie driver, or put his life in jeoji-ardy." were used by them as convertible and synoynmous words: that tlie words “put liis life in jropardy.” were intended as explanatory of the words “wounding the driver." and defining and limiting their extent. Congress (said Mr. Finleyl intended that the wounding should be such as would put tlie life of the driver in jeopardy. They may have supposed that sonic doubts might arise upon the construction of the words wounding. and as to tlie nature and extent of tlie wounding. They, therefore, inserted the words “jeopardy of life." as explanatory, and to show that unless tlie wounding was of so serious a nature as to jeopardise life, the party should bo subject only to imprisonment. The use of the disjunctive particle “or.” does not necessarily make them two distinct offences. Mildness and humanity are the distinguishing characteristics of our Orimi-*159nal Code. The number of offenees to -which the punishment of death is annexed is very-limited: and it is only where the offence is of a very aggravated and criminal character, that this humane consideration for the lives of the citizens has been departed from. The act of 1810 [2 Stat. .102] was intended as an amelioration of the former post office act. The act of 1794 (section 17) annexed the penalty of death to a simple robbery of the mail, unaccompanied with injury to the driver, or the use of dangerous weapons. This severe punishment was considered as disproportioned to the offence. This act was repealed by that of 1810. which, in the first danse of the 19th section, provides, that for a simple robbery of the mail, the party guilty shall be subject to 10 years’ imprisonment. Congress have determined, therefore, in this clause, by the punishment annexed, the degree of enormity they attached to a simple robbery of the mail. As then they did not consider it such an offence as to deserve death, they must lie presumed to have intended, that unless the offence was attended with very aggravating circumstances, such as jeopardising the life of the driver by seriously wounding him, the punishment of death should not be superadded. This would be. in'my opinion, an humane and reasonable, construction of the act of congress. But if your honours should establish the construction contended for by counsel of the United States, viz. that wounding and jeopardising are two distinct offenees, this act loses all its character of mildness, and would deserve to be enrolled in the bloody code of Draco. You could not undertake to graduate the degree of wounding. But if in effecting the robbery of the mail, the party should wound the drive;- slightly or seriously—no matter whether in consequence of such wound his life should lie jeopardised or not—it would be perfectly immaterial, and yon would la* obliged to inflict upon the party robbing the punishment of death. To show, then, the absurdity of this construction, and its incompatibility with the object which congress must have had in view in making this provision of the act of 1810. viz. the amelioration of the act of 175)4, punishing simple robbery with death. Suppose that in effecting the robbery of the mail, the roblier should make a slight and trifling puncture with his dirk in the flesh of the driver: should scratch the face or cut the skin of tlie driver, or some other slight wound, which could not. hy any possibility of Construction or inter-enee, jeopardise his life. Would this be a circumstance of sucli aggravation of such enormity, as to entirely change the chai--after or degree of the offence of simple robbery. to enhance its criminality, and to give to it. such an increased and outrageous degree of wickedness, as to require the pru-portionably severe punishment of death! Is it equal in criminality, and docs it call for tlie same degree of punishment? Would this he an amelioration of the act of 175)4? Heaven ' protect us from such an amelioration! But if the construction contended for hy the counsel of the United States he correct, the slightest scratch or puncture given to the driver, or the mere presentation of a pistol or dirk, without wounding him. changes the mild character of the law. and subjects the party to death. Where was. then, the necessity of repealing the 17th section of the act of 1794, and substituting the 19th section of 1810? The act of 1794 makes no mention of dangerous weapons; it simply speaks of the robbery of the mail, and whether the rol>-liery was effected hy the use of weapons or not. the punishment was death. But is it to be presumed that a highway robbery of the mail would ever be attempted without daiigerous weapons, such as pistols and dirks? If the mere presentation, then, of dangerous weapons, without wounding, attaches death to the offence, the first clause of the 19th section of 1810. punishing a simple robbery, would he entirely nugatory and superfluous: as no robbery ever has. or ever would he committed without dangerous weapons. Can we suppose, then, that con-grass had no object in view in making this provision and drawing a distinction between a simple robbery, and one accompanied with wounding?
[Mr. Finley then observed that he had always understood it to he an established principle, in all our courts of criminal judicature. and one from which courts or juries could not deviate, that the most favourable, the most refined, the most, extended construction, should always be given, in “favor-em vita»,” to all penal acts. That too much value and consideration were attached to the life of a fellow creature, to permit it to he ‘‘jeopardised." or taken away on account of indistinctness or ambiguity in the phraseology of a law. That when tbe provisions of a law appeared to be unusually harsh and severe, and repugnant to tlie general character and habits of the people and a construction in "favorem vita»." could be collected from tlu» probable intention of tin» legislature that enacted it. that then such intention was to he the rule of construction. That the law of 1810. in the severity of its provisions, as contended for. was an anomaly in our Criminal Code: an isolated bloody statute, assimilating with nothing around it. That tlie most effectual mode of ascertaining the intention of congress, at the-time of passing the law. and truly determining the construction they intended should he given to it. would be by examining the operation of the law. and-comparing it with the policy which congress must have had in view in repealing the law of 175)4. and substituting that of 1810.
[Mr. Finley then took a view of the laws of England and France oil tiie subject of robberies, of the respective policy of those laws, and their effect upon those two nations.
*160[In France, said Mr. Finley, a robbery unattended with murder of .the person robbed is punished, by fine and imprisonment; if accompanied with murder, the punishment is an ignominious and painful death. In England, a simple robbery, whether accompanied by murder or not. is punished with death.
[What has been the effect and operation of these several laws? In France, all temptation to murder the person robbed is taken away; the fear and the interest, if not the humanity, of the robber, are enlisted and appealed to. The law says to him: “If the robbery you commit is unattended by murder, if it is not aggravated by taking away the life of a fellow creature, we will reward you for your forbearance by respecting your own life. But if it is attended with* the horrid and unnecessary crime of murder of your victim, the severest punishment which the law can inflict, viz. the deprivation of life, shall be the consequence of your cruelty.” In England, no distinction of punishment is made between robbery with and without murder; and the highwayman, who, probably impelled by the severest want, takes from you your purse, without endangering your life or even using any personal violence, and the hackneyed and hardened villain, who, to pamper and gratify his profligate passions, not only robs you of your purse, but deliberately and unnecessarily takes away your life, are alike involved in the same punishment, and punished in the same degree, notwithstanding the great disparity in the two crimes. All inducement to spare the life is therefore taken away for want of this discrimination. The highwayman, in the first instance, knows, that if he spares life, he leaves a witness to proclaim his crime, and to rise up in judgment against him when detected; that the law will not mitigate the severity of its punishment on account of his forbearance; but that if he murders his victim, he saves his own life, by silencing the only witness that could appear against him at a human tribunal. The consequence of this discriminating policy of the French law is that scarcely an instance occurs of the perpetration of a robbery, accompanied with murder; whilst the lamentable result of the mistaken and barbarous policy of the English law is that murder is almost inseparable from, and concomitant with, high robbery; and the criminal annals of England, furnish a bloody calendar from one year to another. May not congress then have had these several results of European policy in view at the time of passing this law? Would they not profit by experience? The object of their legislation was the public good, and the reformation of criminals But it would be charging them with a most culpable disregard of the lives and safety of their fellow citizens to suppose that they would be uninfluenced by the consideration of those several results. A reference, however, to the actual operation of the act of 1794. furnishes an additional and conclusive corroboration of the construction I contend for. and of the intention of congress to ameliorate the act of 1794 by that of 1810; for during the existence of the first act. several attempts at a robbery of the mail were made. and in almost every instance it was attended either with the murder of the driver, or the dangerously wounding of him.
[In the instance of the robbery of the Richmond mail, the driver was murdered.
[Mr. Finley then observed that the construction he had contended for, he conscientiously believed to be the true and correct one; but that, as he might be unsuccessful in his attempt to transfer this conviction from his own mind to the minds of the court, and as the counsel for the United States had contended for a different construction, he would make a brief reply to one of the arguments of the counsel, and then relieve the attention of the court The counsel for the United States, said Mr. Finley, have contended, that the mere apprehension or opinion of the party that his life was in danger was to be the criterion by which the jury was to determine whether his life was put in jeopardy, within the meaning of the act of congress. This. I conceive, to be a most absurd and fallacious criterion. It would require a scale in every instauce by which to graduate the fears of the party robbed. Some persons are operated upon by fear more easily than others. Such is the constitutional timidity of some persons, as to magnify mole hills into mountains, and to people every bush with midnight assassins and robbers. Should the driver be of this description, his life would be in continual jeopardy, according to this construction, while travelling on his route. The counsel have not properly discriminated between the mere fear or apprehension of danger, and the actual existence of danger. A man may anticipate danger, when no danger exists. I will give but one example in illustration of this distinction. Suppose a man presents a pistol, which is not loaded, at the breast of another [who is ignorant of its not being loaded), and in a threatening manner says that he will blow his brains out. In this case, the party to whose breast the pistol is presented would most assuredly apprehend that bis life was in great jeopardy, though the jeopardy would exist only in imagination.
[Mr. Finley, then laid down a distinction betweeq the jeopardy of the driver’s life and the life of Mr. Ludlow. He contended that under this act it was perfectly immaterial whether Mr. Ludlow's life was jeopar-dised or uot. That tne act only extended to the driver's life, and expressly confined and annexed the punishment of death to cast's of robbery, when the. driver was wounded, or iiis life put in jeopardy. That *161this was an important distinction to be kept in view by the jury, in the examination of and decision upon the testimony in this case. That there was a manifest difference in the testimony of Mr. Ludlow, and of the driver. That, although Mr. Ludlow swore that he considered his life in great danger, yet the driver swore that he felt no apprehension of danger to his life, until after the robbery was effected, and that this apprehension arose from an observation by one of the robbers, “What shall we do with these men?" and the reply, “I have a way to fix them;” but that his fears were removed, when he found, that “the way to fix them” was by tying them to the tail of the mail wagon. That he did not intend, by adverting to this difference in their testimony, to impeach the credit either of Mr. Ludlow or the driver; but to show that whatever may have been the apprehensions of Mr. Ludlow, or however his life may have been jeopar-dised. yet, that the driver’s life was not jeopardised; neither did he feel any apprehensions of it.
[William Wirt, Esq—He hoped the opposite counsel would both excuse him for observing that they did not appear to him to have found the key which unlocked the construction of this law in a manner the most simple and natural. They seemed to have taken it for granted that congress intended to describe, by this section, a new kind of robbery, unknown to the common law, and which called for a different kind of proof. Prom this opinion he begged leave to dissent. He contended that congress had not intended to create a new offence, unknown to the common law, so far as the circumstances attending the act and the degree of proof were concerned. That although the mail was a species of properly' unknown to the common law, and congress, in making the mail a subject of robbery, had extended the offence to a new subject; yet that the character of the offence, the robbery, was the same, both at common law and under this statute: that the only effect of the act was to extend the offence to a new subject, leaving the character of the offence, and the degree of proof, exactly where the common law had left them, in regard to other subjects. To make this clear, he begged the court to recollect that wherever the constitution or laws of the United States used a common law phrase, without any definition of that phrase, it was the uniform course to resort to the common law for its explanation. It was unnecessary to cite to this court, to whom they were familiar, the decisions which illustrated and proved this course; it was, indeed, impossible to conceive that any other could be adopted. But the court would observe that this principle was essential to the construction of this law. ‘ and that it demonstrated the truth that a new kind of robbery was not intended to be created. For in the first part of this section the term “robbery” is tised without any definition. The words are (Act April 30, 1810, § 19): “That if any person shall rob any carrier of the mail .of the United States, or other person entrusted therewith. of such mail, or of part thereof, such offender or offenders shall, on conviction, be imprisoned not exceeding ten years; and if convicted a second time of a like offence, he or they shall suffer death; or if in effecting such robbery of the mail the first time, the offender shall wound the person having custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender or offenders shall suffer death.” Thus far the provision is general, by the use of the term “robbery,” which is left unexplained. A resort must, therefore, be had to the common law, from which it is borrowed to explain it; and every species of robbery known to the common law is clearly embraced by the clause just quoted. If the court will attend to the structure of the sentences which follow this' first sentence, and which are supposed to create a new offence, they are merely exceptions from the first sentence, and were consequently included in it, until so excepted. If the first sentence therefore covers, and merely covers, the common law offence of robbery, and the latter are only exceptions from it, these exceptions are merely parts of the common law offence of robbery, and consequently no new offence, and calling for no new and more aggravated degree of proof. Again, if you recall, the different species of robbery as they have been decided to exist at the common law, you will perceive that the sentence on which the two first counts of the indictment are founded describes a kind of robbery perfectly familiar to the common law. At the common law, robbery might be committed: (1) By violence, without putting life in danger, and without previous fear. The lady whose ring was* snatched from her in some place of public amusement, and dropped among the curls of her hair, was decided to have been robbed, although there was no danger of life, and no previous fear operating on her will to cause a surrender of the property. (2) By fear for reputation: as by a threat to charge the party with an infamous crime unless he- should surrender his purse. In this case, there is no violence offered to the person and no danger to the life, yet the robbery is complete; it is the lawless constraint acting on his will, from regard to his character, which induces the surrender of his property, and which constitutes the of-fence. (3) By fear of personal violence: but this must not be the groundless fear of cowardice. The law requires that the danger should be apparent, and hence circumstances are always required to show that- the fear was well founded. This was the kind of robbery in the contemplation of congress in the sentence under consideration. They have stated the evidence which shall show that the danger was real, the fear well grounded; *162wounding the driver, or (without wounding him) putting his life in jeopardy. l»y the use of dangerous weapons. The robber, who, with a pistol, stops a traveller on the highway. and demands his purse (a ease familiar to the common law courts ol' criminal jurisdiction in England,) presents the very case put by the act of congress. The weapon used is a pistol; a weapon fabricated for the very purpose of danger to life. It is used because it is dangerous; and the use produces the effect intended, by acting on the fears of the traveller, and inducing him to surrender his purse, by reason of the jeopardy to his life. There is nothing in the descriptive circumstances of the offence under the act of congress to distinguish that offence from the highway robberies once so common on Hounslow Heath and Bagshot in England.
[But it is insisted on the other side,' said Mr. Wirt, that something more is meant by the expression “putting the life of the driver in jeopardy by the use of dangerous weapons.” It is not enough that the robber be in possession of the dangerous weapons; it is not enough that he carry them to the ground; it is not enough that he perpetrates the robbery by the terror which they inspire: but they must be used in such a way as to produce jeopardy. For example, if the weapon be a dirk, a stroke must be made with it; if it be a pistol, it must at least bb snapped. Bet us examine some of the consequences of this construction. If a stroke be made with a dirk at right angles from the driver, it is not easy to conceive that greater jeopardy is produced thereby than by the mere possession and display of the weapon in the robber’s hand. Such a stroke would be nothing more than a flourish, in terrorem. If the stroke be at an angle of forty-five or twenty-two and a half degrees, flit* same answer might be given to it; and so through all the gradations of angular distance. If the stroke miss the object, and be not repeated, the jeopardy is over, a miss, we are told, being as good as a mile. Or of gentlemen think this answer too light, is it not obvious that by insisting that the stroke shall, at all events, be made, in older to constitute jeopardy. they force the court and jury upon a mathematical disquisition as to the distance and the direction of the stroke, in order to jeopard the life? points extremely difficult of ascertainment, considering that their attempts are generally, if not always, made m the night time, when the distance and the direction, and even the fact of a stroke being made at all, can rarely be discerned. As to the snapping of the pistol, all the remarks made upon the direction of a stroke with a dirk apply; and indeed it is not veiy easy to discern. even if the pistol be. levelled at the driver's head, how its having been snapped increased his jeopardy after the snap is over. Besides, the chances are sadly against the calculation that a pistol prepared for a robbery will snap; the probability is that it will go off; and then there is no jeopardy, for jeopardy implies uncertain danger, whereas, on this supposition, the hazard is reduced to a doleful certainty; the driver is killed. Can it be believed that this was the intention of congress'' Can it be believed that anything more was meant than that the robbery should be effected by the use of dangerous weapons. of weapons calculated to take life?
[But still bolder ground is assumed on the other side. It is contended that in this ease there was no jeopardy to life, because the robbers gave the assurance that if the driver and passenger would not resist they should not be hurt. It. may be very true, gentlemen say, that if they had resisted they would have been killed; but they had only to give up the mail without resistance, and there was no jeopardy at all; and hence the ease is not within the act of congress. This is the construction given to an act of congress intended to prevent robberies. Sir. it must be very clear that the jeopardy within the contemplation of congress was that kind of jeopardy which was in no other way to be avoided than by yielding to the lawless purposes of the robber; a jeopardy of life so imminent that the driver could not elude it, except by surrendering that which the robber had no right to demand. This ground so intrepidly taken in the construction of our statute would be just as tenable under the English common law. For example, by that law it is required that the party shall be put in fear; but the courts there require that this fear shall have a reasonable foundation. The robber there might say, “It is true, I was armed; it is true the traveller was put in fear; but the case is not within the law, because his fear had not a reasonable foundation. for he admits I told him I would not hurt him if he would surrender his purse.” Such an argument, I must be permitted to say. would make but a sorry figure in Westminster Hall, or even at Old Bailey; for it goes to patronize and protect, not to prevent or punish, robberies: it founds the robber’s exemption from punishment on the very circumstance which constitutes his guilt—the success of the robbery.
[The gentleman who urged his argument attempted to support it by a case, from the law touching assaults and batteries, which he seemed to think analogous. ’That case is this: “If a man were to lay his hand upon his sword, and say if it were not assize time he would not take such language; this the'gentleman says, and says truly, would not be an assault. But why? For a reason which destroys the analogy, because the words show an absolute purpose to do him no mischief at that time. The forbearance is not. put on the condition of any act to he done by the party menaced. But suppose the assailant had drawn his sword, and required the other to fall upon his knees instantaneously and beg his pardon, or he would run him through the body, when the gentleman shall show *163by authority that this would not be au assault, he will have furnished a case which does not present something like the appearance of analogy.”
[The respectable young gentleman (Hr. Finley) who last addressed the court has insisted that the words ‘’wounding the driver” or ■‘initting his life in jeopardy by the use of dangerous weapons" mean the same thing; that the driver is. at all events to be wounded. and so wounded as to put his life in jeopardy. To this I think it sufficient to answer that the conjunction used is the disjunctive ‘‘or." and that according to all the rules of fair construction there were two-cases in the contemplation of congress,—the one wounding the driver, the other putting his life in jeopardy by the use of dangerous weapons without wounding him. The aid which the gentleman attempts to derive to this construction from the act of 179!) is not, in my opinion, fairly furnished. The expression in that law is. ‘‘shall much wound rhe person having custody thereof, or put his life in jeopardy by the use of dangerous weapons." These were clearly distinct of-fences. In the present law. the word “much” is dropped, obviously because it was indefinite. and might lead to difficulties in the decision of cases arising under it. and because any wounding of the driver would be sufficient to show the wicked and determined purpose of the robber; but that purpose would be shown with equal clearness without wounding the driver, in effecting the robbery by the use of dangerous weapons calculated to take the driver’s life.
[If any doubt could remain on this subject, it would be removed by pursuing this section of the law a little farther. It appears that robbing the mail, generally, is punished by the first clause of the section only with imprisonment for the first offence. Yet there were some modes of perpetrating such robbery so peculiarly obnoxious that congress had singled them out by express exception, and punished the first offence committed in either of these modes with death. Congress have gone still farther, and punished even the unsuccessful attempt to commit the robbery in either of these modes with imprisonment for three years; and the words in the section. in which the attempt is described, are intended to represent the same mode in which the act is descrilied. So far as we have yet gone, the purpose is to punish the offence, if effected. Congress next take up the attempt to commit the offence where it fails. In defining the different modes of such attempts. they have kept up the analogy between the successful and unsuccessful attempts. and by a slight variation of language have thrown new light on the clause we are considering. The language of the law. where the offence is complete, is as follows: “If any person shall rob any carrier of the mail of the United States, or other person entrusted therewith, of such mail, or of part thereof, such offender or offenders shall, on conviction, be imprisoned not exceeding ten years; and if convicted a second time of a like offence, he or they shall suffer death; or if in effecting such robbery of the mail, the first time, the offender shall wound the person having custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender or offenders shall suffer death.” I beg the court now to mark the correspondent description of the attempts. The words are these, “And if any person shall attempt to rob the mail of the United States by assaulting the person having custody thereof, shooting at him, or his horse or mule, or threatening him with dangerous weapons, and the robbery is not effected.” &c. Here it is clearly observable that the assault, generally, meets the general description of the robbery, in the first sentence; secondly, that the shooting, in the attempt, corresponds with the wounding in the robbery; and thirdly, that the threatening the driver with dangerous weapons, in the unsuccessful attempt, corresponds with the putting his life in jeopardy by- the use of dangerous weapons. Thus the description of the attempt .reflects light on the description of the act. and demonstrates that congress, by using the terms “putting his life in jeopardy by use of dangerous weapons." meant nothing more than “threatening him with dangerous weapons,” without having in view any other use of the weapons, or any further degree of jeopardy. According to the opposite construction, it would appear that congress had l>een solicitous to punish this peculiar mode of attempting the robbery with a i>eculiar punishment, distinguishing this kind of attempt from any other attempt; while the actual perpetrating the robbery by the use of dangerous weapons was left unpunished by any peculiar degree of rigor; thus convicting congress of an absurd solicitude about the attempt, without any correspondent solicitude in relation to the act; and to produce this absurd consequence. you are required to adopt principles of construction so subtile and metaphysical, as to what will not constitute jeopardy, that there are perhaps no twelve men in the community who will agree in their application to the same case. If you take the plain case which it seems to me was clearly before congress. that of robbing the mail upon the highway by the use of weapons dangerous to life, every case which can arise is carved, and the act is in perfect harmony with itself. By any other construction, the act is rendered imperfect, unjust, and absurd.] 5
THIS COUBT charged the jury upon the laws as follows: “Robbing the carrier of the mail of the United States, or other person intrusted therewith, of such mail, by stopping him on the highway, demanding the surrender of the mail, and at the same time show*164ing weapons calculated to take life, sucli as pistols or dirks, putting him in fear of his life, and obtaining possession of the mail by the means aforesaid, against the will of the carrier, is such a robbing of the mail, and such a putting the life of the carrier or person intrusted therewith in jeopardy by the use of dangerous weapons, as will bring the offense within the following terms of the nineteenth section of the act of congress of the SOth of April, 1810, entitled ‘An act regulating the postoffice establishment.’ to wit: ‘Or if in effecting such robbery of the mail the first time the offender shall wound the person haring the custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender or offenders shall suffer death.’ "
Standing mute is equivalent to a plea of not guilty. See U. S. v. Borger, 7 Fed. 195, affirming above ease on this point. [NOTE. On the trial of John Alexander and Lewis Hare, the two other mail robbers, who were charged with robbing the mail in company with John Thompson Hare, and were immediately tried and convicted on all the counts of a similar indictment, the same defence was made, and the court laid down the law as in the preceding case.] 6The defendants were convicted and executed.
[From 2 Wheeler, Cr. Cas. 283.]
[From 2 Wheeler. Cr. Cas. 283.]