The court would have been better satisfied if the whole cast1 had been gone through in the usual way; but as the district attorney has prayed an opinion on the law, the court will give their opinion.
First. Hodges is accused of adhering to. the enemy, and the overt act laid consists in the delivery of certain prisoners, and I am of opinion that the overt act laid in the indictment and proved by the witness is high treason against the United States.
Second. When the act itself amounts to treason it involves the intention, and such was the character of this act. No threat of destruction of property will excuse or justify such an act: nothing but a threat of life, and that likely to be put into execution.
Third. The jury are not bound to conform to this opinion, because they have a right in all criminal cases to decide on the law and the facts.
HOUSTON, District Judge,said he did not entirely agree with the chief justice in any except the last remark.
*3352 [Mr. Pinckney then rose again, and addressed the jury: The opinion which the chief justice has just delivered is not, and I thank God for it, the law of the land. If you have the slightest doubt on the subject, x will undertake to remove it, to show you that the cases have been misconceived, and that the conclusions drawn from them are erroneous. Iso man can feel for the learned judge who has just given you his instruction, a reverence and affection more sincere than I do. But reverence and affection for him shall not stand in the way of the great duty which I owe to a fellow citizen who relies on me to shield his innocence from the charge of guilt, and his life from an attainder for treason. I had hoped that, since his motives were admitted, on all hands, to be entitled to praise, since the grand jury had associated with their indictment a certificate of the purity of his views, and a solemn recommendation that the prosecution should be abandoned, he would at least have been left by the district, attorney, and the court, to obtain from you, as he could, a deliverance from the danger that encompassed him. In that hope I have been disappointed. As if the salvation of the state depended upon the conviction of this unfortunate man, whose situation, one would think, an inquisitor might deplore, the district attorney has gone out of his way to bring down vengeance upon him; and one of the court has told you that he is a traitor, and that you ought to . find him so. In a ease where justice might be expected to be softened into clemency, and even to connive at acquittal, where every generous sentiment must take part with the accused, and law might be thought to fear the reproach of tyranny, if it should succeed in crushing him,—in such a ease, the established order of trial is deserted, a pernicious novelty is introduced, the court is called upon to mix itself in your deliberations. to mutilate the defence of the prisoner's counsel, to harden your consciences against the solicitations of an enlightened mercy, and to sacrifice the prisoner to gloomy and exterminating principles, which would render the. noble and beneficent system of law. for which we are distinguished, a hideous spectacle of cruelty and oppression. For the sake of the country to which 1 belong, as well as of my client. 1 will not only protest before you against these principles, but will examine and speak of them with freedom, restrained only by the decorum which this place requires.
[After several introductory observations, Mr. Pinkney proceeded thus:
Lin my argument to the court, 1 showed that if it be done treacherously, it is treason; but that if the commander act from any motive not corrupt, no indictment can touch him. If the fort be as impregnable as Gibraltar, and be garrisoned with 30,000 men, and it is surrendered to a force of half that number, from motives of fear, the commander cannot be punished as a traitor. What can be more strong to show that upon an indictment for adherence, the law looks into the heart, and adapts its penalties accord-inglyV Has that authority been answered? In the Case of Stone, which was parallel with the point, the court said expressly, if the heart be pure, it matters not how incorrect- the conduct. So the counsel argued, and Stone was acquitted. Has any answer been given to that authority? Has any been even attempted? This indictment charges Hodges with having done certain things wickedly, maliciously.and traitorously. Must not the United States prove what they allege? When the law allows even words to be given in evidence, as explanatory of intention, to exculpate, it admits that exculpation may be made out by proof of innocent motives; that overt acts alone do not furnish a criterion; that concomitant facts, illustrative of the state of the heart, must not be neglected. A. military force levies contributions. If you pay them, for the purpose of saving the country from further mischief, although there be no fear or danger of death, the law says this is not treason. By the doctrine of the chief justice, however, it is treason, and consequently his doctrine is unsound. On this occasion, the enemy were in complete power in the district where the transactions occurred which are complained of in the indictment. They were unawed by the thing which we called an army, for it had fled in every direction. They were omnipotent. The law of war prevailed, and every other law was silent. The domestic code was suspended. They menaced pillage and conflagration: and, after they had wantonly destroyed edifices which all civilized warfare had hitherto respected, was it to be believed that they would spare a petty village, which had renewed hostilities, before the seal of its capitulation was Ur.v? There was menace; power to execute; probability, nay. certainty, that it would bo executed, How, then, can you find a wicked and traitorous motive in the breast of my client? There is not only the absence of any wicked motive, but there is the visible presence of those which are laudable.—an attachment to I>r. Beanes, anxiety for the defenceless peo- . pie about him, a desire to preserve the country from the afflictions which hung over it. In conduct so characterized, so produced, we discover the operations of an excellent heart, upon a mind which virtuous inducements could betray into error: but what way we can distort it into treason, I have not yet been able distinctly to learn. The conduct is in itself treasonable, says the chief justice. It necessarily imports the wicked intention charged by the indictment. The construction makes it treason, because it aids and comforts the enemy. These are strong and comprehensive positions; but they have *336not been proved, and they cannot be proved until we relapse into the gulf of constructive treason, from which our ancestors in another country have long since escaped.
[Gracious God! In the nineteenth century, to bilk of constructive treason! Is it possible that in this favoured land, this lastasylumof liberty, blest with all that can render a nation happy at home and respected abroad, this should be law? No. I stand up as a man to rescue my country from this reproach. I say there is no colour for this slander upon our jurisprudence. Had I thought otherwise I should have asked for mercy, not for law. I would have sent my client to the feet of the president, not have brought him, with bold defiance, to confront his accusers, and demand your verdict. He could have had a nolle prosequi. I confirmed him in his resolution not to ask it, by telling him that he was safe without it. Under these circumstances I may claim some respect for my opinion. ' My opportunities for forming a judgment upon this subject, I am compelled to say, by the strange turn which this cause has taken, are superior to those of the chief justice. I say nothing of the knowledge which long study and extensive practice enabled me to bring to the consideration of the case. I rely upon this. My opinion has not been hastily formed, since the commencement of the trial. It is the result of a deliberate examination of all the authorities, of a thorough investigation of the law of treason in all its forms, made at leisure, and under a deep sense of a fearful responsibility of my client. It depended upon me whether he should submit himself to your justice, or use with the chief magistrate the intercession of the grand jury, which could not have failed to have been successful. You are charged with his life and honour, because I assured him that the law was. a pledge for the security of both. I declared to him that I would stake my own life upon the safety of his, and 1 declare to you now that you have as much power to shed the blood of the advocate as to harm the client whom he defends. If the mere naked fact of delivery constitute the crime of treason, why not hang the man who goes under a flag of truce to return or exchange prisoners? According to the doctrine of the chief justice, this man is equally guilty with him who stands at the bar, if you are forbidden to examine his mind, but are commanded by the law to look only to his acts. I ask you to consider this, in the spirit of Stone's Case. That doctrine, I pledge myself, goes through every nerve and artery of the law. If the doctrine of the chief justice be the law of the land, every man concerned in the deeds of blood that were acted during our recent war was a murderer. Our gallant soldiers who had repulsed the hostile step whenever it trod upon our shores, our gallant tars who unfurled our flag and acquired for us a name and rank upon the ocean which will not soon be obliterated.—these are all liable to be arraigned at this bar.. These men have carried dismay and death into the ranks of the foe. Blood calls for-blood. You dare not inquire into the causes which produced the circumstances, which attended the motives, which prompted the deeds of carnage. The act, you are told by the chief justice, and such is the reasoning of the attorney general, involves the intent.
[Gentlemen! so solemnly, so deeply, so religiously do I feel impressed with this principle, that I know not how to leave the case with you, although at the present moment it strikes my mind in so clear a light that I know not how to make it more clear. Gentlemen! this desolating doctrine would sweep us from the face of the earth. Even when we deserved to be crowned with laurels, we should be stretched ón a gibbet. I tremble for my children, for my country, when I reflect upon the consequences of these detestable tenets which reduce indiscretion and wickedness to the same level. Which of you is there that in some unguarded moment may not, with honest motives, be imprudent? Which of you can hope to pass through life without the imputation of crime, if your motives may be separated from your conduct, and guilt may be fastened upon your actions, although the heart be innocent? If this damnable prosecution should prevail, it would be the duty of the district attorney instantly to arraign Gen. Bowie, one of the witnesses in this case, than whom a purer patriot never lived. Nay, half Prince George's county would come within its baleful influence. Yet such is the law the chief justice recommends to you. His associate does not concur with him. In this conflict of opinion I should be entitled to your verdict, but I rest the case upon more exalted grounds. I call upon you as honourable men. as you are just, as you value your liberties, as you prize your constitution, to say. and to say it promptly, that my client is not guilty.
[The jury, without hesitating a moment, rendered a verdict of not guilty.] 2
[From 2 Wheeler, Cr. Cas. 477.]
[Prom 2 Wheeler, Cr. Cas. 177.]