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Petition of John Brown by Counsel to the Court of Appeals of Virginia



To the Honorable John J. Allen, President, and his associates, Judges of the Supreme Court of Appeals of Virginia:

Your petitioner, John Brown, humbly showeth, that in the record and proceedings, and in the giving of judgment, upon an indictment against him in the circuit court of the county of Jefferson, by which court, on the 2d day of November 1859, he was condemned and adjudged to be hanged by the neck until he be dead (a transcript of which said record accompanies, this petition), manifest error hath intervened, to the great detriment of your petitioner: Wherefore he prays that a writ of error may be allowed him, to the end that the said record and proceedings may be reviewed by your honors; well hoping that for error therein the said judgment will be reversed, for the following, among other


The said indictment consisted of four counts, which were (as described in an endorsement thereon) for treason, advising and conspiring with slaves and others to rebel, and for murder; and it was, in each of the said counts, against your petitioner and divers others. Your petitioner, however, was tried alone upon it. And after verdict (such as it was), which in the preamble of the judgment aforesaid is recited as a conviction "of treason, advising and conspiring with slaves and others to rebel, and for murder in the first degree," one general judgment of death was, upon the whole of the said indictment, pronounced against your petitioner: Notwithstanding your petitioner, between the time of the said verdict being rendered and of the said judgment being pronounced, moved the court to arrest the judgment on ten several grounds, which are all set out in a bill of exceptions, signed and sealed by the judge of the said circuit court, and to be seen in pp. 15, 16 of the said transcript. For brevity sake your petitioner begs leave to refer your honors thither for them, instead of his causing the whole of them to be copied here verbatim. And for the same consideration (that unnecessary prolixity may be avoided), while he does not waive any of the said ten grounds, but relies and insists upon them all, as reasons for now reversing the judgment which he could not prevail to have arrested, and accordingly prays your honors to give to him the lawful benefit of each; he will here dwell only upon those noticed in the sequel of this petition.

The third in order of the grounds so stated for the said motion in arrest was expressed in these words: "Because it is not averred in the first count of the indictment (the count for treason) that the said defendant was, at the time of the commission of the offence therein charged, a citizen of the state of Virginia, or of the United States." The meaning and import of which objection was, that the said count did not charge the said offence against the commonwealth of Virginia, as it seems to have been designed to consider it, or against the United States, if it was so designed to consider it, to have been committed in breach of any allegiance due from your petitioner to either the former or the latter. And at any rate, as the said count did not so charge, your petitioner is advised that he hath now the right to insist upon such defect of the indictment, as a ground of error for reversing the said judgment, whether it was or was not distinctly put forward as a ground of his said motion in arrest. Accordingly he humbly puts in his claim to the benefit of it both ways.

That treason cannot be committed against the United States, but by one who owes allegiance (perpetual or temporary) to the government thereof, is established by the highest judicial authority of that government itself. 5 Wheat. 96-97, United States v. Wiltberger. And that, if treason can be committed at all against the commonwealth of Virginia, since the adoption of the federal constitution-a point drawn into question by the fourth in order of the grounds alleged for the aforesaid motion in arrest (and in regard to which, to save the trouble of returning to it hereafter, your petitioner begs leave now to refer to an able discussion of that precise point in American Law Magazine, number 8, for January 1845, vol. 4, pp. 318-350)-it can only be committed by one owing allegiance (of one or the other of the kinds above mentioned) to the said commonwealth, is supposed to be very certain, though not known to have been in like manner established. See Davis' Crim. Law 49. The statute enacted in the first year of the commonwealth, entitled "An act declaring what shall be treason," is (as to the part material at present to be noticed) in these words: "Whereas divers opinions may be what case shall be adjudged treason, and what not, be it enacted by the general assembly of the commonwealth of Virginia, that if a man do levy war against this commonwealth in the same, or be adherent to the enemies of the commonwealth within the same, giving to them aid and comfort in the commonwealth or elsewhere, and thereof be legally convicted of open deed by the evidence of two sufficient and lawful witnesses, or their own voluntary confession, the cases above rehearsed shall be judged treason, which extendeth to the commonwealth." 9 Hen. Stat. 168, October 1776, c. 3, s. 1. And in this form is continued through all the revivals of the laws, (1 Sheph. Stat. 187, Oct. 1792, c. 70, s. 1; Virg. Laws, 1794, p. 282, c. 136, s. 1; R. C. 1803, p. 272, c. 136, s. 1; 1 R. C. 1814, p. 284, c. 136, s. 1; 1 R. C. 1819, p. 590, c. 162, s. 1); until it was altered at the session of assembly in 1847-1848, in the manner to be hereafter mentioned. In this, its original form, it was upon the model, and, as to the points of comparison material now to be noticed, it was a copy of the statute 25 Edw. 3, stat. 5, cap. 2, entitled in Ruffhead's edition of the Statutes at Large, "A declaration which offences shall be adjudged treason;" which may be seen in 1 Ruffh. Stat. 261, 262, and in 3 Inst. 1, 2, in both the Norman French original and the ancient English translation. The latter, so far as a comparison is desirable, is as follows: "Item, whereas divers opinions have been before this time in what case treason shall be said, in what not, the king, at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth; that is to say, When a man doth compass or imagine," &c. &c. "or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be probably (provablement) attainted of open deed by the people of their condition," &c. &c. "it is to be understood, that in the cases above rehearsed, that ought to be adjudged treason, which extends to our lord the king, and his royal majesty." Thus it is seen, that no more is said about allegiance in the one, than in the other, of these statutes; but in each, the person who shall be capable of committing treason is described only as "A man." Yet under the statute of Edward it has been, invariably holden, that NO man can be guilty of that offence, unless at the time he owes allegiance-the authorities which prove this are so numerous and familiar, that it is entirely needless to cite any-and as the Virginia statute was copied so closely from it, with a perfect knowledge, on the part of the great men who sat in that legislature and led its counsels, that such was the settled interpretation, the same interpretation must be put on the provision then enacted by them. There is no more perfectly settled canon of legal and political hermeneutics, than this. Sedw. Stat. and Constit. Law 9, 426; 2 Pet. S. C. Rep. 18, Pennock v. Dialogue; 5 Pet. S. C. Rep. 280, Cathcart v. Robinson; 3 Scamm. 288, Campbell v. Quinlin; 27 Maine Rep. 9, Myrick v. Hasey; 21 Verm. Rep. 256, Adams v. Field; 23. Missis. Rep. 213, Ingraham v. Regan; 13 Illin. Rep. 15, Rigg v. Wilton; 6 Engl. Ark. Rep. 594, McKenzie v. The State; 3 Gray 450, Comm. v. Hartnett; 26 Alab. Rep. 326, Duramus v. Harrison; 7 Indiana Rep. 9, The State v. Swope. Indeed, the Virginia statute of 1776 was nothing more than an adaptation, to the new form of government then just adopted, of the same law concerning treason under which Virginians had always lived since the first foundation of the colony. At the session of 1847-8, while the whole body of the statute law was undergoing a slow process of revision, through the instrumentality of revisors, the legislature itself executed a revision of the statutory criminal law, and enacted a provision on the subject of treason (Sess. Acts 1847-8, p. 94, c. 120, tit. 2, c. 2, s. 1), which was in words almost the same, and in legal effect plainly identical, with the provision of the present Code, c. 190, s. 1: "Treason shall consist only in levying war against the state, or adhering to its enemies, giving them aid and comfort, or establishing, without authority of the legislature, any government within its limits, separate from the existing government, or holding or executing, in such usurped government, any office, or professing allegiance or fidelity to it, or resisting the execution of the laws, under color of its authority." But this enactment cannot be construed as expanding the law of treason to take in, as persons capable of committing it, such as owe no allegiance to the commonwealth; for two reasons. 1. It is settled, that in construing that Code an alteration of the former law must be presumed not to have been intended, unless an intention to make such alteration plainly appears. 11 Graft. 220, Parramore v. Taylor. See also 1 Munf. 200, 207, Dilliard v. Tomlinson; 5 Rand. 664-665, Comm. v. Carver; 6 Rand. 744, Shirley v. Long; 6 Leigh 76, Winn. v. Jones; 7 Barb. Rep. 191, Croswell v. Crane; 4 Sandf. S. C. Rep. 374. Dominick v. Michael; 9 Foster 420, Mooers v. Banker; 3 Zabrisk 180, re Murphy; 26 Alab. Rep. 326, Duramus v. Harrison; 6 Texas Rep. 34, Ennis v. Crump; 33 N. Hampsh. Rep. 247, Burnham v. Stevens; Sedgw. Stat. and Const. Law 428-429. And 2. the expression, that "treason shall consist only in levying war," &c. &c., so far from meaning that levying war, &c. &c. shall alone be sufficient to constitute treason in any body, without more, and especially without any obligation of allegiance; imports, on the contrary, that treason shall not be capable of being committed in any way BUT by such acts, even though the person accused does owe allegiance. This interpretation is agreeable to not only the rule just above stated, but also the known rule about the interpretation of penal statutes; and it is further enforced by this consideration: Manifestly the form of expression is borrowed from the constitution of the United States, art. 3, sect. 3, ch. 1; "treason against the United States shall consist only in levying war against them, or adhering to their enemies, giving them aid and comfort;" and in the case before cited, of United States v. Wiltberger, 5 Wheat. 96-97, Chief Justice Marshall, delivering the opinion of the supreme court of the United States, spoke as follows: ''The first section [of a certain act of congress] defines the crime of treason, and declares, that if any person or persons owing allegiance to the United States of America shall levy war, &c., such person or persons shall be adjudged guilty of treason, &c. The second section defines misprision of treason; and, in the description of the persons who may commit it, omits the words 'owing allegiance to the United States,' and uses, without limitation, the general terms 'any person or persons.' Yet, it has been said, these general terms were obviously intended to be limited, and must be limited, by the words 'owing allegiance to the United States,' which are used in the preceding section. It is admitted, that the general terms of the section must be so limited; but it is not admitted, that the inference drawn from this circumstance, in favor of incorporating the words of one section of this act into another, is a fair one. TREASON IS A BREACH OF ALLEGIANCE, AND CAN BE COMMITTED BY HIM ONLY WHO OWES ALLEGIANCE EITHER PERPETUAL OR TEMPORARY. The words, therefore, 'owing allegiance to the United States,' in the first section, are entirely surplus words, which do not, in the slightest degree affect its sense. The construction would be precisely the same, were they omitted. When, therefore, we give the same construction to the second section, we do not carry those words into it, but construe it as it would be construed independent of the first." In other words, the strong expression "any person or persons," when used in connection with treason, shall be construed to mean only "any person or persons owing allegiance," notwithstanding even a very strong semblance of their being set in contrast to the words of a preceding section, "any person or persons owing allegiance." In truth, all legislation, English and American, indicates it plainly, as a thing known and understood, that treason is a common law offence, with its common law constituents, one of which is breach of allegiance; and the whole object of such legislation, and of constitutional provisions on the same subject, is to fasten up, within certain limits, what might else be an "extravagant and erring spirit" of the courts in extending the law and the penalties of treason to cases to which it ought not to be applied.

Which being so, then, by a known rule of criminal pleading, no indictment for treason can be good which does not, in plain terms, charge it to have been done in breach of allegiance. This was so decided, with much more than usual solemnity, in the case of Reginald Tucker, who was indicted of treason, and adjudged to be executed, for the part which he took in Monmouth's rebellion. Yet he was not put to death, and was afterwards pardoned; after which (and subsequently to the revolution of 1688) he procured leave to bring a writ of error, and brought it, on the judgment of his attainder; under which Mr. Hall, afterwards Sergeant Hall, of the Middle Temple, had purchased his (Tucker's) estate. This gentleman, therefore, opposed totis viribus the reversal of the attainder ; and, himself no mean lawyer, at least in point of ability, he employed also in his cause several of the foremost men then at the bar; in Comberbach's report of the case, Levinz, who had been a judge, and Powys and Gould, who were judges soon afterwards, are mentioned as arguing on that side. No less than nine objections were taken; all of which but two were overruled, and upon one of those two the court declined to give an opinion: so that the decision, which in the court of king's bench was unanimous, rested altogether upon one point. Which one point was, that the indictment was, and even in that stage was to be considered bad, for want of averring, in some sufficient manner or form, that the treason was committed in breach of allegiance. The common form, and perhaps the best, of making the averment was to charge in conclusion of the count, that all the misdeeds alleged in the body of it were done-in those times when all law proceedings entered of record were in Latin-"contra ligeantiae suae debitum" against (or, as the printed precedents since law proceedings have been in English generally have it, contrary to) the duty of his allegiance. And, except in cases of statutory treasons capable of being committed even without a breach of any such duty (some treasons of that kind were created in the reigns of Henry the Eighth and Charles the Second, and perhaps some such were even included in the declaratory statute of Edward the Third before quoted, to wit, offences relative to the coin), it has been the uniform course, in all precedents used and approved, so to charge it. See, for precedents before Tucker's case, the references in Show. P. C. 188-189; and, for precedents subsequently, Fost. Cro. Law 6; Cro. Circ. Comp. 470-471, edit. N. Y. 1816; 4 Wentw. Plead. 14, 20; 6 Wentw. Plead. 368; 2 Chitt. Crim. Law 72-73, 83, 84, 1st edit.; 2 Stark. Crim. Plead. 358; Archb, Crim. Plead. 311, 315, 317, 3rd edit. And for American precedents, see Dav. Prec. 251-256; Whart. Prec. num. 1117, 1118, 1119, 1120, 1131, 1132, 1132; wherein always this conclusion is used, except where in the commencement of the count the person accused is averred to be one "owing allegiance." In this case (of Tucker) it was insisted, that, in order to be good, an indictment of treason must have such a conclusion; but Lord Chief Justice Holt said, that was needless, if the same averment were found any where in it. But, that it must be somewhere therein, all the judges agreed, after long time for consideration and many debates: and, because it was nowhere in that indictment, the judgment founded on it was reversed; and that reversal was afterwards affirmed in parliament. The case is reported in many books, but best in 1 Ld. Raym. 1; Comb. 257; Carth. 217; 4 Mod. 162; and Show. P. C. 186. See also S. C. 12 Mod. 51; Skinn. 338, 360, 425, 442; 2 Salk. 630; 3 Lev. 396; Cas. Temp. Holt 678. The indictment itself, in the original Latin, is set out in Sho. P. C. 186; portions of which, it is submitted, may be correctly translated thus: That the said Tucker and another indicted jointly with him, "not having the fear of God in their hearts, nor considering the duty of their allegiance, but moved and seduced by the instigation of the devil; withdrawing the affection and true and due obedience which the true and faithful subjects of our lord the king," &c. "towards our said lord the king should bear and of right are bound to bear; and contriving and intending," &c. "TRAITOROUSLY, (proditorie) compassed, imagined, and intended our said lord the king, their supreme and natural lord, to bring to death, and against our said lord the king, their supreme, true, natural, and undoubted lord, TRAITOROUSLY (proditorie) levied war," &c. "against the peace of our said lord the now king, his crown and dignity, and against the form of the statute in such case made and provided." And to maintain it, in spite of its wanting such a conclusion as has been above mentioned, or any distinct averment to the same effect, it was earnestly pressed that the want of such conclusion or such distinct averment was supplied (1 Ld. Raym. 2; Comb. 258) by the words "nor considering the duty of their allegiance," (Skinn. 360; 2 Salk. 630), and by the words "against our said lord the king, their supreme, true, natural and undoubted lord, levied war," (Carth. 318; 12 Mod. 52; Cas. Temp. Holt 679), and other expressions to the like effect; which, it was said, necessarily imply that Tucker was a liege subject to the king, and consequently that this treason was committed by him contra ligeantiae suae debitum;" and also (4 Mod. 163; Sho. P. C. 187), by the adverbial epithet "traitorously" (proditorie), which, it was said, necessarily carried with it the same implication: But all in vain; though it was agreed that that adverb was necessary, while, as to the other expressions so relied on, they were needless. And accordingly the law has been held ever since. 2 Hawk. P. C. ch. 25, sect. 55; Com. Dig. tit. Indictment, G. 6; Bac. Abr. tit. Indictment, G. 1; 4 Blackst. Comm. 307; 1 East's Cro. Law 115; 1 Chitt. Crim. Law 242; 1 Stark. Crim. Plead. 69-70; 4 Steph. Comm. 376. Nor is it material, in this aspect, whether the person accused be a subject or citizen, by birth or otherwise, or a stranger; for, even in the case of the latter, the thing or things alleged as overt act or acts must be charged, in terms or in effect, to have been done traitorously and against the duty of allegiance. Dyer 145 a, pl. 52, Sherley's case; 7 Rep. 6 a-b, Ferrara de Gama's Case, cited in Calvin's; Hob. 271, Courteen's Case; Co. Litt. 129 a; 1 Hal. H. P. C. 59; 1 Hawk. P. C. ch. 17, sect. 5; Fost. Cro. Law 186. And moreover they must be proved to have been done so; for even the presence, unconstrained, of a stranger in a country, if not under the protection (express or implied) of its laws, will not subject him to the consequences of allegiance, even local and temporary, so as to bring any thing which he can do within the crime or the penalties of treason: As, in the case of Perkin Warbeck, who being an alien, and invading the kingdom with an army to claim the crown under pretence of being a son of Edward the Fourth, and being taken prisoner; it was resolved by the judges, that he could not be proceeded against as a traitor. 7 Rep. 6 b, Calvin's Case; 3 Inst. 11.

Whether any such indirect allegations of allegiance being due, as were found in those parts of the indictment against Tucker, which stated that he and another did what was charged to have been done by them, in disregard of "the duty of their allegiance," and "withdrawing the affection and true and due obedience, which the true and faithful subjects of the king should, and of right were bound to bear him," and "intending to bring to death the king on the throne, their supreme and natural lord," would have been sufficient, under a statute couched in the very words of the 12th section of V. C. 1849, c. 207; it is not material to enquire, inasmuch as in the count now in question there are not to be found expressions, or a single expression, of like character thereto. The persons accused may have done every thing charged against them, in the character of fillibusters from Cuba, making hostile invasion from the time of their first touching Virginia soil, and therefore never owing her aught of allegiance; for any thing that appears in the said count, UNLESS some implication of allegiance may be made out of the adverbs "feloniously and traitorously," and the adjective "treasonable," applied, the former to all that is therein alleged to have been done, and the latter to the alleged "ends and purposes" of the persons indicted. Any such implication is supposed to be sufficiently rebutted by Virginia authorities, of the very highest character and in very great number.

The statutory provision in V. C. 1849, c. 207, s. 12, has been, in words to precisely the same effect, in force ever since 1st April 1804. Sess. Acts 1803-4, p. 63, c. 95, s. 6; 3 Sheph. Stat. 75, c. 95, s. 6; 2 R. C. 1814, p. 38, c. 34, s. 6; 1 R. C. 1819, p. 611, c. 169, s. 44; Sess. Acts 1847-8, p. 144, c. 120, tit 3, ch. 20, sect. 11. And since that date it has been decided, after verdict, that an indictment, charging goods to have been "feloniously and burglariously" taken from a dwelling house, without charging in other manner that this was done in the night time, is not a good indictment for burglary, but is only an indictment for larceny. 4 Leigh 658-660, Comm. v. Marks: That a presentment for gaming, which charges defendant with playing at an "unlawful" game "at the house of R. Lipscomb in the town of Brentsville," is fatally defective in not charging the house was an ordinary or public place, so as to show otherwise than by the adjective applied to it, that the playing was an offence. 4 Leigh 674, Ford v. Comm.; see also 10 Leigh 686, Roberts v. Comm.; 13 Gratt. 787, Bishop v. Comm.; 14 Gratt. 65, Huff v. Comm.: And that an indictment is bad, which charges that on a certain day the prisoner "feloniously" had in his possession twenty pieces of base coin, without otherwise showing that he had them in his possession at one and the same time. 14 Gratt. 687, Scott v. Comm. In this case, Judge Daniel (in whose opinion the rest of the judges concurred) said: "The defect is not helped by charging that the prisoner 'feloniously' had the twenty pieces in his possession. To make the count good, it does not suffice to style the prisoner's offence a felony. It is absolutely essential to the validity of the count, that it should also distinctly set out and charge the acts which constitute the offence." 14 Gratt. 692, 693. See also 2 Virg. Cases 122, Barker v. Comm.; 2 Leigh 709, Jacobs v. Comm.; 4 Leigh 692, Comm. v. Peas; 2 Gratt. 629, S. C.; especially what is said by Judge Lomax in the last cited case, 2 Gratt. 637-641.

In V. C. 1849, c. 267, s. 10, there is a provision borrowed from a late English statute, viz: "All allegations, unnecessary to be proved, may be omitted in any indictment or other accusation," which is not known to have received any, much less any complete, judicial expositors either in England or in Virginia. But as this provision is not confined in its operation to cases wherein there has been a verdict, but applies no less upon a demurrer; it is supposed, that it can in this case apply only to such allegations as, that the persons indicted had not the fear of God before their eyes, but were moved and seduced by the false and malignant counsels of other (evil and traitorous) persons and the instigation of the devil; which have been industriously inserted, while all issuable allegation of the persons so indicted being bound by any allegiance which they had violated, is as industriously excluded, as if for the very purpose of avoiding at the trial any investigation into that point. It is supposed, that since this statute was made, as well as before, it is necessary to state in an indictment every thing material to be true, no matter on which side the burden of proof may rest; and therefore to charge in an indictment of treason, that the accused owed allegiance, without which the crime itself cannot exist. And it is further supposed, that it is still necessary so to charge, even if it be necessary to allege only that whereof the burden of proof rests on the prosecutor; for that, in a prosecution of treason, the onus probandi touching that point rests in the first instance upon the prosecutor, no matter how soon the burden of disproving it may be turned upon the accused.

Therefore your petitioner is advised, that clearly the judgment aforesaid against him ought to have been arrested, and ought now to be reversed, unless a different result is to ensue from the circumstance of there being other counts in the same indictment; under the provisions of V. C. 1849, c. 208, 34, that "when there are several counts in an indictment or information, and a general verdict of guilty is found, judgment shall be entered against the accused, if any count, be good, though others be faulty." It is submitted, that the statute does not reach this case, for reasons similar to those which heretofore led to the overruling of Kirk v. Comm. 9 Leigh, 627, by the subsequent cases of Mowbray v. Comm. 11 Leigh 643, and Clere v. Comm. 3 Gratt, 615; for this peculiarity distinguishes the present case from ordinary cases, indeed from any (it is believed) that has ever hitherto come before the courts of Virginia, namely, that if the judgment rendered against your petitioner on all the counts, including the defective one, is to stand, then he is put out of the reach of executive clemency; whereas that clemency would be legally capable of being extended to him, if judgment had been entered against him on only the other counts of the indictment, and he would have stood in no need of it, had the defective count not been associated with the rest, but been the whole indictment by itself. And even if the statute does reach this case, still, as your petitioner is advised, that has happened in the case, as appears in the transcript aforesaid of the record, which nevertheless entitles him to have the said judgment reversed. For the said statute contains, in addition to those formerly quoted, these words; "But on the trial the court, on the motion of the accused, may instruct the jury to disregard any count that is faulty." No argument, or citation of authorities, though both are abundant, is necessary to prove that where a statute says, a court may do what justice and right require, in the administration more especially of criminal law, there it is the duty of the court so to act, and that, if it do not, error is thereby committed. Now your petitioner applied himself to the judge of the circuit court on this subject, in two ways, either of which entitled him to have, and entitle him now to complain that he did not have, the benefit of an instruction from the court to the jury to disregard this faulty count, agreeably to the decision in Rand v. Comm. 9 Gratt. 738, 749-52. For, first, as appears in a bill of exceptions, signed and sealed by the judge, and to be found in the transcript aforesaid, p. 13, 14, your petitioner at the trial moved the court to compel the prosecution to elect one of the counts in the indictment, upon which to prosecute, and abandon the prosecution upon the other counts; which motion was entirely overruled, and the prosecution allowed to proceed upon all the counts, including even the faulty ones, instead of being stopped upon at least that one. This was afterwards made the first of the several grounds alleged in arrest of judgment, as appears in a bill of exceptions heretofore mentioned, and found in the aforesaid transcript, p. 15. And secondly, as appears in another bill of exceptions, signed and sealed by the judge, and to be found in the said transcript, p. 14, your petitioner moved the court to instruct the jury, that, if they believed from the evidence, that the accused, at the time of the committing the several acts by him in the said first count charged, was not a citizen of Virginia, but a citizen of another state of the United States, they could not convict him under that count; which motion the court overruled, and refused the instruction, and there left the matter, with the result eventually of a verdict and judgment against your petitioner on that count, instead of the prosecution having been, as it ought to have been, then stopped on the said count, for its radical defectiveness upon the very point brought forward in the said motion.

On these grounds your petitioner well hopes that the said judgment against him will be by your honors reviewed and reversed, for the faultiness of the said first count. But if his hopes here rest upon any fallacy, he is advised that the said verdict ought to be set aside and a new trial awarded him, for the miscarriage of the judge in refusing to give the instruction so asked. For, if a judgment could properly be rendered against him on that count, it must be because, even as it was framed, the question of allegiance or non-allegiance in the accused, so fundamental to the treason imputed, might be enquired into under it: And, if so, it was wrong to withhold the instruction. The circumstances in proof were, that your petitioner had never been a resident of Virginia, though he had sometimes been in the state; that he was latterly commorant in the state of Maryland; and that from his place of abode there he came modo guerrino into Virginia at the time of committing the hostilities charged as acts of treason. Now your petitioner is advised, that he might be a citizen of Maryland or any other state (but Virginia) of the United States, without being a citizen of Virginia, owing allegiance to her, at all, so long as he remained out of Virginia; and that he might, in that condition of his citizenship, come into Virginia without contracting allegiance to the state, so as to incur the penalties of treason, if he came in the manner of an enemy, so as not to entitle himself to the protection of her laws, allegiance and protection being reciprocal. 1 Blackst. Comm. 366-371. In the same manner as citizens of Virginia will not contract allegiance, or incur treason, to any other state, if they shall so invade it. And if it be possible, that a citizen of some other state in the United States can be in Virginia by his own act, in any manner, without being a citizen of Virginia, then the judge erred against your petitioner in withholding the instruction asked and refused.

The second count of the indictment is framed under the 4th section of chapter 190 of the Code, page 722. It charges substantially, that the same parties charged in the first count did each severally maliciously and feloniously conspire with each other and with certain John C. Cooke, John Kazi, Charles Tidd and others, to the jurors unknown, to induce certain slaves named, the property of certain persons named, and other slaves to the jurors unknown, to rebel and make insurrection against their masters and owners, and against the government, constitution and laws of the commonwealth of Virginia; and did maliciously and feloniously advise said slaves named, and other slaves to the jurors unknown, to rebel and make insurrection.

The finding of the grand jury in reference to the charges contained in this second count (for there are four charges contained in it, to wit, advising and conspiring to induce slaves to rebel, and to make insurrection, and advising slaves to rebel and make insurrection), is as follows, to wit: "For advising and conspiring with slaves and others to rebel."

The finding of the petit jury in reference to this second count, it is inferred (for the verdict does not by its own terms refer to it), is a finding of the accused "guilty of advising and conspiring with slaves and others to rebel."

On this 2nd count, it is remarked that the verdict, which is entirely abstract, does not show what slaves the accused is found guilty of advising and conspiring with to rebel, whether the slaves named in the count, or other slaves therein referred to as being to the jurors unknown; nor does it appear by the verdict whether by the term others is meant the other four persons, to wit, Stephens, Coppoe, &c. charged in the indictment, and John C. Cooke, &c., or others to the jurors unknown; and whether or not the term others in the verdict was designed to designate and does designate free persons or slaves, or both.

This finding, it is submitted, is altogether too uncertain to warrant judgment upon it, and judgment should have been arrested upon the principle settled in Marshall's Case, 5 Grattan 663, and Cocke's Case, 13 Grattan 750. See also Peas' Case, 2 Grattan 629.

The third count charges the same parties named in the 1st and 2d counts with severally, on the 16th, 17th and 18th days of October 1859, feloniously, willfully and of, and each of, their malice aforethought, killing four white men named, and one free negro named, giving to each of the persons so killed, one mortal wound, by shooting them with Sharp's rifles-describing the wound upon each, of which wound each died-and thereupon it is alleged that said parties charged, feloniously, &c. did kill and murder, in manner and form aforesaid, the said parties.

The fourth count is precisely the same with the 3d, with the exception that it charges Brown, Stephens, Coppoe and Green with committing the acts resulting in the homicides, and Copeland with being present, aiding and abetting the others in their commission.

The finding of the petit jury (it is inferred) upon these two counts, is "a general finding, without referring by its terms to the indictment, or any part of it, as follows, to wit: "Guilty for murder in the first degree." The verdict does not state for the murder of whom the accused is found guilty, nor whether of one or more: nor upon what day or days; nor does it contain any reference to the indictment, by "which it might be rendered certain, if the indictment would serve that end, which it is insisted it is too uncertain to do. If the finding be interpreted to refer to either or both of the 3rd and 4th counts, then Brown is found guilty of inflicting one mortal wound with a Sharp's rifle on the body of each of the persons alleged to have been killed, on three several days, thereby killing each one of them-and that each of the others charged, committed the same acts upon the same parties, at the same time with a like weapon and with the same result.

It is submitted, that the cases already cited from 2d, 5th and 13th Grattan, apply with conclusive force to this finding, and justified, indeed required, the arrest of judgment on the finding for which the prisoner moved in the court below.

But it is insisted that these counts (3d and 4th), upon the face of each, are so uncertain, that if the jury had found specifically on each, guilty on the count as indicted, that the court could not, by reason of uncertainty, inconsistency and contradictory allegations, have legally rendered judgment upon such verdict.

It is submitted, that the court below erred in refusing to grant the motion of defendant to compel the prosecution to elect:

1st. Because the 1st count of the indictment was intended to charge treason, and of that offence, it is alleged, accused is convicted, and for that offence he is sought to be punished. This offence is not pardonable by the executive of the commonwealth, and should not and could not lawfully have been united in the same indictment with offences pardonable-and this, notwithstanding the punishment of all were the same. A man shall not by such joinder be embarrassed or obstructed in his application for pardon. See 1st Starkie's Crim, Plead. chap. 6, p. 69.

2. Because the punishment upon conviction upon each count of the indictment, was not necessarily the same. The punishment upon conviction upon the 1st and 2d counts, was necessarily capital, whilst a conviction upon the 3rd and 4th counts, or either of them, might or might not subject him to capital punishment. These counts charged only common law, murder, (murder in the second degree); that is to say, if only the facts stated in the indictment were proved, the jury must have found murder in the second degree. To authorize a finding upon which the accused could be punished capitally, the prosecution must satisfy the jury, by evidence, that there was deliberation and premeditation. The accused might have been found guilty under these counts of manslaughter, or of a mere misdemeanor.

Motions to compel election, it is said, are addressed to the discretion of the court, and it is to be inferred were in the opinion of the judge below to be made before the jury was sworn, and not afterwards.

It is submitted, that this discretion is not unlimited, and relates evidently to cases of the same nature and grade, requiring, upon the face of the indictment, the same judgment, generally described as growing out of the same transaction, or to cases alleging the same offence in different counts, and not to cases like the one under consideration. See 10th Grattan 708, Lazier's Case, 9th Grattan 727, Dowdy's Case.

In Archbolds Criminal Pleadings, page 35, it is said that the motion to compel an election may be made at any time before the jury are charged. As there is no charge to the jury in Virginia practice, it is submitted that it may be made here at any time before the jury retire, which, like the charge in England, is the giving the case to the jury.

It is objected also upon the part of the accused, that the 2nd, 3rd and 4th counts are all double, and that the verdict, if it shall be regarded as a finding upon these counts, ignores, especially as it regards the 2nd count, a part of the charge, advising and conspiring to induce slaves, &c. to rebel, &c. See 14 Grattan 687, Scott's case, and Va. Code, chap. 208, sec. 28, p. 777, as to sentence when party indicted for felony is acquitted of part of the charge in the indictment, and convicted of part. Without this statute, there could be no judgment even upon a finding that responded to the whole charge; and, a fortiori, there can be none upon the finding in this case, especially upon that relating to the second count.

By his counsel-SAM'L CHILTON, and WM. GREEN.

Chapter Eleven: The Commonwealth of Virginia v. John Brown and His Men

His Soul Goes Marching On

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