plaintiff claim through good faith? How does he derive his claim? Through perfidy; through a polluted channel. Everything of that kind would have come better from our side of the question than from theirs.

But the gentleman' has observed, that neither the declaration of the legislature, by the act of 1779, that the British subjects had become aliens, and their property vested in the commonwealth, nor any other act passed on the subject, could divest the debts out of the British creditors. It cannot be done without the solemnity of an inquiry by a jury. The debt of A. or B. cannot be given to C., without this solemnity. Is the little legality of forms which are necessary when you speak of estates and titles, requisite on such mighty occasions as these? When the fate of a nation is concerned, you are to speak the language of nature. When your very existence is at stake, are you to speak the technical language of books, and to be confined to the limited rules of technical criticism? to those tricks and quirks, those little twists and twirls of low chicanery and sophistry, which are so beneficial to professional men? Alexander said, in the style of that mighty man, to the Thessalian: "You are free from the Thebans," and the debts they owed them were thereby remitted. Every other sovereign has the same right to use the same natural, manly and laconic language; not when he is victorious only, but in every situation, if he be in a state of hostility with other nations. The acts use not the language of technicality, they speak not of releases, discharges and acquittances; but they speak the legislative will, in simple speech, to the human understanding—a style better suited to the purpose than the turgid and pompous phraseology of many great writers.

1 Mr. Ronald.

PUBLIC OPINION INVARIABLY AGAINST THE PRISONER.

JAMES T. BRADY.

My learned friend, the District Attorney,' and myself, do not exactly agree in our notions about men and human nature. He said that I "spoke rather like a cynic than a philosopher," when I declared that man would much more readily believe evil of his neighbor than good. I retain my opinion. There is an instinct in every human being that relates to the purpose for which the Almighty seems to have designed him,—a roving hunter," to live as the hunter liveth, and to die as the hunter dieth." No race of mankind is ever satisfied with the place in which it first achieved prosperity. However large, rich and fertile the domain possessed, we are ever eager to push out, even in the midst of our luxuries and enjoyments, and seek new theatres for physical and intellectual effort. When we look back upon history, we find that civilization has forced its path over the ruins of empires; and there is not a single fallen column, there is not a smouldering cornice, nor a piece of stone round which the weeds cluster in desolate places where at one period luxury, refinement, and art may have existed, which was not in its overthrow a necessary foothold for that progress which, we think, has advanced us to a position so enviable in these latter days. We are a restless, roving race of hunters; and the very moment you give the common multitude an object to pursue, the instinct of the chase naturally tends to superiority over judgment and humanity. When any thing flieth from mankind they all pursue; let it turn with the courage of a rat, and the multitude are likely to fall back. The instinct of our race is developed in the administration of the law. When a man is charged with what is termed a "great crime," did you ever know the newspapers to suggest that he might possibly be innocent? Is that because editors are destitute of humanity? No, but entirely because of this instinct. If you go into a court of justice you will find that in almost every extraordinary case, the instincts of the multitude are with the State. When the prosecution are in want of testimony, any man who, far off in Texas, knows a fact that can assist the People, will communicate it to the district attorney; but if you were charged with crime, accused, though innocentarrested, and brought to trial, men who were present, and saw the deed committed by another, would often rather suffer you to die guiltless on the scaffold, than come forward and confess that they were at the scene of the occurrence, if that might expose them to shame or even to trouble.[From his argument in defense of Huntington, charged with forgery, December 29, 1856.] 1 Mr. A. Oakey Hall.

[34]

ARGUMENT OF WILLIAM PINKNEY,

ON THE LAW OF CONSTRUCTIVE TREASON, IN THE DEFENSE OF JOHN HODGES.

[U. S. v. Hodges, 2 Wheeler's Cr. Cas. 477.]

AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT BALTIMORE, MD., MAY TERM, 1815.

The dual argument of Mr. Pinkney to the court and jury, forms part of an episode in juridical history, which has no parallel since Thomas Erskine, at the trial of the Dean of St. Asaph, withstood with respect and firmness what he regarded, on the part of the court, as an encroachment upon the province of the jury and the constitutional and legal rights of his client. The conduct of the latter resulted in the passage of Lord Camden's Act, which practically secured the liberty of the press and the freedom of speech; the conduct of the former abolished forever the idea that such an offense as constructive treason" could possibly exist under our system. The history and circumstances surrounding the accusation and arrest of John Hodges were part of the res geste of the unfortunate engagement at Bladensburg and the burning of the city of Washington, by the British, under General Ross, in the summer of 1814, in all of which Mr. Pinkney bore a conspicuous part in defending his home and country. On their way to Washington, the English sailed up the Chesapeake into the Patuxent river, and landed at Benedict. Thence they passed through Upper Marlborough to Bladensburg, where a battle was fought with the Americans, in which Mr. Pinkney, at the head of his gallant brigade of Baltimore riflemen, received a serious wound. Four British stragglers, who had fallen behind the main army, were taken prisoners by some of the inhabitants of Marlborough. When General

Ross discovered the fact, he demanded the return of the men from the Marlborough authorities, and accompanied his demand with a threat, that if they were not surrendered before 12 o'clock that night, he would lay the town in ashes, and hold as hostages the wives and children of the inhabitants. It seems that the prisoners had been sent to the American camp some miles distant, and to save the town John Hodges and his brother hastened thither, and besought General Bowie, who had charge of the captives, to deliver them, that they might be restored to the enemy, at the same time informing him that the safety of the town depended upon their immediate return. The General, aware of the dan ger which would result from a longer detention, and being himself powerless to avert the threatened destruction, reluctantly gave the prisoners to Hodges, who surrendered them to the enemy. For this act he was indicted for treason, and tried before Hon. Justices Duvall, Bland and Houston, in the United States Circuit Court held at Baltimore, in May, 1815. Elias Glenn, Esq., appeared for the government; U. S. Heath, J. E. Hall, and William Pinkney appeared for the prisoner.

The crime of treason is thus defined by the Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." By an act of Congress, approved April 30, 1790, it is declared, that "if any person or persons owing alle giance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, within the United States or elsewhere, and shall be thereof convicted on confession in open court, or on the testimony of two witnesses to the same overt act of treason, whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death." Under this act it was claimed that the delivery of the prisoners by Hodges to the enemy was adhering to them, and giving them aid and comfort, and was treason against the United States.

Such an attempt to deprive a good citizen of his life under the forms of law, perhaps cannot be found in the history of American jurisprudence, and it would seem almost incredible that in the tribunals of a popular government, an effort should be made to revive judicial murder under the guise of constructive treason. To claim that the delivery to the enemy of four prisoners, compelled by a barbarous and inhuman threat, involving the ruin of an entire community, was deliberate treason, and that such surrender, under such circumstances, could be construed into a willful intention to furnish "aid and comfort” to the enemy, seems absurd. Nevertheless, such a claim was not only made by counsel for the government, but was sustained by the court.

When the trial came on it was proven by the prosecution, that the prisoner had intentionally surrendered the captives to the British. Mr. Pinkney then, on behalf of the accused, read an address from the grand jury to the President of the United States, in which the jurors expressed their respect for the motives of Hodges, and prayed that a nolle prosequi should be entered. At this stage of the trial counsel for the government asked the court to direct the jury, that the crime of treason had been established. That the case presented but two inquiries: (1) Did the accused deliver the prisoners? (2) Did he intend to do so? These acts

1 Const. Art. 3, § 5.

having been proven, it was claimed they involved the intention, and that the crime of treason had been made out. Having prayed for the instruction of the court, the judges said they would hear counsel. Mr. Pinkney then addressed the court as follows:

MAY IT PLEASE YOUR HONORS:-There is no law in this prayer, for it excludes that which is the essence of the offense-intention; and if it was otherwise, the court has no right to instruct the jury as if this were a civil case. No instance has occurred in modern times of an attempt to bind the jury in such a case by the opinion of the court. What remedy is there for the party if you err? We may appeal to a higher tribunal, it is true; but what is the consequence? The man is hanged and your judgment is reversed.

1. THE JURY, JUDGES OF BOTH THE LAW AND THE FACTS.

In England, did their courts interfere in this mode in the celebrated cases of Hardy, and Horne Tooke and others? No, it would not have been endured. The best security for the rights of individuals is to be found in the trial by jury. But the excellence of this institution consists in its exclusive power. The jury are here judges of law and fact,' and are responsible only to God, to the prisoner, and to their own consciences. After the case is closed you may indeed advise the jury, if they ask it, or if you think proper to do so without being asked by them. But to interrupt the progress of the trial in the way proposed would be monstrous. Suppose the court to give the direction, I shall not submit to it as the prisoner's counsel. I will, on the contrary, tell the jury that it is not law. It is my right to do so, and in a case of blood I dare not forego the exercise of it. I trust I shall not be placed in a predicament which will thus set my duty to a man whose life is in my charge against my respect for this tribunal. I pray your honors to suffer this cause to go on in the customary and legal manner.

In reply to Mr. Pinkney the court said, they were bound to declare the law whenever they were called upon in civil and criminal cases, and requested to hear from counsel for the prosecution. Mr. Glenn commented upon the authorities to

1 Hon. Benj. R. Curtis, in U. S. v. Morris (1 Curtis' C. Ct. R. 23), held that under the Constitution and laws of the United States the jury are not the judges of the law in a trial. They are to take the law from the court, and apply it to the facts in evidence, and then frame their general verdict of guilty or not guilty. In Morris' case, the questions of law related to the constitutionality of an act of Congress. To the general rule laid down by Judge Curtis, however, there seem to be two exceptions, namely, in trials for treason and libel.