xt70zp3vt979 https://exploreuk.uky.edu/dipstest/xt70zp3vt979/data/mets.xml Hare, Joseph Thompson, d. 1818 1818.  books b92-156-29772590 English Pub. by Edward J. Coale. : Baltimore : This digital resource may be freely searched and displayed.  Permission must be received for subsequent distribution in print or electronically.  Physical rights are retained by the owning repository.  Copyright is retained in accordance with U. S. copyright laws.  For information about permissions to reproduce or publish, contact the Special Collections Research Center. Alexander, John, defendant. Hare, Lewis, defendant. Wood, William, defendant. Coale, Edward J., reporter. Bache, Richard, 1784-1848, reporter. Winder, William Henry, 1775-1824. Trials of the mail robbers, Hare, Alexander and Hare  : with the testimony, the proceedings of the court, and the arguments of counsel at length / William Wirt, esq., attorney general of the United States; Elias Glenn, esq., district attorney : Thomas Kell and Reverdy Johnson, esqs., for the prosecution : General Winder, David Hoffman, Charles Mitchell and Ebenezer L. Finley, esqs., for the prisoners : reported by Edward J. Coale : to which is added, the trial and proceedings before the Circuit court of the United States, in Philadelphia, in the case of William Wood, an accessary before the fact : reported for the Franklin gazette, by Richard Bache, esq. text Trials of the mail robbers, Hare, Alexander and Hare  : with the testimony, the proceedings of the court, and the arguments of counsel at length / William Wirt, esq., attorney general of the United States; Elias Glenn, esq., district attorney : Thomas Kell and Reverdy Johnson, esqs., for the prosecution : General Winder, David Hoffman, Charles Mitchell and Ebenezer L. Finley, esqs., for the prisoners : reported by Edward J. Coale : to which is added, the trial and proceedings before the Circuit court of the United States, in Philadelphia, in the case of William Wood, an accessary before the fact : reported for the Franklin gazette, by Richard Bache, esq. 1818 1818. 2002 true xt70zp3vt979 section xt70zp3vt979 








                     TRIALS


                       0r THE







   HARE, ALEXANDER AND HARE.


WITH THE TESTIMONY, THE PROCEEDINGS OF THE COURT, AND TNX
           ARGUJMENTS OF COUNSEL AT LENGTH.


WILLIAM W\JIRT, ESq. Attorney General of the United States;
   ELIAS ULENN, ESQ. I)istrict Attorney; THOMAS KELL and
        REVE1RDY JOHNSON, Esqs. for the prosecution.

GENERAL WINDER, DAVID HOFFMAN, CHARLES MITOHELL aud
       EBENEzE;1 L. FINLEY, ESQS. for the prisoners


                     IIEPORTED
              BY EDWARD J. COALE.


TrO WICR 1S ADDED, THE TRIAL AND PROCEEDINGS BEFORI T8D hICVIm cOlm
      OF THE UNITED STATES, IN PHILADLLPH1A, IN THS CASA Ol

              WILLIAM WOOD,
         AN ACCESSARY BEFORE THE FACT.

   BRepoviek for the Eraukdin Gimette,9

             BY RICIHARD BACIIE,ESq.




                   BALTIMORE:
       PUBLISHED BY FI DWARD L. COALE.
                      1P18.
          PINTED BY KENNEDY  KAGAURAN.

 This page in the original text is blank.


 







                       OF


3oaei b Thompson Bate, 3Qon         ilexanaet
               au 'Lemis bade.

  Is the Circuit Court of the United States, for the
Fourth Circuit, held at the City of Baltimore, for the
District of Maryland.-May Term, 1818.
                   PRESENT,
The hon. chief justice GABRIEL DUVALL, Judges.
      The honourable JAMES HOUSTON, 3


The following indictments were returned by the grand
                jury, TRUE BILLS.


 UNITED STATES, V8. JOSEPH THOMPSON HARE.

 In the Circuit Court of the United .States ('f A1merica.
 for the Fourth Circuit, held at the city of Baltimore,
 in and for the Maryland District.
                  MARYLAND DISTRICT-To WIT:
  The grand inquest of the United States of America,
for the fourth circuit, inquiring for the body of the Ma-
land district, upon their oaths, do present; that Joseph
Thompson Hare, late of the said district4 yeoman, to-

 



UNDICTMENTS.



gether with a certain Lewis Hare and a certain Jolin
tlexander, on the eleventh day of March, in the year
eighteen hundred and eighteen, in the night of the
same day, in the public highway at Harford county, at
the district- aforesaid, in and upon one David Boyer,
then and there being the carrier- of the mail of the said
United States, and the person entrusted therewith, and
in the peace of Crod, and of the said United States,
then and there being, with force and arms at the district.
aforesaid, feloniously did make an assault, and him, the
said David Boyer, in bodily fear and danger of his life
in the highway aforesaid, then and there did put, and
with the use of certain dangerous weapons, to wit: pis-
tols and dirks, which the said Joseph Thomnpson Hire,,
then and there in his hands held, he the said Joseph, did
put in jeopardy the life of said David Boyer, he the
said David Boyer, then and there being entrusted with,
and having the custody of the said mail of the said United
States, and the mail aforesaid, so entrusted and in the
custody as aforesaid, of said Boyer, certain bank bills,.
letters and packets, to the jurors aforesaid unknown,
belonging to certain persous, to the jurors aforesaid un-
known, from the personal custody and care of the said
David Boyer, and against his will, in the highway a-
foresaid, at the district aforesaid, then and there felo-
niously and violently did rob, steal, take and carry a-
way, against the form of the statute of the said United
States, in such cases made and provided, and against
tlie peace, government and dignity of the said United
States of America.
  And the jurors aforesaid, upon- their oaths afore-
said, do further present; that the said Joseph Tlomp-
san Hare,. together with the-said John Alexander and'

 


INDICTMENTS.



Lezris Hare, on the eleventh day of March, in the
year aforesaid, in the night of the same day, in the
public highway at Harford county, at the district afore-
said, in and upon David Boyer, he then and there be-
inlg the carrier of the mail of the said United States,
and the person entrusted therewith, and in the peace
of God, and of the said United States, then and there
being, with force and arms, at the district aforesaid,
feloniously did make an assault, and him the said
David Boyer, in bodily fear and danger of his life,
in the said public highway, then and there, and with
the use of certain dangerous weapons, to wit: pistols and
dirks, which the said Joseph 'Thomson Rare, then and
there held in his hands, the said Joseph Thompson
Hare, did put in jeopardy the life of said David Boyer,
then and there being entrusted with and having the cus-
tody of said mail, and the said mail of the said United
States, from the custody, possession and care of said
David Boyer, and against the will of said David Boyer,
in the highway aforesaid, at the district aforesaid, did
then and there feloniously and violently rob, steal, take
and carry away, against the form of the statute of the
said United States of America, in such cases made and
provided, and against the peace, government and dig-
nity of the said United States of America.
  And the jurors aforesaid, upon their oaths aforesaid,
do further present; that the said Joseph Thompson Hare,
together with the said John fIlexa nder and Lewis IHare,
on the eleventh day of March, in the year aforesaid,
in the night of the same day at Harford county, in the
district aforesaid, in the public highway, in and upon
David Boyer, then and there ill the peace of God and
the said United States, eing, and then and there being



7

 



INDICTMENTS.



the carrier of the mail of the said United States, and
the person entrusted therewith, at the district afore-
said, feloniously did make an assult, and him the said
David Boyer, then and there having the custody of the
said mail of the said United States, in bodily fear and
danger of his life, then and there feloniously did put,
and from the custody and possession of said David
Boyer, and against the will of said David Boyer, in the
highway aforesaid, at the district aforesaid, feloniously
and violently did rob, steal, take and carry away the
said mail of the said United States, then and there con.
taining sundry letters, bank bills, and packets to the
jurors aforesaid unknown, belonging to certain persons
to the jurors aforesaid unknown, contrary to the form
qof the statute of the said United States, in such cases
made and provided, and against the peace, government,
and dignity of the said United States of America.
                           ELIAS GLENN,
                   District /ttorney of the United States,
                                 for Maryland District.
    TRUE BIL L.
JOHN STRICKER, Foreman.



    UNITED STATES, VS. JOHN ALEXANDER.

it the Circuit Court of the United States of .Lme'ice,
for the Fourth Circuit, held at the city of Baltimore,
  in the Xlaryland District.

                     MARYLAND DISTRICT-TTO wrI.
  The grand inquest of the United States of America,
for the fourth circuit, inquiring for the body of the Ma-



8

 



INDICTMENTS.



ryland district, upon their oaths, do present; that John
Alexander, late of the said district, yeoman, together
with a certain Lewis Ilare, and a certain Joseph
Thompson Rare, on the eleventh day of March, in the
year eighteen hundred and eighteen, in the night of the
same day, in the public highway, at Hartford county,
at the district aforesaid, in and upon one David Boyer,
then and there, being the carrier of the mail of the
said United States, and the person entrusted therewith,
and in the peace of God, and of the said United States,
then and there being, with force and arms, at the dis-
trict aforesaid, feloniously did make an assault, and
him the said David Boyer, in bodily fear and dan.
ger of his life in the highway aforesaid, did felonious-
ly put, and with the use of certain dangerous weapons,
to wit: pistols and dirks, which he the said John Afllex.
ander, then and there in his hands held, he the said
John Alexander, did put the life of the said David
Boyer in jeopardy, ho the said David, being then and
there, the person having the custody of the said mail
of the said United States, and being entrusted there-
with, and the mail aforesaid, entrusted and in the cus-
tody as aforesaid, containing sundry bank bills, let-
ters, notes and packets, to the jurors aforesaid un-
known, belonging to certain persons to the jurors afore-
said unknown, from the personal custody, and posses.
sion of the said David Boyer, and against his will in
the highway aforesaid, at the district aforesaid, feloni-
ously and violently did rob, steal, take and carry away,
and against the form of the act of the congress of the
United States, in such cases made and provided, and
against the peace. government, and dignity of the said
United States.



9

 


I1NIDICTMENTS.



   And the jurors aforesaid, upon their oaths aforesaid
 do further present; that the said Jahn 4lexander, toge-
 ther with the said Lewis Mare and Joseph Thompson
 Hare, on the eleventh day of March, in the year
 aforesaid, in the night of the same day, at the dis-
 trict aforesaid, in the public highway, in Harford coun-
 ty, at the district aforesaid, in and upon one David
 Boyer, then and there being the carrier of the mail of
 the said United States, and the person entrusted there-
 with, and in the peace of God, and of the said United
 States, then and there being with force and arms, at
 the district aforesaid, feloniously did make an assault,
 and hiim the said David Boyer, in bodily fear and dan-
 ger of his life in the said public highway, then and there
 feloniously did put, and with the use of certain dangerous
 weapons, to wit: pistols and dirks, which the said John
 Alexander, then and there held in his hands, he the
 said John 1Bexander, did put in jeopardy the life of
 the said David Boyer, then and there being entrusted
 wthh, and having the custody of the mail as aforesaid,
 and the said mail of the said United States, from the
 custody, possession and care of said David Boyer, and
 against the will of the said David Boyer, in the high-
 way, at the district aforesaid, did then and there feloni-
 ously and violently rob, steal, take and carry away,
 against the form of the statute of the said United States,
 in such cases made and provided. and against the peace
 government and dignity of the said United States.
 And the jurors aforesaid, upon their oaths aforesaid,
 do further present; that the said John AlPxander, toge-
ther with the said Lewis Hare and Joseph Thompson
Aare, on the eleventh (lay of March, in the year afore-
said, in the night of the same day, at Harford county



46

 



INDICTMENTS.



in the public highway, at the district aforesaid, in and
upon a certain David Boyer, then and there in the.
peace of God, and of the said United States, being,
and then and there being the carrier of the mail of the
said United States, and the person entrusted therewith,
at the district aforesaid, did feloniously make an assault,
and him, the said David Boyer, then and there having
the custody of said mail, of the said United States, in
bodily fear and danger of his life, then and there felo-
nioursly did put, and from the custody and possession
of the said David Boyer, in the highway aforesaid, at
the district aforesaid, and against the will of the said
David Boyer, feloniously and violently did rob, steal,
take and carry away the said mail of the said United
States, then and there containing sundry letters, hank
bills and packages, to the jurors aforesaid unknown,
the-property of certain persons to the jurors aforesaid
unknown, contrary to the form of the statute of the said
United States, in such cases made and provided, and
against the peace, government and dignity of the said.
United States of America.
                             ELIAS GLENN,
                    attorney of the United States, for the
                                  District of .11aryflramle.
    TRIJE BILL.
JOI1N STRICKER, Foreman.



:1

 



INDICTMENTS.



        UNITED STATES, Vs. LEWIS HAR.

 In the Circuit Court of the United States of America,
 for the Fourth Circuit held at the city oaf Baltimore,
   in the Maryland District.

                     MARYLAND DISTRICTro wn:
   The grand inquest of the United States of America,
for the fourth circuit, inquiring for the body of the
Maryland district, upon their oaths, do present; that
Lewis Hare, late of the said district, yeoman, together
with a certain Joseph Thompson Hare and a certain
John JAlexander, on the eleventh day of March, in the
year eighteen hundred and eighteen, in the night of the
same day, in the public highway at Harford county,
at the district aforesaid, in and upon one David Boyer,
then and there being the carrier of the mail of the said
United States, and the person entrusted therewith,
and in the peace of God, and of the said United States,
then and there, being with force and arms at the dis-
trict aforesaid, feloniously did make an assault, and
him the said David Boyer, in bodily fear and dan-
ger of his life in the highway aforesaid, did feloni-
ously put, and with the use of certain dangerous wea-
pons, to wit: pistols and dirks, which he the said Lew-
is Hare., then and there in his hands held, he did put
the life of said David Boyer in jeopardy, he the said
David, being then and there entrusted with said mail,
and the person having the custody of the said mail, of
the said United States, and the mail aforesaid, entrust.
ed and in the custody as aforesaid, of said Boyer, con-
taining sundry bank bills, letters, notes and packets, to



Is

 


INDICTMENTS.



the jurors aforesaid unknown, belonging to certain per-
ons, to thejurors aforesaid unknown, from the personal
ustody and possession of said David Boyer, and against
nis will, in the highway aforesaid, at the district afore-
said, feloniously and violently did rob, steal, take
and carry away, against the form of the act of con-
gress of the United States, in such cases made and pro-
vided, and against the peace, government and dignity of
the said United States.
  And the jurors aforesaid, upon their oaths aforesaid,
do further present; that the said Lewis Hare, together
with the said John Alexander and Joseph Thompson
Hare, on the eleventh day of March, in the year afore-
said, in the night of the same day, at the district afore-
said, in the public highway, in Harford county, at
the district aforesaid, in and upoii one David Boyer.
then and there, being the carrier of the mail of the
said United States, and the person entrused therewNrith.
and in the peace of God and of the said United States,
then and there being, with force and arms, at the dis-
trict aforesaid, feloniously did make an assault, and
him the said David Boyer, in bodily fear and danger
of his life, in the said public highway, then and there
feloniously did put, and with certain dangerous weapons.
to wit: pistols and dirks which the said Lewis Hare,
then and there held in his hands, he the said Lewis
Hare, did put in jeopardy the life of the said David
Boyer, then and there being entrusted with, and having
the custody of the mail as aforesaid, and the said mail of
the said United States, from the custody, possession
and care of said David Boyer, and against the will of
the said David Boyer, at the district aforesaid, in the
highway aforesaid did then and there feloniously and
                          C



13

 



INDICTMENTS.



violently rob, steal, take and carry away, against the
form of the statute of the said United States, in such
cases made and provided, and against the peace, govern-
ment and dignity of the said United States.
  And the jurors aforesaid, upon their oaths aforesaid,
do present; that the said Lewris Hare, together with
the said John .S1exander and Joseph Thompson Hare,
on the eleventh day of March, in the year aforesaid,
in the night of the same day, at Harford county, in the
public highway, at the district aforesaid, in and upon
a certain David Boner, then and there, in the peace of
God and of the said United States being, and then and
there being the carrier of the mail of the United States
and the person entrusted therewith, at the district afore-
said, did feloniously male an assault, and him the said
David Boyer, then and there having the cuisto(ly of said
mail of the said United States, in bodily feaer and dan-
ger of his life, then and there felotniously did put, and
from the custody and possession of said David Boyer,
in the highway aforesaid, at the district aforesaid, and
against the will of said David Boyer, feloniously and
violently did rob, steal, take and carry away the said
mail of the said United States, then and there contain-
ing sundry letters, bank bills and packages, to the ju-
rors aforesaid unknown, the property of certain persons,
to the jurors aforesaid unknown, contrary to the form
of the statute of the said United States, in such cases
made and provided, and against the peace, government
and dignity of the said United States of America.
                           ELIAS GLENNN,
                     attorney of the United States for the
                                     TLMaryland District.
    TRUE BILL.
toils STniuEn. lForemwi.l



14


 


ARRAIGNMENTS.



  MONDAY, MAY THE 4TH.-The grand jury return-
ed the bills of indictment, and the prisoners were im-
mediately brought before the court for arraig;nment.
Upon the arraignment of Joseph Thompson Hare, he
pleaded not guilty. The indictment against Lewis
Hare, was then read to him, when Mr. Mitchell on
the part of the prisoner observed, that the counsel wrc'
not prepared to plead, nor to advise what plea was po-
per to be entered. The court decided, that as the pri.
soner had been arraigned, he must plead instainhr, and
observed that his plea should not be considered with
any prejudice to his rights, and migbtbe withdrawn the
next day, if the counsel thought proper. A plea to the
jurisdiction, and a plea of not guilty were then tendered.
John Alexander was then arraigned, and the same
plea tendered. The court desired his plea to be filed
in writing, which was immediately done in the follow-
in; words:

Circuit Court of the United States, for the Fourth
                     Circuit.
JOHN ALEXANDER,
          ats.              Indictment, c.
   UNITED STATES.     )

   And the said Jltn Jlexanderi, in proper person,
comes and defends himself against the said indictments
and saith that the cognizance of the said crime, in the
said indictment mentioned, doth belong and appertain
to the courts of the said State of Maryland, having
criminal jurisdiction, touching life and death, and that
the county court of Harford county, by the laws of the
State, of Maryland, hlath exclusive jurisdiction over all



Id


 




crimes, the punishment whereof is death, or imprison-
ment, committed in said county, and that the said crime
is not cognizable in this court, by the laws of the Uni-
ted States, nor hath this court jurisdiction thereof.-
Wherefore, in as much as the cognizance of the said crime
in the same indictment mentioned, doth belong, exclu-
sively to the said county court, the said John a1P.Tander
prays judgment, whether this honorable court will have
any further cognizance of the said indictment, and for
further plea in this behalf, the said Joha Alexander,
pleads not guilty."

  The district attorney moved the court to strike out
one of these pleas, either that of not guilty, or that to the
jurisdiction of the court-the two pleas together being
in the view of the district attorney incompatible. The
court adjourned without coming to a decision.

  TUESDAY, MAY THE 6TH.-The prisoners were
brought before the court. Their counsel asked leave
to withdraw their pleas, stating they had not considered
what course would be most beneficial for the accused.
Mr. Kell, on the part of government objected, unless
the counsel for the prisoners would state what was their
object in withdrawing the pleas. The counsel replied,
that they had entered them upon an unconditional pro-
mise of the court, that the pleas might be withdrawn,
if the counsel for the prisoner thought proper. To this
Judge Houston assented, and by order of the court, the
pleas were in each case withdrawn. The prisoners
were then severally placed in the bar, and were inform-
ed by the court, that they had allowed their pleas to be
withdrawn, and that they were now.to plead anew.



la



PLEAS.


 



            MR. JOHNSON'S SPEECH, c.           47
The indictments were then read in each case, and the
prisoners were severally arraigned, and upon being
asked whether they were guilty or not guilty, they
stood mute and refused to answer. The counsel for
the prisoners informed the court that they had instruct.
ed them to stand mute. The district attorney then stat.
ed that the court might proceed in the same manner as
if they had pleaded not guilty, either under the 30th
section of the act of congress of 1790, entitled, "An act
for the punishment of certain crimes against the United
States," or that the court might proceed against them as
at common law. The court, however, took time till
the next day, to make up their opinion on the proper
course of proceeding,

  WEDNESDAY, MAY 6TH.-The court met, and the
counsel for the prosecution, and the counsel for the
prisoners appearing-the court heard an argument on
the proper course of proceeding in the trials of the
prisoners.

          REVERDY JOHNSON, ESQ.

On the part of the prosecution addressed the court, to
                the following effect:

  The court are now called on to decide a question,
which I believe has never before presented itself to any
of the courts of the United States. That is, whether
this court has the power to proceed to the trial of the
persons indicted of robbing the mail or the United
States, notwithstanding their refusing to plead, or in
technical language, their standing mute As one of
the counsel for the prosecution, it becomes my duty to

 


IAIt. JOHNSON'S SPEECH,



show the court that they have such power. And if in
doing so, the view I shall take of the question before
the court should not be as wvell drawn as that which
will be presented them by the gentlemen who are to
succeed me, I trust the court will attribute it, not to
want of inclination but to inexperience in the artist.-
Before proceeding however to lay that view before the
court, I must beg leave to express some little surprise
at the course which the counsel for the accused have
thought fit to advise them to pursue at this stage of their
trial. That is, that after they have 1been arraigned,
and have plead not guilty, and that plea, at the instance
of the counsel was withdrawn by the permission of the
court, under an impression that they would plead again
on their subsequent arraignment, they should be ad-
vised not to plead, but to stand obstinately, mute.-In
expressing this surprise however, I assure the gen-
tlemen, it is far from my intention to cast the slightest
censure on their conduct, for I am confident tliaton this,
as on every other occasion, they have followed the path,
which seemed to them the path of dutty-my surprise
therefore, is solely owing to the great ingenuity, which
the gentlemen by this advice to their clients have evinc-
ed; an ingenuity, however, which, with the indulgence
of the court, I will now endeavour to show, cannot ac-
complish their object.
  If this ofence was especially contained in the act of
conress of 1790, chap. 9, then there could be no doubt
as to the course which the court on this occasion ought
to adopt, because it would be expressly provided for by
the 80th section of that law. It will however, no doubt
be contended by the counsel for the accused, that inas-
much as the offence for which their clients are in-



is

 


ON STANDING MUTE.



dicted, was not created by the act of congress of 1790,
but by that for 1810, for the regulation of the post-
office; that therefore, the provisions of the 30th section
of the former law, for incidents like the present, in
the trial of offences only embraces offences created by
that law, and does not extend to those of a subsequent
origin, or in other words that, that provision cannot
be construed to apply to offences which did not exist
at the time such provision was made. I will however
endeavour to convince the court that by a fair and
liberal construction of the act of congress of 1790, the
case before the court is included in the provision in
question-by the 29th section of that law, after directing
that every person accused of treason, shall have a copy
of his indictment, and a list of the jury, c. three days
before he shall be tried for the same, it is further direct-
ed, "that in other capital oqfences, lie shall have such
copy of the indictment, c. two days before his trial."
That section further provides, for persons so accused,
many other rights and privileges. Then comes the 30th
section, and so far as is necessary for [he consideration of
the question before the court; it is in those words, "if
"'any person be indicted of treason ajaiiist the United
"States, and shall stand mute, c. or if any person be
"indicted of any other of the qffences herein bpfore set
"forth for which the punishment isi declared to be death,
"if lie shall stand mute, c. the court' in any of the
"cases aforesaid, shall notwithstandin- proceed to the
"trial of such person so standing mute, c. as if hi or
"they had pleaded not guilty, and render judownt
"thereon accordingly."1
  The court will perceive that the offences in both
these sections of the law are enumerated in the samc



to

 


silo          MR JOHNSON'S SPEECH,
order, and that the only variance in ther language is,
that the words 'other capital ojfences,' are used in the
second sentence of the 29th section and the words "of-
fences herein before set forth" in that of the 30th sect.
From this similarity therefore, it would seem to follow,
that the provisions of both sections should receive the
same construction, and since no one can doubt, but that
the persons now indicted are entitled to copies of the
indictments and to all the other privileges given by the
29th sect. so also, it seems to me impossible that any one
can conceive that the power of the court to proceed to
trial when the party stands mute as provided by the
30th section does not also extend to the case now before
the court.-Again, the words "herein before set forth"
contained in the 30th section, which the counsel on
the other side will contend; prevents the provisions of
that section from applying to the case before the court,
can, as I apprehend receive no other sensible construc-
tion than that which will extend it, not only to offences,
specially described in the preceding part of the law, but
to every offence previously mentioned; and since the ge-
neral words, "other capital offences" in the immediate
preceding section of the law, it is admitted on all hands,
embraces every offence against the laws of the United
States, and therefore, the offence now to be tried; it fol-
lows that the provisions of the 30th section extend also
to this case. As another reason for giving liberal con-
struction to the words "herein before set forth," I
would remark to the court, that the provisions of the
80th section did not infringe any right, which persons
in such situations previously enjoyed, but on the con-
trary gave them an additional privilege. To show the
court that I am cowrect in this opinion, I refer them to

 




ON STrANDING MUTE.



the 11th section of the act of congress of 1789 c. 20,
by which exclusive jurisdiction of all crimes and offeii-
ces, cognizable under the authority of the United States
is given to the circuit courts of the United States, ex-
cept where it is otherwise directed, and to the 34th sec-
tion of the saime law, where it is provided, that the laws
of the several states, except when otherwise directed.
shall be regarded as rules of decision in trials at com-
mon law in the courts of the United States, in cases
where they apply. If then the provisions of the 30th
section of the act of congress of 1790, should be con-
strued by reason of the words, "herein before set forth.'
to extend only to the offences created by that act, it fol-
lows: that in the trial of all other offences, where the,
persons accused stood mute, the court would be' obliged
to proceed as the laws of the state, in which the trial
happened, in like cases directed. What then previous
to the act of assembly of Maryland, of 1809, c. 138,
by which, in all cases of treason or felony, where the
party stands mute, a similar provision is made to that of
the 30th section of the act of congress of 1790-was
the law in such cases in this state I state it to have
been, and I do so without fear of contradiction, that a
standing mute amounted to a confession of the charge,
and that judgment would have been rendered thereon.
as on the finding of the verdict. In order to satisfy the
court that such was the law, I refer them to Kilty's Re-
port of English statutes, p. 17, wherein a note on the
statute of Westminster, 3. Edw'd. 1. c. 12, two cases
are cited in which such a judgment was awarded, and
to the statute of 12th, Go. 3d c. 20, which directed such
Judgment in all cases of felony, to be entered, which
statute extended to this state by express provision, as
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21

 




22             IMR. JOHNSON'S SPEECH,

the court will find by the same report of statutes, p. 199,
I think that I have now satisfactorily shown the court,
that I was right in saying, that the 30th section of the
act of congress of 1790, did not restrain, but enlarged
the privileges of persons accused .of offences against the
laws of the United States. If, however, the court should
be of opinion, that I am wrong in giving this liberal con-
struction to the act of 1790, and that the provision of
the 30th section of that law, cannot be made to apply
to the case before the court. I think their is another
ground, on which the court may safely proceed to the
trial of these persons, and it is shortly this. By the
34th section of the act of congress of 1789, c. 20, which
I have before had occasion to refer to, it is directed,
"that the laws of the several states, except where the
"constitution creates, or statutes of the United States
"otherwise require or provide, shall be regarded as
'rules of decision in trials at common law in the courts
,of the United