held, contrary to the duty of his said allegiance and fidelity, against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

Third count.

(Same as first down to "constitution of government for said state," and then insert): And being, with divers other false traitors to the jurors aforesaid as yet unknown, then and there assembled and met together, as a general assembly for said state, did then and there, maliciously and traitorously, assume to exercise the legislative functions of a member of the house of representatives from the said city of Providence, in the said pretended general assembly of said state, and as such member did then and there vote for the passage of divers pretended acts and laws for the said state, contrary to the duty of his said allegiance and fidelity, against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(1133) Treason against a state before the federal constitution. Overt act, taking a commission from the British government in 1778.(ƒ)

That A. C., late of, etc., carpenter, being an inhabitant of and belonging to and residing within the state of P., and under the protection of its laws, and owing allegiance to the same state, as a false traitor against the same, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, the fidelity which to the same state he owed wholly withdrawing, and with all his might intending the peace and tranquillity of this commonwealth of P. to disturb, and war and rebellion against the same to raise and move, and the government and independency thereof as by law established to subvert, and to raise again and restore the government and tyranny of the king of Great Britain within the said commonwealth, on, etc., and at divers days and times, as well before as after, at, etc., with force and arms, did falsely and traitorously take a commission or commissions from the king, etc., and then and

(f) R. v. Roberts, 1 Dall. 35. Wh. Cr. L. 8th ed. § 1809. The defendant was sentenced under this indictment after a struggle of great animation. The form of the indictment, it was said by the attorney-general in argument, was similar to that against Eneas M'Donald, Fost. 5. See Wh. Cr. L. §§ 1812 et seq.

there, with force and arms, did falsely and treacherously also take a commission or commissions from General Sir W. H., then and there acting under the said king, and under the authority of the said king of Great Britain, to wit, a commission to watch over and guard the gates of the city of P., by the said Sir W. H. erected and set up for the purpose of keeping and maintaining the possession of the said city, and of shutting and excluding the faithful and liege inhabitants and subjects of this state of the United States from the said city; and then and there, also maliciously and traitorously, with a great multitude of traitors and rebels against the said commonwealth (whose names are as yet unknown to the jurors), being armed and arrayed in a hostile mauner, with force and arms, did falsely and traitorously assemble and join himself against this commonwealth, and then and there, with force and arms, did falsely and traitorously, and in a warlike and hostile manner, array and dispose himself against this commonwealth, and then and there, in pursuance and execution of such his wicked and traitorous intentions and purposes aforesaid, did falsely and traitorously prepare, order, wage, and levy a public and cruel war against this commonwealth, then and there committing and perpetrating a miserable and cruel slaughter of and amongst the faithful and liege inhabitants thereof, and then and there did, with force and arms, falsely and traitorously aid and assist the king of Great Britain, being an enemy at open war against this state, by joining his armies, to wit, his army under the command of General Sir W. H., then actually invading this state, and then and there maliciously and traitorously (with divers other traitors to the jurors aforesaid unknown), with force and arms, did combine, plot, and conspire to betray this state and the United States of America into the hands and power of the king of Great Britain, being a foreign enemy to this state and to the United States of America, at open war against the same, and then and there did, with force and arms, maliciously and traitorously give and send intelligence to the said enemies for that purpose, against the duty of his allegiance, against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

683

(1134) Misdemeanor in going into the city of Philadelphia while in possession of the British army.(g)

That C. M. and J. M., all late of, etc., yeomen, on, etc., at, etc., and within the jurisdiction of this court, did, and each of them did, go and pass through the county of Philadelphia, into the city of Philadelphia, while in possession of the British army, without obtaining leave in writing for that purpese from congress, from the commander-in-chief of the armies of the United States of America, or of the executive council of this commonwealth, contrary, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(1135) Enticing United States soldiers to desert.

That A. B., late of, etc., in the district and circuit aforesaid, heretofore, to wit, on, etc., in, etc., with force and arms, at, etc., in the district and circuit aforesaid, and within the jurisdiction of this court, unlawfully, knowingly, and advisedly did procure and entice C. D., etc. (he the said C. D., etc., then and there being a soldier in the service of the United States of America aforesaid), to desert from his service, duty, and allegiance to the said United States, he the said A. B., at the time he so procured and enticed the said C. D., etc., to desert as aforesaid, well knowing that the said C. D., etc., was then and there a soldier in the service of the said United States, against, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(1136) Against a deserter and the person harboring him.(h)

That on, etc., at, etc., a certain J. M. was a soldier enlisted in the regiment commanded by the Comte du Ponts, in the service of the king of France, the illustrious ally of these United States, and then coöperating with the American troops against the king of Great Britain, at open war against these said States, and so being enlisted, afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, did desert from the regiment aforesaid; and the jurors aforesaid do further present, that

(g) Res. v. Roberts, 1 Dall. 35. See Wh. Cr. L. 8th ed. §§ 107, 1809. (h) This indictment was prepared by Mr. Bradford in Pennsylvania before the adoption of the federal constitution.

J. C., late of, etc., yeoman, not being ignorant of the premises, but well knowing the same as aforesaid, to wit, on the day and year aforesaid, at, etc., unlawfully and for wicked gain sake did harbor, receive, comfort, and conceal him the said J. M., then and there well knowing the said J. M, so as aforesaid to have deserted from the regiment and armies aforesaid, to the evil example of all others in like case offending, and against, etc. (Conclude as in book 1, chapter 3.)

(1137) Supplying unwholesome bread to prisoners of war.(i)

That A. B., late of, etc., on, etc., at, etc., knowingly, wilfully, deceitfully, and maliciously did provide, furnish, and deliver to and for eight hundred French prisoners of war, whose names to the said jurors are yet unknown, and there being under the protection of the king, confined in a certain hospital called Eastwood Hospital, in the parish and county aforesaid, divers large quantities, to wit, five hundred pounds weight, of bread, to be eaten as food by the said French prisoners of war, such bread being theu aud there made and baked in an unwholesome and insufficient manner, and then and there being made of and containing dirt, filth, and other pernicious and unwholesome ingredients not fit to be eaten by man, he the said A. B. then and there well knowing the said bread to be baked in an unwholesome and insufficient manner, and to be made of and to contain dirt, filth, and other pernicious and unwholesome materials and ingredients not fit to be eaten as aforesaid, whereby the said prisoners of war did then and there eat of the said bread, and thereby then and there became distempered in their bodies, and injured and endangered in their healths, to the great damage of the said prisoners of war, to the great discredit of our said lord the king, to the evil example, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(i) Stark. C. P. 466. See Wh. Cr. L. 8th ed.

685

BOOK VI.

CHAPTER I.

PLEAS AND REPLICATION.

(1138) Not guilty in case of treason or felony.

(1139) Not guilty in misdemeanors, etc., where the defendant may plead

by attorney.

(1140) Similiter generally.

(1141) Plea that the defendant has no addition.

(1142) Plea of misnomer.

(1143) Replication to the above plea.

(1144) Plea of a wrong addition.

(1145) Plea to the jurisdiction.

(1146) Replication to the above plea.

(1147) Special pleas generally.

(1148) Replication.

(1149) Rejoinder.

(1150) Plea of autrefois acquit.

(1151) Autrefois acquit, another form.

(1152) Replication to autrefois acquit. (To be made ore tenus.)

(1153) Plea that defendant was duly charged, examined, and tried for the murder of the deceased before a court legally constituted, and upon this trial and examination was duly and legally acquitted of the said murder and felony with which he stood charged, and was adjudged by the court not guilty thereof.

(1154) Autrefois convict, plea of, where the original indictment on which the defendant was convicted was one for arson, and the second indictment was for murder in burning a house whereby one J. H. was killed, etc.

(1155) Demurrer to said plea.

(1156) Joinder in demurrer.

(1157) Plea of once in jeopardy.

(1158) Plea that six of the grand jurors by whom the bill was found were

not duly qualified.