the said L. B. then and there being a public minister, to wit, the secretary of the legation from his majesty the king of Denmark, near the United States of America, in manifest infraction of the law of nations, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(979) Second count. Imprisoning same.

That the said P. R. B., afterwards, to wit, on, &c., at, &c., and within the jurisdiction of this court, with force and arms, did imprison the said L.

ent sections, for different classes of cases, and the counts of the indictment are made to meet the different provisions of these sections. The twenty-fifth section enacts, that if any writ or process shall be sued forth or prosecuted in any of the courts of the United States, or of a particular state, whereby the person of any ambassador, or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, may be arrested or imprisoned, &c., such writ or process shall be adjudged to be utterly null and void.

"The twenty-sixth section enacts, that in case any person or persons, shall sue forth or prosecute any such writ or process, such person or persons, and all attorneys or solicitors prosecuting or soliciting in such case, and all officers executing any such writ or process, being thereof convicted, &c.

"The twenty-seventh section enacts, that if any person shall violate any safe conduct, or passport duly obtained, and issued under the authority of the United States, or shall strike, wound, imprison, &c., by offering violence to the person of an ambassador or other public minister, such person, &c.

"The twenty-fifth and twenty-sixth sections afford protection and redress for public ministers, authorized and received as such by the President of the United States, and against arrest and imprisonment under and by virtue of any writ or process, sued forth and prosecuted in any court of the United States, or of a particular state, or by any judge or justice therein, and all the counts in this indictment intended to charge an offence in violation of these sections, do state that L. B. was a public minister, authorized and received as such by the President of the United States; that a writ was sued forth against him from an alderman of the City of Philadelphia, and that the defendant, being an officer, did execute the said writ, and thereby arrest the person of the said L. B.; upon these counts the defendant is acquitted by the verdict of the jury.

"The twenty-seventh section of the act is intended to cover other cases not described in the preceding sections, and makes it penal for any person to imprison the person of a public minister, although he may not be authorized and received as such by the President of the United States, and although the person who thus offers violence to his person, be not an officer, and does it not by virtue of any writ or process from any court, judge or justice. The count on which the defendant has been convicted, charges the offence punishable under this section of the act; which does not require that the defendant should be an officer having executed process, nor that the public minister, who was imprisoned, should have been authorized and received as such by the PresiIdent of the United States.

"The reasons for a new trial will now be considered.

"The second count on which the defendant has been convicted, relates to the same transaction, and the same public minister as the first, of which he is acquitted, and differs from it only in describing the minister as an attache to the legation of Denmark, and the first calls him the secretary of the legation; but it was the clear right of the jury, and so it was given them in charge, to find a general verdict of guilty, leaving it to the court to apply it to the counts in the indictment, or to select for themselves the count on which they would render the verdict, as in their opinion the evidence might warrant. If the count were bad in itself, such a verdict could not be maintained; but it is no objection to it, that it is substantially the same with another count on which the defendant has been acquitted, for the different counts of an indictment always relate to the same transaction, describing it in different ways, or with different circumstances, that the jury may apply their verdict to all or either of them, as the evidence shall warrant; or if the verdict be generally guilty, the application of it is made by the court. No injury or injustice is done to the defendant, who is put but once on his trial for the same offence. The jury, in this case, have not selected the count for their verdict of conviction to which the evidence most particularly applies; but this was for them to judge of, and is no cause of complaint on the part of the defendant; it cannot affect his punishment, and is clearly maintained for the evidence. “It is our opinion that the reasons filed in the arrest of judgment are not maintained, and it is ordered that the motion be overruled."

B., he the said L. B. then and there being a public minister, to wit, an attache to the legation of his majesty the king of Denmark, near the United States of America, in manifest infraction of the laws of nations, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(980) Third count.

Same as first, stated more specially.

That heretofore, to wit, on, &c., at, &c., and within the jurisdiction of this court, a certain writ was sued forth and prosecuted by one G. H. U., from one J. B., then and there an alderman of the City of Philadelphia, whereby the person of the said L. B., then and there as aforesaid being a public minister, to wit, the secretary of the legation of his majesty the king of Denmark, near the United States of America, authorized and received as such by the President of the United States, was then and there arrested; and that the said P. R. B., afterwards, to wit, on, &c., at, &c., and within the jurisdiction of this court, being then and there an officer, to wit, a constable of the City of Philadelphia, with force and arms, did execute the said writ, and then and there and thereby arrest the person of the said L. B., then and there being as aforesaid a public minister as aforesaid, in violation of the laws of nations, to the great disturbance of the public repose, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(981) Third count. Same in another shape.

That afterwards, to wit, on, &c., at, &c., and within the jurisdiction of this court, a certain writ was sued forth and prosecuted by one G. H. U., from one J. B., then and there an alderman of the City of Philadelphia, whereby the person of the said L. B., then and there as aforesaid being a public minister, to wit, an attache of the legation of his majesty the king of Denmark, near the United States of America, authorized and received as such by the President of the United States, was then and there arrested; and that the said P. R. B., afterwards, to wit, on, &c., at, &c., and within the jurisdiction of this court, being then and there an officer, to wit, a constable of the City of Philadelphia, with force and arms, did execute the said writ, and then and there and thereby as aforesaid, arrest the person of the said L. B., then and there being as aforesaid a public minister as aforesaid; in violation of the laws of nations, to the great disturbance of public repose, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.) (Add counts for offering violence and assaulting.)

(982) Issuing process against a foreign minister. (c)

That on, &c., at, &c., A. D., being then and there a public minister of a foreign prince, to wit, the envoy extraordinary and minister plenipotentiary of his majesty the Emperor of all the Russias, and being then and there duly authorized and received as such by the President of the United States of America, T. M., late of, &c., then and there knowingly, wilfully and unlawfully did sue forth certain process in a court of the State of Pennsylvania, to wit, in the District Court for the City and County of Philadelphia, in the words and characters following, that is to say (here set forth the process), and whereby the (person) of the said A. D., then and there being a public minister, to wit, the envoy extraordinary and minister plenipotentiary of his said majesty the Emperor of all the Russias aforesaid, then and there being duly authorized and received as such by the President of the United States of America as aforesaid, might be (arrested and imprisoned). And that D. A., late of the said district of Pennsylvania, attorney at law, was then and

(c) This indictment was drawn by Mr. A. J. Dallas in 1813. The defendant was never tried.

there the attorney knowingly, wilfully and unlawfully prosecuting in the said case, to wit, in the said process then and there sued forth by the said T. M. as aforesaid, whereby the (person) of the said A. D., then and there being a public minister, to wit, the envoy extraordinary and minister plenipotentiary of his said majesty the Emperor of all the Russias as aforesaid, then and there duly authorized and received as such by the President of the United States as aforesaid, might be (arrested and imprisoned) as aforesaid. And that J. S., late of, &c., being then and there an officer employed for the service of process issuing for the said District Court for the City and County of Philadelphia, in the district aforesaid, to wit, a deputy of the sheriff of the County of Philadelphia, in the district of Pennsylvania aforesaid, did then and there knowingly, wilfully and unlawfully execute the said process, by then and there serving personally upon the said A. D., then and there being a public minister, to wit, the envoy extraordinary and minister plenipotentiary of his said majesty the Emperor of all the Russias, then and there duly authorized and received as such by the President of the United States of America as aforesaid, a copy of the said process, to wit, the said process then and there sued forth by the said T. M. as aforesaid, whereby the said A. D. then and there being a public minister, to wit, the envoy extraordinary and minister plenipotentiary of his said majesty the Emperor of all the Russias as aforesaid, then and there duly authorized and received as such by the President of the United States as aforesaid, might be (arrested or imprisoned), to wit, on, &c., at, &c., and within the jurisdiction of this court; the said T. M., D. A. and J. S., then and there knowingly, wilfully and unlawfully in manner aforesaid violating the laws of nations, and disturbing the public repose, against, &c., and against &c. (Conclude as in book 1, chap. 3.)

Second count.

Same as first, changing "person" wherever it occurs in brackets into “goods and chattels," and "arrested and imprisoned," into "distrained, seized and attached."

Third count.

Same as first, omitting wherever they occur the words "wilfully and knowingly."

Fourth count.

Same as second, omitting wherever they occur the words "wilfully and knowingly."

(983) Opening and publishing letter of foreign minister.(d)

That whereas, mutual peace, amity and good understanding did on, &c., and still do subsist between the said United States and the king of Great Britain, and the ambassadors and public ministers of each of the said powers are lawfully and justly entitled to perfect freedom, immunity and security in their persons, papers, letters and despatches within the territory of the other powers, and whereas on the said tenth day of June in the year aforesaid, in the district aforesaid, and within the jurisdiction of this court, R. L., Esq., was ambassador and minister plenipotentiary from the said king of Great Britain to the said United States of America, and in that capacity resided at, &c., being the seat of the government of the said United States, and was so acknowledged and received by the President of the said United States, and then and there was entitled among other rights, privileges and immunities

(d) U. S. v. Thomas, Phil. 1800. This indictment was drawn by Mr. Rawle, but was never tried.

belonging and due to ambassadors and public ministers from foreign powers, to write to and correspond with the public servants and agents of his said sovereign the king of Great Britain, freely and without interruption, confidentially and with secrecy, and to have his public and private letters and despatches safely, securely and without examination or interruption, carried and conveyed through any part of the territory of the said United States. And whereas the said R. L., Esq., so being an ambassador and public foreign minister, acknowledged, received and resident as aforesaid, on the said tenth day of June in the year aforesaid, in the district aforesaid, and within the jurisdiction of this court, had written a certain letter on business respecting the public duties of the said R. L., in his public capacity aforesaid, to a certain J. R., Esq., president of the British province of Upper Canada, the said J. R. then and there being a public agent of the said king of Great Britain, to wit, in Upper Canada aforesaid, which letter bore date, &c., and also a certain other letter on such business, to the same J. R., Esq., which other letter bore date, &c., and the same two letters closed in a packet sealed with the seal of the said R. L., and subscribed with his the said R. L.'s name, to wit, with the letters "R. L," and directed to the said J. R., Esq., by the words "The Honorable President R., &c., Toronto, Upper Canada," he the said R. L. so being ambassador and public minister as aforesaid, had caused to be delivered to a messenger or person employed for the purpose of safely conveying the same to the said J. R., Esq.; that D. T., late, &c., J. T., late, &c., and G. R., late of, &c., yeomen, well knowing the premises, but contriving and unjustly intending to interrupt and disturb the peace, amity and good understanding subsisting between the said United States and the said king of Great Britain, on, &c., at, &c., and within the jurisdiction of this court, maliciously, unlawfully and without the license of the said R. L., Esq., the said sealed packet superscribed and directed as aforesaid, enclosing the said two letters, did break open and the said two letters did then and there open and read, and the contents thereof did then and there promulgate and make publicly known.

And the grand inquest aforesaid upon their oaths and affirmations aforesaid, do further present, that the said D. T., J. T., G. P. and also W. D., late of, &c., contriving and unjustly intending as aforesaid, afterwards, to wit, on, &c., at, &c., and within the jurisdiction of this court, unlawfully and maliciously, and without the license of the said R. L., Esq., he the said R. L., Esq., then and there still being and continuing ambassador and minister plenipotentiary from the said king of Great Britain to the said United States, did print and publish, and cause to be printed and published the substance of the contents of the said two letters in a certain newspaper printed in Philadelphia aforesaid, called "The General Advertiser or the Aurora," in contempt and violation of the laws of nations, against the form of the treaty between the said United States and the said king of Great Britain, to the great damage of the said R. L., Esq., so being ambassador and minister plenipotentiary from the said king of Great Britain to the said United States, and against, &c. (Conclude as in book 1, chap. 3)

CHAPTER IX.

BIGAMY, ADULTERY AND FORNICATION. (e)

(984) [So far as these offences approach open lewdness and lasciviousness, they are examined ante, 705-776, where the general principles applying to them as such are considered.]

I. Second marriage must be within the jurisdiction, § 2627. II. Where the first marriage was voidable or void, § 2628. III. Parties beyond seas or absent, § 2629.

IV. Proof of marriage, § 2631.

V. Consummation not necessary, § 2635.

VI. Subsequent divorce, § 2636.

VII. Second wife, when admissible witness, & 2637.

VIII. Indictment, § 2638.

A. STATUTES.

Massachusetts, § 2639.

Pennsylvania.

Adultery, § 2640.

ADULTERY.

Birth of child during husband's absence, evidence of, § 2641.

Fine for, where to go, § 2641.

Imprisonment, § 2641.

Virginia.

Ohio.

Adultery, § 2642.

Lascivious cohabitation, § 2643.

Intermarriage with negro, § 2644.

Officiating at such marriage, § 2645.