UNITED STATES v. WHITE, 28 F. Cas. 550

THE COURT (CRANCH, Chief Judge, contra), awarded a venire de novo. MORSELL, Circuit Judge, was of opinion that the verdict was argumentative, and therefore bad. CRANCH, Chief Judge, delivered the following opinion: This is an indictment against Richard H. White, for burning the treasury building on the 30th of March, 1833. The indictment was not found until the 30th of March, 1S36.

In a criminal ease the defendant is permitted to avail himself of the limitation of the statute of April 30, 1790, upon the general issue, and the United States may rebut it by evidence that the defendant was a person fleeing from justice; and if the United States can show that at any time during the two years he fled, the defendant (according to the opinion of the court given upon the trial) may rebut this by evidence that he appeared publicly and notoriously, so that by reasonable diligence he might have been arrested.

Such was the course in the present ease, and the jury found the following verdict: “We, the jury, are of opinion, that the of-fence as charged was committed by the prisoner, but find him not guilty upon the plea of limitations; more than two* years having elapsed from the committing of the offence to the finding of the indictment.” Upon this verdict the defendant has moved for judgment in his favor; and the attorney for the United States, has moved for a venire de novo, upon the ground that the verdict is imperfect.

In criminal cases, the pleadings subsequent to the indictment are generally considered as ore tenus.

If they had, in this case, been reduced to writing, so far as they relate to the limitation of time, the defendant would have pleaded in substance that the indictment was not found within two years from the time of committing the supposed offence; to this the United States would have replied that the defendant was a person “fleeing from justice;” to this replication the defendant might have put in a general rejoinder, upon which an issue might have been joined; or he might have replied (according to the opinion of the court given on the trial) that, after so fleeing, he returned, and appeared openly, publicly, and notoriously in this district, or elsewhere in the United States, so that with reasonable diligence he might have been arrested; to which the United States would have put in a general surrejoinder, upon which the issue might have been joined, so that the plea of limitations would have resulted in an issue upon the fact of flight, or the fact of return, etc.

There would then have been two issues for the jury to try:

(1) The general issue of not guilty;. and (2) the issue raised upon the plea of limitations. If the jury had found either issue for the defendant, it would have been sufficient for judgment in his favor. If the jury had said that upon the first issue they find the defendant guilty, and upon the second they find for the defendant, their verdict would, in such a state of the pleadings, have been good. I think this, case must be considered as if such had been the pleadings upon the record, and such the verdict. A verdict is not subject to the nice criticisms which may be applied to special pleadings.

If the issues are substantially, though informally found, the court may work it into form. Hawks v. Crofton, 2 Burrows, 699. As to the first issue the jury say, they “are of opinion that the offence, as charged, was committed by the prisoner.” This seems to be a clear finding the defendant guilty upon the general issue. As to the second issue, they “find him not guilty upon the plea of limitations.” This, I think, is substantially a finding of the issue upon the plea of limitations, for the defendant.

It is perhaps informal to say that they find the defendant not guilty on the plea of limitations, but I have no doubt that their meaning was that they found the issue, upon that plea, for the defendant. And the issue upon that plea, according-to the conduct and argument of the parties before the jury, and the instructions given by the court, was either, whether the defendant was a person fleeing from justice, or whether, after fleeing, he returned openly, etc., so that with reasonable diligence he might have been arrested.

This, certainly, is not a special verdict purporting to state all the facts proved to the satisfaction of the jury, and referring the matter of law to the court: nor is it a partial verdict, finding the defendant guilty of part, and acquitting him of the residue of the charge; nor do I think it an imperfect verdict, for it- answers substantially to the whole issue, or issues in the ease. And I think that the latter words, “more than two years having elapsed,” etc., may he rejected as surplusage.

They only state a fact admitted by the pleadings if made up in form, and do not purport to be the only fact upon which their finding is founded. They create no rtepugnancy in the verdict; and “if the jury find the point in issue, and also another matter out of the issue, the latter finding,” says Mr. Justice Story in the case of Stearns v. Barrett [Case No. 13,337], “is void and may be rejected as surplusage.” The fact, that two years had elapsed, was a matter out of the issue, for it was admitted in the pleading.

So if they find a matter within the issue, if it be not contradictory, it may be rejected as surplusage. Sufficient is found to enable the court to collect the point in issue out of the verdict; and if so, the same learned judge, in the same case, says, “it will be sufficient.” X think the verdict is “expressed substantially in the terms of the issue,” and is therefore sufficient ground of a final judgment for the defendant. [See Cases Nos. 16,677-16,679; also. 16,676.] NOTH A. It was also said that the verdict is argumentative, and Com.

Dig. “Pleader,”- § 22, was cited. “So in all cases, a general verdict which finds the point in issue by way of argument, is void, though the argument or inference is necessary.” Vaughan, 75. This is a dictum of Vaughan, in arguing the case of Rowe v. Huntington, upon a special verdict, and is an inference which he draws from a case which he cites from 2 Rolle, Abr. 693. Barry v. Phillips, N. 30 (meaning Baugh v. Phillips, 30).

The case in Rolle is this, “In an action of debt for £20, if the defendant plead quod solvit le £20, and the issue is an solvit ceo ou nemy, and the verdict is quod debet le £20, this is not good, because it is only by argument. M. 13 Jac. B. R. inter Baugh and Phillips, adjudged on writ of error.” Same case, 1 Rolle, 257. Here the issue was not directly found, and the fact in issue (namely, whether the defendant had paid the £20) could only be inferred by the finding that the defendant owes it.

But if the jury had expressly found that the defendant had not paid the £20, and added, “he still owing it to the plaintiff,” the matter in issue would not have been found by inference only, but directly. The fact that he had not paid it, would be no more an inference only, but directly. The fact that he had not paid it, would he no more an inference from the fact that he owed it, than the fact that he owed it would be an inference from the fact that he had not paid it. The doctrine of Vaughan cannot be extended beyond the case from which it was drawn.

It does not apply to a case where the matter in issue is expressly and positively found, although the jury find something more which was not in issue. In the present case, the jury have, in effect, found the issue upon the plea of limitations, for the defendant, and there is no necessity of resorting to inference to support it, as there was in the case cited by Vaughan. I, therefore, do not think it an argumentative verdict, within the meaning of that case. See, also, Com. Dig. “Pleader," 18, 26, 28; Hob. 54. NOTE B.

On a subsequent day, Judge Thruston. read in court the following paper: In the following remarks I am furnished with an occasion of noticing certain charges which have been exhibited against me of arguing to the jury on matters of fact, charges founded either in malice or want of a due understanding of the true lines of demarcation between matters of law and matters of fact.

This instruction affords, I say, a fair occasion to give my views of the distinction between matters of law and matters of fact, because it is one of my main objections to the instruction that it involves both matters of law and matters of fact. I take matters of fact to be, in a legal sense, such as by competent testimony, either written, oral, or circumstantial, go to prove the allegations or averments, in any plea, on which an issue is made to be tried by a jury. I take matters of law to be the judgment of the law upon those facts, if proved to the satisfaction of the jury.

If a court give an instruction to a jury, or charge a jury, such instruction or charge must necessarily be hypothetical, because the court cannot assert any fact to be true, or proved by the evidence, but must leave such truth or proof to be judged of exclusively by the jury; but they may inform the jury what the rule, or principle of law is, if they shall be satisfied of the truth of the facts attempted to be proved; therefore, an instruction by a court to a jury is always in this hypothetical form: “If the jury believe from the evidence so or so, then the law is so or so,” and so must be a charge by the court to the jury. .Of all nice questions, and among those the least understood, is that of what is matter of law and what is matter of fact.

I cannot, perhaps, illustrate this question better, than by taking for example the instruction given by the court to the jury in Richard White’s case, transcribed below, on which I think it will be made apparent, to any intelligent mind, possessing the faculty of rational discrimination, that in that memorable instruction the court did so confound law and fact, that in the hypothetical part of the instruction matter of law is stated as matter of fact, and that on the legal inference or rule of law, as laid down by the court, drawn from the supposed matter of fact, they have based the rule upon both matters of law and matters of fact.

As no objection was made to the instruction on this ground, it seems clear, that the attorney for the United States did not discern this valid objection to the instruction, or was deceived by the want of clear perceptions of the distinction between matter of law and matter of fact.

The instruction was in these words, namely: “If the jury believe from the evidence that the departure from this district by the traverser, on the evening of the 30th of March, 1833, or at any time afterwards within two years, was, for the purpose or with a view to avoid punishment for the offence of burning the treasury building, or for any other offence, this was a fleeing from justice, and the statute of limitations is no bar; unless the jury should also believe that the said prisoner after-wards returned to the county of Washington, and that his return was so open and public, and under such circumstances, that opportunity was afforded by the use of ordinary diligence arid due means to have arrested him; and that two years and more have elapsed from that period to the time df finding the indictment in this case.” Now the court heard, all the evidence which the jury did, relating to the traverser’s return, and of its openness and publicity, and all the circumstances attending such return, and what was that evidence? as follows: The traverser came to this city on Sunday evening in the stage, as he said, from Baltimore, and lodged at Mrs.

Howard’s, a boardinghouse in rather a retired part of the city, where he breakfasted the next morning, and after breakfast walked, in company with Mr. Howard, to the capítol, congress being then in session, and went into the congress library there, and left this city before dinner the same day. to go (as he said) to Leesburg, in Virginia.

This was all the evidence of the openness and publicity of the traverser’s return and the circumstances attending it, except that the circumstances, as proved by the prosecutor’s witnesses, very much impaired the force of the circumstances, as bearing in favor of the traverser; because competent evidence was offered to the jury that the traverser was, at the time of such return, travelling under a feigned name; Und moreover the testimony of another witness, Mr.

Eaton, rendered it questionable whether the traverser did actually return, as stated by Howard and wife, at the time alleged by them: but that some other person, by the name of White, and not the traverser, was the person supposed to be the traverser by said Howard and wife. THE COURT, however, is of a different opinion, and a venire de novo is awarded. I have thus stated all the evidence as to the traverser’s return, and the circumstances attending it. upon which, and which alone, the court ought to have instructed the jury as to the inferences of law upon those facts; but what did they do?

They left the jury to draw inferences of law themselves, from those facts; and then, upon the jury’s first being satisfied with the truth of those facts, and drawing such inferences of law from those facts as the instruction declares, they were then to be governed by the court’s inferences of law, from the jury’s inferences of law, drawn from the facts.

When the court inform the jury that the statute of limitations is a bar, if the jury believe from the evidence that the traverser’s return and the circumstances attending it were “so open and public, and under such circumstances, that opportunity was afforded by the use of ordinary diligence and due means, to have arrested him, ” let me ask if these underscored words are /any part of the evidence, or facts in the case; or are they not rather matters of law arising out of the facts?

The facts are stated in full above, all which the court heard, and every circumstance connected with the trav-erser’s return, as fully as the jury. Is it not upon those facts only that the instruction of the court should have been given, and not upon the jury’s opinion of the legal inferences from those facts? Why should the court, possessed as they were of every word of the evidence, leave it to the jury to say what constituted openness and publicity? Surely they were as competent to judge of this as the jury?

Is it the exclusive province of the jury to say how much exposure of one’s person, in this or that place, and for what length of time, amounts, in the eye of the law, to openness and publicity? But this is-not all; the jury are empowered also to determine other more clear questions of law, as inferences from the facts of which evidence was offered by the witnesses; they are to say that the traverser’s return, etc., was not only open and public, but under such circumstances that opportunity was afforded, by the use of ordinary diligence and due means, to have arrested him. Arrested! by whom?

Opportunity also was to be inferred from the facts stated in evidence; of this opportunity the jury were to be the exclusive judges. Now, opportunity means “suitableness of circumstances to any end;” then opportunity, in the instruction, means that the traverser was in circumstances suitable to be arrested, for that was the end contemplated in the instruction, of which the jury were to be satisfied, and of which they were to be the judges.

But this opportunity to be arrested, or being in circumstances suitable to be arrested, comprises things of which there was not a particle of evidence; there was no evidence that the government, .or any of its officers, or any other person whatever, had the least knowledge that the traverser was the incendiary of the treasury building, or, if possessed of this knowledge, that he was at that time within the county of Washington. How was it possible, thi n, that the short stay of the traverser in the county of Washington afforded an opportunity or circumstances suitable to the-end of arresting him?

Here, then, it was left to the jury to say that there was such an opportunity, when it is evident that it was a moral impossibility to have arrested him, and an utter lack of evidence to warrant an inference of such opportunity. Was it not, then, entirely a question of law whether the evidence could authorize such inference by the jury?

Was it not agitated between the judges as a question of law, and did not Judge Thruston, although overruled by the court, state it as his opinion, that to authorize such an instruction af all, the jury must be satisfied that the traverser was known to have been the incendiary, and known to those legally authorized to have arrested him to have been in the county of Washington; or, under such strong suspicions to have been so, as to have justified his arrest?

It is true, the other two judges did verbally tell the jury that such knowledge or suspicion was not necessary to have been proved; then it ought to have been made part of the instruction, before it should have been left to the jury to determine what circumstances afforded an opportunity to have arrested the traverser. Without appearing on the face of the instruction itself, it makes the instruction, or rather the important word “opportunity,” a perfect solecism, a most inopportune word.

An instruction should contain on the face of it every thing material to warrant its being granted; and should not be patched up with verbal supplements.

If, then, opportunity to arrest an offender is a compound idea, involving a question of law, as it clearly did in this case, because involving, according to the opinion of one of the judges, a knowledge on the part of the government that the traverser was the offender; and this law question was settled by the court overruling, by a majority, the judgment of one of the judges, what was this but leaving an inference of law to be drawn by the jury from the facts in the case; and as to the point contested by the judges, without any evidence whatever?

Again, if there be doubt on this point, there seems to be none that the other parts of the instruction are questions of law. The jury are left to deter-; mine that opportunity was afforded,- by the use of ordinary diligence and-due means, to have arrested the traverser. Here the jury are to determine what ordinary diligence is; that is to say, that the government were or were not guilty of laches; for ordinary diligence is the opposite of crassa negligentia, or gross laches. Is laches a question of fact, or an inference of law from facts to be judged of by the court and not the jury?

When the court hear all the facts, is it not their province to say whether they impute, in the eye of the law, laches or not? and, if asked to instruct the jury whether the facts proved by the evidence imply laches or not, shall a court adjudge that it is the province of the jury, and not theirs, to determine this point? Again, the jury are left to judge of the use of due means. Is this a question of law or fact? Clearly the first, it seems to me; “due means” imply “lawful means.” Now what are lawful means, is a question involving constitutional law, as well as common law. The fifth

article of the amendments to the constitution of the United States declares, “that no person shall be deprived of life, liberty, or property, without due process of lawand the fourth

article says, “No warrant shall issue to seize the person but upon probable cause, supported by oath or affirmation, describing the person to be seized.” Now, although the court had judicial notice that the government were utterly ignorant of the traverser’s having been the incendiary of the treasury building; or. at least, that there was an absence of the least evidence that any knowledge of his having been such incendiary could have been imputed to them, or to any other person, or that he was in the county of Washington; and that it was impossible, pursuant to the said fourth

article of the constitution, to describe the person, so as to have authorized a constitutional warrant to have been issued to arrest him, or to have enabled the government to have used “due means” to arrest him, yet they leave it to the jury to determine and adjudge that these “due means” were in the power of the government. .

But to say nothing of this ignorance of the traverser's having been the incendiary, on the part of the government, and that he was in the county of Washington, are not “ordinary diligence” and “due means” pure questions of law growing out of the facts as proved by the evidence, to be determined by the court and not the jury?

What is “ordinary diligence?” Does it mean “reasonable diligence?” Then if the jury find that the government was afforded an opportunity, by “ordinary diligence,” to have arrested the traverser, and did not do so, they were guilty of “laches,” and so they, and not the court, are to adjudge what degree of negligence amounts, in a legal sense, to “laches.” Again, “due means” involve matters of fundamental as well as common law. as I have shown, from the fourth and fifth articles of the constitution.

Did the jury know that “due means,” otherwise “lawful means.” required an oath to be made by a competent witness, charging the traverser as the incendiary? that a warrant must be awarded and issued by a magistrate? that this warrant must be put into the hands of, and executed by, a sworn officer? Are not all these points of sheer law?

Did the jury know, or were they informed, that “due means” comprised all these processes? or did the evidence which I have stated fully above, admitting the jury to have been competent to judge of these nice points of law, authorize the court to leave it to the jury to infer any such “due means?” Thus the court, on the aforesaid instruction, first left it to the jury to say whether or not they believed that the traverser did return to the county of Washington, in the manner and under the circumstances as stated by the traverser’s witnesses. This was certainly very proper.

Although there was contradictory and pretty strong evidence on the side of the prosecutor, it was proper for the jury to weigh the evidence, and to judge according to ' their impressions of it. These are mere facts; but the court leave it to the jury to say whether or not it was so open and public as. etc. This part of the instruction is at best questionable; it is. questionable, as the court heard all the evidence, whether they, and not the jury, should not have adjudged it to have been so “open” and “public” as to have warranted the residue of the instruction.

Then they leave it to the jury to say that it was sufficiently “open” and “public” to have afforded an “opportunity,” by “ordinary diligence” and “due means,” to have arrested the traverser. I have endeavored to show that the court erred in this part of the instruction; for if the jury were permitted to say whether the government had used “ordinary diligence” or not, it was leaving to them to draw an inference of “laches” on the part of the government, which seems to me to be a question of law.

They were also permitted to infer, that the government did not use due means to arrest the traverser; and I have endeavored to show that “due means,” which are the same as “legal means,” involve questions of fundamental, as well as common law. I will now present this question in other asnects.

Suppose Howard, the only witness to White’s public exposure of himself, for he was the only witness who testified that White was in the streets of Washington, or in the capítol and library there; I say, suppose Howard had been asked this question, do you think White’s exposure of his person in Washington, when he walked from your boarding-house to the capítol, etc., was so open and public, and under such circumstances, that opportunity was afforded, by ordinary diligence and due means, to have arrested him? would he not, if a man of reasonable understanding, say that he could not answer that question?

He would very properly object that ordinary diligence was a matter of law; that he could not say how much was to be done before the government could be prepared to arrest him; that due means was still more perplexing to him, for he was not lawyer enough to know what due means, or legal means were; but the court would not have permitted such a question to be put to the witness, as involving mere matters of opinion on points, of law. Let us now take a view of this instruction in another aspect.

Let us suppose the evidence of Howard and wife to have been.given, stating all the circumstances of the traverser’s return to this district as it was given to the jury by the said witnesses, and the attorney for the United States had demurred to the evidence, it would in. that case have been the exclusive province of the court to have judged of the sufficiency of such evidence, as affording an available defence for the traverser.

Would the court have ventured to pronounce that such return, under the circumstances, as proved by Howard and wife, was so open and public, and under such circumstances, that opportunity was afforded, by the use of ordinary diligence and due means, to have arrested him? If the court would not and could not have drawn such inferences, then it should not have been left to. the jury to have drawn them. I say the court could not, or at any rate ought not to have drawn such inferences.

Let it be observed, that the act of congress “for punishing certain crimes against the United States,” has given to offenders the benefit of the two years’ limitation, upon the sole condition of not fleeing from justice; that if the condition be broken the offender has forfeited this benign indulgence; that the court, notwithstanding, have extended this privilege beyond the letter, and adjudged that, although the offender, having forfeited the privilege, may be restored to it by returning to the district, and exposing his person to arrest.

This is clearly, if any thing, an equitable extension of the terms on which the offender may claim the benefit of the limitation. There is no such provision in the law. If the court will thus stretch the law to embrace what they suppose to be an equitable construction of it, should they not at least pay some regard to fairness and equal justice? and not cause such equitable construction (if it can be so called) to bear altogether on one side?

Now, although it may be admitted, that if two years elapse from the commission of the offence to the finding of the indictment, that the offender is absolved, by the clause of limitation, from liability to punishment, although the government remained in perfect ignorance of his having been the offender, yet very different ought the construction to be when the court undertake to add new terms to the law, and adjudge that if the offender having once fled, and thus forfeited the benefit of the two years’ limitation, that he may be restored to it by returning to the district, and remaining therein half a day, the government being entirely ignorant that he was the incendiary, or that he was there.- What kind of equity is this?

It was morally impossible that the government could have arrested him, even had his stay here been ever so long or ever so public, unless such knowledge can be forced upon them. Let it be understood, that by the government I mean those executive officers representing the government, whose especial duty it is to arrest and bring to punishment violators of the law.

If, with such knowledge that the traverser was the offender, and that he was here, in reach-of legal process, the government -neglected for two years to have ■ here arrested him.' then indeed laches might reasonably be imputed to them, and there would have been something like reciprocity and fairness in such construction of the statute. I have been utterly in the dark, as to the grounds upon which the aforesaid instruction was given to the jury, inasmuch as the court have assigned no Reasons for having given it.

It cannot be from any analogy drawm from the statutes of limitation in civil cases, because it is an express provision of the statute, that if the debtor returns to the county after abscond-mg, that the creditor most sue him within the time mentioned in the law after such return, or the debtor shall have the benefit of the limitation; if he do not so sue, there would be laches without excuse, because the debtor is not only in such case within reach of process, but is known to his creditor, and the law expressly declares that the time limited for bringing suit shall commence from the date .of the debtor’s féturn.

But the government did not know that the traverser was the offender, and therefore it was morally impossible to have arrested him. Here the analogy fails. It fails also in this: the law of Maryland expressly gives the benefit of the limitation to the returning debtor, and dates the commencement of the running of the time from the period of the debtor’s return.

But the act of congress dates the commencement of the two years from the time of the commission of the offence: but the court have amended the statute, and declared that the time for the commencement of the running of the two years shall be that of the return of the offender to this district. .Here also the analogy fails.

Such new date of the beginning of the time of limitation was fixed in Maryland by express statutory provision: here'it was fixed by a judicial supplement to the act of congress. ' Again; admitting for argument’s sake that the court were right in annexing this supplement to the act of congress, and in leaving also to the j'ury to draw the questionable inferences above descanted on from this supplementary extension of the act, yet is it not a rigorous and severe construction of this supplement, to subject the government to the penalties consequent upon laches, for having omitted one occasion only of arresting the offender, where the time of his stay in this county was so short, and his exposure of his person so limited, that it would have.been an uncommon accident if he should have been seen by any of those executive officers of the government whose peculiar province it is to arrest offenders, and would have required uncommon industry to have obtained the due means of arresting him?

Some one must be found to charge the offender on oath. It cannot be presumed, that he could have been known to everybody either to have been the offender or that he was in the county. Suppose he was known to the president and cabinet to have been the offender. Did any of them see him, or know that he was here? Suppose the marshal had this knowledge; did he see him, or know that he was here? Did any deputy marshal or constable see him, or know that he was here? Did any of these officers, admitting that Richard White was known to have been the incendiary, know his person?

Now by the court’s instruction the government had two years from the time of White’s return as aforesaid to have arrested him; is it not a hard, and a rigorous, severe, and unequal

interpretation of the court’s own supplement to the law, to subject them to the forfeiture of their right to prosecute and punish the transgressor, because they did not seize one single and questionable chance of arresting him. only within the possibility of their having done so, within the whole two years? Let us again take another view of this instruction. After having been given to the jury, they withdraw to their room: the foreman takes up the instruction and reads it to the jury: suppose, then, one of the juryrises, (and it is a matter of surprise to me that it did not so happen.) and says: “Mr.

Foreman, if I understand this instruction, we are authorized to say, that if ordinary diligence, and due means were used, White might have been arrested. Now, Mr. Foreman. I do not know what due means are, I am not lawyer enough to know this. I therefore cannot say, unless I know what these due means are, that are to be used, whether White’s stay here was long enough to have provided them.

I therefore cannot judge whether by ordinary diligence, he could have been arrested or not.” Now here is matter of sheer law, that ought to have puzzled any jury, (and that they were not so puzzled is matter of surprise.) which the court permitted the jury to pass upon, not as facts to be found by them, as the basis of the court’s inference of law, but as inferences of law to be drawn by themselves from the facts as detailed by the witnesses.

Well, let us suppose the foreman, (and no improbable supposition.) no better lawyer than the juryman who applied to him for information of what due means were, in the contemplation of law? how could they get on? The next step would have been, to come into court to ask for explanation of those terms of fine legal import. Suppose them in court; the foreman says: “May it please your honors, we are at a stand. We do not know what due means signify according to law.

It seems to us that the court have devolved upon us the duty of drawing inferences of law from facts, and we believe that our province is to find facts, and leave to the court to draw inferences of law.

But if we are bound to draw these inferences, we beg your honors to tell us. what those due means, mentioned in the instruction, are: for we are not learned in the law, and believe that some ceremonies are necessary before an American citizen can be subject to be seized in his person, and we do not know what those ceremonies are.” The court, to satisfy these inquiries of the jury, would say to them: “Gentlemen, it is very true, that what constitutes a legal or due arrest of a citizen, is matter of law, and often of nice law.

The fourth and fifth articles of the amendments to the constitution of the United States, will teach you what is to be done, to justify the seizure of a citizen’s person. There must have been an oath made, by some competent witness, that White was the incendiary, and was in this county: this oath to be made before a magistrate. He must then work out his warrant directed for the apprehension of White; then this warrant must be put into tbe hands of some sworn officer, to execute; and then he must find out White in order to arrest him: these are the due means, or legal means meant by the instruction.

But the foreman would very naturally reply: "May it please your honors, we did not know all this law. Had the court stated specifically in the instruction what was necessary to be done under the terms, due means, we might, perhaps, have saved the court the trouble. We humbly conceive, all these processes of law should have been specially set forth in the instruction.” Again, as to this word opportunity.

It was leaving to the jury to say that there was opportunity to have arrested White, when by the very terms of the verbal part of the instruction, it is manifest there was no opportunity for executing such purpose; for there was no evidence that the government, or those representing the government, and whose peculiar duty it is to arrest offenders, did know that White was the offender, or that he was even in this county at the time alluded to in the instruction; it was morally impossible, if even there was a physical possibility to have arrested him. to have done so, and yet the court leave it to the jury to say that there was such opportunity, and at the same time inform them, that it was not material to constitute this opportunity, that White should have been known to have been the offender.

Now is not this knowledge indispensably necessary to create the opportunity? The word opportunity, therefore, was too broad and comprehensive a term to have been used in the instruction; the evidence did not justify it; to have presented this opportunity, knowledge of the offender was required. It is one of the natural elements or ingredients of opportunity, one of those suitable and indispensable to the end of arresting White; for without it. it was-not possible to have attained that end.

It was a contradiction in terms, to leave it to the jury to say there was such opportunity, and at the same time tell them that one of the essential elements or ingredients of this opportunity need not be or exist; it therefore seems to me that what the court should have said was, that if White’s appearance in this county, was in their estimation sufficiently open and public, that then they might judge and say if they so thought, that there was time enough and not opportunity afforded thereby, by the duration of his stay in this county, to have arrested him; but to leave it to the jury, by the written part of the instruction, to say that there was this opportunity, when by the verbal part of the instruction. informing them that knowledge of White’s being the incendiary was not necessary, for want of which it was morally impossible to have arrested him, was leaving to' the jury to find that a thing impossible to be done, might nevertheless be done.

In fact, taking the whole of the instruction together, the verbal part, and the written part, the whole was rendered a felo de se.

The word opportunity, then, should not have been in the instruction; but it seems to. me that to have made it conformable with the true meaning of the court, it should have run thus: “Unless the jury should also believe that the traverser afterwards returned to this county, and his return was so open and public, and under such circumstances that (had the government known that he was the incendiary) they onght to have known that he was in this county, and that his stay here was long enough, by the use of ordinary diligence and due means, to have arrested him.” This form of instruction would have left to the jury to find precisely what the court meant to have left to them; namely, that the traveler was here so openly and publicly, and under such ■ circumstances, that the government • might, by ordinary diligence and due means, have discovered that he was here, and had time enough, with such knowledge, to have arrested him.

This was certainly all that the court did mean to leave to the jury; but to leave to the jury to say that there was opportunity to have arrested him, was leaving them to find, that which the very terms of j the instruction, taking the verbal and written arts together, was what was impossible to ave been found.