Does the constitution admit that accessories are principals? or that there is no essential difference between them? There is not a syllable in it to this effect. It says that treason shall "consist in levying war;" that is, that any person levying war shall be guilty of treason. The language is very short and plain," it shall consist in levying war." In common parlance, if the mere writing of a letter were adverted to, and it were asked, "who wrote that letter?" Would not the answer be, the real penman or amanuensis? So in this case, he who levied war must mean the person who actually did levy it, in person. To introduce another person than the real actor must depend

1st. Upon fiction of law, or

2d. Upon common law; for the constitution is silent, and there is no statute upon the subject.

As to fiction of law, the constitution does not recognise it. Fiction of law never prevails in criminal cases. It is never tolerated in them. Various rules are laid down, and great nicety required, with respect to criminal cases and proceedings, which do not extend to civil cases. Yet all these niceties are in favour of the accused, against whom no fiction of law is allowed or even a conjecture indulged, on a prosecution for any offence whatsoever. How can fiction of law prevail here, when the constitution says, that treason shall consist in levying war? Is it not the same thing as if it had said, that no person shall be convicted of treason unless he actually levy war himself, against the United States? Let this principle of fiction be once admitted, and I defy even your courts to determine to what extent it may go. It may lead to the extinction of every principle of freedom. If we exclude this principle of imagination and fiction, we protect the liberties of our country; for it is no other than the cause of liberty, which cannot be separated in this instance from that of the accused. I insist, therefore, that no fiction of law authorizes the introduction of any other person than the real actor, so as to be guilty of treason in levying war. 2. I contend, that no other person than the actual perpetrator can be introduced, upon the common law. I will here read the able opinion of judge Chase on this subject, which I believe is not controverted to be law. It is reported in 2 Dallas's Rep. in the case of the United States against Warrall, in the circuit court of Pennsylvania, on an indictment for attempting to bribe Tench Coxe, the commissioner of the revenue. After a verdict of "guilty," Dallas moved in arrest of judgment. Judge Chase asked Mr. Rawle the attorney for the United States, whether he meant to support this indictment solely at rommon law? Mr. Rawle answered in the affirmative. The

judge stopped Mr. Levy, who was about to reply, in support of the motion in arrest of judgment, and delivered an opinion to the following effect.

"This is an indictment for an offence highly injurious to morals, and deserving the severest punishment; but, as it is an indictment at common law, I dismiss, at once, every thing that has been said about the constitution and laws of the United States."

The judge then stated that the constitution is the source of all the jurisdiction of the national government; of which the departments never can assume any power not expressly granted by that instrument. He then proceeds; "Besides the particular cases, which the 8th section of the first article designates, there is a power granted to congress to create, define, and punish, crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and offences specifically mentioned, it is certainly included in this general provision. The question, however, does not arise about the power, but about the exercise of the power: Whether the courts of the United States can punish a man for any act, before it is declared by a law of the United States to be criminal? Now, it appears to my mind, to be as essential, that congress should define the offences to be tried, and apportion the punishments to be inflicted, as that they should erect courts to try the criminal, or to pronounce a sentence upon conviction.

"It is attempted, however, to supply the silence of the constitution and statutes of the union, by resorting to the common law for a definition and punishment of the offence which has been committed. But in my opinion, the United States, as a federal government, have no common law; and consequently no indictment can be maintained in their courts, for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and yet it is impossible to trace when, or how, the system was adopted or introduced." After explaining how the different colonies or states had adopted different parts of the common law, as they found them to be applicable to their condition and promotive of their conveniences; so that some states rejected what others adopted; that the common law of one state is not the common law of another; but that the common law of England is the common law of each state, so far as each state has adopted it; and that it resulted from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they be instituted in a federal or state court; the judge further pro

ceeded. "But the question recurs, when and how have the courts of the United States acquired a common law jurisdiction, in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents. Now, the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select, the system of Georgia or New Hampshire, of Pennsyl vania or Connecticut?"

Here Mr. Hay interrupted Mr. Randolph, and observed that it was unnecessary to labour that point; that unquestionably the United States, as a federal or general government, had no common law; though under the state law, connected with the judicial act, it might be considered as existing to a limited

extent.

Mr. RANDOLPH. There is no common law in the United States, which will support an indictment in any of the courts of the United States. The whole cannot be supported, but it seems that a part can be supported. Treason cannot be supported, but one half of it, it seems, can. What species of logic is this, to be adopted in a criminal case? You cannot maintain an indictment at common law; but you can introduce by reference to the common law, a new person not mentioned by the constitution as liable to be involved in the guilt of treason! Though the constitution limits the guilt to him who levies the war in person, yet by the collateral operation of this common law, it is extended by relation to an accessorial agent. But their refuge from this argument is, that we all said that common law and common sense are the same; and that according to common sense this point was to be construed and decided. Is it according to common sense that they should introduce a new personage not mentioned in the constitution? Do not the rules of common sense vary according to circumstances? Does common sense justify the subjection of the people of the United States to the evils of constructive treason?

Here Mr. Hay explained, that he only meant to say, that the provisions of the constitution ought to be construed according to the principles of common sense.

Mr. RANDOLPH. I will examine the idea of Mr. Hay as he has explained it. He applies common sense to the constitution, and introduces by construction a principle not known to it.

Common sense it seems creates an accessory, and introduces him as a principal, contrary to the constitution. Common sense does not say, like the constitution, that treason consists in levying war, but brings in a new person to participate in the guilt and punishment of treason. This common sense extends, instead of restraining the rigour of capital punishments. This common sense is oppression and tyranny. I pray Heaven to save us from the deductions of such common sense as this. Our client complains with great justice of the general and violent prejudices which have been artfully and sedulously excited against him. We see, however, that by availing ourselves of the advantages which the law of the land secures to persons accused, twelve impartial men may be got to decide on the charges against him. If the just doctrines of the law be for him, let him prevail, and not condemn him without a fair examination of his defence, because he is accused and persecuted.

But, it was said by the gentleman, that this construction ought to be adopted on principles of national policy. Who ever heard before of national policy in a criminal case? Who ever heard of state policy, wielded as a weapon in aid of the law, in the prosecution of an unfortunate prisoner? Common sense is vague enough, but national policy is infinitely worse. There need be no code of laws, no rules of right; you may burn all your books and abandon humanity and common sense: for constitution and laws and restraints and checks will be unavailing, and this favoured country will be ruined, if a doctrine like this be tolerated.

But we are exultingly asked, "Is an accessory to escape altogether?" I will not undertake to say what is to become of him, whether he may not be indictable as an accessory in due time; or whether it be a "casus omissus." But I contend that the act of an accessory is not treason. Whether the law punish it or not, is immaterial; it is not treason. The constitution itself appears to me to contain plain and explicit language, to mark out the lines within which the legislature may shape its deliberations, and to have fixed the limits, beyond which the legislature must not go. This constitution is not subject to variation: not a tittle can be added to it: it prescribes the definition of treason: the law of congress only adds particulars; but no law of congress can change the definition of treason. The people, in establishing this palladium of their liberties, would not confide this power to their legislative agents. I dread every attempt to innovate on this subject. Guard therefore this constitution from violation. There are, it is true, opinions of some judges, that in treason all are to be considered as principals. What are we

to say to these doctrines found in the books? Are we to receive them without examination or reserve? Are we to consider them, however unjust or inconvenient, as ingrafted into our constitution? Are we to bow down to them, as to the image of Nebuchadnezzar, compounded of heterogeneous materials? Shall we bend the knee or be cast into the fiery furnace? As to authority, examine from book to book down to judge Tucker, and it will be found however generally the doctrine may be laid down, that it will not admit of the interpretation for which gentlemen contend. Did not the learned Hale take up the doctrine and except to its general import? He was known to understand it well, and he has distinguished between accessorial and other treasons and explained the necessity of attending to the distinction in prosecutions; that the principal must be proceeded against before the accessorial treason.. Does he not say, that those who commit the very fact of treason must be tried before the principals in the second degree? Though, as far as the equality of punishment is concerned, all are principals in treason, yet the trial of the principal traitor should precede that of the accessorial agent, or if tried together, the guilt of the principal must be proved to the jury before they inquire into that of the accessory.

Lord Coke, a lawyer without precedent and an attorney general without a heart or feeling, lays down the doctrine generally. But Foster explains it fully and refers to Hale. The term treason, as well as the term felony, is a term well known at the common law. It is well known, that when the word felony is spoken of in a statute, it is intended to have the full definition of felony at the common law; but it is very different when a statute uses a phrase not known to the common law at all. The term, when used in such cases, is adopted pro hac vice only, and not extended by relation further. Perhaps the same may be said of treason. But you cannot adopt treason. The constitution has adopted and defined treason and says wherein only it shall consist and has restrained the legislature from further defining or extending it. But if you insist that the constitution intended to adopt treason, with all its incidents and circumstances at the common law, I ask you what is treason at the common law? It is an invasion of the regal prerogative. Would the objections to the constitution have ever been overcome, if it had been supposed to adopt this dangerous common law definition of treason? It was intended in the constitution according to its true modern and rational meaning. The word only refers to the person levying the war, as well as to the war itself and is completely exclusive of all other than personal actors in treason. Leave it wholly if you please, as it stands in the constitution or, if you extend it, let it only be as VOL. II. C