Mr. WICKHAM then addressed the court.

May it please the court: The counsel for the prosecution having gone through their evidence relating directly to the overt act charged in the indictment, and being about to introduce collateral testimony of acts done beyond the limits of the jurisdiction of this court, and it not only appearing from the proofs, but being distinctly admitted, that the accused, at the period when war is said to have been levied against the United States, was hundreds of miles distant from the scene of action, it becomes the duty of his counsel, to object to the introduction of any such testimony; as according to our view of the law on this subject, it is wholly irrelevant and inadmissible.

It is not without reluctance that this measure is resorted to. Our client is willing and desirous, that at a proper time, and on a fit occasion, the real nature of the transactions which have been magnified into the crime of treason, should be fully disclosed: and unless he be greatly mistaken, it is now in his power to adduce strong and conclusive testimony in direct opposition to that which has been relied on in behalf of the prosecution. But if we may calculate from the time that has been already consumed in the examination of the small number of witnesses that have yet been introduced, out of about one hundred and forty, that have been summoned on the part of the United States, it is hardly possible, that an opportunity will be afforded him of calling a single witness before this jury. Weeks, perhaps months, will pass away, before the evidence for the United States is closed; and at this unfavourable season, nothing is more likely than that the health of some one, and perhaps more of the jury will be so far affected by the climate and confinement, as to render it impossible to proceed with the trial. Should such an event happen, the cause must lie over, and our client, innocent, as we have a right to suppose him, may be subjected to a prolongation of that confinement which is in itself a severe punishment. The jury too are placed under very unpleasant restraints, and it would be an act of injustice to them, as well as him, to acquiesce in a course of proceeding, which would draw out the trial to an immeasurable length; and which we conceive to be neither conformable to the rules of law, nor consistent with justice.

Hitherto the counsel for the United States have taken frequent occasions to declare their belief of the guilt of the accused. On the motion I am about to make, arguments drawn from this topic will have no application. The question will turn on abstract principles, which will neither be changed nor affected by his innocence or guilt. The foundation on which this prosecution must rest, and which I should hope had not been seen or attended to by the counsel for the United States themselves, will

be exposed to view; and it will be for them to determine, whether it shall be abandoned, or maintained by doctrines incompatible with our republican institutions, and utterly inconsistent with every idea of civil liberty.

In combating these doctrines, we shall, so far as we are able, support the cause, not of our client alone, but of every citizen of the United States, and of future generations; for as to the establishment of the principle, it ought not to be considered as his cause alone, but as the cause of every member of the community and of posterity.

The first position I shall lay down, is, that no person can be convicted of treason in levying war, who was not personally present at the commission of the act, which is charged in the indictment as constituting the offence.

The 3d section of the 3d article of the constitution of the United States, declaring that "treason shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort" and that "no person shall be convicted, unless on the testimony of two witnesses to the same overt act," there can be no doubt, if the words be construed according to their natural import, that it is necessary, in order to fix the guilt of the accused, to prove by two witnesses, that he committed an act of open hostility to the government, at the place charged in the indictment.

But artificial rules of construction, drawn from the common law and the usages of courts in construing statutes, are resorted to in order to prove that these words of the constitution are to be construed, not according to their natural import, but that an artificial meaning, drawn from the statute and common law of England, is to be affixed to them, totally different.

In the first place, I deny that any such rules of construction, however just they may be when applied to a statute, can be properly used, with reference to the constitution of the United States.

This instrument is a new and original compact between the people of the United States, embracing their public concerns in the most extensive sense; and is to be construed, not by the rules of art belonging to a particular science or profession, but, like a treaty or national compact, in which the words are to be taken according to their natural import, unless such a construction would lead to a plain absurdity, which cannot be pretended in the present instance."

It being new and original and having no reference to any former act or instrument, forbids a resort to any other rules of construction than such as are furnished by the constitution itself, or the nature of the subject. If I be correct in this, there is an end to all further inquiry. It is not necessary to resort to

artificial rules of construction. The words of the constitution, "levying (or making) war," are plain and require no nice interpretation: and with respect to the other clause, " adhering to their enemies," &c. it is a matter of no consequence here what may be its correct exposition, for the commonwealth has no enemies. The counsel for the United States will not contend that the words, used in their natural sense, can embrace the case of a person who never himself committed an act of hostility against the United States, and was not even present when one was committed.

But they will insist, that these words in the constitution are to have an artificial meaning, such as they contend has been given them in the courts in England; and that in that country, all persons aiding and abetting others in the act of levying war against the government, are guilty of treason, though not personally pre

sent.

I shall contend first, That, notwithstanding some dicta of lawwriters to the contrary, no such rule has practically obtained in that country; and that the decisions, entitled to any respect, lead to an inference directly contrary.

And secondly, That if I be wrong in this, the principle adopted there cannot apply to treasons under the constitution of the United States.

I shall admit that lord Coke and, after him, other writers who are deservedly revered, have laid down as a general position, that there are no accessories in treason either before or after the fact, but that all are principals.

But no adjudications, in the case of an accomplice in the nature of an accessory before the fact, bear them out in it, except that of sir Nicholas Throgmorton, reported 1 State Trials p. 63 to 78; and the conduct of the court on that occasion was so obviously contrary, not only to the rules of law and justice, but even to those of decency, that I persuade myself the counsel on the other side will not rely on it as an authority.

A very faithful and correct account of it is given by judge Tucker in his appendix to 4th Blackstone's Commentaries, note a. p. 44. He contests the doctrine advanced at this day, "that whatever will make a man an accessory in felony, will make him a principal in treason." He shews that it is derived from three original cases only; and then proceeds thus, "This doctrine appears to have slept from the year 1488, to the year 1554, when it was revived upon the trial of sir Nicholas Throgmorton, in the first year of the reign of queen Mary. He was indicted first, for conspiring and imagining the death of the queen: 2. For levying war against her within the realm: 3. For adhering to her enemies within the realm, giving them aid and comfort: 4. For conspiring and intending to depose the queen: 5. For traitorously devising and concluding to take the Tower of London. Upon his trial, Stan

ford, author of the Pleas of the Crown, and Dyer, afterwards chief justice, assisted in the prosecution, as queen's sergeants. Bromley, chief justice of England, who appears to have been another Jefferies, and sir Nicholas Hare, master of the rolls, a fit associate for him, and sir Roger Cholmley, one of the same stamp, were among the number of his judges, and managed the trial. At this trial, the doctrine of constructive treason in its fullest extent was insisted on by the counsel for the prosecution, and sanctioned by the judges, notwithstanding the prisoner reminded the court of a statute, passed not six months before, whereby it was declared, that no offence made treason by act of parliament should thereafter be held to be treason, except such as were so declared by the statute 25 Edw. 3. which statute he desired might be read to the jury. The court told him there should be no books brought at his request; they knew the law sufficiently without book; it was not their business to provide books for him, neither did they sit there to be taught by him. If any thing more be requisite to shew the respect due to the decisions of the court, it may not be amiss to mention, that they ordered a person, whom the prisoner called as a witness, on his behalf, out of court. That one Vaughan, who was under sentence of death, and whose execution was respited that he might be present at this trial, was admitted as an evidence against him. That the confessions of one Winter and one Crofts, then alive and in custody, were read in evidence against him, the witnesses themselves not being produced in court. These words of the statute 25 Edw. 3. and be thereof attainted of open 'deed by people of their condition,' which sir Edward Coke, and every other writer on criminal law from his time to this, expounds to mean, by verdict of a jury of their peers, were thus expounded by the chief justice addressing himself to the prisoner: You deceive yourself, and mistake these words by people of their condition; for thereby the law doth understand the discovering of your treasons. As for example, Wyatt and other rebels, attainted for their great treasons, already declare you to be his and their adherent, in as much as divers and sundry times you had conference with him and them about the treason; so as Wyatt is now one of your condition, who as the world knoweth, hath committed an open, traitorous fact.' The word 'enemies' was likewise expounded to mean traitors within the statute. And lastly, when the jury brought in a verdict of acquittal (for there was no evidence against the prisoner on either point) the court immediately committed them all to prison, and some of them were fined two thousand pounds, some one thousand pounds, and the lowest paid three score pounds apiece, before they were discharged from their imprisonment.

Stanford, who was active in the prosecution, was afterwards promoted to the bench, and published his Pleas of the Crown, in 1560, six years after, in which he has laid down the doctrine at large, as it is received at this day, but cites the case 3 H. 7. 10. before mentioned in support of it. Abington's case was resolved, when sir Edward Coke was attorney-general, in the fourth year of James the first, when the spirit of persecution was at its height, from the terrors of the powder-plot, in the guilt of which the prisoner was involved, by receiving one Garnett, a jesuit, knowing him to be guilty of the powder treason. It is not improbable however, that this doctrine was aided in its progress, by the statutes which passed in the reign of Hen. 5. and Hen. 6. and the numerous acts of attainder, passed in those of Edw. 4. and Rich. 3. and the multiplied treasons created in the reign of Hen. 8. and his successors, whereby the aiders, counsellors, consentors, abettors, maintainers, procurers, comforters, receivers, relievers, and so forth, of persons guilty of any such treasons, are repeatedly declared to be principal traitors also. These parliamentary declarations and statutes must, I conceive, have had a strong influence over the judges, in those days, when parliaments and courts were equally devoted to the will of the ruling monarch.

"I should not have taken the trouble of this scrutiny, had not the same judge [judge Chase] who declared, that the English authorities were not to be regarded as precedents in our courts, on the same occasion, declared the law to be, 'that in treason all the participes criminis, are principals; that there are no accessories in that crime, and that every act, which in case of felony would render a man an accessory, will in the case of treason make him a principal.' If the learned judge rejects the authority of the English precedents, where can the law be found? And if he relies upon those precedents, where can the reason of the law be found?"

In that case it was perfectly clear, that the prisoner was not present at the only scene of action. I can find no case, where a person who was not present at the scene of action, or where a procurer or aider of treason before the fact, was convicted or even brought to trial, except the case of Mary Speke. In Tremaine's Pleas of the Crown, p. 3. I find an indictment against her for treason, in aiding the duke of Monmouth and others in levying war, with provisions; neither before nor after, but at the time when the treason was committed by the principals. She was not an accessory in fact, but an "aider" in the commission of the treason, it comes within the definition of "an aider or procurer," and belongs to the class of accessories before the fact. But I cannot learn how the case was decided; whether ac