are not opposed by a single case since the revolution, when the independence of the judiciary, and the principles of a free government were first established and confirmed) the counsel for the prosecution may quote lord Coke, Stanford and other eminent law writers, since the age of Henry the 8th. If this be so, it proves nothing, except that the theory was one way, and the practice the other; and as this is a practical question, we ought to abide by the precedents established by the courts on this law, as they occurred, and not the dicta of men however eminent, who appear to have written without due consideration, and to have done little more than to copy verbatim the speculative opinions of their predecessors.

For the history of this opinion, I beg leave to refer to judge Tucker's very able treatise on the subject. He has traced it to its source, and shewn how error is begotten by error. See Tuck er's Blackstone, 4th. vol. appendix, note a. p. 40 to 47. After having shewn the important effect of the word "only," in the constitution, "as the strongest term of limitation and restriction in our language, that its obvious meaning is, that "treason shall consist in these two cases," (levying war and adhering to their enemies, &c.) and no other cases whatever, he proceeds:

"And here it may not be improper to repeat the remark, that this definition creates, as well as limits, an offence which had no previous existence; whereas the statute 25 Edward 3. did not create, but only defined an offence already known to the common law. That statute, said Stanford, (afterwards chief justice of the common pleas), is but a declaration of certain treasons, which were treasons before at the common law.' Will any man presume to advance, that there is any treason against the United States by the common law? that a limited federal republic of yesterday hath already appropriated to itself all the foul corrup tions of despotism, collected from time immemorial. To infer that the courts of the United States, are left to range at large, in the boundless field of construction, in search of other cases of treason against the United States, seems, to my apprehension, to be a doctrine equally unfounded, awful, and dangerous.

C

"If, then, we are not at liberty to reject this important word only, we must assign to it some determinate signification, and if that signification be that which I have ascribed to it, to wit, these cases and no other whatsoever,' its necessary operation and effect must be, to cut up all constructive treasons, root and branch. If a single scion be left, it will be the parent of ten thousand others, shedding like the Buonas Upas,' their baneful influence far and wide, poisoning and desolating the whole region where they are permitted to take root. Faction and factious men are not confined to any one party in a republic: and

when such men have the command of the purse, the sword and the scales of justice, the lives of their opponents will not weigh a feather in competition with their own advancement, or that of their party. This, the framers of the constitution must have considered, and therefore endeavoured by the strongest terms, and the strictest limitation, to restrain within the narrowest limits. And this should serve as the polar star of construction to judges and all others, who may be called upon to administer the go

vernment.

“Thus having sought, and, I trust, discovered not only the literal sense and meaning of the word only,' but also its proper interpretation, according to the true spirit of our federal constitution, I shall now inquire into its effect and operation in certain cases, which might have been supposed to be treason had it been omitted.

"In England, it is now generally admitted, that in treason, all the participes criminis are principals;' there being, as it is said, no accessories to that crime; and that every act which, in case of felony, would render a man an accessory, will in case of treason, make him a principal.*

"This doctrine was laid down by judge Chase, in his charge to the jury, on the trial of Fries; but as I conceive it to have been extrajudicial, for reasons already mentioned, I shall take the liberty now to inquire, whether it be not also questionable. But before I do this, I shall endeavour to trace this copious branch of constructive treason to its fountain head, and shew how small a portion of that fatal torrent flows from an uncorrupted spring. In doing this, I shall begin with the latest authorities, and conclude with the most ancient. This doctrine is advanced by judge Blackstone, (4th Com. 35, 36.) for which he cites 3 Institutes, 138. 1 Hale's P. C. 613. and Foster, 342. The latter cites 3d Institutes, 9. ‡ and 138. and 1 Hale, 235, 237, 328, 376. Hale himself cites 3 Inst. 16, and 138. Stanford's P. C. 32. and the year book, 1 H. 6, 5. of which last case, I shall make particular mention by and by.

"Sir Edward Coke, 3 Inst. 16, and 138. cites Stanford, P. C. 3. and the year books, 19 H. 6, 47. and 3 H. 7, 10.

"Stanford, P. C. 3 and 32. 40 and 44. cites the same identical cases from the year books, that sir Matthew Hale and sir Edward Coke had cited before. From these three original cases, 1 Hen. 6, 5. 19 Hen. 6, 47. and 3 Hen. 7, 10. we must consequently derive the doctrine in question.

* The ancient law of England was, that they who were present and abetting others to do the act, were accessories and not principals. Per Bromley, C. J. Plowden, 97, 98. See Plowden's note thereon, ib. 99, 100. whereby it seems the law was changed tempore Henry 4. 1 Hale, 437.

Fries's Trial, 198.

This is a mistaken reference in Foster; it should be 16.

"The case of 1 H. 6, 5. (A. D. 1422.) is thus mentioned by Stanford, p. 32. A man was outlawed of felony, was imprisoned in the king's bench, and indicted and attainted of breaking prison, and releasing certain persons confined for treason, and this was adjudged petit treason.

Upon what principle this case could be judged petit treason, it might puzzle any man at this day to conjecture, and creates a presumption, that the case is not very accurately reported. But there is another principle of the common law, on this particular subject of breach of prison, which will probably lead us to understand it. It is this: If there be felons in prison, and a man knowing of it, breaks the prison and lets out the prisoners, though he knew not that there were felons there, it is felony; and if traitors were there, it is treason. Now if the persons released in the case here referred to, were imprisoned for petit treason, instead of high treason, this judgment would be regular: but by no rule of law, could they be deemed guilty of petit treason, in any other case. And, if this were the case, it would prove that there was no distinction in principle, between treason and felony; inasmuch as the releasing a felon from jail is felony, in the same manner as releasing a traitor from jail is treason. And it appears from Stanford, that a stranger rescuing one indicted for felony, was indicted and tried, and found guilty for that offence, before the principal felon was tried. But sir Michael Foster gives us a further clue to the understanding of this case; for in speaking on this subject, he observes with great reason, that the forcing of prison doors may be considered as overt acts of levying war; the species of treason for which Benstead, of whom he was speaking was indicted. And this might have been the case in this instance. These cases confirm the conclusion, that the law made no distinction at that time, between treason and felony. A statute was made in the year after this case was adjudged, 2 H. 6. c. ult. cited by Stanford, whereby it was declared to be treason in any person imprisoned, to break prison. All which circumstances united, create a strong presumption, that this case is not correctly reported, nor the grounds of the judgment perfectly understood.

"The second case occurred thirteen years after, in the year 1441, and is thus mentioned in Brooke. A man was indicted for forging false money, and another at the same time: one confesses and approves, and has a coroner assigned him; the other pleads not guilty, and it was found that he was consenting and aiding in forging the false money, and so guilty. Stanford mentions the case in the like manner, and it is evident from this state of it, that the defendant was present, aiding and assisting, and so would have been a principal in felony as well as in treason, which is confirmed by Stanford, who proceeds

thus: 'It is the same case in rape, where one does the act, and another assists him to commit the rape; he is by this a ravisher? The law is the same in felony as well as in treason, that all present, aiding and assisting at the fact are principals. Neither of these cases, therefore, justify the doctrine advanced at this day, that whatever act will make a man an accessory in felony, will make him a principal in treason.

"The next case is 3 H. 7, 10. and is relied on by Stanford and sir Edward Coke, as establishing the doctrine abovementioned: it was thus; one Cokker was indicted and attainted of making false money, and afterwards one J. B. was indicted for traitorously and knowingly entertaining and comforting him; and was found guilty, and the question was, whether he would be deemed an accessory to Cokker? Brian justice, said he might be accessory, for such counterfeiting was felony before the statute and is not cut off by it; and in every treason, felony is implied, &c. ‘et tamen Hussey Cap: Inst: dixit quod in hoc quod factum est proditio, non potest esse accessarius felonicè et proditoriè non potest esse accessarius,' for which doctrine he refers to the preceding case of 19 H. 6. 47. Here then we have this opinion of two judges in opposition to each other; and we find the latter supporting his opinion by a reference to the very case, which, we have already shewn, does not authorize it.

6

"These are all the ancient authorities referred to either by Stanford, sir Edward Coke, sir Matthew Hale, or any writer on the subject; and it requires very little discernment, I apprehend, to discover that the two former do not warrant the latter, and that the latter is the dictum of a single judge. And Brooke cites it in that manner: Nota, P. Hussey C. I. que accessary ne poet este a treason; le recetment de traitor, ne poet este tantum felony, mes est treason.' Had this been the established doctrine of the common law, we might have expected that the laborious and indefatigable sir Edward Coke (under whose auspices it was brought to maturity as we shall see hereafter) would have referred us to the Mirror, Bracton, Britton, Fleta, or Glanville, in some of which, it would most certainly have been found."

In page 47, he adds, "Both common law and common sense have been able to perceive, and draw a distinction between the actual perpetration of a crime, and the bare advising, or even procuring the perpetration of it, without being present when it is perpetrated; they have also been able to distinguish between the perpetration of a crime, and the receiving and comforting one, who has been himself the perpetrator, knowing him to be such: it was reserved for the astute reason of judges appointed VOL. I. 3 Ꮓ

by the crown, to discover, that there was no distinction between these cases, when the sacred majesty of their master's head was in danger, or supposed to be so: it was reserved for them to declare, that to give a meal's victuals to one guilty of treason, was a crime of the same malignity as levying war against the throne, or as aiming a dagger at the heart of the monarch."

An additional reason may be drawn from the law of treason in compassing the king's death. There, as the crime consists in the intention, all are principals, and the aider or procurer in the first instance is guilty, and this rule has been transplanted or extended by theorists, to the other great branch of treason, "levying war" against the government. Lord Coke was very fond of quaint expressions; of these one was, that " in the highest and lowest offences all are principals." That in them there are no accessories. As a general principle, can this be correct? Apply it to the lowest offences; apply it to the case of an assault and battery. Suppose a man, having an enmity against another, is determined to gratify his vengeance against him; he does not act himself, but employs a bravo to assassinate or severely beat him. A. thus advises and procures B. to beat C., but is not present at the beating: will it be contended that an action or an indictment will lie against A., who was absent, for this assault and battery? The authority of Hawkins in his Pleas of the Crown, book 2d, chap. 29th, section 4th, is decisive on this point. "It seems agreed that whosoever agrees to a trespass on lands or goods, done to his use, thereby becomes a principal in it. But that no one can become a principal in a trespass on the person of a man by any such agreement." Also it seems agreed that no one shall be adjudged a principal in any common trespass, or inferior crime of the like nature, for barely receiving, comforting and concealing the offender, though he knew him to have been guilty and that there is a warrant out against him, which by reason of such concealment cannot be executed."

Could it be supposed that gentlemen would have denied this to be law? It never can be admitted that the procurer or adviser of a trespass is punishable as a principal. No man can be a trespasser against the person of another who is not present and acting or assenting to it.

Mr. HAY here insisted, that if a man procure another to beat a third, the procurer is a trespasser, and will be liable to an action or indictment.

Mr. WICKHAM. I insist that the law is otherwise; and I refer to the authority I have already produced. They can adduce none to oppose it, and were it necessary it could be con