force is not treason. He says, that "holding a castle or fort, against the king or his forces, if actual force be used, in order to keep possession, is levying war; but a bare detainer as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason." Foster, Hale, Hawkins, Coke, Kelynge, Reeves and all other writers, you will find concur in proving, that not a single indictment for treason in levying war has ever been carried into complete effect in England, without actual force.

This treason is divisible into three distinct ideas. 1st. The intention. 2d. An assemblage: 3d. The use of force. If the first and second only happen, what harm can result which will not be punished in a lesser way? If the third shall not be necessary where is the locus pœnitentia? Shall all be punished with death? Will any assemblage of men, without the use of the least violence or force, be said to constitute treason, when they are perfectly peaceable and not even so much as a riot committed? Between such an assemblage and the commission of treason, there is a great and natural space. Shall it be said, that because two out of the three component parts have occurred, the offence is consummated without the third? You see that I am not speaking now with reference to col. Burr, because the crime imputed to him is accessorial; but I am speaking of the principal, as Blannerhassett, Tyler or Smith; that actual force must be proved to have been employed by them, or some of them, or that there was no war levied; but this branch of the subject will be more fully explained hereafter.

The maxim "furor arma ministrat" does not apply to this case. Where a great number meet, with a design to commit universal mischief, and begin it, there their number and fury supply their want of arms; and they are guilty of treason as soon as they proceed to the execution of this universal devastation, though they are not armed with military weapons. But here there is no proof of such a design. The assemblage must be armed in military array; there must be a military appearance, a military exhibition, to make it treason and to connect Blannerhassett with colonel Burr.

Amidst all the difficulties of this trial, I congratulate your Honour, on having an opportunity of fixing the law, relative to this peculiar crime, on grounds which will not deceive, and with such regard to human rights, that we shall bless the day on which the sentence was given, to prevent the fate of Strafford. 6 Hume 340.

The second point, which I propose to establish, is, that Mr. Burr cannot become a principal even if he were an accessory.

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 common 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 Pennsylvania 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