last were constrained to give sentence against the prisoner. Notwithstanding all applications for pardon, the cruel sentence was executed. The king said that he had given Jefferies a promise not to pardon her. An excuse which could serve only to aggra vate the blame against himself."

These cases and decisions (Throgmorton's and lady Lisle's), I admit, are precedents, if they choose to rely on them, and they can find no other.

Since the revolution of 1688, though the doctrine has been admitted by writers to be true, yet all the decisions of the court, that I can find, which bear upon the subject, lead to a directly opposite conclusion. The most numerous class of cases relate to convictions which took place before judges of a very different stamp, whose decisions are entitled to the highest respect. The occasion on which there was the greatest number of prosecutions for treason, in levying war, was the rebellion in the year 1745; and no one can doubt the accuracy of the reports of the decisions at that period, or the ability of the judges who presided, and the counsel who conducted the prosecutions. We all know the history of those times, and what cruelties the late duke of Cumberland committed after the victory of Culloden. His name is held in general detestation by the people of that part of the country from parent to child. Yet there was not a single instance of a conviction for assisting or harbouring the traitors. History mentions the wonderful escape of the pretender, and his concealment and protection, by the unexampled courage and fidelity of Miss Macdonald. Yet no attempt was made to convict her of treason, or others who aided him, or even to prosecute them. Though he was a long time concealed, and in eluding the vigilance of his pursuers was favoured by many, yet it is remarkable, that no person who assisted him in his distress, was attempted to be punished. But let us not draw any inference from the silence and inactivity of the officers of the crown, but advert to what was actually done.

The fact of the pretender's raising an army in Scotland, with a view of seating himself on the throne of Great-Britain; his giving battle to the king's troops, defeating them several times, and marching into the heart of England, could have been proved by thousands of witnesses. If the doctrine, that persons absent and not in arms might be charged with the overt acts of others with whom they were connected, were admitted, nothing would have been more simple and easy, than the mode of conducting the prosecutions on this occasion. The prosecutors would have had nothing to do, but to charge an overt act in some county through which the pretender's army had passed, no matter which; to prove the fact of his having done so (a fact as notorious, as that the places themselves were in existence) and then to prove,

that the person charged, was connected with the rebellion, and assented to it; whether he had ever been in the county where the act was charged upon him, or had even raised a finger in opposition to the government or not, was a matter of no importance. His conviction followed as a necessary consequence.

But did the courts and prosecutors proceed in this manner? A reference to their decisions will prove, that the courts proceeded on the contrary doctrine; and that the judges, as well as the counsel for the prosecutions, thought that they could only be sustained by bringing the overt act home to the person himself, by establishing the fact, that the accused was present, and personally committed the overt acts charged in the indictment.

Justice Foster, in his Crown Law, p. 3 to 6, gives the form of the indictment, and says that "it was used against all the rebels who were tried in Surry (except one, for reasons explained); "that the overt acts were laid in different counties of England or Scotland, as the cases respectively required; that the fact of taking and possessing the city and castle of Carlisle, was not charged on those who were not concerned in that part of the rebellion."

According to the doctrine of the gentlemen on the other side, what necessity was there of varying the overt acts from one county to another? Why charge them in different counties, if any one might be charged with the acts of others wherever committed? For what purpose was the act of taking Carlisle not charged on those who were not concerned in that part of the rebellion? If this doctrine be correct, it was no matter whether they were present or absent; if they were concerned, they were all, in the eye of the law, present on the spot. Was not judge Foster talking nonsense, when he stated different modes of charging the overt acts, if their doctrine be correct? One mode would have done for all whether they were present or absent. But this is not a loose expression put down incautiously by judge Foster, but an opinion on which the court acted.

In Deacon's case, Foster's Crown Law, p. 9, 10. it was insisted for the prisoner, that as the overt acts were laid in Cumberland, evidence of an overt act in Manchester should not be given; but the court determined, " that it was indeed necessary, that some overt act laid, be proved on the prisoner in Cumberland; but that being done, acts of treason, tending to prove the overt acts laid, though done elsewhere, might be given in evidence." It is evident from the expressions" proved on the prisoner," and "that being done," as well as the whole context, that the court required proof of an act in Cumberland, and that the prisoner himself had in person committed the overt act charged, and that no evidence short of this was sufficient.

If gentlemen doubt the propriety of this construction, there is another authority in the same book, page 22, which confirms it.

In sir John Wedderbourn's case, the overt acts were laid at Aberdeen; it was proved by two witnesses, that he was with the rebels at Aberdeen; and then proof was offered of an overt act elsewhere, which was objected to by his counsel; but "this objection was overruled, upon the reasons before given, in the case of Deacon."

What necessity was there to prove that he was with the rebels at Aberdeen? If their doctrine be law, proof that the rebels had been there, was sufficient; and that fact being as well known as that there had been a rebellion, no evidence of any overt act, of any sort, at any place, done by the accused, was wanting; proof of any act however secret, and however remote from the scene of action, was all that was requisite.

In the trial of lord Balmerino, reported in 9th State Trials, p. 605. one of the overt acts charged was his marching into, and taking possession of the city of Carlisle, and holding it for the pretender. He denied, that in point of fact, he was present at the taking of the city. This objection was met by the counsel for the crown, among whom was the late lord Mansfield, by a reference to the testimony; proving that he marched in with the rebels after the surrender, and to the other charges in the indictment which had been clearly proved; so that it was unimportant whether this was established or not. Neither lord Mansfield, sir John Strange nor any of the other great lawyers who were counsel for the crown, thought of the objection now urged by the gentlemen on the other side. They exerted themselves merely to shew, that the day was immaterial; and that the subsequent entry of the prisoner into the city, and remaining in it with the rebels, was sufficient for his conviction, exclusive of the other acts proved. Had they understood the law to be, as the counsel for this prosecution understand it, they would have at once replied, "Whether the prisoner were personally present at Carlisle or not, is of no consequence; others with whom he was connected were there, and did the act charged on him, and as all are principals in treason, their acts are his." But they urged no such doctrine; it was reserved for the ingenuity of future ages to discover it. It is evident that they thought it necessary to prove that he was present and an actor in the scene where the overt act was laid; or that this charge in the indictment must be abandoned. This has uniformly been the rule, nor can any instance be shewn, where a party who was not present himself where the act was done, but a mere procurer, has been subjected to the punishment of

treason.

In opposition to these decisions, (given at a time when there was certainly no partiality in favour of the accused, but as much learning and virtue on the bench, and as great a portion of taFents at the bar as in any period of English history, and which

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 Tucker'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.

"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, 255, 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. çites 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.