it is in England itself, improved and deprived of its pristine rigour. Why is it in England that in treason all are considered as principals? Propter odium delicti. "The same acts that make a man accessory in felony make him a principal in high treason, upon account of the heinousness of the crime." 4th Tucker's Blackstone, 35, 36. The judges found out this to be the meaning and made it an extension of the doctrine directly. Can this court indulge their antipathy, when the constitution says that treason shall consist in levying war only? Can you indulge this antipathy of the judges, in order to bring the accessory into the predicament of a principal? I must intreat you to mix a little justice and humanity into the national policy, before this antipathy be sanctioned. The true reason, why the idea ever crept in, was, because the principal source of the care of the judges was to guard the life of the king. To this they yielded with idolatry; levying war was generally treated as an overt act, and thus both, that is levying war and compassing the king's death were coupled together. Old precedents are not so numerous as could be wished, because counsel make it shorter work, by turning levying war into compassing. I believe ninety-nine cases out of a hundred, if not nine hundred and ninety-nine out of a thousand, rose from compassing the king's death. It is from that source, sir, that all the mischief has sprung; and from this the doctrine of constructive treason was extended. But how does this doctrine stand with the benignant principle of law, that all penal laws ought to be construed strictly? Does not this suggest the propriety of questioning the rule, that all are principals, as applied to the United States? Is inference only to change the nature of crimes? But are accessories to be unpunished? Here we recur to national policy. If I were to say "yes," if there be no law, it would be correct to the ear of the court, though not to the popular ear.

It could only be deemed a casus omissus, the nature of which is well known, and can only be supplied by the legislature. It appertains not to you to rectify it. If courts were to undertake to supply omissions by the legislature, it would justify the apprehensions and jealousies formerly entertained against the judges. I remember that while this part (the judiciary) was under debate, some conversation passed respecting the propriety of restricting the powers of the judges; and it was remarked by some, that they would, if unrestrained, indulge themselves in making inferences, supplying omissions and assuming authority not properly belonging to them; that they might control the legislature, become tyrannical and even become more than ephori. Mr. Wickham has anticipated me in some important re

marks, which I intended to make with respect to accessories. Congress, in the law which they passed for the punishment of certain crimes against the United States, have spoken of accessories in some clauses and omitted them in others, and in the 11th and 16th sections of that act have pointed out inferior modes of punishment. These and other clauses of that law shew, that the legislature thought, that there were no accessories in treason, punishable as such by the constitution. Who knows what were the precise sentiments which prevailed, when this subject was under discussion? It should be construed by the words, and the words only, of the constitution. If you adhere to, and preserve inviolate this constitution, you give security to yourselves and peace and safety to the nation. Having closed this point, I come now to the third question. In whatever manner an accessory is to be treated, though even as a principal, yet the mode in which he becomes so must be specified in the indictment. It is not enough to say that he is a principal; it must tell us how he has become so. It is not sufficient to make an inference of law, that he is a principal (for of what use would such a notice be?) but it must tell us the facts, with which we are charged, that we may have it in our power to understand clearly the specification of the overt acts and to defend ourselves against them. In the first place, we do not wish to know, what the conception of the law is on the part of the prosecution, but what the facts are. Of what use would the provision concerning the overt act be, unless the law were to be complied with, by specifying the same in the indictment? Could it otherwise operate as a notice? You sap the foundation of justice when you say that all are to be considered principals in treason and yet fail to explain, in the indictment, the manner in which it is intended to prove they became so. Suppose in this case or any other, a person were to be generally charged with three separate acts, which were in truth done by others, at different times and places: which is he to infer from the indictment? He would be a traitor with respect to each separate act. The indictment, instead of distinguishing to whom he was accessory or whom he aided or abetted, charges him generally with the guilt of treason. Will the assignment of the place enable him to infer which of the three acts of treason is contemplated? Is it the first act of treason charged, that he must defend himself against? or is it the second or the third? It is impossible for him to foresee. This indictment will answer for all; the prosecutor has nothing to say, but that the accused arrayed a military force on Blannerhassett's island, and the accused is to shape his defence to what does not appear. The laws of his country have only called

on him to defend himself, but have not apprised him against what. He must sit down and conjecture which the charge is. Where is he to obtain information? Is he to write to the president or to the federal judge or to the public prosecutor? He is to come to this place, many hundred miles under a guard. And when he comes, he is told, that he is considered a different man; that he is to be responsible for the acts of others; that if the indictment be good in form against him, stating him to be present and acting in person, though absent in fact, no exception can be taken in his favour on his trial; that they do not mean to deny that he was not then (when the overt acts were committed) in that country, where the scene of action is charged; but that this is immaterial, he must submit to a trial in this form, however much it may surprise and oppress him. This form of trial is not only unjust in itself, as it operates as a surprise, but is contrary to all precedents, which uniformly state the manner of advising and countenancing and other conduct which make a man an accessory and punishable as a principal in treason. It has never been attempted in this country or even in England, to prosecute in this manner. In first State Trials, page 130, when, in the year 1586, John Ballard and others were indicted for conspiring and advising to kill the queen, invade the realm and deliver from her confine. ment Mary queen of Scots, the manner of advising and aiding, in order to effect those purposes, was specially and most minutely set forth in the indictment.

Idem, page 163. In the year 1589, in the prosecution. against Howard earl of Arundel, for high treason, the mode of advising and countenancing is also fully specified.

Idem, page 187, on the trial of sir John Perrot, for high treason, in compassing the death of the queen and conspiring to assist the Spaniards when they should invade the kingdom, &c. the manner of counselling, &c. to effect these treasons, is particularly detailed in the indictment. It is so also in all the other State Trials, and is confirmed by Foster and by 1 Hale, page 238. I have not gone beyond the State Trials, but I have undertaken to say, by taking cases occasionally and from different books, that in all of them, where the treason is of an accessorial nature, the manner of committing the accessorial acts is specified.

This is the short question, whether the law then and there is to be more mild than the law here and now? whether the law shall be adjudged to be more lenient in those days of bigotry and barbarism, than in these enlightened days, honourably distinguished for improvements in the science of government and for predilection for the principles of justice, morality

and philosophy. We have all the analogies of the books on our side of the cause. For instance, in the case of a petit treason. When a man is murdered by his wife or servant and by another person, you will find that the form of the indictment begins with the principal in the first degree and ends with the principal in the second degree; and that it very rarely, if ever, begins in the first instance with charging the principal in the second degree. It is also the same in murder. Suppose two persons charged with murder: one made the assault or gave the blow and is called the principal in the first degree; and the other was present aiding and abetting, and is called principal in the second degree. How is the indictment drawn? It charges that such a person did make the assault or did give the mortal wound, and that the person who is principal in the second degree was present, aiding and abetting, &c.

I shall not say, when I refer to Foster, page 355, 356, that I am quoting a case, which is applicable to this case in all its circumstances, but I shall derive from thence, what will establish my principle.

"Cases without number may be cited to shew in general, how extremely tender the judges have been in the construction of statutes which take away clergy, sometimes to a degree of scrupulosity, excusable only in favour of life." With regard to the allowance or non-allowance of clergy, they have carefully distinguished between the cases of principals in the first and second degree, the actual perpetrators and mere aiders and abettors.

"In the case of the king againt Page and Harwood, upon the statute of stabbing, which enacteth, that if any person shall stab or thrust, &c. These defendants were present, aiding and abetting a third person, not named by the reporters, who in fact did make the thrust and was denied his clergy. But the defendants, though agreed to have been principals in manslaughter at common law, were admitted to their clergy. For, saith the report, though in judgment of law, every one present and aiding is a principal, yet in the construction of this statute, which is so penal, it shall be extended only to such as really and actually made the thrust; not to those, who in construction of law only, may be said to make it." The reason given for this exemption of the persons aiding and abetting is because it is a severe law and its punishment ought not to be extended by construction. It applies to all laws inflicting capital punishment. They may allege a distinction between the prime mover and his inferiors. How can the prime mover better inform himself, amid acts imputed of various persons, than the subordinate agents? Reason is stronger that he should be spe

cially informed of such acts of theirs, as he is to be charged with. Mr. Wickham has commented very aptly on the words of this indictment. It leads us astray; it excludes all subordinate agents and deceives us into a belief, that colonel Burr is charged as a principal, actually present at the scene of action. It does more. In the manner in which it is drawn, it deprives us of the blessing intended us by the constitution, a jury of the vicinage, because it is not known where it is to be located till the trial; and then, though discovered not to be from the place where the procurement originated, as the act of congress requires, it is too late. The accused, for instance, is to be tried at Richmond, for a fact perpetrated in Wood county, by another, but said to be procured by him in Kentucky. From whence shall he have his jury? From Wood county? They answer, that the accessorial fact is to be tried where the real fact was committed. But is not this an evasion of the constitution, which provides that a man shall be tried speedily by an impartial jury of the state and district where the offence or crime shall have been committed? The fact with which he is chargeable was done in Kentucky, where the constitution presumes his character and the characters of the witnesses are better known and where the alleged facts will be more impartially examined. We speak, as we have a right to do, on general abstract principles. You deprive him of all the constitutional benefits of locality as to his trial. You try him where his good character among his neighbours will not avail him, and where the jury's knowledge of the witnesses will be equally unavailing. I know not what dicta may be somewhere found upon this subject, but I am confident that no adjudged case can be found to justify this prosecution. If any dieta could be produced, we would oppose to them, reason, justice, precedent and analogy.

I come now to the fourth point, that the principal must first be convicted. Mr. Wickham read yesterday a case from Foster, to shew that the principal must be tried before the accessory can be put upon his trial, unless he waive it. Anobjection, which is sometimes made to this doctrine of previous conviction, aids this idea; for how can the accused else determine whether to waive and go to trial? What will be the consequences if this doctrine be sustained? By laying the offence in Wood county, you make it impossible for him to be tried, till the principal shall be tried and convicted of having committed the act, where laid. It is perfectly clear, that this indictment is radically wrong as applied to this case.

I do not wish to repeat, what Mr. Wickham has already commented on, and shall satisfy myself with his remarks; but I