August 27, 1807
Richmond, Virginia
The second position is, that the presence of the party accused at the scene of action is, by the constitution of the United States, indispensably necessary to make him guilty of the fact of levying war. In this case we lay down the broad doctrine: that in this country there is no treason but under the constitution; that consequently there is no common law treason. When there is no other than the constitutional treason, I should suppose that this could hardly be a question, because we read in the constitution the word "only," which excludes everything from being treason but what the constitution says is treason: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." To advise levying war is in its essence and nature different from levying war. The constitution says it shall consist only in levying it; the other branch, of adhering to their enemies, &c., not being at all in question. To advise or procure levying of war is clearly distinct from levying it. Every person who can read has only to open the book containing the constitution, and he reads that levying war shall be treason only. Of course, by the adoption of this strong negative word, "only," it says, that advising to levy war shall not be treason. But gentlemen tell us that at common law advising to levy war in treason, and that there are no accessories in treason. We answer, that our constitution is in derogation and abridgement of the common law, not in affirmance of it; that it excludes entirely all common law treasons; all treasons whatsoever except the two instances specified. The common law of England is not in force on any subject under the constitution of the United States. If advising to levy war be a common law treason, (that is, a treason created by the common law,) and the common law have no force in this country, how can the common law be said to have created this treason in any court of the United States? Gentlemen admit that the common law as a general system has no force here. According to the opinion of Judge Chase, there can be no crime of which any courts of the United States can take cognizance unless it be created by an act of congress, and expressly authorized by the constitution, and the constitution has never adopted that common law doctrine which says that accessories in treason shall be considered as traitors. If it can be shown, let it be shown that the constitution has adopted this doctrine of accessories. It is said that it is impliedly adopted. This doctrine of implication I trust will not be countenanced by this court. I hope to be excused for repeating, that the constitution, touching the crime of treason, is in abridgement, not in affirmance of the common law. It takes its ground independently of the common law. The statute of 25 Edw. III., from which the words of the constitution are taken, is different from it. There are many other treasons at common law which remain in force there, and which that statute recognizes; whereas there are adopted into our constitution only these two specific treasons, with negative words excluding the possibility of any other. An accessorial treason is a common law treason in its own nature. It exists in England because the common law exists there; but it does not exist here, because treason consists only in levying war. If by the common law doctrine accessories be traitors, the same consequence does not follow in this country that does in England. This crime, which is to consist only of levying was and adhering to the enemies of the country, is punishable by law according to the discretion of congress, who may punish it in whatever way they may think proper; but the powers of congress have not yet been exercised over it. Whether it be through inadvertence or otherwise, they have hitherto omitted to punish accessories, except in an inconsiderable degree, as to those after the fact, who are rescuers of persons convicted of or committed for treason. This court has nothing to do with it. It would seem very strange to the ear of an American to hear that a man might be guilty at an after day; that after the cessation of a rebellion a man may be guilty of an act of war in that rebellion; that after the war has ceased there may be an act of levying war. Yet this part of the English law the constitution has completely excluded. By the common law this crime may be committed after the war has completely ceased, by receiving or giving comfort to a party who had been engaged in it. Treason might be committed on this day, in this place, in relation to some persons who had committed treason in person in the insurrection of 1793 or 1798. This common law doctrine I consider as being cut up by the constitution. If one common law treason be cut up, all are cut up; there is no common law treason. It is only by construction and deduction that any common law treason can be admitted.If one constructive treason be admitted, all may enter. If it be admitted that an accessory before the fact, an adviser or abettor, be constructively a traitor under the constitution, by the same common law rule of construction, an accessory after the fact, a mere receiver on comforter of a person deemed to have been a traitor, may be punished as a traitor long after the termination of a war, or the suppression of an insurrection. I known no difference between a procurer or aider before, and a receiver and comforter after the fact in treason. The same rules of decision apply to both. Either both exist or are cut up by the roots. Then, sir, if according to the English law accessorial treason be the creature of the common law, it has its existence only with the common law. The person who procures treason to be committed, who plots some project to subvert the government, who advises, who hires, who counsels, who commands, or who abets a project to subvert the government, is a traitor according to that common law. If all these be created by the common law of England, they exist only there. But if the common law have no existence here, the doctrine of accessorial treason has no force here.
Gentlemen say that the common law has no force here as a general system; but they say that certain parts of it have been adopted. They will look into authorities to see the meaning of particular expressions. They refer to the common law for the meaning of words. They say that crimes have been created by using such and such words in the constitution. What is levying war? It is said it consists of such and such facts, because it is so according to the English authorities, which are founded upon the common law. They still forget the distinction: that our constitution is in abridgment of the common law, and that it was intended to stand on its own feet independently of common law reasons. Let them only recollect this principle and it will prevent them from a repetition of errors.There are no words in the constitution which warrant their arguments. Was it intended by it that constructive treason should exist in this country in any case? Was it intended that a person absent at a great distance (perhaps out of the country, in another and very remote part of the world) should be construed to be present here? that such a person should, under the constitution, be considered as guilty of treason here by acts done by others? Can there by a more unnatural and tortured construction than to suppose a person present, committing acts of treason and violence in one state, when he was peaceably and innocently occupied in another? Sir, constructive treason is abrogated by the constitution. It exists in no case in this country. We are not to consider men present when they are absent. Such a construction is as unjust and oppressive as it is unnatural and unessential to the purposes of justice.