#### ^Commonwealth v. Barrett.

December, 1839.

Criminal Law — Statute Suppressing Circulation of In cendiary Publications — Construction.—To sustain a prosecution for the ofience created by the iir.st section of tile act to suppress tbe circulation of incendiary publications, passed March 23,1836 (Acts of 1885-6, ch. 66,) the person accused must be a member or agent of an abolition or antislavery society.

Felonies — Informations.*—A felony cannot be prosecuted by Information.

Adjourned case from the circuit superiour court of Bewis county.

At September term 1839, the attorney prosecuting for the commonwealth in the said court moved for rules against Bysander Barrett and ten other persons, to shew cause why criminal informations should not be filed against them respectively, for violations of the “ act to suppress the circulation of incendiary publications, and for other purposes,” .passed March 23, 1836. (Sess. Acts of 1835-6, ch. 66, p. 44.) In support of the motion, the attorney for the commonwealth produced affidavits of several witnesses, proving that the said Bysander Barrett had caused to be circulated in the county of Bewis, for the purpose of procuring signatures, and that the ten other persons aforesaid had signed, a memorial to congress, which prayed the abolition of slavery in the district of Columbia, and contained the following expressions: “ In the opinion of your petitioners, slavery and the slave trade, as at present existing in the district of Columbia, where congress has sole jurisdiction, ought not so to be, — as a sin against God, a foul stain upon our national character, and contrary to the spirit of our republican institutions.” Bysander Barrett appeared, and contested the motion for the said rule against him : whereupon, with his consent, the circuit court adjourned to this court, for novelty and difficulty, the following questions: 1. Is circulating the aforesaid memorial to congress, and iirocuring subscribers *thereto, an offence under the provisions of the aforesaid act to suppress the circulation of incendiary publications, and for other purposes, passed March 23, 1836 ? 2. Is the signing of the said memorial an offence by the signers thereof, under the said statute? 3. Is it necessary, in order to furnish the foundation of a rule for a criminal information against the said Bysander Barrett for the causes aforesaid, that there should be proof that he was a member or agent of an abolition or antislavery society ?

The response of the general court was as follows:

*234“ This court is unanimously of opinion and doth decide, in answer to the 3d question adjourned, that to sustain a prosecution for the offence created by the first section of the act to suppress the circulation of incendiary publications, and for other purposes, passed March 23, 1836, the person accused must be a member or agent of an abolition or antislavery society.

“ This court is also of opinion that the offence created by the 2d section of the aforesaid statute, being a felony, cannot be prosecuted by information ; and that consequently the 1st and 2d questions adjourned by the circuit court to this court do not properly arise in this case.”

*

See monographic *note*on “ Indictments, Informations and Presentments’' appended to Boyle v. Com., 14 Gratt. 674.