The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-26

Hile's p. c. ls--HNc 6se, As in other
felonies 70 in this, there are or may be accefo-
ries before and after; for though this be a feo-
ny by ad of parliament t5a, peaks only oftboe
ihaf commit tire offence, yet conf. duentially and
incidentally accenores before and after are n-
Guided, and 70 ia CORY netv Ratute making n f.
lony without fpeaklrg of acce Gores before or at.
ter" The hatu,e of S, H. 4, cap. 4, was a
ta,ute TO prohibit the multiplication Of gold or
iiiver, that is achymy, (vid. Wilfon's edition of
ha!e's 2. G. GA and note a. This was an of
frnbe not exiting in any ihape at common law,
and in truth, never exiting any where but in
imagination. Hale in the page juft referred to,
fpeakng of this aatutr .fays, "And ai.bo' the Ma.
t%te mentions NOT GeesB,ries before or after, yet
this fatute making the fa6 felony, doth COME.
qiA-nfiaiytueet acceliorics before & after to the
penalty though this be made quere by Dyer
IS in Edeu's cafe, yet it E:e,at nosv Ectf ed ae-
esrdinS TO The opinion Of ny Lord Coke p. C. cap.
90, that there may be aeeeories before 81 AFTER"
Here the authority is coucluGve of the point,
that althougha ttatute creates new felony I'M
known TO the common law, and although it
lays nothing about acceiIories they are never
ihcleis comPrehendcd as necefIary confe-
quence or incident. / refer you alto, FIR, to
page 7o4 of the fame author, where the doc
trine is refu,ed: and where on the authority OF
Sir Edward Coke, il is carried TO far as to fate
that when !tatute makes felony and expressly
comprehends accefories before the fact, being
oient as to thofr after it, yet, notwithstanding
the maxim expregam taeit eeGare .aeituz,, accef-
fairies after are virtually Included. From this
examination two concluions are fairly deduct
bic.
FRI, that when ftatute creates a new felony
unknown to the common law, although fuch
itatute Jays nothing about acceffories to that
felony, yet they exit and are punifbable under
the act.
Secondly. That accefores are not the mere
creatures of the common law they may de-
rive their exiitence from ftatute /olely, and
that by mere implication under that itatute
What, then, becomes of the gen,eman's nice
tiiiues his web 70 delicately put together and
waving and glittering in the fun. 1t breaks
and vanilhas at the touch.
Since then accefories are not the creatures
merely and foley of the common law, it makes
no difference whether the common law exits
here or not acceiiories may nevertheless exit.
! Since a ftatute creating an offence, implicitly
embraces acceffories, not by the operation Of
common law, but by the reafou and nature of
things; an american ftatute may implicitly en-
brace accehories fnce whateve. may think
| of the exttence of the common law in this
country, no American, hope, will doubt that
reafon and its deductions may exit here.
|
what is certainly difproved that accefIories
are the mere creatures of the common law !;
and let us alto admit that our contribution and
act of congrefs do not embrace accehores is
it 10 very clear that we have no right to refort
to the common, in tbiJ CAFE, to implicate &C
editorial traitors. I do not, myfelf, think this
enquiry nect fairy: but it may appear 70 to
you and 1 would leave no fubjet untouched
which the court may conlider as involved in the
debate.
1t would not be very bold in me, fir, to
argue for the exifence of the common law rn-
mafc in this country. Do not let it for mo-
ment be underitood that meant to argue for
this fay only that it would not be very bold
in me to do this 4; and / fay 70 becaufe ma
jority of the federal judges, 70 far as their OPT
MONS have been made known have held hat
opinion. In Worrels cafe cited from Dallafs,
the court was divided Judge Chafe thought
the common law in force, judge Peters thought
otherwife. In a fubfrquent cafe and that
criminal one, mean the cafe of Williams, Judge
Elliworth held that the whole of the commo
law was in full force, and even that unnatural
and abfurd idea that man is forever the fubiect
of that country in which it is the pleafure of
his parents that he fna be born. Mr.. Tucker
informs Us that judge Warrington was alto of
opinion that the common law of England is in
force here. Thefe are all the opinions of which
have heard: Having thus the majority of the
federal judges in favor of the opinion that the
common law of England is in force here, re-
peat that it would not be very bold in me itand.
ing before a federal court to Unfit on the full
operation of the common law together with all
its confequences, and its imputed offfpring, ac.
ceforics among the reN. But will not avail
myfelf of this "vantage ground" My own
opinion is different one. take the principle
with much greater rehrittion and on this head
fubmit thefe reflections to the confederation of
the court.
When technical term is borrowed from any
art or fcience, we look to that art or fcience to
afcertain its import ard qualification. This is
4 rule of reafon. 1t is the foundation of the
principle cited by fereant P4ngelly from Ho-
bart, that when tatute adopts common Lazv
term, you take that term in its common law
meaning. 1t sthe foundation, too of para.
graph in one ofth mott luminous and matter
y fate papers that ever fell from the pen of
man ! mean the celebrated report Of the Vir-
ginia committe in 1899 1900 from which beg
leave TO read Mort extrad relative to our pre-
fent enquiery -" Deeply impreiied with thefe
opinions, the general afrembly of Virginia, in.
ltrutt the fenatorS and requeh the reprefenta-
tives from this fate in coDgrefs TO ufe their beG
efforts: to oppoie the paGing of any law found
ed on or recognizing the principle lately adj
vanced that the common law of England is in
force under the government Of the u. S. except.
ing from fuch oppofition, fuch particular parts
of the common law as may have fsnetion from
the contribution, 70 far as they are unnecefarily
comprehended in the technical phrafes which