Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-23

W me Coart, on me motion ~ arrest fhc
cridencs--deHVered on
MONDAY, August 81.
CConchdcd.)
The Cd position is founded On l Hale
s14. 2SS and 1. East 127.
While i declare that this doctrine con-
tradicts every idea had ever entertained
OH the subject of indictments, since l. az
mits that one case may be stated and a
very different case may be proved, ! will
acknowledge that it is countcnanccd by
the authority adduced in It's support. To
counsel or advise trcasouabls assemblage,
and to be one of that assem- iage, are GER
tainly distinct acts, and therefore ought
not to be charged as the same act. The
great objection to this mode Of proceeding
is, that the proof essentially varies from
the charge in the character and essence
OF the offence, and in the testimony by
which the accused is to defend h.mseif-
These dc,a of Lord Hale therefore, taken
in the extent in which they are understood
by the counsel for the u. s. seem To be re-
puguant 10 the declarations VIC find every
where, that an overt act must be laid, and
must be proved. No case is cited bv Hale
in support of them, and am strongly in
cliued to the opinion that, had the public
received his corrected, instead Of his ori-
ginal manuscript, they would, if not eX-
plunged, have been restrained in their ap-
piCation TO cases of . particular descrip-
lion. Laid down generally, and applied
universally to all cases 1T treason, they are
repugnant to the principles for which Hale
contends, for which all the elementary
writers contend, and from which courts
have in no case, either directly reported or
referred to in the books, ever Departed
rar~s Nla- won't
must give notice of the offence, that the &C
cused is only bound to answer the particu-
lar charge which the indictment contains,
and that the overt act laid is that particu-
lar charge. Under such circumstances, it
is only doing justice to Hale TO examine
his dicta, and if they will admit of being
understood in a limited sense, not repug-
Dant to his own doctrines, nor to the gener-
al principles Of law, 10 understand them
in that sense.
Z" If many conspire to counterfeit, or
counsel or abet it, and one of them doth the
fact upon that counseliing or conspiracy, it
is treason in all, and they may be all in
dicted for counterlciting generally within
this statute, for in such case, in treason, all
are principals"
This is laid down as applicable singly
to the treason OF cOunterieitiGg the coin,
ana is not applied by Hale tn other treas
sons. Had he designed 70 apply tho prin-
cine universally he woudhave stated IL as
q general proposition, lac would have laid
1t down in treating on other branches oi
the statute, IS well as in the chapter res
pecting the coin, he would have laid il
down when treating on indictments gencr-
ally. But he has done neither. Every
sentiment bearing in any manner on this
4. IT. H. =. L Il l..
while on the doctrine of levying war, or M
the general doctrine OF Indictments, mill.
tates against the opinion that he consider.
ed the proposition as more extensive thar
he has declared it 20 be. No court coult
be justified in extending the Gicjum Of {
Judge beyond It's terms, To cases IN which
he has expressly treated, to which he ha'
not himself applied it, and on which he ~
well as others has delivered opinions which
that dictum would oyCrrule. This woult
he the less justiiiabie fthcre should be {
clear legal distinction indicated by the very
terms which the Judge has espresso,
himself between the particular case t
which Alcnc he has applied the dctum, au'
other cases 20 which the court is required
TO extend IT,.
There is this clear legal distinction
They may, says Judge Hale, be indict
ed for couuterleitipg generally" But i
many conspire 90 levy war, and some &C
tuaily levy il, they may not he indicted fo
levying war generally. The books concu
in declaring that they cannot be so indicted
4 special overt act OF isvyiug war must bt
laid. This distinction between counterfeit
ing the COINS, and that class Of trcusons "a
mong which icyyinC war IS placed, is "a
ken IN the statute of Edward Sd. That sta
tu;e requires an overt act % lcvying wa
70 be laid in the indictment, and does 10
require ~ overt act cf counterfcitinc th
coin 10 be laid. III IN n particular c1e
where general iudiftmen. is sufficient
be stated that the crime m"y be charge
generally according 20 the legal eject ,
tie act, it does urt follow, Chat in other co
scs where q general indictment wculd 3
insufficient, wherc an Overt act must b
laid, that this overt act need not be lar
according 70 thc real ia-t Ea', thcn g. g
be rccSnc'lcd niJh himself, AMI with th
general principles Of law, only bv permit
ting the limits which ne has himself give