Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-23
to his own dictu.n, to remain where he has

-
! of the receiver of traitor, and is stating
in what such receiver partakes of an &C
lcessary. LIST. Z" His indictment must be spe-
cial ofthe receipt, and not generally that
/ he did the thing, which may be otherwise
] in case Of one that is procurer, counsellor
or consenter."
! The words "mgv be otherwise" do not
clearly convey the idea that it is un;ver-
sally otherwise. In all cases Of a receiver
the indictment mast be special on the re-
ceipt, and not general The words il
&c n,Gy he otherwise in case of procurer,
| Ssc." signify that It may he otherwise in all
treasons, on that it may be otherwise in
some trcasons. fit may be otherwise III
some treasons without communicating the
doctrines Of Hale himself, as we'll as of o.
thcr writer's, but cannot be otherwise In all
treasons without sGCh contradiction, the
fair construction is, that Hale USED these
words in their restricted sense that he
used them i'll reference to treasons, in
which 4 general indictment would lie, not
70 trcas0ns where u general indictment
woald not lie, but an overt act OF the trea-
son mast be charged. The two passages of
Hale thus Construed, may perhaps be law,
and may leave him consistent with himself.
II appears GO the court TO be the far way of
constituting them.
These observations relative to the pas
sages quoted from Hale, apply 10 that
quoIcG from East, who obviously copies
from Hale, and relies upon his authcri-
~.
Upon this point Keeling % and LIST Hale
626, have also been relied upon. IL is sta
ted in both, that ifa man hc indicted as
principal and acquitted, he cannot after
wards be indicted rs accessory before the
fact Whence it is iuferres, not without
reason, that evidence Of accessorial guilt
may be received en- such an ind;ctne m.
Yet NO case is found IN which the question
has been made and decided. The obiec-
tion has never been taken 1t trial, and
oveTri.ed, nor do the books say II would
be ovcrruted. Were such a case pTolu-
Ced It's application would be qTestiona-
hie. hecir.g SAYS. ar acctssary before the
FACT is qQodoH, DieIo, j. some manner gull
ty OF the fact. The law may not require
, that the manner should he stated, for in fe-
loEy it does not require that an overt act
should be laid. The Indictment therefore
may be general. But an overt act OF levy.
ing war mus be laid, These cases then
prove in their utmost extent no more than
the cases previously cited from Hale and
| Last. This distinction Between indictments
which may state the fact generally, and
! hose which must lay specially, bear some
| naiogy to general and special action
on the case. In Il general actou, the de-
| Claration may lay tine assumpsit according
| to the legal eject of the transaction, but
IN special action on the case, the dccia-
| ration must stale the material cirCumstan-
ceS truly, and they must be proved as sta
| ted. This distinction also derives some
aid from passage in Hale, CPS, immcdi-
Ately preceding that which has been cited
( at the bar. lie SAYS, g II A. be indicted
as principal ami =. as accessory 6ct5re or
| gffer, and both be acquitted, yet p. may
Ne indicted as principal, and the former
acquit5al as accessory Is no bar"
| The crimes then are not the same, and
may not indiferently be trio! under the
same Indictment. But Why is it that an
acquit:ai rs principal may be pleaded in
bar to an Indictment as accessory, while
an acquittal as accessory may not be plea
dcd in bar to an indictment as principal ?
If it be answered that the acCessoriaI
crime may be given in evidence on an in
dict;ment as principal, but that thc princi.
pal crime may not be given ~ evidence on
an Indictment as accessory. the question
rCcurs, on what legal grOugd does this dis
t'ncton stard / Can imagine only this.
An accessory being guc0nHl HOdo "A prin-
cipal, in indictments where the law does
not require the manner 20 5e stated, VIII Oh
need not be special, evidence OF acccs5ori-
al guilt, il the punishment be the same
may possibly be reCe we'd but every in.
d'c,mcnt rs an accessory must b. special
The very allegation thHt he is I'D accessory
must be a special -s,atioG, and must show
how he became an oCCessarv. Jhu char
gcs OF this special indictment therefore
must be proved as laid, and no evidence
which proves the crime IN form su55.an.
italy different Can be received Il this 10
the legal reason for the distinction il sup.
ports the exposition Of these dicta which
. has been given. If be not the legal rea'
son, can conceive no other.
! But suppose TIC law ODE as is contend
3 ed by the counsel fu the United States
Suppose an indictment charging anindivi.
dual with personally assembling among o.
theirs and thus levying war, may be salts
fed with tho proof tltat he caused tie as
b sembiage What eject will this law have
upon this case
The gull; Of The accused, If there he any
d guilt, does not consist in the aseeublage
for he was not q mcnibcr oft. The 8 M
pic fact OF assembi3ge no more affects ON;
absent mau shan another. Eis gutit thel
. consists in procuring the a scmblagc, anC
upon this tact depends his crimiuality.- -
! The proof relative to the character ol al
q fr.Esmbllge must be thc same whether
81 nan be present or absent. I1t6e general
. GO charge any individual with the guilt b.