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

be iutiiied in extending the dietum of a Judge
beyond its terms, to cafes in which he has ex-
preisy treated, to which he has not himfrlf APP
piled it, and on which he as well as others has
delivered opinions which that dietum would O.
verrule. This would be the lefs jufti6able if
there ihould be clear legal diftinttion indicat.
ed by the very terms in which the judge has ex
pref!ed himfelf between the particular cafe to
which alone be has applied the dittam, and o.
ther cafes to which the court is required TO cx-
tend it.
There is this clear legal diftinGfion. They
may, fays Judge Hale, be Indicted for counter
feiting generally" But if many confpire to le-
Wy war, and for,e actually levy it, they may not
be indicted for levyng war generally. The books
concur in declaring that they cannot be 70 in
di6ted. a fpecial overt act of levyng war mutt
be laid This dininaion between counterfeit
ing the coins, and that clafs of treafons among
which levying war is placed, is taken in the TIA.
tute of Edward sd. That fatute requires an
overt att of levyng war to be laid in the indict-
ment, and does not require an overt act OF coun-
terfeiting the coin to be laid. If in particu-
lar cafe where general indictment is tuthcient,
it be asted that the crime may be charged &C.
nerally according to the legal effect OF the act,
it does not follow, that in other Cafes where
general ndetNenf would be Insufficient, where
an overt aet muft be laid, that this overt ACT
need not be laid according to the real fact. Hale
then is to be reconced with himfelf, and with
the general principles of law, only by permit
ting the limits which he has himfelf given to his
own diGum, to remain where he has placed
them.
In page 2ss, Hale is fpeaking generally OF
the receiver of traitor, and is Eating in what
fuch receiver partakes of an accsfary. lit. His
indictment muit be fpecial Of the receipt, and
not generally that he did the thing, which may
be otherwife in cafe of one that is procurer,
councillor or conienter."
The words "may be otherwife' do not clear
ly convey the idea that it is universally ether
wife. In all cafes OF receiver the indictment
,nua be fpecai on the receipt, and not general.
The words it Smay be o,herwite in cafe of a
procurer, &c'' fgnify that it may be other
wife in all treafons, or that it may be otherwiie
in fome trcaions. IL it may be otherwi!e in
fome treafons without cuntradiGting the doc
triRcs of Hale hmielf, as well as OF other wr-
tiers, but cannot be otherwife in all treaions
without fuch contradiction, the fair contrutti-
on is, that Hale ufed thefe words in their re-
ftriGfed fenfe that he ufed them in reference to
treafons, in which general indictment would
lie, not to treaions where general indictment
would not lie, but an overt act of the treaion
mutt be charged. The two pai1ages of Hale
thus conarued, may perhaps be law, and may
leave him confident with himtelf. 1t appears to
the court to be the fair way of confirming them.
Thefc obfervations relative to the paflages
quoted from Hale. apply TO that quoted from
Eat, who obvionily copies from Hale, and re-
lies upon his authority.
Upon this point Keeling &c, and III Hale 62s,
have alto been relied upon. 1t is fated in both,
that if 4 man be indicted as principal and ac-
quilted, he cannot afterwards be indicted az ac-
cef1ary before the fact. Whence il is inferred,
not without reafon, that evidence of acceforial
guilt may be received fuch indictment.
" 4 IL.
ben made and decided. The Objection has nc
ver been taken at trial and overrued, nor do
the books fay it would be oyerruled. Were
fuch cafe produced its application would be
ouefionable Keeling fays, an acceffary before
the faet is gusdam mode, in fome manner guilty
of the fact. The law may not require that the
manner f1ould be Rated, for in felony it
does not require that an overt act ihould he
laid The indie. ment therefore may be general.
But an overt act of leyying war NUT be laid.
Thefe cafes then prove in their utmoft extent
no more than the cafes previouny cited from
Hale and EAT. This diftinction between in
dietments which may fate the fact generally,
and tbofe which NUT lay fpecidlly, bear fome
analogy to general and fpecial action on the
cafe. In general action, the declaration NAV
lay the afTumplit according to the legal effect of
the trasfattion, but in ipecial action on the
cafe, the declaration muf tate the material cir
cumaances truely, and they NUT be proved as
fated. This dilin6tion aifo derives fome aid
from panage in Hale, 625, Immediately pre-
ccding that which has been cited at the bar
He lays, f" If a. be indicted as principal and
Is. as scceflary bsfore or after, and both be ac.
quilted, yet B. may be indicted as principal, &
the former acquitta as acceHary is no barr
The crimes then are not the fame, and NAV
not indifereDtly be tried under the fame in
dittment. But why is it that al acquitta as
principal may be pleaded in bar to an indiet.
rnept as secrf.ry, while an aequittal as accenary
may not be pleaded in bar to an indictment
as principal? If it be anfwered that the ac-
editorial crime may be given in evidence on
an indictment as piDcipaI but that the principal
crime may not be given in evidence on an in.
dctment as accehary, the queftion recurs, on
what legal ground does this diltnction Itand |?
can imagine only this. An accefary being
1uoaani 7todo principal, in indictments where
the law does not require the manner to be fat
ed, which need not be fpecia, evidence of ac-
editorial guilt, If the puniGhment be the fame,
may politely be received but every indict.
ment as an accefiary mutt be fpecal The very
allegation that he is an acceflary NUT be fne
cial allegation, and mutt lhow how he became
an accefiary. The charges Of this fpecial in
dictment therefore mut be proved as LAID, and
no evidence which proves the crime in form
fubftantlaDy different can be received. II this
be the legal reaion for the difinction it fup
ports the expedition Of thele dicta which has
been given. If 1t be hot the legal realoD, I can