The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-22

TO whom commissions were delivered. But IN
the treafon of 'c> ring war the mott ufual form |
vs. to charge the war to have been levied with
perlons unknown, and that in cafes were the
perfons certainly were knowa. Thus Lord
Balmerino and the ears of Kilmarnock and
Cromattie were IN arms together on the field OF
Cullodsn. They were taken prifoners toee.
Their they were fe-eraliy indicted ON the fame
day for the fame offeuce; arragned on the fame
day and although, there fore, it is clear that
they were all known to the attorney for the
crown, vet each indictment charges them to
have levied war with perfons unknown. The
gentleman fays il is not enough to charge the
pr'foner with ievying war but that in the overt
act we fhoulc have fet out the particular atts
which were done by the prifouer, ard the evi.
dsnce by which we mean to charge him. deny,
hr, that this is law. 1t is Queffion Grizzly legal,
and therefore is to he decided by authority.
Fan, vol. page Is, after Eating that in eve
ry Indictment tor high treafon, the particular
ipeccs oftreaion mum be charged ~ tie z,ery
terms of the fa'n,e of Edward as the futitauti-
al offence, adds that I" then fome overt act
mutt he laid as the means made ufe Of to ef!ec-
tuate the traiteruus purpofe." He proceeds,
The overt acts 70 laid are, in truth, the
charge to which the prifoner mutt apply his de-
fence. And therefore it is in no cafe fufficient
to a'ledge that the priforer comps!ed the kings
death, or that he levied war againft him, or
adhered to his enemies for upon charge 70
general and indefinite he cannot know what acts
he is TO defend. The particular acts of COM
Pai'inS and adherence mutt he fet forth and
IN the other inttance" Chat of levying war) /" it
mutt be al!edEed that BE aDcmbled eyitb a mil
t'fHde arnae@ y arrareI in q zvarIke n,znner 9
Ie1'ied evar :" & thus in our indictment il is al.
fedged. EAT proceeds, Tbeindietr1sn,s againN
Damaree & Purchafe fo- pulling down meeting
houies charged that they with a multitude to
the number of 500 to the jury unknown, arm
ed ard arrayed in a warlike manner with clubs
and itaves, and'o'her arms offenfive and defen.
ilve, levied war againft the queen. No cxcep-
ton was taken to the Indictment by Damaree's
council; but on behalf of Purchafe it was oh.
Jeeted that there ought to have been an overt at
iad or the treafon becaufe there being flch
variety Of facts which amount TO evying war. if
the particular facts intended to be brought for.
ward againtt the prfoner were not alledged,
he could not know how to make his defence
Bnt IT qra5 rej0ived by all tie Judges upon cor
ference that tie inRidment zva5 good and that
Iez,ying Guar being an o7ert al of iljeifno otter
o1'ert aF need be aAedgea.' The indictments
IN thofe cafes are fuhfan;iaIly fated by Potter
21S-l4 and the indictments themfr!ves will be
found in State Trials 2ls-ls. Now in thofe
cafes the acts which thefe men did and which
conttltuted their crime was pulling down meet.
ing houics; but in the indictment there is not
word of meeting houfes or any other houfes
the overt act is, THAT with a multitude armed
and arrayed in warlike manner they levied
war aganft the queen and the court upon To-
Tenn argument, and after conference decide
unanimously that the indictment is fufficient,
and let in the particular evidence under il,
And AS to the overt att's Eating the eyiGenee
on which we mean to rely, it is expressly de-
clared by EAT 1871, on the authority of varie-
~ OF cafes which he cites, that it is not ne
ceiiary that the whole detail of the evidence
ihould be fet out" In direct confirmation of
this doctrine are Fofer1s4. 22o. III. HIP.
c. l22. L. St. Trials 79e Lowick's cafe, and
ST. Trials 696T Rookwood's cafe.
Mr. Wickham does not fay that this minute
iPecihcation on which he Unfit has ever been
adJudSed nsceffary, but he infers it from the
form OF inditmcnts in feveral cafes which he
mas cited. They do not fi,pport him. In the
cafes OF Bamerino, Cromariie and Kilmarnock, |
Ii is true, as have before ftated, that thofe in
dietments lay as one overt aet the entering and
taking poiiellion of the town and cattle of Car
HE but in the lirf named cafe this fpecfcati-
on is declared to be unnecehary and it is faid
that the general overt aet of levying war with
an armed multitude would be fufiicient to let in
the evidence. Thefe cafes, therefore, inftead
OF Importing Mr.. Wickham difprove the
doctrine for which he contends. He Gill in |
hlts, however, that wherever it was intend. |
ed to crIminate man by accefforal acts, the |
particular acts which he does, run be frt |
out and to prove this he again cites the |
indictments in the cafes of Hewitt and Nor
daunt before mentioned, and of Cornif |
aniwer fFit that no legal principle can
be lately inferred from the mere forms of
the indictments in the State Trials. They have |
been continually Hitting and changing Thus
the cafe cited by Mr.. Randolph from the frft |
State Trials exhibits an indictment which is
really legal c,irof!y the treafon there charg- |
ed IS comPafiing the Kings death and the in
dIc'ment Is as much in detail as Pope's hifory |
OF the parlih clerk. But the inference that this |
detail Is necefiary is rcfuted by exprefs au,hori-
ty; EAT 1915 on various authorities informs |
us that it is tulficient in that fpeties of trea-
fon (compafliDg the Kings DEATH to lay |
as the overt al tina, A. and B. met and |
propo!ed the Kings death. Beides, what be-
comes of this inference from an Indictment 70 |
much in detail Cat period when as Mr.. Ran
doiph Jays not ray of judicial light had |
touched the Enghlh horixon) when in modern |
times Of greater light the indictments exhibit |
nothing of this detail. An inference from theft |
modern indictments, that this detail is not ne !
ceflary, is certainly as fair IA the inference from
the ancient indictments that it il niece fairy. !
Thus your differences are in conflict and deltroy |
each other. ] refer you TO the cafe Of wick |
and lockwood frf cited for another purpofe,
to lhcw that this minute and circumhsntia |
form of indictment is exploded. refer you
ALTO to the Apprentices cafe 2 ST. Trials 53l to |
H.