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T tc Tl P< of fli Oi b« th ai( ot fir ai( or Th ah Til w» Ml dif •n\ bei rigl req ma 10X 14X 18X ax 26X 30X y 12X leX 2DX 24X aiX 32X air* > d«tcils lUMdu t modifivr lg«r un« » filmag* Th« cOiiy film«d h«r« has baan raproducad thanks to tha janeroslty of: National Library of Canada Tha imagas appaaring hara ara tha bast quaiity possibia considaring tha condition and iagibility of tha original copy and in Icaaping with tha lliming contract spacif ications. L'axamplaira fiimA fut raproduit grAca A ia gAnirositA da: BibiiothAqua nationaSa du Canada Las imagas suivantas ont AtA raproduitas avac ia pius grand soin, compta tanu da ia condition at da ia nattatA da l'axamplaira f ilmA, at an conformitA avac las conditions du contrat da filmaga. 1/ uAas Original copias in printad papar covars ara filmad baglnning with tha front covar and anding on tha last paga with a printad or illuatratad impras- slon. or tha back covar whan appropriata. 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Ira Maps, piataa, charta, ate, may ba filmad at diffarant raduction ratios. Thosa too iarga to ba antlraly includad in ona axposura ara filmad baglnning In tha uppar laft hand cornar, iaft to right and top to bottom, aa many framas aa raqulrad. Tha following diagrams iliustrata tha mathod: Las cartas, pianchas, tabiaaux, ate, pauvant Atra filmAa A daa taux da rAduction diff Arants. Lorsqua la documant aat trop grand pour Atra raproduit an un saul clichA, il aat filmA A partir da I'angia supArlaur gaucha, da gaucha A droita, at da haut an baa, an pranant la nombra d'imagaa nAcaaaaira. Laa diagrammas suivants illustrant la mAthoda. >y arrata ad to int na paiura, ipon A 1 2 3 nn r 1 2 3 4 5 6 A COAIM YOUTI ; .«: •*.-:■ ■ r CRIIM vKom A CLASS BOOK, FOB fHE USE or €OMMOX SCHOOLS AND FAMILIES, IN THE UNITED CANADAS, 5 ENTITLED THE YOUTH'S GUARD AGAINST CRIME, UAVINO XMBODIED IN IT ALL TBI CRIMINAL LAWS OF THE LAND, CONVSNIENTIT ABRIDGED. I 4 ■ ■^1^'^— ^^>>»^**>S^^^^'S^**»^»*^^i^^^^^^>^^*»#**^ BY ISBAEL LEWIS, C. M / KINGSTON: PRIBTBD LT THE ATHENEUM PBIIITIIfa OFTICE. ^ 1844. <^ . • ,r'<'-'^ '< >. A J ' ) / • 'I" ! .''!({! " ■.'I i: ' . ''. ' ^i. N, ■ '{♦' :. •» ■ i t KINGSTON . r i i r < ) \ I ' ; , i \ , Entered, according to Act of the Provincial Legislature, in the }'car of our Lord one thousand eight hundred and forty>four, by Israel Lewis, in the Office of the Registrar of the Province of Canada. '. /. i< ■ / I ■ '■ , / ROBERT R. SMILEY — PRINTER. ir Th£ Aut to be use it is also s gresssions that the II Criminal amounts a any knovvl Judges an( believed er customary the lowest teach usefu community land, and t! a notice pu would be e teams. — M crime is pn why not in the Countr that they ^ Kingston ADVERTISEMENT. n the jtar Lewis, in Thi Author believes that all men were created by their Maker to be useful, in their day and generation, to their fellow creatures ; it is also stated that where there no are Laws there are no trans- gresssions ; and it may be enforced safely by every reflecting mind, that the limited knowledge of the existence and bsaring of all the Criminal Laws of this Province, amongst the common classes, amounts almost to there being no Laws at all, so far as they have any knowledge of the fact. In proof of my remarks, I have seen Judges and Magistrates compelled to punish oflenders whom they believed entirely ignorant of the Law they had violated. It is customary in all the institutions of learning, from the highest to the lowest, to state that it is the object of all concerned to teach useful knowledge, — and what is more useful than to give tlie community a full understanding of the Criminal Laws of the land, and the consequences of their being violated. I have seen a notice put up on a bridge, stating that a penalty of live shillings would be enforced for crossing the bridge faster than a walk with teams. — Men saw the Law, and therefore did not violate it. If crime is prevented in this case by having a knowledge of the Law, why not in many other cases ? Persons knowing the Laws of the Countrj' ought never to violate them, because they also know that they will be punished accordingly. ISRAEL LEWIS, C. M. Kingston, March 1, ISU, . •»' I -* %. In in trod u in Commc remarks oi out by reft was a crin The law words : — < every tree knowledge f«test tlier 6 & n. ininal — Db violated it. Adam shoi up in a vol magnitude from the c( oould not fs by the pers God did nol in hif oivn !Becaut« thi accordance promote the IXMtority. Ihe criminai htfl God «n(] Ai' !' '.' ;:? INTRODUCTION. In introducing this work to the public, to be used ns a Class Book in Common Schools, it may be proper for me to make a few remarks on the merits of the work ; and, in s*o doing, 1 shall set out by referring to the first law that Ood gave unto Adam, which was a criminal one — Ix}cause there was a j)cnally attached to it. The law, vt» given by the Almighty, is found m the following; words : — *>' And the Lord (nxl commanded the man, saying, of every tree in the garden thou mayest eat ; but of the tree of tlie knowledge of good and evil thou shaltnot eat : for on the day thou oaiest tliereof thou shalt surely die," Genesis, chap, ii : verses 6 & 17. This law was, in my opinion, both Divine and Cri- minal — Divine, because God gave it, — Criminal, because Adam violated it. The law was made public in tlie garden, in order that Adam should read atxl understand it. It was not hid and locked up in a volume, as our Revised Statutes are — which^ from their magnitude and value, cost fifty shillings, and thereby are excluded from the common people ; but it grew upon a tr^ , rto that Adam oould not fail to see it, and did see it. But he w&i carried away by the persuasion of (be wicked one ; and, as he broke the law, God did not fail to enforce tiie penalty. In so doing, lie was just in his own eyes, in tlie eyes of angels, and of men. Why so? Becau!« tlie law he gave unto Adam to observe and keep was in aocordunce with His own glory, and at the same time intended to piomoie the spiritual and temporal happiness of Adam and his posterity. In consequence of that rash act of Adam, in yiolating Ihe criminal code of bis Sovereign, he incurred the indignation of his God and Kin^ and brought an and death into the world,^-' 'ilili i: Ti IlfTRODVC'TION. ;^ by which the whole human family were made to mourn. It MemM that at one time, in the garden of Eden, tiicre wan a kind of frienduhip between Adam and the most ferocious boagU of the forest : the lion and the lamb agreed together ; the fowls of the air tluttcrcd around him without fear, as if they knew that all created (Ictth was the handiwork of God, and should dwell together in unity. But when Adam violated the most sacred law of his Creator, enmity immediately sprng a up between God and man, and beast and bird. All the happiness they once enjoyed was at an end ; which was the natural consequence of man break- ing the fin?t law given to him to observe and keep inviolate. I feel it my duty, in preparing this work, to record in it the Ten Commandments, which we find in the law of Moses, and which 1 consider to be a Divine Law, that will serve as a con- necting link between the Moral Law of God and the Criminal Law of our Sovereign Lady the Queen. Those who keep the Moral^Law of God, in nine cases out of /en, will be found keeping the Criminal Laws of the land — because it forms a part of their moral character ; and from those who make no other pretensions to religion than the observance and preservation of the Criminal Laws, we may expect the most flattering support in the introduction of this work. They will have a disposition to respect and honor the moral law, and at the same time think favorably of the Chris- tian Religion; because the criminal law, by which society is protected, is based upon those great principles of Love and Benevolence which gave birth to the moral law of God, and have been revealed to us for the good of mankind and the redemption of the world. >ii t >VJ|. 'I shall now enter a little more into the importance of placing th Criminal Laws in every family and Common School in the "''^'^,- ? evince. I consider these laws of the land to stand in near re- ation to that book of books the Bible. It may be asked by some. — what to those Criminal our Sove and the persons. At the 81 of enjoyi importan Criraina every fan will feel or family premises, committa knowledg duco a pr olate. T the land, m HerM Common on the hi sentence Schools c nal Lawe of the lai majority, nal Lawi friends ol Britain, \ ly in whi the propr of the C It neeiDM kind of td of the la of the that all d dwell rred law God and enjoyed in break- te. 1 it the ses, and ts a con- Criminal ceep the I keeping t of tlieir ^tensions Criminal uduction id honor 8 Chris- iciety is ve and nd have emption placing in the lear re- Y some, MTKODUCnOM. VII ^•what do theffe lows contain that is so valuable ? I will remark to those who ask. this question, that the Statutes contain a code of Criminal Laws given to us from the Throne of Great Britain, by our Sovereign, as a guarantee to every good subject uf life, liberty, and the enjoyment of national happiness. They aloo protect our persons, and those of our wives, our children, and our property. At the same time they throw around us and about us the means of enjoying civil and religious liberty. Such being the case, it is important that every man, woman and child should understand the Criminal Laws. If I succeed in getting a copy of this work into every family, I am led to believe that the head of thoae families will feel themselves called upon by every consideration of self or family preservation to act the part of a Magistrate on their own premises. If this should be done, it would not be long before the committal of crime would be but rarely known in our land. A knowledge of these laws among the rising generation would pro- duce a pride and ambition in them to see that they were kept invi- olate. They will never become stale, becaase they are the laws of the land, and are identified with the best interests of every subject m Her Majesty's dominions. If this work should find its way into Common Schools in ten years to come, the Judges and Magistrates on the bench of Justice will have no hesitation in pronouncing sentence against an offender, who has been taught in the Common Schools of the land, and thus became acquainted with the Crimi- nal Laws of the Nation. There would be no pleading ignorance of the law, as is often the case in our Courts now ; for the great majority of the community do not at present understand the Crimi- nal LawS) — which they should do by all means. I hope the friends of the Bible, and particularly the Bible Society of Great Britain, whose object is to place a copy of the Bible in every fami- ly in which it is possible to do so, will also take into consideratioi^ thepropritey of giving to each family in the Nation an abridgemen of the Crimiaai Laws. I see a cofresponding sympathy between Till ifr^ftODVcnoir* P ^. '*^v. the Bible and ihe§e Itwt. A proper obiertanee of the former wtll enforce implicit obedience to the Ittter : earely both thouldi therefore, be equally known, equally read, and equally underatood. A pro|)er knowledge of the lawa early planted in the mindt of our youth, for the building up of a moral ehnrarctcr, will form a founda- tion which will grow in strength and beauty, and aid in advancing society. As men pass f''om youth to old age they will bo ready at all timett to defend the laws of their Sovereign, because they understand them. They will live for them ; they will die for them, if they t\re invaded by an internal or external foe. Every individual should obey the laws, for two reasons : firstly, because they pro- t(*ct his person and property, and secondly, because by so doing he will secure the approbation and countenonce of his Sovereign, through whom lie derives those blessings : but by violating them, he saps the foundation of his own liberty, and at the same time in- vokes the justice of the law giver upon his own head ; and the consequence is that all Magistrates, Sheriffs, Constables, and other officers of justice, arc called upon to seek out those offenders, if they are to be found in the land, and confine them in gaol to await their trial before the Judges of the Nation, and if found guilty by them and an impartial Jury of their countr}', they will be punished according to the crime they have committed, either by death, banishment, fine, or imprisonment. Man by his own unguarded act, in violating the law, and displeasing his Queen and country- men, is driven from society, as Adam was from the garden of Eden for di8ol)eying and insulting his King. Thus, offending man must suffer death as a murderer, or linger out a miserable ex- istence in some dungeon or lonely cell In the prison of the State. The evil effects of disobedience to the laws do not always follow the Convict to the place of bis punishment; he leaves behind him a bereaved Father, and weeping Mother, to mourn over the fate of a t|e|B[raded child. What a train of evil consequences follow a viola- tion df^ law ! I am clearly of opinion that, in cider to check these eri and ond^ what 1 Ikir :— th violating laws, an^ have oficj of tlie sti cred a trl make a I disapprov iiliould 1)0 appro sound in He is call that by tlx breadth o oommuni and authc utility ant perpetual INTIODCCTIOH. is thoee erimei and conaequencot, the la^ra ■houlJ be road, felt, and andenitood, by every individual in the countn'. To prove Miat 1 aay. to be true I will refer the reader to the Lawyers of tlie I^r : — they underntand the law, and we hardly ever hear of their violating it. The reason id, because they are ac(|uainted with the laws, and can make more by keeping than by breaking them. I have ofien thought that the Criminal Laws should bo made a pnrf o( tlie study of Theology : all Criminal Law should Im3 consid- (Ted a transcript of the Divine Law. No human power should make a law to punish his follow man that the Divine Law would disapprove of. kihould the reviews ho has advanced in tlic foregoing remarks 1)0 approved of, the compiler hopes that study will prove them sound in theory, sound in practice, and lieneficial to mankind. He is called upon to believe, from the be«t feelings towards all men, that by the circulation of these laws throughout the whole length and breadth of the land, they will call forth a friendly discuHsion by the community, in order to better secure to themselves their validity and authority. Institutions are never more safe than when their utility and value are discussed by the people, whose object is to perpetuate them. ^ » - - ( _» f 'i\ r .»*in? 1/1 : MlJ i'J ■f.'ii;' 'j«i.i ';' IM ■.' ' \ ,i>','',.J'': iiji'i {•' l'> vr.l i» ' I ' * ;i;? n; T:»».';'>i '^f! «• iU 1.1 ■!,; .1 ' :■' ' .J M ■ I • ( W,( i I .7 •>. i !CtK . ir .M''»i. /:i i I THE I 1 i; ,,-ii • % I i , » f t ■ .'. t: II ', II t t ' ...I . ' ' ' ".c- 1 I • 1 1 f .1 . . I ' ,1 . '>i^ ''-Ml V • I ;i; •'-•;( ■ ' , '. 'li: '>!:■ ^^ i< '., ,,[•;..,(• ..;; ■;' ly i\i . "^' :'P^ '' .- ■ ', ■ 'i 1^ >• ,1 >l- I. I thee o of bo before II. ' image, above, the w£ down Lord t quity thiid a and sb me. at 111. Godii that u IV. Sixd£ the s God: .:-r'i.ri •'•■/'.\tAt <;;?« fti "iirif'V -mw ( f , • . if I , ./_■'!■ THE YOUTH'S GUARD AGAINST CRIME, \l . BEING A ii Iv.f- ■; :. :r 1 1 CLASS BOOK FOR COMxMON SCHOOLS. i . I 1 1 ft THE TEN COMMANDMENTS. n- EXODUS, CHAPTER XX. L I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage: thou shalt have no other gods before me ' 1. IL Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is iu the water under the earth. Thou shalt not bow down thyself to them, nor serve them ; for I the Lord thy God am a jealous God, visiting the ini- quity of the fathers upon the children, unto the third and fourth generation of them that hate me ; and shew mercy unto thousands of them that love me. and keep my commandments. IlL Thou shalt not take the name of the Lord thy God in vain : for the Loid will not hold him guiltless that taketh his name in vain. IV. Remember the sabbath day, to beep it holy. Six days shalt thou labour, and do all thy work : but the seventh day is ihe sabbath of the Lord tbf God : m it thou shalt not do any work, thouy nor 12 TUE T0im|'9 OUARD AOAINST CRIME. thy son, nor thy daughter, thy man-servant nor thy maid-servant, nur thy cattle, nor stranger that is with- \h thy gates : For in six days the Lord made heaven and earth, the sea, and all that in tliem is, and rested the seventh day ; wherefore the Lord blessed the sabbath day, and hallowed it. V. Houor thy father and thy mother : that thy days may be long upon the land which the Lord thy God aiveth thee. •(! VL Thou Shalt not kill. VIL Thou shalt not commit adultery. : VIIL Thou shalt not steal. ' ( I ' 1 XIX. Thou shalt not bear false witness against thy neighboMr. .. ,,, , . , ,, ,j,,f ; r; yi X. Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his man-servant, nor his maid-servant, nor his ox, nor his asSj nor any thing that is thy neighbors. iij }' ■ '/cA i,-J; til'. I : i. ii.ti Jj.itf' III t! > '■ 'il' it r ' I ff'.>\J ".-'.• ill -ft; >a;jj Jiiill ^^^i.J ; -[sow y.i; 11/j of; i.ji .iPOui.! j 'l'' j! : •■• y"u\) 7A^ i :« I '5 I .^^ Crimes viola them righte 1. or am biddin compij propeJ thoug^ made more i i^ions ( gentle 2. ] is gen misde which libels, comn "». ; of cr geemi wronj tion c eonsi( •)■ ] } nor m in 1) I Or) 4 •.-•/);»■> Xli/*i yj» -aii.-.'.iv: > If', inY Wir ^. ti lOij;'.'' :f ; "•]' 1 ', ,.">if:i ;: •>•■ :i .i '''I ''^\i:. \'^??\ -:'■■;'!. ':'^», V: '>'';, 'f. ' |y< • > I r-.^i' • .' ' Wl^: i I, ' ' ' J COMMON LAW QP ENGLAND. OUTLINES OF CRIMINAL LAW.* ^^ PART FIRST.— THE HATVRE OF GRIMES. Crimea and Misdemeanors defined—- Acts committed or omitted io violation of a Public Lav^, either forbidding or commanding them — distinguished from civil injuries — Violation of public rights due to the community. * 1. A crime, or misdemeanor, is an act committed or omitted in violation of a public law, either for- bidding* or commanding it. This general definition comprehends both crimes and misdemeanors ; which, properly speaking, are mere synonymous terms ; though in common usage, the word "crime" is made to denote such offences as are of deeper and more etrocious dye ; while similar faults and omis- sions of less consequence are comprised under the gender terms of misdemeanor only. 2. In the English Law, however, ** misdemeanor" is generally used in contra-distinction io felony ^ and misdemeanors comprehend all indictable offences which do not amount to felony or perjuiy, battery, libels, conspiracies, attempts and solicitations to commit felonies, d^c. ■k >. * ' 8. The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that privatse wrongs or civil injuries are an infringement or priva^ tion of the civil rights which belong to individual!* eonsidered merely as individuals ; public wrongs, or i^ 14 THE YOUTHS GUARD AGAINST CRIME. crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity. 4. As if I detain a field from another man, to which the law has given him a right — this* istfivil inji'iT, and not crime, for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land : but treason, murder, and robbery, are properly ranked amono' crimes; since, besides the injury done to individuals, they strike at the very being of society, which cannot posoibly subsist where actions of thia sort are suffered to escape with impunity. , , 5. The distinction between public and private injuries, seems entirely to be created by positive Laws, and is referable only to civil institutions. \:\\ G. Every violation of a moral Law, or natural obligation, is an injury for which the offender ought to make retributionto the individual who imme- diately suffers from it ; and it is also a crime for which he ought to be punished to that extent, which would deter both him and others from a repetition of the offence. <>!-i[ ?;I Ji ion .:b i\::\&if 7. In positive Laws, those acts are denominated injuries, for which the Legislature has provided only retribution, or a compensation in damages ; but when from experience it is discovered that this is not sufficient to restrain within moderate bounds certain classes of injuries^ it then becomes Qf^cessajry for the Legislative Power to raise them inta crimes, and to endeavour to repress them bj r^^ the U Public 9. in the! refere( acts 10. meano^ the w( tion, te the 11. every somew wise a 12. death, dual, \ species tends t tractio this d( nitude 18.1 dual; the los of a m set for 14. view ; were ^ THB VOVnCu QVJLB» AGAIirfT CRIMJ3. 15 the terror of punishment, or the sword of the PobHc Magistrate. •- > HV.iiv/ i-. i.Oiintv -t j -.('j 9. The word " crime" has no technical meaning in the Law of England. It seems, when it has a reference to positive Law to comprehend those acts which subject the oflfender to punishment. ^" 10. When the words high crimes and misde- meanours are used in prosecutions by impeachment, the words high crimes have no definite significa- tion, but are used merely to give greater solemnity te the charge. , , . ' H. In all cases the crime includes an injury ; every public oflfence is also a private wrong : and somewhat more, it afifects ihe individual, and like- wise affects the community. 12. Thus, treason, in imagining the King's death, involves in it conspiracy against an indivi- dual, which is also a civil injury ; but, as this species of treason in its consequences principally tends to the dissolution of government, and the dis- traction thereby of the order and peace of society, this denominates it a crime of the highest mag- nitude. ' 18. Murder is an injury to the life of an indivi- dual ; but the law ©f society considers principally the loss which the State sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. 'i ^14. Robbery may be considered in the same view : it is an injury to private property ; bm» were that all, a civil satisfaction in damages might f -*■■■ ^ 16 THE TOmrB't OCiAD AOAnffT OUMB* \ atone for it* The public mischief is the thing fbr the prevention of which our laws haTe mada il a capital offence. 15. In these gross and atrocious injuries, th« private is swallowed up in the public wrong : "Wu seldom hear any mention made of satisfaction to the individual, the satisfaction to the community being so very great. » t ^ • i \.,'.^i ..l 16. And indeed, as the public crime is not other- wise avenged than by forfeiture of life and proper^ ty, it is impossible afterwards to make any repara- tion for the private wrong, which can only be had from the body, or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so severe, but it affords room for a private compensation also, and herein the distinction of crimes from civil injuries is very apparent. 18. For instance, in the case of battery or beat- ing another, the aggressor may be indicted for this at the suit of Kings, for disturbing the public peace, and be punished criminally by fine and imprison- ment ; and the party beaten may also have his private remedy by action of trepass for the injuiy he in particular sustains, and recover a civil satis- faction in damages. r z . . * , I'.i- f • ' . ■ ' ' 19. So also in case of a public nuisance, as dig- ging a ditch across a highway ; this is punishable by indictment, as a common offence to the whole Kingdom, and all His Majesty's subjects; but if "^^^tny individual sustains any special damage thereby, ak laming his horse, breaking his carriage, or the like, tl satisfaj the puj 20. taking] the lai the pa^ right if the mi inquiri< cure tl preveni of thos though tranqui 21. or puni volume PAUT SI All perso defect ( not del 3rd. vv vvantin 3rd. di tune J duress hunger incapa 1. I in gene » For t M 1 ling h)f ide ii a ?s, the tion to [Qunity other- Topep- epari^' e had lature, evero, nalsro, civil beat- er this »eace, ison- ) his njuiy satis* \ dig- lable rhob )utif •eby, rthe # TUB YOVTU'S «UABD AGAINST CRIME. 47 like, the offender may be compelled to make amole satisfaction, as well for the private injur}^ as for the public wrong. 20. Upon the whole, we may observe, that in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz : not only to redress the party injured, by cither restoring to him his right if possible, or by giving him an equivalent — the manner of doing which was the object of our inquiries in the preceding part ; but also to se- cure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, whicli the Sovereign power has thought proper to establish for the government and tranquility of the whole. 21. What those branches are, and how prevented or punished, are to be considered in the present volume.* PAUT SECOND PERSONS CAPABLE OF COMMITTING CRIMES. All persons are capable of committing crimes, unless there be a defect of will. The will does not concur, 1st. where there is not defect of understanding ; 2nd. where no will is exerted ; 3rd. where the act is constrained. A vicious will may be wanting : in cases of, 1st. infancy ; 2nd. idiotcy or lunacy ; 3rd. drunkenness (though this does not excuse) ; 4th. misfor- tune j 5th. ignorance; 6th. compulsion, by civil subjection; duress ; unavoidable choice of one of two evils ; want or hunger ( but which is no legitimate excuse.) The Sovereign incapable of doing wrong. ■' ■ - 'j . 1. Having in the preceding chapter considered in general the nature of crimes, we are led next, in * For the theory of Punishment, see 4. B!. Com. 6— 19.— (4 Bl. 7.) i^W^J- .0^- 18 TBM youth's OUARD AQAUfBT CRIMB. order of our distribution, to inquire what persons are or are not capable of committing' crimes ; or, which is all one, who are exempted from the cen- sures of the law upon the commission of those acts, which in other persons would be severely punished. 2. In the process of which enquiry, we must have recourse to particular and special exceptions : for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting* such as are expressly defined and exempted by the laws themselves. 3. All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will, 4. An involuntary act, as it has no claim to merit so neither can it induce any guilt : the concurrence of the will w^hen it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. 5. Indeed to make a complete crime cognizable by human laws, there must be both a will and an act. 6. For though, injoro consctentice, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet as no temporal tribunal can search the heart or fathom the intentions of the mind otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. 7. an o^ crim( a no civi able a| ?9. Si there an unl 10. does n a defci cernm( of will one's cl tion; h have nc 11. ! ficient 1 exerted case of 12. ] curs wi the acti violenc( 13. J so far I agrees THB Totrrn's guard against crimb. 10 persons es ; or, he cen- se acts, mished. e must ptions : excused s of his defined which om the hereto, on, the D merit irrence 5 or to ig that ly or lizable m act. iesign [)usas Ibunal lof the ed by what 7. For which reason in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the de- pravity of the will, before the man is IJhble to pun- ishment. 8. And as a vicious will without a vicious act, is no civil crime, so, on the other hand, an unwarrant- able act, without a vicious will, is no crime at all. '9. So that to constitute a crime ao^ainst human lawr, there must be, first, a vicious will, and, secondlji, an unlawful act, consequent upon such vicious will. 10. Now there are three cases in which the will does not join with the act : 1. where there is a a defect of understandinGf, for where there is no dis- cernment there is no choice, and there can be no act of will, which is nothing- else but a determination of one's choice to do or to abstain from a particular ac- tion ; he therefore that has no understanding, can have no will to guide his conduct. 11. 2. Where there is understanding- and will suf- ficient residinof in the party, but not called forth and exerted at the time of the action done, which is the case of all offences committed by chance or ignorance. 12. Here the will sits neuter; and neither con- curs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force or violence. 13. Here the will counteracts the deed ;: and is so far from concurring with, that it loaths and dis- agrees to what the man is obliged to peribrm. (4, Bl. 21.) 80 TUB YOUTH S OUAKD AOAIlftT CIUMB. 14. It will be the business of the present chapter biieflv to consider all the several species of defect in will, as they fall under some one or other of these general heads ; as infancy, idiotcy, lunacy, and in- toxication, which fall under the first class ; misfor- tune and igfnorance, which may be referred to the se- cond ; and compulsion or necessity, which may properly rank in the third. OFFENCES COMMITTED BY INFANTS. 1. We will consider the case of infancy or non- agfe, which is a defect of the understanding. 2. Infants under the ag-e of discretion, ought not to be punished by any criminal prosecution what- ever. — [ 1 Hawk, p. c. 3.] 3. What the age of discretion is, in some na- tions, is matter of some variety. 4. The Law of England does in some cases privilege an infant under the age of twenty-one, as to common misdemeanors, so as to escape fine, imprisonment and the like, and particularly in cases of omission, as not repairing a bridge or a highway, and other similar offences, [1 hal. p. c. 20, 21 and 22 ;] for not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. , . 5. But where there is any notorious breach of the peace, a riot, battery or tlie like, (which infants when full grown are at least as liable as others .to commit,) for these an infant above the age of fourteen is equally liable to suffer, as a person of the full age of twenty-one. 6. more great cretic THE YOUTll^S GUARD AGAINST CEIMI. 21 chapter defect )f these and in- misfor- the se- ll may )r non- ^ht not what- me na- cases )ne, as )e line, 1 cases liway, 21 and Jine till thing's of the infants others age of son of 6. With reg-ard to capital crimes, the law is still more minute and circumspect ; distinguishing witli greater nicety the several degrees of age and dis- cretion. ^ . 7. By the law as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill or contracting guilt, is nut so much measured by years and days as by the strength of the delinquent's understanding and judgment. 8. For one lad of eleven years old n)ay liave as much cunning as anoilier of fourteen, and in these cases our maxim is that *'maliiia suplct oilatcm,^'' 9. Under seven years of age, indeed, .^n infant cannot be guilty of felony, [C. Mir. c. 4. S. IG : 1 Hal. c. 27;] for then a felonious discretion is al- most an inipossibility in nature, but at eight yeai-s of aire he may be guilty of felony. — [Dalt. just. c. 147.] 10. Also unrlcv fourteen, though an infant shall be prima facie adjudged to be doli incapax^ yet if it appear to the couit and juiy that he was doli capax, and could discern between good and evil, he may be convicted, and suffer death. ' 11. Thus a girl of thirteen has been burnt for killing her mistress ; and one boy of ten and another of nine years old who had killed their compan- ion, have been sentenced to death, and he of ten years actually hano-ed, because it appeared upon their trials that one hid himself and the other hid th^ (4 Bl. 22.) ■ 1 I n ■mi TOVTH OCARD AGAIlfST CRIlfl. body he had killed,which hiding manifested n con- sciousness of guilt, and a discretion to discern be- tween good and evil. — [1 Hal. p. c. 26 U. 27.] 12. And there was an instance where a hoy of eight years old was tried at Abingdon for firiiiT two barns ; and it appearing that he had malice, rt vengo, and cunning, he was foniid guilty, condeuiiied and hanged acordingly. — [Euilyn on 1 Hal. p. c. 25. 13. Thus also in very modern times a hoy of ten years old was convicted on his own confession of murdering his bed-fellow, there a[)pcariiig ia his whole behavior plain tokens of miscljievous discre- tion, and as the sparing this boy merely on account of his tender years might be of dangerous conse- quence to the [)ublic, by propagating a notion that children might commit such atrocious crimes wit him- punity, it was unanimously agieed by rdl the Judores that he was a proper subject of capital punishment. 14. But in all such cases, the evidence of that malice which is to supply age, ought to be strong, clear and beyond all doubt and contradiction. OFFENCES COMMITTED BY LUNATICS. 1. The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an Idiot pr a J^uoatic. ^ ^^ ! ■ ■ . '1 .Mil.'' 2, For the rule of law as to the latter, which may easily be adapted also to the former js that "/*** 04^Jurm solum pmitur.''^''" ^ " '''^" "'''''' "^' ' % 3. In are not when w treason 4. All a capital hecomc Ijccauso |u.;d cuutl 5. An (omes m make hi: G. lf( his sense pronoimc sano men venture, s the prisor miijht ha\ executior 7. Inde a Statute enacted tl commit h might be l as if he v 8. But by the Si 9. For Inst. 6,) 1 i THE YOUTHS GUARD AGAINST CRIME. 23 8, In criminnl cnses, iherefore, idiots nnd lunatics are not clmrijfenhie Ic.* iheir own acta, if committed when nnd(T llics(? incajui' 'tits ; no, not ^cven for treason itself. 4. Also, if a man In his sound ii rniorv commits a capitiil ofllnco, and bt lore arraignmeiit for it lie becomes nuid, bo on'jiu not lo \)c c\vri\'\gi\c(\ for it, bccaiiso be is not able to plead lu it with ibat advice a. d caution ibut he ought. 5. And if, after he has pleaded, the prisoner be- (omes mad, he shall not be tried ; for how can he make his defence ? G. If after he be tried and found g'uilty, he loses his senses before judg-ment, jutlo-ment shall not be pronounced, and if after judgment ho become of non- sane memory, execution shnll bo stayed, lor perad- venture, says the humanity of the English Law, had the prisoner been of sound mind and memory, he might have allegoa something" in s^tay of judgment or execution. — (1 Hal. P. C. 34.) 7. Indeed in the bloody reign ofHenry the Eighth a Statute was made (33 Henry VIII. C.20,) which enacted that if a person being compos mentis shoidd commit high treason, and after fall into madness, he might be tri^d in his absence, and should suffer death as if he were of perfect memory. 8. But this savage and inhuman law was repealed by the Statute 1 & 2, Ph. & M. C. 10. 9. For, as is observed by Sir Edward Coke (S ^ Inst. 6,) the execution of an offender is for examplei (4 Bl 35.) ,-/}.Uci] «*r. 24 THE youth's guard AOAHISr CRIKB. ut p^na ad paucos^ metxis ad omnes perveniat : but so it is not when a madman is executed. 10. But should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others ; but if there be any doubt whether the party be compos or not, this shall be tried by a Jury. — (See 1 Russ. 9; 5 C. & P. 168.) 11. And if he be so found a total idiocy, or abso- lute insanity excuses from the p;uilt, and of course from the punishment of any criminal action commit- ted under such deprivation of the senses ; but if a lunatic hath lucid intervals of understanding*, he shall answer for wb he does in those intervals of under- standing as it lie had no deficiency. — (\ Hal. P. C. 31.) 12. The 39 & 40 G. 3, C. 94, provides for the safe custody of persons acquitted on the ground of insanity. 13. In the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting, unless under proper control ; and in particular they ought not to be suf- fered to go loose^ to the terror of the King's subjects. 14. It was the doctrine of our ancient law, that persons deprived of their reason, might be confined till they recovered their senses, (Bro. Abr. tit. Corone 101,) without waiting for the forms of a commission or other special authority from the Crown, and by \the Vagrant Acts (17 G. 2, C. 5,) a method is pre- scribed for imprisoning and sending them to their proper homes. ' '« -) 15. the CO and th and ti( 1. 1 raadnes p riving rary pi vation i any cri 2. A who is but wl: airsi'^^vj et dete^ 3. T is to CO cuse it] to privi! 4. Ir prit ma )ation \i 1. A commit and noi THE YOUTH 8 OUARD AGAINST CRIME. flS^ at: but le, both cruelty, here be not, this C.&P. ^r abso- ' course jommit- but if a he shall r under- 1. P. C. for the )und of iey are not be proper be suf- bjects. , that )nfined orone liission nd by s pre- ) their 15. The 39 & 40 G. 3, C. 94, S. 3, provides for the commitment of persons dang^erous and insanCr and the 2 & 3, W. 4, C. 107, provides for the care and treatment of the insane. OFFENCES BY PERSONS IN A DRUNKEN STATE. 1. Thirdly ; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, de- privinET fnen of their reason, puts them in a tempo- rary phrenzy ; our law looks upon this as an a,2fg-ra- vation of the offence, rather than as an excuse for any criminal misbehavior. 2. A drunkard, says SirEdward Coke, (Inst. 247,) who is voluntarhis demon, hath no privilege thereby, but what liurt or ill he does, his dnmkenness doth ai:rgravate it : namomne crimen ebrietas el incendit ei detegit. 3. Thp law of Eng-land, considering* how easy it is to counterfeit this excuse, and how wej^k an ex- cuse it is fthoug-h real J will not suffer any man thus to privilege one crime by another. — (Plowu 19.) 4. In some cases, however, the state of the cul- prit may be taken into consideration, where premedi- jation is the material point to be decided. ( 1 Russ. 8. ) OFFENCES BY CHANCE OR MISFORTUNE. 1. A fourth deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by design. '••*•' -■ d'hUr liv ^ /I ^ ijAjf 10. THE TOUTHfl GUARD AQAINST CRIME. ' 2. Here the will observes a total neutrality, and does not co-operate with the deed ; which therefore wants one main ingredient of a crime. - ■ 3. Of this, when it afTects the life of another, we shall find more occasion to speak hereafler; at pre- sent only observing-, that if any accidental mischief happens to follow from the performance of a laicful act, the party stands excused from all guilt ; but if a man be cloini>* anything imlaw/td^ and a consequence ensues which he did not foresee or intend, as the death of a man, or the like, his want of foresight shall be no excuse. 4. For, being* g'uilty of one offence, in doing* ante- cedently what is in itself unlawful, he is criminally guilty of whatever consequences may follow the first misbehavior. — (1 Hal. p. c. 39. J 5. But a very important distincticn is made in such cases, viz : whether the unlawful act is also in its original nature wrong* and mischievous, for a per- son is not answerable for the incidental consequen- ces of an unlawful act, which is merely a malum prohibitum ; as where any urjfortunate accident hap- pens from an unqualified person being* in pursuit of g*ame, he is amenable only to the same extent as a man duly qualified. — (Fost. 259; 2 Hal. p. c.) OFFENCES BY IGNORANCE OR MISTAKE. I. Fifthly : Ignorance or mistake is another defect of will ; when a man intending to do a lawful act, dues that which is unlawful* ,. , (4 Bl. 97.) 2. For r, there necessi 3. Bui [act,- and 4. As )reaker ii )\vn fa mill )\\t. if a n ^Kcommu lim, and ( 5. For )erson of iresumec lefence. leminem e aw, (Plo> >2,6,9.) 1. A si :ompulsio: 2. The I man is ipproves if left to 3. As I he abuse fy, and erefore . ' t er, we at pre- ischief latc/ul bill if a :|nence as the resight p onte- linally le first de in Iso in per- |qnen- cdum hap- it of as a jfect act. THE TOVTn*8 GUARD AGAIIfST CKIME. 2T 2. For here the deed and the will actinsr separale- \jy there is not that conjunction between them which s necessary to form a criminal act. 3. But this must be an ignorance or mistake of act, and not an error in point of law. 4. As if a man, intending to kill a thi^f or house- )reaker in his own house, by mistake kills one of his )wn family; this is no criminal action: (Cro. car. 538,) )\\\. if a man thinks he has a ricfht to kill a person, xcommunicated or outlawed, wiierever he meets lim, and does so, this is wilful murder. 5. For a mistake in point of law, which every )erson of discretion not only may, but is bound and iresumed to know is, in criminal cases, no sort of lefence. 6. " Ignorantia juris, quad quisqne lenclur scire leminein excuset,^^ is as well the maxim of our own aw, (Plowd 343, j as it was of the Romans. — (ET. 12, 6, 9.) OFFENCES COMMITTED FROM COMPULSION. 1. A sixth species of will, is that arising from compulsion and inevitable necessity, 2. These are a constraint npon the will, whereby I man is urged to do that which his judgment dis- approves ; and which, it is to be presumed, his will if left to himself, J would reject. 3. As punishments are therefore only inflicted for he abuse of that free will which Goo has giveo to (4 W. 87.) Hf f -^..^ 28 TIIE YOUTH 8 QUARD AGAINST CRIME. 1- man, it is higfhly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion. 4. Of this nature, in the first place, is the oblig"a- tion, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suj<'g-est : as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. 5. How far this excuse will be admitted in foro consciendoi^ or whether the inferior in tliis case is not bound to obey the divine, rather tlion the human Law, it is not my business to decide, thoug-h the question I believe, among the casuists, will hardly bear a doubt. 6. But, however that may be, obedience to the Laws in being is undoubtedly a sufficient extenua- tion of civil guilt before the numicipal tribunal. 7. The Sheriff who burnt Latimer and Ridley, in the bigoted days of Queen Mary, was not lia- ble to punishment from Elizabeth, for executing so horrid an office; being justified by tlie commands of that magistracy, which endeavored to restore snpei- stition under the holy auspices of its merciless sister, Persecution. 8. As to persons in private relations ; the princi- pal cfis'B where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband ; for neither a son nor a sei^vant are excus (4 BL 98.) ed for or othe rent or comma pressec from 9. A glary o ciety, b compai is not g ing by c P. C, 10. old in t Laws 11. 1 strange who art with rei in crime law of I cause tl of natui be unre ishmeni and sub 12. 1 inembe • The I company w 47,] see tli( Rues. 16, 1 lan should le through he obligra d by the eason find leg^islator nands the or sound jd in fon case is not le humai loiig-h the ill hardly pe to the extenua- inal. [lidley, in not lia- cntinii so nands of re snpei- ss sister, e pnnci allowed h regfard e to her e excus- TlIE YOVTII S OUABO AOADI9T CRIME. 89 ed for the comnnission of any crime, whether capital or otherwise, by the connmand or coercion of the pa- rent or master [Cap. 57]; though in some cases the command or authority of the husband, either ex- pressed or implied will give a privilege to the wife from punishment, even for capital offences. 9. And therefore if a woman commit theft, bur- <;;lary or other civil offences ag-ainst the Laws of so- ciety, by the coercion of her liusband, or even in his company, which the Law construes a coercion, she is not guilty of any crime ; being considered as act- ing by compulsion, and not of her own will. — [ 1 Ha!. P. C. 45. 10. Which doctrine is at least a thousand years old in the Kin^'dom, being to be found among the Laws of King Inu, the west Saxon. 11. But (besides that in our Law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters,) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by tl e law of nature, as inuider and the like :* nor only ! '- cause these are of a deeper dye, but also since in a slate of nature, no one is in subjection to another ; it would be unreasonable to screen an otlender from the pun- ishment due to natural crimes, by the refinements and subor-dinations of civil society. 12. In treason, also, (the highest crime which a member of society can, as such, be guilty of,) no plea • The Law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter. — [Hal. P. C. 47,] see the u llowiii"- cases on lias subject : — 2 East, 539 ; R. «5c R. 210 ; I Rues. 16, 18, 20. n tt|S( TH8 YOUTU'V GUARD AGAMST CflfMft* • of coverture shall excuse the wife ; no presumptioni of the husband's coei cion shall extenuate her guilt — | [I Hal. P. C. 47] : as well, because of the odious- ness and danni-erous consequences of the crime itself,! as because the husband, havinsr broken throu'^h die most sacred tie of social community, by rebeliioiil against the state, has no rig-liL to tbat obedience from a wife, which he himself as a subject has forgotteii| to pay. 13. In inferior misdemeanors, also, we may re- murk another exception ; that a wife may be indict- ed with her husband, for keeping a brothel — for this is an otience touching the domestic economy or gov- ernmeiit of the house, in which the wife has a prin- cipal share; and is also such an offence as the Law presumes to be generally conducted by the intrigues of the female sex.— [1 Hawk, P. C. 2 & 3.] 14. And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any Jeme sole* 15. In all misdemeanors it appears that the wife may be found guilty with the husband. 16. It is said, the reason she was excused in bur- glary, larceny, &c., was because she could not tell what property the husband might claim in the goods — [Chris. N. 4.] But the better reason seems to be, that by the ancient Law, the husband had the benefit of the clergy, if he could road, but in no case could the woman have that benefit; it would therefore have been an odious proceeding to have I (4 Bl 30,) execul band though idgetl misdei 17. necessi or thre death for thai meanoL 18. an \m\ ground turn, no es it — [ -[Ff. 19. 1 may be compuli admit < PC. 5 20. 1 spoiled joining 21. r upon th force ai remains tt THB toutb's OUARD AOAINST CBfin. 31 sumption sr g-uilt — e odious- me itself, ou/rh (be rebellion Jiice froiTi forgoueii may re- be indict- —for this ly or gov- is a piin- tbe Law iiitriofues ds alone, lusband, i as any the wife in bur- not tell in the seems ind had lut in no It would to have executed the wife, and to have dismissed the hus- band with a slight punishment ; to avoid this it was thought better that in such cases she should be al- idgether acquitted, but this reason did n©t apply to misdemeanors. 17. Secondly, — Another species of compulsion or necessity is what our Law calls duress per niinas, or threats and menaces, which ind'.ice a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misde- meanors, at least before the human tribunal. 18. But then that fear which compeU a man to do an unwarrantable action, ought to be just and w^ell grounded, such " qui cadere possit in virum constan- turn, non timidiim et meticulosum,^^ as Bracton express- es it — [L. 2. F. 16,] in the words of the civil Law. — [Ff. 4, 2, 5 & 6.; 19. Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by- compulsion of the enemy or rebels, which would admit of no excuse in time of peace. — [1 Hal P. C. 50.] 20. The fear of having houses burnt or goods spoiled is no excuse in the eye of the Law for joining and marching with rebels. 21. The only force that does excuse, is a force upon the person^ and present fear of death ; and this force and fear must continue all the time the party remains with the rebels. (4 Bl. 30.) M\: f ,:\ 33 THE youth's OUiJID AGAINST CRIME. k 22. It is incumbent upon men who make force their defence to shew an actual force, and tijat they joined pro iimore mortis et recesserunt quam cito\ potuerunL — [Fost. 14, 216, & see 1 East. p. c. 71.] [ 23. This excuse also, seems only, or at least prin cipally, to hold as to positive crimes, so created by the laws of society ; and which, therefore, society may excuse : but not as the natural offences so de- claied by the law of God, wherein human magis- trates are only the executioners of Divine punish- ment. 24. And therefore though a man be violently as- saulted, and hath no other means of escaping* death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an inno- cent person. — [Hal. p. c. 31.] 25. But in such a case he is permitted to kill the assailant, for the law of nature, and self-defence, its primary canon, have made him his own protector. 26. There is a third species of necessity which may be distinguished from the actual compulsion of external force or fear ; being the result of reason and reflection, which act upon and constrain a man' will, and oblige him to do an action, which without such obligation would be criminal. 27. And that is when a man has his choice of two evils set before him, and being under a neces sity of choosing one, he chooses the least pernicious of the two. — .. i ,.. * (4 BL 30.) ^ I re 58. it self, it is n ing th 29. the CO anothe and justifia perhap murdei 30.] dom, a aie of therefoi otherwi 31. '] has occ upon ge Want of to relie\ 32. A 2, c. 2,) c. 6,) to in the ci humane, the comi sion of s f'fi : , ly; ^ 33. A the sam( seems t( ike force liat they am cito 3. c. 71.] 5ast prin- eated by I, society PS so de- 1 niagis- punish- enlly as- Ing" deatii and force ht rather fan inno- o kill the ence, its Itector. which iulsion of f reason b a man'.s without Ihoice of neces- jrnicious THB YOUTa 6 GUARD AGAINST CRIMB. ^8. Here the will cannot be said freely to exert it self, being- rather passive than active ; or if active, it is rather in rejecting the greater evil than in choos- ing the less. 29. Of this sort is that necessity, where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to the authority : it is here justifiable and even necessary to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the liot to continue. 30. For the preservation of the peace of the King- dom, and the apprehending of notorious malefactors, a! e of the utmost consequence to the public ; and therefore excuse the felony, which the killing would otherwise amount to. — (1 Hal. p. c. 53.) 31. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law, viz : whether a man in extreme Want of food or clothing, may justify stealing either, to relieve his present necessities. 32. And this both Grotius (D. jure, B. & P. L. 2, c. 2,) and PufTendorf, (Law of Nat. and N. 1, 2, c. 6,) together with many other foreign jurists, hold in the affirmative, by maintaining many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit confes- sion of society, is revived. ' • 33. And some of our own Lawyers have held the same, (Brit. c. 10, Mirr. c. 4, §16,) though it seems to be an unwarrantable doctrine, borrov^^ed '> a: fr. 34 TUB YOUTHS OVARO AOAIlfST CRIXK. % from the notions of some civilians ; at least it is now antiquated, the Law of England admitting' no such excuse at present, — (1 Hal. p.c. 54.) ' ^ 34. And that its doctrine is agreeable not only to the sentiments of many of the wisest ancients, par- ticularly Cicero, (De Off. 1. 3, c.5,) who holds that ** Suum cuique incommodum ferendum est^ poiiu^ quam de alterius commodis detrahendum ;" but also to the Jewish Law, as certified by King- Solomon himself, (Prov. vi. 30J "If a thief steal to satisfy his soul when he is hungry, he shall restore seven- fold, and shall give all the substance of his house ;'* which was the ordinary punishment for theft in that Kingdom. 35. And this is founded upon the highest reason : for men's properties would be under a strange in- security, if liable to be invaded according to the wants of others, of which wanis no man can possi- bly be an adequate judge, but the party himself who pleads them. . >- 36. In this country especially, there would be a peculiar impropriety in admitting so dubious an ex- cuse ; for by our laws such sufficient provision is made for the poor by the power of the civil Magis- trate, that it is impossible the most needy stranger should ever be reduced to the necessity of thieving to support nature. 37. This case of a stranger is, by the way, the strongest instance put by Baron Puffendorf, and whereon he builds his principal arguments, which however, they may hold upon the Continent, where (4 Bl. 3L) .1 > the ( one t and to a tion. 38 taxed leget that t of jus exten 39. states, and th in the stancei 40. it bette ing par tenance guishin 1. T of com I will, W( poses a; lence ai as well mind. 2, I I his roya % <■<•> TAB youth's OVAKD AOAlMtT OftlMB. 35 I now such nly to • par- Is that potius U also lomon satisfy seven- ouse ;'* in that eason : nge in- to the possi- ilf who be a Ian ex- )ion is lagis- |ranger lieving y, the [f, and Iwhich here the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven with our very constitu- tion. 38. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privi- lege to the necessitous ; especially when we consider that the King, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship. 39. An advantage which is wanting in many states, particularly those which are democratical ; and these have in its stead, introduced and adopted, in the body of the law itself a multitude of circum- stances tending to alleviate its rigour. 40. But the founders of our Constitution thought it better to vest in the Crown the power of pardon- ing particular objects of compassion, than to coun- tenance and establish theft by one general undistin- guishing law. OF OFFENCES BY THE SOVEREIGN. 1. To these several cases, in which the capacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law sup- poses an incapacity of doing wrong, from the excel- lence and perfection of the person ; which extends as well to the will as to the other qualities of his mind. 2, I mean the case of the King, who by virtue of his royal prerogative is not under the coercive power ^r TBI YOUTH^I GUARD AOAIlfST CSIMI. '^ of the law, (1 Hal. p. c.44,) which will not suppose him capable of committing jq foUy^ much less a crime. 3. We are, therefore, out of reverence and de- cency, to forbear any idle inquiries of what would be the consequence if the King* were to act thus and thus ; since the law deems so hig-hly of his wisdom and virtue, as not even to presume it possible for him to do any thing inconsistent with his station and dignity, and therefore has made no provision to reme- dy such a grievance. ' PART THIRD — OFFEIiCES AGAINST GOD AND RELIGION. Grimes and misdemeanors cognizable by the Laws of England, . are sucii asoiVend — Ist. God and Religion ; 2d. the law of na- tions ; 3d. the King and his Government ; 4th. the public or commonwealth , 5th. individuals. -<-^ Crimes against God and Religion, are — 1st. Apostacy ; 2d. heresy ; 3d. offences against the Established Church ; 4th. Blasphemy ; 5th. profane swear- ing aiid cursing ; 6th. pretending to witchcraft ; 7th. Religious ■ impostors ; Sth. Simony ; 9th. Sabbath breaking : 10th. Drun- . kenness ; 11th. Lewdness. . i 1. In the present part, we are to enter upon the detail of the several species of crimes and mis- demeanors, with the punishments annexed to each by the Law of England. 2. It was observed in the beginning of this vol- ume, that crimes and misdemeanors are a breach and violation of the public rights and duties owing to the whole community, in its social aggregate capacity. 3. Human laws can have no concern with any but social and relative 'duties, being intended only to • if:.,; Mt;, J,^; ; . (4 B1.41.) .,: ..fATy^fl h;'/n'{ f>M', i •/• fegi ous 4. men duce seqi dutie only of ai evil preju cies f 5. vately course comm examj 6. 1 taken) any sh howev with it news, prosec given. 7. A in for( they ar h*c incc 8. ' private i ^w iU iNiSt; YO17TH*0 GUAftD AOAiNST CRIME. nl p086 rime. i de- krould sand sdom ie for n and reme- Ingland, r of na- iblic or rod and against swear- eligious Drun- upon mis- each vol- jhand to the nty. ^ybut ily to fegulate the conduct of man, considered under vari- ous relations, as a member of civil society. • 4. AU crimes ought therefore to be estimated merely acccording* to the mischiefs which they pro- duce in civil society, (Beccar, chap. 8,) and of con- sequence private vices or breach of mere absolute duties, which man is bound to perform, considered only as an individual, are not, cannot be, tlie object of any municipal law, any farther than as by their evil exam[)le, or other pernicious effects, they may prejudice the community, and thereby become a spe- cies of public crimes. 5. Thus the vice of drunkenness, if committed pri- vately and alone, is beyond the knowled«*e, and of course beyond the reach of human tribunals; but if committed publicly, in the face of the world, its evil example makes it hable to temporal censures. 6. The vice of lyino-, which consists (abstractedly taken) in a criminal violation of truth, and therefore in any shape is derog-atory from sound morality, is not, however, taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news, or some social injury, as slander and malicious prosecution, for which a private recompense is given. 7. And yet drunkenness and malevolent lying* are in foro conscientim, as thoroughly criminal when they are not, as when they are, attended with pub- lic inconveniences. . ^ \ 8. The only difference is, that both public and private vices are subject to the vengeance of eternal (4 Bl 41.) 1^ 1* S6 THE YOUTH S GUARD AGAINST CRIME. justice ; and public vices are besides liable to the temporal punishment of human tribunals. ■ . , 9. On the other hand, there are some misdemean- ors which are punished by the municipal law, that have in themselves nothing- criminal, but are made unlawful by the positive constitutions of the State for public inconvenience ; such as poaching, exportation of wool, and the like. , 10. These are naturally no offences at til ; but their whole criminality consists in thuir disobedience to the supreme power, which has an undoubted right, for the well being and peace of society, to make some things unlawful, which are in themsselves ii-different. , v ; . 11. Upon the whole, therefore, though part of the offences to be enumerated in the following pa- ges are offences against the revealed Law of God, others against the law of nature,and some are offences against neither ; yet in treaties of municipal law, we must consider them all as deriving their particular guilt, here punishable, from the law of man. 12. Having premised this caution, I shall next proceed to distribute the several offences, which are either directly or by consequences injurious to civil society ; and, therefore, punishable by the Laws of England, under the following general Heads : first, those which are more immediately injurious to God, and his holy Religion ; secondly, such as violate and transgress the Law of Nations ; thirdly, such as more especially effect the Sovereign executive power of the states or the King and his government; (4 Bl 43.) •£ foui the dero owir tion deep 13 as m< ly tr tural exam whicl huma 14. a tota either 15. have ( 16. tates V 17.- a natio sic tru state : montra 18. ' punishr attribut suation. pensate grand H t« J, THE TOVTH S GUARD AGAINST CRIME. 39 the nean- , that made ite for •tation I; but dience 3ubted Hy, to iselves part of ing pa- ' God, rtences iw,we ticular 11 next tch are lo civil iws of first, God, ite and hch as fcutive ment; fourthly, such as more directly infringe the rights of the public or commonwealth ; and, lastly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preserva- tion and vindication of which the community is deeply interested. 13. First, then, of such crimes and misdemeanors as more immediately offend Almighty God, by open- ly transgressing the precepts of religion, either na- tural or revealed ; and, mediately, by their bad example and consequence, the Law of Society also : which constitutes that guilt in the action, which human tribunals are to censure. 14. Of this species the first is that of apostacy, or a total renunciation of Christianity, by embracing either a false religion, or no religion at all. 15. This offence can only take place in such as have once professed the true religioih 16. We find by Braclon, that in his time apos- tates were to be burned to death. 17. -Doubtless the preservation of Christianity, as a national religion, is, abstracted from its own intrin- sic truth, of the utmost consequence to the civil state : which a single instance will sufficiently de- naontrate. 18. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being ; and a firm per- suation, that he superintends, and will finally com- pensate eveiy action in human life, these are the grand foundations of all judicial Oaths ; which call it 40 THE YOUTH S GUARD AGAINST CRIMB. Gad to witness the truth of those facts, which per- haps may only be known to him and the party at- testing, all moral evidence therefore must be over- thrown by total infidelity. , . 19. Wherefore all affronts to Christianity, or en- deavors to depreciate its efficiency, in those who have once professed it» are highly deserving of cen- sure. 20. But yet the loss is a heavier penalty than the offence, taken in a civil light, deserves ; and taken in a spiritual light, our Laws have no jurisdiction over it. 21. This punishment, therefore, has long ago be- come obsolete ; and the oflence of apostacy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute anim(B, 22. But about the close of the seventeenth cen- tury, the civil liberties to which we were restored being used as a cloak of maliciousness, and the most horrid doctrine, subversive of all religion, being pub- licly avowed both in discourse and writings, it was necessary again for the civil power to interpose, by not aihiiitting those miscreants (Mescroyantz, in our ancient Law Books, is the name of unbelievers,) to the privileges of society, who maintained such principles as destroyed all moral obligation. 23. To this end it was enacted by statute, 9 & 10 W. 3 c, 32, that if any person educated in, or hav- ing made profession of, the Christian Religion, shall, by writing, printing, teaching, or advised speaking, jfleny the Christian reiligion to be t^'ue, or the holy Scri thei fice dere guar and s bail. 24 with linqu< ror, \ bilitie 25. consis some nately Hale, cogitai Hal. I ^ 26. ticular overt ui of mo I by the 27. heresy, minatic in a mc Tin TOtlTH S GUAHO AGAIK8T CRIM2. M \i pet- ty at- over- or en- ! who )f cen- lan the I taken idiction ig"© be- Nas for courts, th cen- stored e most g P«^> it was se, by in our vers,) such &10 )r hav- shall, [aking, holy Scriptures to be of Divine authority, he shall upon the first offence be rendered incapable to hold any of- fice or place of trust ; and, for the second, be ren- dered incapable of bring-ing any action, *or of being guardian, executor, legatee, or purchaser of landai, and shall suffer three years' imprisonment, without bail. 24. To give room, how<)ver, for repentance, if,, within four montlis after the first conviction, the de- linquent will in open court openly renounce his er- ror, he is discharged for that once from all disa- bilities. 25, A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of its essential doctrines^ publicly and obsti- nately avowed ; being defined by Sir Matthew Hale, ' senlentia rerum dmnarum hwncmo sensu ex- cogitata, palam doda perimacitei' defensa,'* — [1 Hal. P. C. 384. '26. And here it must be acknowledged that par- ticular modes of belief or unbelief, not tending to overturn Christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil Magistrate. 27. What doctrine shall therefore be adjudged heresy, was left by our old constitution to the deter- mination of the ecclesiastical judge ; who had here- in a most arbitrary latitude allowed him. \,,\"A idj 28. For the general definition of an heretic given by LyDwoojd, (cap, de hereticis,) extends to the (4 BL 45.) W' !■'« m 42 THE YOUTH S GUARD AGAINST CRIMB. -smallest deviation from the doctrines of holy church, hmreticus est qui dubiiat defide catholicat et qui neg- liget servare ea, qua Romana ecclesia staiuit^ sen servare deereverat, 29. Or as the statute 2 Hen. 4, c. 15, expresses it in Eng-lish, Teachers of erroneous opinions, contra- ry to the faith and blessed determinations of the Holy Church. 30. Numerous acts of a sang-uinary nature were passed on this subject, but I shall not perplex the reader with the various repeals and revisalsof them, but shall proceed directly to the reig-n of Queen Elizabeth ; when the reformation was finally estab- lished with temper and decency, unsullied with par- ty rancour, or personal caprice and resentment. 31. By statute 1 Eliz., c. 1, all former statutes relating" to heresy are repealed, which leaves the jurisdiction of heresy as it stood at common Law ; viz., as to the infliction of common censures, in the ecclesiastical courts ; and in case of burning* the heretic, in the provincial senate only. (F, 5 rep. 23, 12 rep. 56, 92.) 32. Sir Matthew Hale is indeed of a different opinion, and holds that such power resided in the diocesan also, though he agrees that in either case the writ de hisretico comburendo was not demanda- cle of common right, but gran table or otherwise at the King's discretion. — [1 Hal. P. C 405, 33. But the principal point now gained was, that by this Statute a boundary is for the first time set (* W. 45.) to wl futur tenet 34. tures or sud holy so de the c 35. tainty the wc cise ar to be 1 to be 1 preted 36. ed still put in venteei of Jam< 37. ] subject lute ani 38. ] were d< our bo habeas of supe badge ( i'J. mini) ^ hurch, iineg- i/, 8€tl iressea jontra- 3 Holy B were ex the f them, Queen ' estab- ith par- jnt. itatutes res the Law ; in the ? the ) rep. Ifferent iin the 5r case landa- rise at that TUB Y0VTH8 OVARD AGAINST CRIMB. to what shall be accounted heresy ; nothint^ for the future being to be so determined, but only such tenets, which have been heretofore so doclared. 34. First — By the words of the canonical scrip- tures : second, by the first four general councils, or such others as have only used the words of the holy scriptures ; or third, which shall hereafter be so declared by the Parliament, with the assent of the clergy in convowilion. 35. Thus was heresy reduced to a greater cer- tainty than before, though it might not have been the words to have defined it in terms still more pre- cise and particular : as a man continued still liable to be burnt, for what perhapiS he did not understand to be heresy till the ecclesiastical judge so inter- preted the words of the Canonical Scriptures. 36. For the writ de hmretico comburendo remain- ed still in force, and we have instances of its being put in execution upon two Anabaptists in the se- venteenth of Elizabeth, and two Arians in the ninth of James the First. 37. But it was totally abolished, and heresy again subjected only to ecclesiastical correction, pro sa- lute animtBi by virtue of the statute 29 Car. 2, c. 9, 38. For in one and the same reign, our lands were delivered from the slavery of military tenures, our bodies from arbitrary imprisonment, by the habeas corpus act, and our minds from the tyranny of superstitious bigotry, by demolishing this last badge of persecution in the English Law* /J. j;;!!!{1.) n...- Anoi\'- ! v (4 Bl. 48.) ' '• '•' 1 5 r k *.*. a ^ .A'>«) 44 THB youth's guard AGAINST CRIME. 39. In what I have now said I would not be un- derstood to derogate from the just rights of the National Church, or to favor a loose latitude of pro- pogating any crude undigested sentiments in reli- gious matters. , ,.- > HERESY AND NON-CONFORMITY. 1. Another species of offences against religion' are those which affect the estabhshed Church, and these arc either positive or negative : positive by reviling its ordinances ; or negative, by non-con- formity to its worship. Of both of these in their order. 2. And, first, of the offence of reviling the ordi^ nances of the Church. 3. This is a crime of a much grosser nature th;an the other of mere non-conformity : since it carried with it the utmost indecency, arrogance, and in- gratitude ; indecency, by setting up private judg- ment in virulent and factious oposition to public authority : arrogance, by treating with contempt and rudeness what has at least a better chance to be right than the singular notions of any particular man — and ingratitude by denying that indulgence and undisturbed liberty of conscience to the mem- bers of the National Church, which the retainers to every petty conventical enjoy. . ; i . . 4. However, it is provided by Statutes 1 Edw. €|, C. 1, and 1 Eliz. C. 1, that whoever reviles the Aticrament of the Lord's Supper shall be punished by fine and imprisontiient ; and by the Statute 1 Eliz. C. 2, if any minister shall speak any thing in dero] shall] the heb< priso^ his b( prive< the tl impris 5. songs, derogj or sha cause shall fc for thd shall f^ imprisG PART FOl JlLS : — 1 1. DeSnil taking i a takin 6. Taki G. 4,c 1. Tl property has und • For the ante : for in \ THE YOUTH S GUARD AGAINST CRIMB. 4$ be un* of the of pro- n reli- ■eligiori' 3h, and tive by )n-coii- in their le ordi^ ire tl\aii carried and in- Q judg. public ntempt Gince to •ticular "ilgence mem- Laiaers •n -i • Edw. les the dshed Lute 1 fing in derogation of the book of Common Prayer, he shall if not beneficed, be imprisoned one year fbr the first offence, and for Hfe for the secohd ; and if he be beneficed, he shall for the first offence be im- prisoned six months, and forfeit a year's value of his benefice ; for the second oftcnce he shall be de- prived and suffer one year's imprisonment ; and fbr the third, shall in like manner be deprived and suffer imprisonment for life. 5. And if any person whatsoever shall, in plays, songs, or other open words, speak any thing in derogation, degrading or despising of the said book, or shall forcibly prevent any one reading of it, or cause any other service to be used in its stead, he shall forfeit for the first offence an hundred marks ;^ for the second, four hundred ; and for the third, shall forfeit all his goods and chattels, and sufier imprisonment for life. PART FOURTH — OFFENCES AGAINST THE PROPERTY OF INDIVIDU- AliS : — THEFT, OR STEALING FROM THE PERSON, AND ROBBERY.* 1. Definition of Theft 2. Subjects of Theft.— 3. The acta of taking and carrying away. — 4". The circumstances which make a taking felonious. — 5, The ownership of stolen property. — 6. Taking from the owner's possession. — 7. Provisions of 7 & 8, G. 4, c. 29, and 1 Vict. c. 87. . . , ,. 1. The law relating to offences against private property, by robbery and stealing* from the person, has undergone great alterations by the Statutes 7 • For the offence of stealing from a dwellinsr house, »&c., see chap, xvi., ante : for malicious injuries, sec chap. six. ; and fur forgery, see chap. zx. poet. : ? (4 Bl. 51.) } :>i; 40 rum youth's gvard aoairst ckimb. ipk.<^:k Ml^-i and 8, G. 4, c. 29, <* for consolidatinf liiii atthf nding- tlie Laws in England relative to Larceny* and other offences connected therewith ;" and 1 Vict. c. 87, ** for amending" the Laws relating to robbery and stealing from the person." 2. Before proceeding to the provisions of these acts, it will be proper to take a general view of the common Law relating to Larceny and Theft : 1st. Delineation of Theft, 3. Theft is the felonious taking and carrying away o! the personal goods of another, 2d. The Subjects of Theft, are 1. Chattels Personal, — All personal goods, save as hereafter excepted, are the subjects of theft. This rule includes money, plate, apparel, household stuff, stones dug out of quarries, grass in cocks, wood cut, plants rooted or dug up, fruits separated from the plants that produced them, and all move- able goods, save as hereinafter excepted. 2. Parcel of freehold^ growing produce, fixtures. — Theft cannot be committed by severing, and im- mediately taking away, anything which is parcel of or annexed to the soil, or which is the unsevered produce thereof, although it may be severed by the wrong-doer with intent to despoil the owner. 3. This rule includes soil, earth, stones, minerals, and whatever else is an unsevered portion of the land or realty. 4. Also, all trees, bushes, shrubs, fruit, flowers, corn, grain, grass, roots, and other vegetable pro- ductions whatsoever, unsevered from the realty. 5. realty 6. materi buildir 7. and ot 8. rious p the pro and fix the con 3d. L A] be any i realty, ) and rerr terval \\ removal tinued a of theft with the 2. Tl and rem S. Ac accordin 4. Ot vaguene removed ^1- TIIB YOUTA*0 GVARO AGAIN8T CRIME. 47 I other c. 87, J and these of the j^away 3, save ' theft, isehold cocks, »arated move- ires. — nd im- rcel of eve red by the lerals, lof the )wers, |e pro- 5. Abo, all buildings and fixtures annexed to the realty. • - . , ., , . • 6. All Iron, Copper, Lead, and other metals, and materials, whatsoever, annexed to any house or building", or otherwise fixed to the realty. 7. All Rails, Pailing-s, Hedg^es, Fences, Palisades and other annexations to the realty whatsoevor. 8. By the 7 & 8 G. 4. C. 29, S. 37 to 44, va- rious provisions are enacted,(as hereafter staled 1 for the protection of vegetable and mineral productions and fixtures, and those are partial innovations upon the common Law principle. , 3d. Interval between Severance and Removal. L Althoug-h a thin«f be a parcel of the realty, or be any annexation to or unsevered produce of the realty, yet if any person sever it from the realty, and remove it with an intent to steal it, after an in- terval which so separates the acts of severance and removal that they cannot be considered as one con- tinued act, the thing- taken is a chattel the subject of theft, notwithstanding such previous connection with the realty. 2. The interval between the acts of severance and removal, is variously stated by the authorities. 3^. According to some, an kour'^s time is essential ; according to others, a day, - \t A 4. Other authorities lay down the rule with greater vagueness, stating that it is felony if the goods are removed afterwards^ or after they are severed any time* 48 THE YOUTR^f OCAED AGAINST CRIMB. ^' m 5. And it does appear to be settled, whether the thief must quit the premises before the removal. Fourth — 1. If any parcel of the realty, or any annexation to or unsevered produce of the realty be severed otherwise than by one who afterwards removes the same, it is the subject of theft, notwith- standing* it be stolen instantly after such severance. This doctrine and the preceding^ rule proceed upon the subtlety, of which there are many similar instances in our early jurisprudence, that the property was not personalty when taken, because it was the very act of taking" which converted it into personally, 2. Though the taking* of goods without an inter- val elapsing* is only a trespass, it is called by Chief J. Hyde a rank trespass, 3. Several eminent authorities have expi^ssed their astonishment at the distinction, and represent it as exceedingly nice ; others have unequivocally disapproved of it, 6ih. Accessaries to realty: Charters: Box of Charters. 1, Nothing* which is necessary to or which sa- vours of reahy, is the subject of theft at Common Law, 2. This rule comprehends all commissions rela- tinof to the realty ; and ail boxes in which any such writings that concern the realty are locked, sealed, or otherwise fastened up ; this rule does not extend to heir- looms, , S. The term " savoring* of the realty," which is usied in all the authorities, may seem not to be par- ticuh and box nece 4. is a ^^. THE YOVTH*S GUARD AOMNST CRIME. 49 her the ival. ' or any reahy rwards otwiih- erance. pon the nces in as not ery act I inter- Chief rassed •resent rocixWy * arters. ch sa- moion reJa- such ealed, xtend ich is 8 par- ticularly well adapted to popular comprehension ; and it would appear that the distinction between a box of charters, fastened or unfastened, was an un- necessary refinement. 4. And it is to be observed, that at present there is a want of uniformity in the law, in consequence of a partial innovation upon the common law principle by the Statute 7 and 8 Geo. 4, c. 29, s. 22, 23. 5. The strictness of the rule which excludes even the materials and stamps of writings relating* to land, from being the subjects of theft, according to the legal maxim, omne magis digmem trahit ad se mi- nus, does not appear to be satisfactor}'. 5. Choses in Action, — Securities concerning choses in action, are not the subjects of theft. The com- mon law principle of this rule was founded on the crude notions of an early state of society respecting property ; but it can have but little operation in the present day, in consequence of the extensive provi- sions of the 7 & 8 Geo. 4, c. 29, s, 5, against steal- ing valuable securities. 6. But the principle of the common Law stands in direct contrast with that of the Statute Law in re- spect of any property in a written instrument not deemed to be a valuable security within the mean- ing of the Statute. ' ' 7. Mateiials and Stamps of written Instruments.— The materials and stamps of any written instrument not relating to the realty, are the subjects of theft. 8. In a recent decision upon the subject, it wa« held that the stealing of rolls of parchment, though J I M THE YOUTH 8 GUARD AOAIN0T CRIME. they are records of a court of Justice, will be larce- ny, unless they concern the realty. — (6 Carr. and P, 106.) 9. Human Body* — Xo human body, livinif or dead, is the subject ot theft. Our jurisprudence differs upon this point from that of several other nations. 10. By 9 Geo. 4, c. 31, child steahng is, in cer- tain cases made felony. 11. Things of Value. — Theft can be committed of such things only as are of some intrinsic value. — This rule can have very litde operation in the pre- sent day, but it expresses the general principle from which many of the rules respecting- tlie subjects of theft were, probably, in ancient times derived. 12. As for example, several species of minerals and charters concerning lands, negociable securities, and reclaimed animals not lit for food, were not deemedsubjects of theft, according to some authori- ties, because they were not of any determinate or marketable value. Aud indeed, it was held in an ancient case, that it was not felony to take a diamond or ruby, " because they were not of price with all men, howsoever some do hold them both dear and precious." 13. Theft may be committed of things valuable to the owner, though not of value to any one else, nor saleable. It would seem that if the principle of the former rule were regarded, and its early applica- tions were superseded, most of the existing anoma- lies of the common Law, with regard to the subjects of theft, would disappear, and many statutory provi- sions would be rendered unnecessary. 1- wasj 161 ture, the TUB TOUm't GUARD AGAIlfflT CRIMB. 51 14. For the principle of the common Law rule was, that things of value should be deemed the sub- jects of theft. 15. And if this principle had been applied, for the first time, within the last century, it would neces- sarily have been held to comprise a variety of sub- jects which have been legislated for separately, be- cause they were not deemed to be of value in a re- mote ag-e. 16. The above exception to the rule is a depar- ture, in modern times, from the ancient principles of the common Law. DOMESTIC ANIMALS. 1. All domestic animals which are fit for food, or which are not of a base nature, whether living* or dead, and also all parts of such animals, their young-, and their egg-s, are the subjects of theft. This rule includes horses, kine, sheep, swine, geese, hens, ducks, turkeys, and all other animals whatso- ever, not of a base nature. 2. The statute 7 & 8 Geo. 4, C. 29, S. 25, en- acts, that it shall be felony to steal horses, cows, sheep and certain other domestic animals. 3. Domestic animals of a base nature, and not fit for food, are not the subjects of theft. This rule includes dogs and cats : but the stealing of dogs is the subject of statutory provisidn in the 7 & 8 Geo. 4, C. 29, S. 41.(see post.) ,, . ^ 4. Wild Animals reduced into possession^ and fit for Food. — Animals of a wild nature which are fil ■H » THE YOUTH S GUARD AGAINST CRIME. for food, including' deer, hares and conies ; carp, tench, trout, eels and other fish ; swans, pigeons, pheasants, and all other birds and beasts which are fit for food, are the subjects of theft, wlien they have been reduced into possession, so long as that posses- sion continues. ii; VI "-ni ■i'ifjl V/ - -m a .!■;*: ;i! i)".:M' r|v' \ '-' 5. There is a conflict of authorities upon this subject, some laying* down the rule that the restraint need only be sufficient to prevent the animals falling again into the common stock, whilst others affirm that the animals must be restrained of their liberty in such a manner as to imply an immediate intention to make use of them. G. Animals are reduced into possession when they are restrained of their natural liberty, and confined in buildings, stalls, parks, paddocks, mews, nets, trunks, ponds, or other inclosures, of such limited extent that they may be taken by the owner when- ever he pleases ; and doves, being in a dove-cote, are included within this rule : but the authorities are not very precise upon the subject of stealing doves ; some alleging that young doves in a dove-cote may be stolen, and others that old doves in a dove-cote are the subjects of theft, if the dove-cote be shut up.— [4. Car. & P. 131. . , . , . 7. The Statute 7 & 8 Geo. 4, C. 29, S. 26, to 30, and 34,35, provides against stealing deer, hares, conies, and fish, under various circumstances. 8. Wild Animals reclaimed and Jit for Food, — Animals of a wild nature, which are the subjects of theft when they are deprived of their natural liberty, and reduced into possession, are also the subjel be re| their 9. other 10.1 naturi to th( appea^ degre been deemel 11. distinci to be 12. ed woi dicative Hau falcons not fit 2. r hawks able in noble i ing ob erous : emplo; 3. ] what TllB youth's OUARf) ACfAINST CRIMK. 69^ carp, ;'eons, are fit have osses- n this §traint falling affirm iberty ention n they nfined nets, imited when- !-cote. es are loves ; may cote shut P> to lares, Hit )(/.— JtSOf Itural the subjects of theft, if they be reclaimed and known to be reclaimed, although they go abroad and return at their pleasure. 9. This rule also includes swans, peacocks and other birds which are reclaimed and known to be so. I'.-ri 10. The words " reclaimed " " tame" " domita naturcB,^^ are often used promiscuously as af>plied to the subject-matter of this rub ; but it does not appear that the authorities furnish any rule as to the degree or manner in which an animal must have been divested of its wild nature, in order to be deemed reclaimed for the purpose of theft. 11. The ancient authorities contain a number of distinctions respecting* swans, which do not appear to be applicable in the present day. 12. The knowledge of the animal being reclaim- ed would appear to be properly a circumstance in- dicative of a felonious intention. Hawks, Falcotis^ Bees. — 1. Reclaimed hawks, and falcons, are the subjects of theft, although they are not fit for food. So also a stock of bees. , 2. The ground assigned for the exception, of hawks and folcons, will scarcely be thought reason- able in the present day ; it is '* on account of their noble and generous nature and courage, and as serv- ing ob titcb solatium of princes, and noble and gen- erous persons, and as making them fitter for great employments." ,.,^,,,^^ ..^buiwi^im .lal .w 3. It does not appear from the authorities upon what principle bees ai*e the subject of theft. Silk 54 TUB YOUTIIB GUARD AGAINST CRIME. \M\ worms would seem to be equally lit subjects of larceny with bees. , . . ; 4. Young of wild Animals which ^are the subjects of Theft — The young* of such wild animals as are the subjects of theft, when reduced into possession or reclaimed, are also (he subjects of theft so long as they cannot run or fly and join the common stock, but remain in a house or several grounds, so that the owner of such house or g-rounds, may take them at all times at his pleasure. 5. The point whether the young* of unreclaimed animals (but which, when reclaimed, are the sub- jects of theft,) may be stolen on the g^round of being* property ratione impotenticBy is rendered very doubt- ful in consequence of conflicting authorities. 6. Young" doves, usually stated as an example of this rule, are sometimes considered as belong-ing* to the class of cases respecting " animals reduced into possession." > . 7. With respect to the eggs of unreclaimed birds (but which when reclaimed are the subjects of theft,) the authorities do not lay down any rule ; but the taking of certain species of eggs is made punishable by statute. " , , 8. It would seem that where the eggs of birds, whether reclaimable or not, are reduced into posses- sion, they ought to be the subjects of theft. d. This rule includes, amongst others, young pigeons in a dove-house, which cannot fly, young svrans and cygnets which cannot fiy» and ^re breed- ing u hawk 10. Wher produ< subjec 11. the ba< cases 10 author wheth( should the cas mis nc 13. animals theft, a into po theft w bodies ( 14. 1 verting not the usually house, I perly ui not kno 15. 1 pheasan and bea i THE youth's guard AGAINST CRIME. 55 ing" in any parks or several grounds ; and young hawks or herons in the nest, 10. Produce of jSnimals the subject of* Thefts — Where the animal itself is the subject of theft, the produce of the animal, if of any value, is also the subject of theft. 11. This rule extends to the taking of wool from the back of a sheep, milk from a cow, and all other cases whatsoever, "where such produce is of value. 12. There is considerable discrepancy among the authorities upon this subject, as to the point whether, to constitute theft, the property stolen should be above the value of 12d., when this is not the case, it has been said that the maxim " de mini' mis non curat Lex " applies. 13. Dead •Animals the subject of Theft, — ^Wild animals which when living may be the subjects of theft, are, whether they have been actually reduced into possesion or reclaimed, or not, the subjects of theft when dead ; this rule includes all parts of the bodies of such animals. 14. Wild Animals not reduced or reclaimed^ or rc- verting to a wild state, — Animals in a wild state are not the subjects of theft. Some of the examples usually given of this rule, as doves out of a dove- house, may perhaps be thought to come more pro- perly under the rule applicable to reclaimed animals, not known to be reclaimed. 15. The rule includes deer, hares, conies, swans, pheasants, hawks, herons, pigeons, and all other birds and beasts not reclaimed or reduced into possession. 4 m 56 THB YOUTH*S QUAttD AGAINST CRIMlt. 16. The rule includes also wild animals, which, after liaving been reclaimed or reduced into posses- sion, liave reverted to their wild state. ,, - 1 . t i':' ^si\' r i''-- . / , \i n 17. Wild Animals not Jit for food* — Animals of a wild nature which are not fit for food, are not the subject of larceny, although they be reduced into possession or reclaimed. ^ -^ ^ • ^ ■ ^ .v„-' ,-. •.vi r?f ! 18. This rule includes bears, foxes, apes, mon- keys, polecats, cats and dogs, ferrets, thrushes, singing birds in general ; but not hawks or falcons, or bees, as before specified. ^ ' 19. It would seem that the rule upon this subject, arose from the circumstance that the animals above specified, being unfit for food, were not formerly marketable, and of a determinate value. 20. But they are all now the subject of civil reme- dies for property, and would seem to require the same protection from the Criminal Law as reclaim- ed animals fit for food. ^ , 7) 21. In some authorities, the above mentioned animals are said to be of a base nature, and there- fore not the subjects of theft. ,; "r /^ 22. There is some uncertainty in the law as to animals which are occasionally used for food, and sometimes for pleasure. '\^ ^^' - ' ; ^^ K-r< !,-.... -»s,.*'y I -. 23. For the simplicity of the ancient law does not appear to have contemplated the possibility of animals being- kept for pleasure which were fit Ibrfbod. '' ' '-•-^' ;•-■'■*-" V- • ■ ---^r---^^-- . ..-^^ .^p,^^s-^,^.j 24 purpJ ly pH • 25 provij beast confii 26] satis! fornii being YOl 1. subje reclai the n 2. suffic prod I wild subje 3. blef the ] 4, artic tOS( THE TOUVh's guard AGAINST CRIME. 57 which, posses- lis of a lot the id into , mon- rushes, ■alcons, subject, 1 above >rmerlv reme- •e the ^claim- itioned there- as to I, and es not ty of re fit 24. The use of animals, alive or dead, for the purposes of science, has not perhaps been sufficient- ly protected either by common law or statute. IV ■n , r: 25. The statute 7 & 8 Geo. 4, C. 29, S. 31, provides, but not as for a thefr, ag-ainst taking* such beasts or birds as are ordinarily kept in a state of confinement, and their skins and plumage only. ■tri ■ I ( i ' 26. The common law principle does not appear satisfactory in the present day ; and a want of uni- formity in the law is occasioned by the old principle being partially innovated upon by the statute. YOUNG OF WILD ANIMALS NOT THE SUBJECT OP THEFT. 1. The young- of wild animals which are not the subjects of theft when reduced into possession or reclaimed, are not the subjects of theft, whether in the nest, kennel, den or otherwise. 2. The authorities do not lay it down in terms sufficiently clear and positive, whether the eggs, produce, skeletons, carcases, skins and plumage of wild animals, which cannot, though reclaimed, be the subjects of theft, may be stolen. 3. Of this nature are Ostrich, and other valua- ble feathers, sable and other skins, skeletons and the like. 4. Such chattels are often extremely valuable articles of commerce, and of the highest importance to science. tn f- I i ii3 THE YOUm's GUARD AGAINST CRIME. U-'. h^ 5. The circumstance of the animal whilst living, having" been fit for food, is not a reasonable criterion of the value of its component parts after death. 6. Property of this description is only very par- tially provided for by the statute 7 & 8 Geo. 4, C. 29,S.3l. ^ ■■'■' ■'■■*■ , -' , . ■ 7. It would seem to be more consistent with the principles of the common law, that these articles should not be deemed the subjects of theft, but such a rule would be contrary to the dictates of reason and convenieDce.. ^r . -' !•■■/, > ■ : • ' . ( ifvV;, i .-, :'"-•' ■■''': :''-jn.-,' \rr--v as/'" ifwry ! ' ^ ''7 '.{-J ;, -y{ : K .■ the THE PRACTICE OF A JUSTICE OF THE PEACE OUT OF QUARTER SESSIONS.* PART FIRST — OF THE APPOINTMENT OF JUSTICES. 1. Justices of the Peace are certain officers, ap- . pointed by the Sovereign authority, to be Magis- trates, within certain limits, generally within the Counties or Districts whei^ they are residents, for the conservation of the peace, and for the execution of divers things committed to their charge, as well by their commission, as by divers Acts and Statutes in that behalf. Before the institution of Justices of the Peace in England, there were Conservators of the Peace in every County, whose office it was to preserve the King's peace, and to protect the obe- dient and innocent subjects from force and violence, B urns J., Tit. J. of peace. These Conservators, l)y the ancient common law, were by force of the King's writ chosen by the Freeholders in the County court, out of the principal men of the County. Af- ter which election, so made and returned, the King directed a writ to the person so elected, autiiorising him to take upon him and execute the office, until the King should order otherwise. 2. The general duty of Conservators of the Peace, by the common law, was to employ their own, and to command the help of others, to correct and pacify all such, who in their presence, and with- in their jurisdiction and limits, by word or by deed ii'' s * See Magistrate's Manual, page 5, ' : <■ IT" 60 TUB TOITTU i QVAtLV AQAINST CRIME. l -».; should go about to break the peace, Dalt. C. I. These Conservators of the Peace are now superced- ed by the modern Justices of the Peace. Her Ma- jesty the Queen it by her office and dig-nity royal, the principal Conservator of the Peace within all Her dominions, and may give authority to any other, to see the peace kept, and to punish such as break it ; hence it is usually called the Queen's (or Kings's) Peace. Justices of the Peace are now appointed by the Queen's special commission, under the g-reat Seal, the form of which, we are told, was settled by all the Judg-es of Eng-land in the year 1590. This commission appoints them all jointly and severally to keep the peace, and any two or more of them in their sessions to enquire of and determine felonies and other misdemeanors, in which number it was formerly usual to include some particular Justices, who were directed to be always present, without which, or the presence ofsome of them, no business could be done, the words of the commission running thus : " Quorum aliquem vestrum A B C^ ^c, unum esse volumus ;" Whence the persons so ij^pecially named, were called " Justices of the Quorum." But this practice is now no long-er followed, and no exception is now taken or allowable for not expressing in the form of the proceeding's had before the Justices, that one or more of them was or were of the quorum. , ,, As the office of these Justices is conferred by the Sovereign, so it subsists only during her pleasure, ftnd is determinable by various means, but most ge- nerally by the issuing of a new Commission, which viitually and silently discharges all the Justices who- are n( may hold 11 genen trict o| Vic ted Ki er of To quires, you, jo Justice real, in as the '. cause tJ good ol same, i people, said lat cording and to against and to all the concerr have us their g and if t them in to cans and ev( quire n and la^ THE YOUTHS GUARD AOAQIST miME. «] C. I. ;rced- r Ma- royal, lin all other, break ing-'s) oil! ted great led by This ^erally lem in ;lonies it was ritices, itViout siness mining were lac t ice now Irm of ne or the mre, Itg-e- rhich who- are not included in it. That Justices of the Peace may see the nature and extent of the authority they hold under their Commission, I shall here .insert the general Commission of the Peace issued for the Dis- trict of Montreal. , , , Victoria, by the Grace ot God, Queen of the Uni- ted King-dom of Great Britain and Ireland, Defend- er of the Failh, &c. To (the names of the Justices appointed) Es- quires, Greeting*. Know ye that we have assigned you, jointly and severally, und every one of you, our Justices, to keep the peace in our District of Mont- real, in that part of our Province heretofore known as tlie Province of Lower Canada, and to keep, and cause to be kept, all ordinances and statutes for the good of the peace and for the preservation of the same, and for the quiet rule and government of our people, made in all and singular their articles in our said late Province, or in our Province of Canada, ac- cording to the force, form and effect of the same; and to chastise and punish all persons that offend against the form of those ordinances and statutes ; and to cause to come before you, or any one of you, all those who, to any one or more of our people, concerning their bodies, or the firing of their houses, have used threats, to find security for the peace, or their good behaviour towards us and our people, and if they shall refuse to find such security, then, them in our prisons until they shall find such security to cause to be safely kept; we have also assigned you, and every two or more of you, our Justices, to en- quire more fully into the truth, by the oaths of good and lawful men of the District aforesaid, by whom 62 THE YOUTU*9 OVTARD AOAINSV CRIME. the (ruth of the matter may be the better knowR) of all, and all manner of feloniesi poisonings, trespasses^ forestallingfs, regratings-, engrossing-s, ami extortions, whatsoever, and of all and singular the crimes and offences of which the Justices of the Peace may and ought lawfully to inquire, by whomsoever and by what manner soever, in the said District, had, don3, or perpetrated, or which hereafter shall there happen to be done or attempted ; and also of all those who in the aforesaid District, in conTf)anies, against oui peace in disturbance with our people, with arm- ed force have gone or rode, or hereafter shall pre- sume to go or ride ; and also of all those who shall there have laid in wait, or hereafter shall presume to lie in wait to maim, or cut, or kill our people ; and also of all victuallers, and all and singular other pel sons, who in the abuse of weights and measures, or in selling victuals against the form of the ordinance and statutes, or any of them therefor made for the common benefit, or of our said late Province of Lower Canada and of our people thereof, have offended or at- tempted, or hereafter shall presume in our said D i • triet to offend or attempt ; and also of all Sheriffs Bailiffs, Stewards, Constables, Keepers of Gaols, and other officers who in the execution of their of- fices about the premises or any of them, have unduly behaved themselves or hereafter shall presume to behave themselves unduly, or have been, or here- after shall happen to be, careless, remiss or negli- .srent in our said District ; and of all and singular ar- ticles and circumstances, and all other things what- soever that concern the premises or any of them, by whomsoever, and after what manner soever, m our aforesaid District done or perpetrated, or which shall hereaflerhappento be done or atteinpted,in what a manne soever or befo our afo termin( upon a< or who dieted, selves i all and forestal lawful all and s Laws an Canada, said, as ought to of them, amerciar cording i vince of and stati ought to vided, aJ^ determine or any U\ then let ju any two o of our Ji of one of zes in the you and c peace, ord other the ] ^d that ai THE YOVTB S GUARD AGAIflST CBIMB. as DWRj of ipasseSy ortions, nes and ce may ver and it, bad, ill there all those against ith arm- lall pre- ho shall isunne to and also pe; sons, es, or in ^nce and for the f Lower edorat- idDi- heriffd Gaols, heir of- unduly unie to r here- r negli- ular ar- what- them, jver, in which linwhat manner soever; and to inspect all indictments what^ soever before you, or any of you taken, or to be taken, or before others, late our Justices of the Peace, in our aforesaid District, made or taken, and not yet de- termined ; anJ to make and continue process there- upon against all and singular the persons so indicted, or who before you shall hereafter happen to be in- dicted, until they can be taken, surrender them- selves or be outlawed; and to hear and determine all and singular the felonies, poisonings, trespasses, forestallings, regratings, engrossings, extortions, un- lawful assemblies, and indictments aforesaid ; and all and singular other the premises, according to the Laws and Statutes of our said late Province of Lower Canada, orform of the ordinances and statutes afore- said, as in the like case it has been accustomed or ought to be done, and the same offenders, and every of them, for their offences, by fines, ransoms or amerciaments, forfeitures, and other means as ac- cording to the law and custom of our said late Pro- vince of Lower Canada, orform of the ordinances and statutes aforesaid, it has been accustomed, or ought to be done to chastise and punish. Pro- vided, ah^ays, that if a case of difficulty upon a determination of any of the premises before you, or any two or more of you, shall happen to arise, then let judgment in no wise be given before you, or any two or more of you, unless in the presence of one of our Justices of our Court of our Bench, or of one of our Justices appointed to hold the Assi- zes in the said District ; and therefore we command you and every one of you, that to keeping the peace, ordinances, statutes, and ail and singular other the premises you diligently apply yourselves, and that at certain days and places which you, or t 64 THE TOUTU'S GUARD AOAINIT CRIMS. any such two or more of you as aforesaid shall ap- point for these purposes, into the premises ye make enquiries, and all and singular the premises you hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to Justice ap- pertains, according to the law and custom of our said late Province of Lower Canadi, saving to us our amerciaments, and other things to us therefrom belonfiring. And we command, by the tenor of these presents, our Sherift' of oqr said District, that at certain days and places, which you, or any two or more of you as is aforesaid shall make known to him, ho cause to come before you or such two or more of you as aforesaid, so many and such good and lawful men of his District by whom the truth of the matter in the premises shall be the better known and enquired into. In testimony whereof, dec. OATH OP OFFICE OF A JUSTICE OF THE PEACE.* You shall swear that as Justice of the Peace for the District of , in all articles in the Quceirs Commission to you directed, you shall do equal right to the poor and to the rich, after your cun- ning, wit, and power ; and after the laws and cus- toms of that part of the Province of Canada, here- tofore called Lower Canada, and the laws, Ordinan- ces and Statutes thereof made ; and ye shall not be ofl counsel of any quarrel hanging before you ; and thatf ye hold your sessions after the form of the statutes! thereof made ; and the issues, fines, and amercia- ments that shall happen to be made, and all forfeit*! * See Magistrate's Manual, page 10. -JV *,;^ if ill AT^rt: ures ' been and ti shall truly in tha office the Q by sta direct partiei the sa Minis! cution "is* ' *.-■'> !n :»i«.j'-|. OF By Vic. C Justice trict ol actual and be soccag absolut or leas( for a t usufruc ements being ii faundre( satisfy the sann payabJe ball ap- e make ou hear in the ice ap- of our 5 to UB ere from of these that at two or iown to 1 two or ch good [he truth le better E.' eace for o ceiis equal lur cun- and cus- la, here- 3rdinan- not be of and that statutes amercia- 1 forfeit- ■ hS^ TllB YOt'TIl 8 GITARD AGAINST CRIME. 65 ures which shall fall before you, ye shall cause to be entered without any conceahnent or embezzling, and truly send them to the Queen's Exchequer ; ye shall not let for gift or other cause, but well and truly ye shall doyour office of Justice of the Peace in that behalf ; and that ye take nothing for your office of Justice of the Peace to be done, but of the Queen and fees accustomed, and costs limited by statute ; and ye shall not direct, nor cause to be directed, any warrant by you to be made to the parties, but ye shall direct them to the Bailiff of the said District or other the Queen's Officers or Ministeis, or other indifferent persons, to do exe- cution thereof. So help you God. OF THE QAULIFICATION OF JUSTICES OF THE PEACE. By Act of the Provincial Legislature of the 6tli Vic. Cap. 3, it is enacted, that no person shall be a Justice of the Peace, or act as such within any Dis- trict of this Province, who shall not have in his actual possession, to and for his own proper use and benefit, a real estate, either in free or common soccage, or en fief or enroture, or en franc aleu, in absolute property, or for life, or by emphyteose, or lease for one or more lives, or originally created for a term not less than twenty-one years, or by usufructuary possession for his life, in lands, ten- ements, or other immoveable property, lying and being in this Province, of above the value of three hundred pounds currency, over and above what will satisfy and discharge all incumbrances affecting- the same, and over and above all rents and charges payable out of, or affecting the same, who shall not B ■^1 " 66 THE YOUTH d GUARD AaAtNST CREMfE. before he takes upon himself to act as a Justice of the Peace, after the first day of January, one thousand eight hundred and forty three, take and subscribe the oath following before some Justice of the Peace for the District for which he intends to act, that is to say : " I, A, B., do swear that I truly and bo7iaJide, have to and for my own proper use and benefit, such an e^ate, (specifying the nature of such estate, whether land, and if land designa- ting the same by its local description, rents, or any- thincr else) as doth qualify me to act as Justice of the Peace for the District of according to the true intent and meanincj of an Act of the Provincial Parliament, made in the sixth year of the Reign of Her Majesty Queen Victoria, and intituled ' An Act for the quahfication of Justices of the Peace,^ and that the same is lying and being* (or issuing out of lands, tenements or hereditaments situate) within the Township, Parish of Seigniory of (or in several Townships, Parishes or Seigniories of ) (or as the case may be.) So help me Godv" A certificate of which oath having been so taken and subscribed as aforesaid, shall be forthwith de- posited by the said Justice of the Peace, who shall have taken the same, at the Office of the Olerk of the Peace for the District, and be by the said Clerk filed among the records of the Sessions of the said District. By the 5th clause it is also enacted, that any per- son who shall act as a Justice of the Peace in and for any District in this Province, without having taken and subscribed the said oath as aforesaid, or without being qualified according to the true in- tent and meaning of this Act, shall for every such offen rency moiet the Si of su in an' Distri mitte< the pi son a{ or in q pursuj knowlc such ] perjurj attend. Byt suii or mence( next af ed shal OP THE I It W( a Justi< cumsta his offi< attemp to shev from ac enced I * Sec 3 stice of y, one ke and 3tice of (nds to ; I truly per use nature S esigna- orany- 3tice of : to the >vincial eign of d 'An Peace/ ing out within (or in ) " A n and h de- shall erk of said 3ns of jrper- nand lavinij said, lie in- such TflC TOITTH'S GUARD AtSAIfTST CRDOE. «r offence forfeit the sum of twenty five pounds cur- rency, one moiety to Her Majesty, and the other moiety to such person or pesons as shalj sue for the same, to be recovered, together with full cost» of suit, 1:^ civil action, or by plaint or information in any Court having competent jurisdiction in the District wherein the offence shall have been com- mitted ; and in every action, suit, or information, the proof of his qualification shall be upon the per- son against whom the suit shall be brought. By the 13th Sect, if the statement in any oath, or in any declaration under oath taken or made in pursuance of the requirements of this Act, to the knowledge of the person making the same be false, such person shall be guilty of wilful and corrupt perjury, and subject to all the^ pains and penalties attendant on that offence. By the 14th Sect, it is enacted, that every action, suii or information given by this Act, shall be com- menced within the space of six calendar months next after the fact upon whi^h the same is ground- ed shall have been committed, and not afterwards. OP THE POWER, OFFICE, AND DUTY OF JUSTICES OF THE PEACE. * It would be difficult to enumerate all the duties of a Justice of the Peace, from the great variety of cir- cumstances in which he may be called to exercise his office ; therefore, under this title, all that can be attempted will be to mark some general rules, and to shew how others may be collected by inference from adjudged cases, in instances where experi- enced Magistrates might derive information. * Sec Magistrate's Manual. , ; , II M -I # 68 THE youth's OUABD AGAINST CRIlfB. The power, office, and duty of a Justice of th« Peace depends upon his Commission, and on the several statutes, Acts and Ordinances which have created objects submitted to his jurisdiction, 1 Bl. Com. 354. His commission first empowers him singly to conserve the peace, and thereby gives him all the power of the ancient Conservators at the common law, in suppressing riots and affrays — in taking securities for the peace — and in apprehending and committing felons and other inferior criminals. The powers given to one or more Justices, by the said Statutes, Acts and Ordinances, in a variety of offences and matters to be determined before them in a summary manner, must necessarily call for the time and attention of those Justices, that their proceedings in suqh cases may be regulated con- formably to law. Wherever they are called to in- flict a penalty for the omission of some duty, or the commision of some infringement of the law, they must be convinced of the necessity of their know- ing what the law in every such case enjoins, and in what manner it is to be eniorced. The power of infliction of penalties by summary conviction has been found necessary for carrying into execution many laws made for the public benefit, and although this power has been considered as a departure from the security to liberty and property granted by Magna Charta, by which it is established that none ought to be tried or condemned but by their peers, yet it has been adopted as necessary from the increasing number of laws occasioned by the increasing wants of a more advanced state of society, because it gives a speedy remedy against individuals for some breach of the law, often trivial, and can be had at small expense, and without loss of time, by the sum- mary man, the P( ter vie ses, dt Mr. JJ is obli< duties and in and fr to be tensive the ha but sh< low ra tituted person therefo ciety t meet tl this offi Whe general express Justice provisi( if the the pet he ma) appreh be bro for the plaint. Justice tllE YOrTu's GUARD AGAINST CRIM£. of th« on the I have 1 BI. s him es him at the ys— in ending ninals. by the iety of 3 them for the : their d con- l to in- or the r, they know- and in iwer of s been many h this )m the Wogna owghi yet it easing wants use it some lad at ; sum- mary proceedinsf before the Mag-istrate. Every man, therefore, who accepts (he office of Justice of the Peace, and fulfils the duties of it, witlwut sinis- ter views of his own, or usino* it for political purpo- ses, deserves well of the public, 4 Bl. Com. 281. Mr. Justice Blackstone observes, that the country is obliged to gentlemen who will undertake the duties of this office, and particularly to men of rank and influence, who hold a greater stake in society, and from their situation in life must* be presumed to to be more alive to its general interest. T e ex- tensive powers of a Justice of the Peace, even in the hands of a man of honor, are highly formidable, but should the office fall into the hands of men of low rank and character, it will be liable to be pros- tituted to the low ends of selfish ambition, or of personal resentment. Under such circumstancet?, therefore, how essential is it for the interests of so- ciety that men of fit character, and such as will meet the public confidence, should be appointed to this office ? When a Statute directs certain things to be done generally by Justices of the Peace, and no power is expressly given to otie Justice to act under it, a single Justice in that case, has no jurisdiction to execute its provisions, (Dalt. Just., c. 5. — 1 Deacon 714,) yet, if the offence be any misdemeanor, or matter against the peace, then upon complaint made to one Justice, he may of his own authority grant ci warrant for the apprehension of the offi3nder, in order that he may be brought before himself and some other Justice, for the purpose of hearing and determining the com- plaint. (Dalt. Just., c. 6, — Burns, J.) When a Justice is out of the particular District for which he tn 7t Tke vortirs c^uard against orimb. is commissioned, he has no coercive magisterial power, and, therefore, his acts or orders are not binding. It seems, however, that recognizances and informations voluntarily taken before him in any place, are good. (2 Hawk, c. 8, S. 28.) But a. Justice has no jurisdiction either over the offence or the offender, when the one is committed, and the other abiding, in another District. There are cases, however, where the presence of the offender, within the District or jurisdiction of the Justice, which authorises him, from the necessity of preserving the peace, to proceed against the of- fender. Thus, if a man commit a felony in the Dis- trict of Quebec or Three Rivers, and comes into the District of Montreal, a Justice of the latter District may take the information against him and also his examination, and may commit him and bind over the witnesses to give evidence at the trial, and in short proceed in all respects, as if the offence hfid been committed within his jurisdiction. — 2 Hale, 50. By Statute 24, Geo. 2, cap. 55, if any person against whom a warrant is issued shall escape into any other county, any Justice of that county, upon proof of the hand-writing of the Justice granting the warrant, may endorse his own name thereon, which shall be sufficient authority to the person charged with the execution of the warrant, to execute the same in such other county, and carry the offender before the Justice who endorsed the warrant, or any other Justice of that county, in case the offender be bailable, but if not, then before a Justice of the county where the offence was committed. In cases of summary conviction, and the lighter kinds' of misdemeanors, a Magistrate should issue a sumnTiO first ins obeys t issue a sence o ject of Statute it impli( ance of s. 15.- ft IS takes tl him wit of an A viser, ei examina there be trial, (1 217.— 2 right to exan. na poses ol dence n an objec torney f convey In the viction b the Mac that a p fore he suffer a AJu informa THE TOUTU S GUARD AGAINST CRIME. 71 summons agfainst the party, and not a warrant in the first instance. (13 East. 55.) But ifthe party dis- obeys the summons, then the Justice may properly issue a warrant ag-ainst him, that is where the pre- sence of the party is anywise necessary for the ob- ject of tbe complaint or prosecution, for when a Statute eives a Justice jurisdiction over an offence, it impliedly g-ives him a power to compel the attend- ance of lie party charged with it, (2 Hawk, c. 13, s. 15.— 10 Mod. 248.-2 Bing-. 63.) It is in the discretion of Magistrate when he lakes the examination of a person charged before him witl felony, whether he will allow the presence of an A torney, or other person acting- as legal ad- viser, eitier for the prisoner or prosecutor, for such an examinaion is only a preliminary enquiry, whether there besufficient ground to commit the prisoner for trial, (1 3and c. 37.— 3 B. and A 432. —1 Chitt.Rep. 217. — 2D. and 11. 86,) and if an Attorney had a right to >e present, there could never be any private exan. naions, which are often necessary for the pur- poses of ustice, in order to find where further evi- dence nuy be obtained, and to get at accomplices, an objectthat would be entirely defeated if an At- torney foione of a gang of felons might obtain and convey inbrmation to the rest. In the Qse, however, of a trial, or summary con- viction befre a Magistrate there is a difference ; here the Magistate acts judicially, and it is reasonable that a part^ should have professional assistance be- fore he is hally condemned to pay a penalty, or suffer a tern of imprisonment, A Justice of the Peace out of Sessions, before information led in Court, or indictment found, has ;;^it ii 1 i!1 72 THE youth's guard AGAINST CRIMIT. jurisdiction in the first instance upon sufficient affi- davits to issue his warrant to apprehend a party charg-- ed with publishing" a libel, and requiring him to find bail, and in default of sureties to commit to prison to abide his trial, 4 Moore, 195.— 1 B, and B. 548. When an Act empowers two Justices to execute a judicial act they must meet and execute V, togeth- er, and cannot proceed separately. (3 T. Eep, 38., 2 East. 244.) On complaint for breach of the peace, or threats, or other sufficient cause, a Justice of the Peace is authorised to require sureties of the peacs, for a limited time, according* to his discretion, aid need not bind the party over to ihe next Sessiois only, (2 B. and A. 278.; A Justice may issue his warrant to searchfor sto- len property, and to bring* a party before bin, upon the representation of a reasonable suspicion ♦f felony committed, and it is not absolutely necesjary that there should be a direct and positive avement on oath, 1 D. and R. 102. Although a Justice of the Peace is requied to ad- minister an oath in the investig^ation of mjtters pro- perly broug-ht before him in his judicial ;haracter, yet it is very questionable whether he isjustifiable in taking a voluntary affidavit made on Any extra- judicial matter, as is frequently done, upon any petty occasion, as swearing* to an accoun; or matter of debt, or any fact or circumstance iiconnected with any proceeding legally had before ne Justice, (4 Bl. com. 137.) There can be no ciiviction for perjury on such affidavits, although tb guilt of it may conte offenc Inst. In mine confes make matte to the An Act ment whicl to abi other after i Pre plainly what ( with d di>;pen ty, tba any ot Beit I lent M the L( vince < by virl »S€eS THE TOUTH^S GUARD AGAINST CRIME. 73 nt affi- charg-- to find prison 3. 548. xecute ogeth- p. 38., hreats, eace is for a d need ' only, or sto- iipon felony y that nt on o ad- pro- acter, iable xtra- any latter ected stice, n for of it may be incurred. Lord Coke says, it is a hi<>'h contempt to administer any such oath, and that the offence is punishable by fine and imprisonment, 3 Inst. 165. •' ' , In all cases where a Justice may hear and deter- mine out of Sessions, whether on his own view, on confession, or the oath of witn^sse^, he oiiofht to make a record in writinor under his hand of all the matters and proofs, which record mast be returned to the Sessions. CRIMINAL STATUTES OP CANADA. An Act to reduce the number of cases in which Capital Punisli- ment may be inflicted ; to provide other punishment for otfencco which shall no longer be Capital after the passing of this Act ; to abolish the privilege called benefit of Clergy, and to make other alterations in certain Criminal Proceedings, before and after conviction.* [Passed 13th Februarj^ 1833. Preamble, — Whereas it is fit that it should \)e plainly declared in the Statutes of this Province, for what crimes offenders shall be liable to be punished with death ; And whereas it does not seem to be in- dispensable, for the security and well beinor of socie- ty, that the punishment of death should be inflicted in any other cases than those hereinafter mentioned. — Be it therefore enacted by the Kings's Most Excel- lent Majesty, by and with the advice and consent of the Lesfislative Council and Assembly of the Pro- vince of Upper Canada, constituted and assembled by virtue of and under the authority of an Act pass^ *S€e statutes of Canada, 3 Wm. IV., chap. 4* • ' ■y- : ■ *i 74 HUB YOVTU'S GUARD AGAINST CRIMB. ed in the Parliament of Great Britain, entitled ** An Act to repeal certain parts of an A<:t passed in tiie fourteenth year of His Majesty's Reign, enti- tled ** An Act for making* more effectual provision for the Government ot the Province of Quebec, in North America, and to make further provision for the Government of the said Province," and by the authority of the same, that if a person do compass or imagine the Death of our Lord the Kincf, or if a person do levy War aofainst our Lord the King*, in this Province, or be adherent to the King's enemies in this Province, giving to them aid and comfort, in this Province, or elsewhere, and thereof be pro- vably attainted of open deed by people of his condi- tion, such persons so attainted shall be deemed guil- ty of Treason, and shall suffer Death. 2. Murder, — Every person convicted of Murder, or of being an accessory before the fact to Murder, shall suffer Death as a Felon. 3. Petit Treason. — Every offence, which before the passing of this Act, would have amounted to Petit Treason, shall be deemed to be murder only, and no greater or other offence ; and all persons guilty in respect thereof, whether as principals or accessories, shall be dealt with, indicted, tried, and punished, as principals and acessories in murder. 4. Rescuing Persons, — If any person or persons whatsoever shall by force set at liberty or rescue, or attempt to rescue, or set at liberty, any person out of prison who shall be committed for, or found guilty of murder ; or rescue, or attempt to rescue, any person convicted of Murder going to execution, or during execution, eveiy person so offending shall he deer ny, and 5. R Rape, s 6. C( lawfully the ag( f'-uiltv oi suffer de 7. So. abomina mankind a felon. 8. Ro person ol or shall havino" cl this Pro packets, heing cor and sucii tried and The offenc fender sh 9. Bm glary, shj 10. TP ling How curtilage therewith TDB YOUTH 8 GUARD AOAINIT CRIMB. 75 be deemed, taken and adjudged to be gulUyof felo- ny, and shall suffer death. 5. Rape, — Every person convicted, of the crime of Rape, shall suffer death as a felon. 6. Carnal Knowledge. — If any person shall un- lawfully carnally know and abuse any jafirl under the agfe of ten years, every such offender shall be qiiilty of felonvj and being convicted thereof, shall suffer death as a felon. 7. Sodomy, — Every person convicted of the abominable crime of Bu^geiy, committed either wiih mankind or with any animal, shall suffer death as a felon. 8. Robbery. — If any person shall Rob any other person of aay chattel, money, or valuable security; or shall rob any person carryinur or conveying, or liavinw" charge of (lis JMnjesty's Mail, in any part of this Province, of nny letter or letters, packet or packets, bag or mail of letters, cveiy such offender, i)eing convicted tliereof, shall suffer death as a felon ; and such offenders shall and may be inquired of, tried and determined, either in the District in which The offence shall be committed, or in which the of- fender shall or may be apprehended. 9. Burglary* — Every person convicted of Bur. glary, shall suffer death as a felon. 10. What shall be deemed to be part of the DweU ling Home, — No Building, although within the same curtilage with the dwelling house, and occupied therewith, shaU be deenied ^to be part of such dweU li ! « ii 76 THE tovte's quakd against crimb. lin^ bouse, for the purpose of burj^lary, unless there shall be a communication between »uch building and dwelling house, cither immediate or by means of a covered passage leading from the one to the other, 11. ^^rson. — If any person shall unlawfully and maliciously set fire to any church or chapel, or to any building commonly used for religious wor- ship, or to any hous GTABD AGAINST CRIMfl. TO r Sov- larxJetli to dis- )art to 3, upon le First ilts and ff, Ud- Officer D juris- wered, ny un- place e num- ?rocla- ch per- lore of resaid, •selves ful for Sher- 11 be, anded, eace, ticers^ esty's g- to rsons itinu- esaid, Dnded eace all be 80 apprehended, in order to their being* proceeded aofainst for such their offences, according* to law, and if the persons so unlawfully and riotously itssembled or any of them, shall happen to be killed, mainned or hurt in the dispersing-, seizing-, or by reason of their resisting the persons so dispersing- them, that then every such Justice of the Peace, Sheriff or other Peace Officers, and all and singular persons beini'' aiding- and assisting* to them or any of them shall be free, discharged and indemnified. 14. Statutes of Upper Canada, 36 Geo.3, ch, 1 ; — An Act for lh(3 further introduction of the Criminal Law of England in this Province, and for the more effectual punishment of certain offenders ; and of the several Acts of tlie Parliament of this Province, passed authorising the issuing- of Govern- ment Debentures, as provides that any offence in any of those StatiUes respectively mentioned, shall be punishable with death, shall be and the same is hereby repealed ; and that such offences shall con- tinue to be of the deg-ree of felony, and the persons convicted thereof shall be liable to the punishments^ or any of them, which are by this Act provided in respect to felonies generally, which are not punish- able with death, 15. Persons confessing, or outlaiced, to be pun- ished in the same manner as if convicted by verdict, — If any person shall be indicted for any offence made capital by this, or any other Statute made or to be made, such person shall be liable to the same punishment, whether he or she shall be convicted by verdict or confession, or shall be outlawed, upori indictment ; and this as well in the case of acces- sories as of principals. ^ ■ • . ■ *! 80 THB YOUTHS OUA.RD AOAIlTST OAIHB« 16. Certain forms on arraignment dispensed icitk^ — If any person being- arraigned upon any indict- ment for Treason oi Felony, shall plead thereto a p>lea of ** Not Guilty," he shall by such plea with- out any further forn be deemed to have put himself tipon the country for trial — and that if any person being" arraig-ncd upon any indictment for Treason or Felony, shall stand mute of malice, or will not an- swer directly to the indictment, in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of " Not Guilty," on behalf of such person, and the plea so entered, shall have the same force and effect as if such person had actually pleaded the same. 17. Sentence in certain cases of High Treason mitigated. — Whereas in certain cases of High Trea- son, as the Law now stands, die sentence of judg- ment required by Law to be pronounced or awarded against any persons convicted or adjudg"ed guilty of the said crime, in such cases, is, that they should be drawn on a hurdle to the place of execution, and there be hanged by the neck, but not until they are dead, but that they should be taken down ag*ain, and that when the/ are yet alive their bowels should be taken out, and burnt before their faces ; and that after- wards their heads should be severed from their bo- dies, and their bodies divided into four quarters, and their heads and quarters to be at the King-'s dispo- sal : And whereas it is expedient in the said cases of High Treason to alter the sentence or judg-ment required by Law : Be it therefore enacted by the authority aforesaid, that in all cases of Hig-h Trea- son in which, as the I^aw now stands, the sentence •Statute 4 & 5 Vic, chap. 24, sec. 14 or jud after victed shall I and b( dead- shall I ~ 18. any pe ted th livere( cers, t ed and 19. tenceA Court derer, other ble cai tence j ment c execui rected horror of su< niurde 20. afores it shal forew stay t] • Sta t Sta THE YOUTHS GUARD AGAINST CRIME. 81 if with* indict- thereto n witli- limself person ison or lot an- case it ink fit, **Not lea so i as if reason i Trea- fjiidg-- varded lilty of iild be I there dead, id that taken after- 3ir bo- s, and dispo- cases ofment y the Trea- itence or judiJfment tobe pronounced or awarded from and after the passing of this Act against any person con- victed or adjudged guilty shall be, that such person shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until such person b0 dead — and that afterwards the body of such person shall be dissected and anatomized. 18. Persons convicted oi Murder,* — Whenever any person shall be convicted of Murder, and execu- ted therefor, the body of such murderer shall be de4 livered by the Sheriff, or his Deputy, and his Offi- cers, to a Surgeon, for the purpose of being dissect-t ed and anatomized. 19. Sentence when to be passed — Term of the sen- tence*i — The sentence shall be pronounced in open Court immediately after the conviction of such Mur- derer, and before the Court shall proceed to any other business, unless the Court shall see reasona- ble cause for postponing the same; in which sen- tence shall be expressed, not only the usual judg- ment of death, but also the time appointed for the execution thereof, and the mark of infamy hereby di- rected for such offenders ; in order to impress a just horror in the mind of the offender, and on the minds of such as shall be present of the heinous crime of murder. ., 20. Respite. — After such sentence pronounced, as aforesaid, in case there shall appear reasonable cause, it shall be lawful to and for such Judge or Justice, be- fore whom such criminal shall have been so tried, to stay the execution of the sentence, at the discretion of • statute 4 & 5 Victoria, chap. 27. . , . t Statute 4 & 4 Victoria, chap. 27, sec. 4 and 5. . ' ' ; P 1 ': I tHE youth's guard AGAINST CRIME. aiich Jud^e or Justice, regard being* always had to the true intent and purpose of this Act : Provided blso that it shall be in (he power of any such Judge or Justice to appoint the body of any such crimi- nal to be dissected and anatomized. 21 . Further regulations — Food of Convicts* — A fter sentence passed as aforesaid, and until the execu- tion thereof, such offender shall be fed with bread and water only, except in case of any violent sick- ness, or wound, in which case some known Physi- cian, Surgeon or Apothecary may be admitted by the Gaoler or keeper of said Prison to administer necessaries, the Christian and Surname of such Physician, Surgeon or Apothecary, and his place of abode being first entered in the books of such Prison or Gaol. 22. Benefit of Clergy abolished* — From and after the passing of this Act, benefit of Clergy in this Province shall be abolished, and that the same need not in any case be prayed, and shall not in any case be allowed, any Law, Statute or usage to the con- trary, notwithstanding ; and that in all cases of crimes made punishable by this Act with death, the effect of such provision shall be the same as in the case of any offence which, before the passing of this Act was made punishable with death without bene- fit of Clergy. 23. For what Felonies offenders may he whipped or set in the pillory.^ — If any person shall be con- victed, after the passing of this Act, of Forgery, or » Statute 4 & 5 Victoria, Chap. 24, Sec. 19 & 20. t See 4 & 5 Victoria, Chap. 24, Sec. 31. seri»* — if any \ Majest; of Her by any ly or in encour or leav< aforesa before gaol de ing shs upon c imprisi which ment ii • 3rd^ irttB yotrras guard against ckimx. H of* uttering' any forg-ed deed, will, instrument, note, bill or writing:, or of falsely personating any person or persons, which forg-ery, or which uttering", or which false personating" was, before the passing" of this Act, punishable with death in this Province, the Court before which such person shall be convicted may, if they shall think fit, adjudg-e such person (unless in case of a female) to be set in the Pil- lory, once or oftener, or to be once or oftener publicly or privately whipped, at such time or times, and at such place or places as they may direct, which punishment shall either be in addition to any other punishment which the Court, according* to Law, may awlard, or otherwise, as may to them appear proper. i. Afiy person procuring Soldiers or Sailors to de* serL* — That from and after the passing- of this Act, if any person other than enlisted Soldiers in Her Majesty's Service, or Sailors in the Naval service of Her Majesty, shall by words or with money, or by any ways, methods or means whatsoever, direct- ly or indirectly, prevail upon, procure, persuade or encour ag(3 any such Soldiers or Sailors to desert, or leave Her Majesty's Maval or Military service as aforesaid, and shall be thereof lawfully convicted before any Court of Oyer and Terminer and general gaol delivery in this Province, such person so offend- ing shall be deemed guilty of a misdemeanor, and upon conviction sh-iU be liable to be punished by imprisonment in the Common Gaol of the District in which such conviction shall happen, or by imprison- ment in the Provincial Penitentiary in this Province, for * 3rd Victoria, Chap. 4. ik ri 'I, h : ^- if' . If ^ 84 THE YOUTHS GUARD AGAINST CRIME. such period as the Court before which such trial shall take place shall in their discretion adjudge, and shall be further liable to the payment of such fine as the said Court shall impose upon and require to be paid by such offender. :; i ;' - m'j 2. Citizens or subjects of a foreign Power taken in amis, — That if any person, beinij: a citizen or sub- ject of any foreign State or Country, at peace with the United Kingdom of Crreat Britain and Ireland, shall after the passing of ttiis Act, be or continue in arms against Her Majesty, her heirs or successors, within this Province, or shall commit any act of hos- tility therein, or shall enter this Province, with de- sign or intent to levy war against Her said Majesty, or to commit any felony within the same, for which any person convicted of such felony would by the laws of this Province be liable to suffer death, then it shall and may be lawful for the Governor of this Province to order the assembling of a Militia ge- neral Court Martial for the trial of such person, agreeable to the Militia Laws of this Province ; and upon being found guilty by such Court Martial to suffer death, or such other punishment as shall be awarded by the Court. < I ^ INFORMATION FOR DISTURBANCE OF A CONGREGATION IN CHURCH DURING DIVINE SERVICE, UNDER 'i & 5 VIC, CHAP. 27, SEC. 31.* District of > Information of D. C, of the Parish i ^ of. in the said District, yeo- •'♦-., ! ' i. { ; ^ 'J man, taken before me, M. W., Esqr., .>ii!&J'ui t.:> U.».: ■* "HIE YOUTHS GUARD AGAINST CRIMB. M5 ih trial ge, and ch line 111 Ire to • taken orsub- .6 with reJand, in lie in essors, of hog- th de- ajesty, wjjich t)y the i, then of this la g-e- 'erson, ^ince ; lartiai lall be 'Die said D. C. being duly sworn, deposeth and saith, that on Sunday the day of instant, a congi'eg'ation of persons being- assembled and met together in the Farish Church of the said Parish, (or in any Churchy Chapel or other 'place of worship as the ruse may be) for the purpose of reli- gious v/orsliip, E. F., late of the said Parish, tailor, and G. H., of the same place, labourer, together with divers other evil disposed persons, did, during the performance of such religious worship in the said Pari:sh Churcli (^or euck Church, Chapel, ^c, as above) the day and year aforesaid, at the Parish aforesaid, wilfully interrupt and disquiet the said congre^ratiou so assembled, by making a great noise, and hollowing ai and near the said Church (or Church, Chapel, Sfc, as above) and throwing stone? aofainst and breakiniif the windows of said Church (or Church, Chapel, ^c, as above) (or other distur- bances as the case may be) whereby the said congi'e- gation was greatly disturbed, and the said religious worship indecently interrupted. Therefore pray» justice in the promises. Sworn at in the said "j *^ District, this day of 18 — , before me. (Signed,) M. W., /. P. (Signed,) D. C. ( HURCH .31/ *arish yeo- -sqr., >f the strict. COIN AND CURRENCY.* By the Act of the Provincial Legislature of ihe 4 and 5 Vic, c. 9.S, sec. 12, made to regulate the Currency of this Province, it is provided, that if any person shall colour, guild or case over witb gold or * See Magistrate's Manuui. page 112. j' i i';,jI ,\) !((''1<..J P: m-M X 9 ^v Tm TOVTH'i GUARD AOAllfST CRIMB. m silver, or any thinjof producing* ihe colour of gold or silver, any coin of coarse gold or of coarse silver, or of base metal resembling any coin current by the said Act—- or if any person shall bring or import into this Province any forged, false or counterfeit gold, silver or copper coin, like to any of the gold, silver or copper coin made current by the said Act, knowing the same to be false, &c , — or if any person shall alter or tender in payment as being any of the gold, silver or copper coin, made current by the 3aid Act, any false or counterfeit coin, coimterfeited to any of ♦.he gold, silver or copper coins made current by said Act, knowing the same to be false or counter- feit, such person shall be guilty of a misdemeanor, and on conviction shall be liable to imprisonment and hard labour — and if such person shall after- wards offend in like manner, he shall be guilty of felony, and punished accordingly. By sec. 13. If any person shall form, make, cut, sink, stamp, engrave, repair or mend, or shall assist in forming, &c., or shall have in his possession, ex- cept for some known and lawful purpose, any die, plate, press, tool or instrument, paper, matter or material, of any kind used or designed for the pur- pose of counterfeiting or imitating any coin which shall be lawfully current in this Province by virtue of this Act, — or any Bank note, bill, note or writing, purportir^f to be a Bank note in circulation in this Province, or in any of the Uuited States of America adjoining this Province, — such person shall be guilty of a misdemeanor, and shall be liable to punishment accordingly. And the proof that such die, plate, press, tool or instrument, paper, metal or material, was formed, made, cut, sunk, stamped, engraved, re- pairej such] him B^ SUCI for any in thi soe^ discc fortll risdi be s and i gol me tei los sui tic be he til THE YOUTU^S GUARD AGAINST CRIMB. i7 gold or Jver, or the said ito this , silver ver or lowing" shall ? g-old, d Act, any of nt by mter- anor, iment after- ty of cut, issist , ex- die, r or pur- hich eof this 'ica ihy ent te, aly re- paired or mended by, or was in the possession of such person, for some lawful purpose shall be upon him or her. By sec. 14, It is declared lawful for any Justices of the Peace upon complaint made on oath before him, that there is just cause to suspect, that any per- son or persons, is or are, or hath or have been con- cerned in making, counterfeiting- or imitating* any such coin, bank note, bill, note or writing as aforesaid, by warrant under his hand, to cause the dwelling* house, room, workshop, outhouse or other buildings, yard, gardens, ground or other place belonging to such suspected person or persons, to be searched for any counterfeit coin, &c. And if any such, or any die, plate, press, Sec, as aforesaid, shall be found in the such possession or custody of any person what- soever, it shall be lawful for any person or persons discovering the same to seize and carry the same forthwith before a Justice of the Peace, having ju- risdiction within the locality in which the same shall be seized, who shall cause the same to be secured and produced in evidence against the offender. By sec. 15. The person to whom any suspicious gold, silver or copj)er coin shall be tendered in pay- ment, may cut or break the same, and if found coun- teifeit, the person tendering the same shall bear the loss, otherwise the person breaking it shall receive a sum proportionate to its weight. And if any ques- tion arise* whether such coin be counterfeit, it shall be determined by any Justice of the Peace, who if he entertain any doubt in that behalf, may summon three skilful persons, — the decision of a majority of whom shall be final. 1' 88 THE YOVTUS GUARD AGAINST CRIME. V: i '.V '.<-} a<'>!!Hi^**^'-!^^( nU CONSTABLE.* i h 'Utiy,^ '?0 ?>'»J^| » The Constable is a Peace officer generally chosen by the Justices at their Quarter Sessions, and is the proper officer to a Justice of the Peace, and bound to execute his warrants. — Burns. ^ I } Every Constable is by the Common Law, a con- servator of the Peace, and is authorised without any warrant to arrest all traitors, felons, or suspicious persons, and in case of any breach of the Peace committed, or about to be commited in the presence of a Constable, or where violent threats or attempts are used by any person to beat or hurt another, he may arrest the party, and carry him before a Mai^-is- trate, or detain him till he can conveniently do so. — [2. Hawk, c. 13, sec. 19. By St. 27, Geo. 2., c. 20, sec. 2., a Constable ex- ecuting* any warrant of distress, must, if required, shew the same to the person whose goods are dis- trained, and suffer a copy thereof to be taken. But in no case is a Constable required to part with his warrant out of his possession, for that is his justifi- cation under 24 Geo. 2, c. 44, sec. 6., in case of any action brought against him. By the Ordinance of the Governor and special Council of the 4 & 5 Vic. c. 17, s. 7, the Policemen appointed for the Cities of Quebec and Montreal, are sworn in as Constables in the several Districts, for preserving the Peace, and preventing robberies and other felonies, and apprehending offenders against the peace, and it is ordained, that the men so sworn, have within the said Distr cts all such powers and • See Magistrate's Manual, page 130. authori] liable t( Constal have u| vince, made, they mi missiouj the exe Bvtl 4&'5 from in\ man, a^ legal or ditionall or shall any one or defile other p< such ofl vie don discreti ByS lawful!; girl un( session ther, o charge a misd ishmer Court TUE YOUTH 9 GUARD AGAINST CKIME. 89 authonties, privileg'es and advantaw-es, and shall be liable to all such duties and responsibilities as any Constable duly appointed has now, or hereafter may have under and by virtue of the laws of this Pro- vince, or of any Statute or Ordinance made or to be made, and shall obey all such lawful commands as they may from time to time receive from the Com- missioner of Police, for conducting themselves in the execution of their office. ' ABDUCTION OF WOMEN. By the Act of the Provincial Legislature of the i ^ 5 Vict ; c. 27: Sec. 19 — If any person shall, from motives of lucre, take away or detain any wo- man, against her will, having any interest, whether legal or equitable, present or future, absolute, con- ditional or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest, with intent to marry or defile her, or to cause her to be married to any other person, or defiled by any other person, every such offender shall be guilty of felony, and on con- viction liable to be imprisoned at hard labour at the discretion of the Court. By Sec. 20. If any person or persons shall un- lawfully take, or cause to be taken, any unmarried girl under the age of sixteen years, out of the pos- session, and against the will of her Father or Mo- ther, or any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanour, and on conviction suffer such pun- ishment, by fine or imprisonment, or both, as the Court shall see fit. . -' ' - / si: • ^ j i / mt 00 THB YOUTHS GUARD AGAINST CBIMB. By Sec. 21. If any person or persons shall mali- ciously, either by force or fraud, lead or take away, jov decoy, or entice away, or detain any child under the oge of ten years, with intent to deprive the pa- rent or parents, or any other person or persons ha- vino" the lawful care or charge of such child, of the possession of such child, or if any person shall, with any such intent, receive or harbour any such child, knowing the same to be enticed, taken away, or detained, every such offender, and every per- son counselling, aiding, or abetting such offender, shall be guilty of felony, and on conviction liable to imprisonment at haid labour in the Penitentiary for not less than seven years, or in any other prison for any time not exceeding two years. Under this Law, as in all cases of felony and misdemeanour, the Justice of the Peace can re- ceive the necessary information, or depositions of Witnesses, to substantiate the offence, and grant his Warrant to arrest the offender — and after taking his examination -^ the examinations of the witnesses in his presence, as in the case of felony, commit him to prison for trial, or admit him to bail, as circiuTi- stances may require. K I LARCENY. An Act of the 4tli and 5th Vic, chap. 25, entitled an Act for consolidating and annendihg the Laws of this Province, relative to Larceny, and other offences connected therewith. By Sec. 2, the distinction between Grand and Petty Larceny is abolished, and every Larceny, whatever be the value of the property stolen, shall be de^ the 81 ceny every was, to Pel case exceei simplj Larcel By Larce pie La hard 1 By of any Act, t\ shall b er to b hard li rectioi] kept ir tions with I one til as to I By at the son, s By weapc son, o TIIB YOUTHS GUARD AGAINST CRIME. 01 ill mali- B away, d under the pa- ons ha- , of the n shall, ly such 1 away, ry per- ffender, iable to iary for ison for my and can rc- ions of •ant his cing his tnesses nit him rcum- Act for relative and rceny, shall be deemed to be of the same nature, and subject to the same incidents in all respects as Grand Lar- ceny was before the commencement of this Act, and every Court whose power as to the trial of Larceny was, before the commencement of this Act, limited to Petty Larceny, shall have power to try every case of Larceny, the punishment of which cannot exceed the punishment hereinafter mentioned for simple Larceny, and also to try accessaries to such Larceny. ' .1 By Sec. 3, every person convicted of simple Larceny, or of any felony made punishable like sim- ple Larceny, shall be liable to imprisonment and hard labour at the discretion of the Court. By Sec. 4, where any person shall be convicted of any felony or misdemeanor punishable under this Act, for which imprisonment may be awarded, it shall be lawfid for the Court to sentence the offend- er to be imprisoned, or to be imprisoned and kept to hard labour in (he Common Gaol or House of Cor- rection, and also to direct that the offender shall bo kept in solitary confinement for any portion or por- tions of such imprisonment, or to such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding* three in any one year, as to the Court in its discretion shall seem meet. By Sec. 6, whosoever shall rob any person, and at the sama time shall cut, stab, or wound any per- son, shall be guilty of felony, and shall suffer death. .'By Sec. 7, whosoever shall, with any offensive weapon, rob, or assault with intent to rob, any per- son, or shall beat, or use any pei'sonal violence to F J i I K ^'' 'W\ 1- :h ' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 itt Itt I.I I 1.25 u ■IWI* 2.2 2.0 U 11.6 ^^ ^J %^* n '/ ScMices Corporation 4^^<(JV V as WBT MAM STMRT wnsTn,N.Y. usto (71«)l7a'4S03 '<(V 92 TIIB YOUTH S UVAHD AGAINIT CRIMB* any person, shall be guilty of felony, and liable to be punished with imprisonment and hard labour al the discretion of the Court. KHs.nc*\y'y.if 'nf-^h\ ^m/ n- By Sec. 8, whosoever fc^hall accuse or threaten to accuse any person of the abominable crime of Buggery, or of making any solicitations, promise or threat to any person wliereby to move or sed. ce »uch person to commit, or permit such crime, or «hali by intimidating such person by such accusation to extort or gain property, shull he guilty of felony, and liable to be punished by imprisonment and hard labour at the discretion of the Court. ^> ^ v »i» v, ,1 ! I • c ( ' • 4 1 [ . f.»; ; J if'; J '.J • >i 1 • 1| ( t ill • ! J 1 i« I '■ , i . . S . i By Sec. 9, whosoever shall rob any person, or shall steal any money, chattel, or valuable security from the person of another, shall be liable to impris- onment and hard labour for a term of years. By Sec. 11, whosoever shall, by force or mena- ces, demand any chattel, money, or valuable security of any person, with intent to steal the same, shall be guilty of felony, and be liable to imprisonment. ! l>4'»y ,, . < I tl 'i . .} I.i. I •...«-..->! 1- ".fit, _ fit >» 1 . .4 By Sec. Id, if any person shall break and enter any Church or Chapel, and steal therein any chat- tel, — or having stolen any chattel, money, or valua- ble security therein, shall break out of the the same, he shall be liable to imprisonment and hard labour, at the discretioii of the Court, ^'^^v),! ' ,i» . < ^U By Sec. 14, whosoever shall break and enter any dwelling house, and shall assault with intent M) mur- der any person being therein, or shall stab, cut, wound, beat, or strike, any such person, shall be guilty of felony, and shall suffer death. ; \<> )Ie to be ir at the lireateij rime of •mise or sed.ce I me, or ;usation felony, id hard 5on, or ecurity impris- mena- Bcurity , shall lent. 1 enter chat- valua- same, 3ur, at r any I mur- , cur, ill be TUE YOUTn'ff GUARD AnAIlfST CRIMV. 9*t By Sec. 15, whosoever shall be guilty of bur- Sflary, shall be lini)lo to imprisonment and hard labor^ at the discretion of the Court. Night shall he consid- ered, and is declared to commence at nine o'clock in the evenino; and to conclude at six in the morning. If any |)erson shall enter the dwelling house of ano- ther with intent to commit any felony, or being in such dwellinn' house, shall commit any felony, and shall in either case break out of said dwellintr house in the night time, such person ^^hall be guilty of burglary. i • . ., .,, :- nun- /.": li j.:. .-m/^. ,i By Sec. 17, whosoever shall steal any chattel, money, or valuable security, in any dwelling ];iouse, and shall by menace or threat, put any one being therein in bodily fear, shall be guilty of felony, and be liable to imprisonment and hard labor. ^ By Sec. 18, nobuilding,although within the same curtilage with the dwelling house, shall be deemed to be part of such dwelling house, for the purpose of burglary, unless there shall be a communication between such building and dwelling house, either immediate or by means of a covered or inclosed passage, leading from the ons to the other. . By Sec. 19, if any person shall break or enter any building, being within the curtilage of the dwelling house, but not being part thereof, and steal therein any chattel, money, or valuable security, shall be liable to imprisonment and hard labour. |j Vi jh .- * If any person break and enter any shop or count ;.-^ Konse. ^^^1 . ■* *" ■' . ' , ' /* ' '* " . ^"« i^hall be liable t| I 0- , ,. . ^4 Tl» YOCTHlt OUABD AQAIN8T CRIMB. 'I By Sec. 21, if any person shall steal any goods in any vessel, barge, or boat, in any port, or upon any navigable river or canal, or from any dock or wharf adjacent to such port, he shall be liable to the same punishment as hereuibefore mentioned. . >'r.< By Sec. 22, whosoever shall plunder or steal any part of a ship wrecked or in distress, or any goods of any kind belonginsr to such ship, shall be liable to imprisonment and hard labour. , ,, By Sec. 23, if any goods belonging to any ship wrecked or in distress, shall, by virtue of a search warrant, be found in possession, or on the premises of an)* person, who shall not be able to satisfy the Justice of the Peace that he came lawfully by the same, the Justice may order the same to be delivered to the proper owner ; and the offender, upon con- viction of such offence before the Justice, shall forfeit and such pay sum of money, not exceeding twenty pounds, as the Justice may seem meet. By Sec. 24, if any person shall off^r for sale any articles suspected to have been taken unlawfully from any ship or vessel so wrecked or in distress — in such case the person to whom the said articles are offered for sale, or any Custom House or Peace Officer, may lawfully seize the same, and give notice to some Justice of the Peace ; and if the person who offered the same for sale, upon being summoned by the Justice, shall not appear and satisfy the Justice that he came lawfully by and in possession of such articles, then the same shall be ordered by the Justice to be forthwith delivered over tto and for the use of the owner, upon payment of a reasonable reward to the person who seized the same. By or dest interroi warrai ever, such o\ on con| hard h Court Byi after tl or for i will or and lial ByS papers, estate, liable I tioned. By J of the a at law offence passed By mare, heifer shall 1 the ca be lia dKsdfi TRS YOUnif OUARD AOAIHBT CRIM«. / gooda r upon ock or i to the eal any g'oods 3 liable ly ship search emises fy the by the ivered I con- shall eding . • 6 any riuily ?ss tides ^eace give [the eing and and II be over of a ime. •u STB A LINO OF RECORDS. ,*■ V i; By Sec. 25, if any person shall steal, obliterate or destroy any record, writ, return, psnnel, process, interrogatory, deposition, affidavit, rule, order, or warrant of Attorney, or any original document what- ever, of, or belonging to any Court of Justice, every such offender shall be guilty of a misdemeanor, and on conviction shall be liable to imprisonment and hard labour, or to fine and imprisonment, as die Court may award. By Sec. 26, if any person shall durins: the life, or after the death of a Testator, or Testatrix, steal, or for any fraudulent purpose destroy or conceal any will or codicil, he shall be guilty of a misdemeanor, and liable to the punishment above last mentioned. By Sec. 27, if any person shall steal any original papers, &c., being evidence of the title to any real estate, he shall be guilty of a misdemeanor, and liable to the same punishment as last before men- tioned. . , . , . By Sec. 28, no conviction or judgment for any of the above misdemeanors, shall prevent any remedy at law or equity which the party aggrieved by such offence would have had, if this Act had not been passed. ';i -. - , By Sec. 29, if aqv person shall steal any horse, mare, gelding, colt or filly, or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep or lamb, or &hall wilfully kill any such cattle, with mtent to steal the carcase or skin, he shall be guilty of felony, and be liable to imprisonment and hard labor, at the dts^lfilion of the Court. I -tfr THE YOUTHS OUAUD AGAINST CRIME. « r-^ 1 j& By Sec. 30, if any person shall steal any clog, bird, or beast ordiiiuriiy kept in confinement, and being convicted thereof, before any Justice of thr Peace, shall fur every such ofTence, forfeit and pay over and above the value of the do«^, &c., such sum of money, not exceeding (ive pounds, as to the Jus- lice shall seem meet. ,,, , ., , By Sec. 31, if any person shall steal, or cut, break, root \ip, or otherwise destroy or damage, with intent to steal, any part of any tree, sapling or shrub, or any underwood, wheresoever the same may be growing, the stealing of such things, or the injury done, being to the amount of one shilling at the least, every such offender being convicted be- fore any Justice of the Peace, shall for every such offence forfeit and pay, over and above the value of the articles stolen, or the amount of injury done, such sum of money, not exceeding five pounds, as to the Justice shall seem meet. mr 'M in]\ii uf{?.' By Sec. 32, if any person shall steal, or cut, break, or throw down, with intent to steal, any part of any live or dead fence, or any wooden post, pale or rail, set up and used as a fence, or any stile or gate, or any part thereof, upon conviction before any Justice of the Peace, he shall for every such offence forfeit and pay, over and above the value of the articles stolen, or the amount of injury done, such sum of money, not exceeding five pounds, as to the Justice shall seein meet. < i. ' r By Sec. 33, if the whole or any part of any tree, sapling, or any underwood, or any part of any live or dead fence, or any post, rail, or stile gate, or any c %.t if^r\Jt •— J*J i\.* it-* . IJ the let found mises persoi shall the sa feit an so fou By destro saplin pi oduc grounc being < shall f( articles of moi Justice convict larceny Stea If any with ir for the ling or ture, g ingag convici forfeit tides s sum of the Jul thereoi TU£ YOUTHS GUARD AOAUIST CRIME. 07 ly do/?, !n(, and of the ind pay ich sum ihe Jns- Ml f^;y; or ciu, Inmagfe, plitig" or e same , or the illing- at ted be- ry such /akie of le, such ^ to the , break, of any or rail, or any stice of eit and stolen, ey, not 1 seem y tree, live or )r any the least, shall, by virtue of a search warrant, be found in the possession of any person, or on the pre- mises of any person, with his knowledge, and such person being carried before a Justice of the Peace, shall not satisfy the Justice that he came lawfully by the same, he shall, on conviction by the Justice, for- feit and pay over and above the value of the article so found, any sum not exceeding two pounds. By Sec. 34, if any person shall steal, or shall destroy or damage with intent to steal, any tree, sapling, shrub, bush, plant, root, fruit or vegetable pioduction, growing in any garden, orchard, nursery ground, hot house, green house or conservatory, and being convicted thereof before a Justice of the Peace, shall forfeit and pay over and above the value of ilie articles stolen, or amount of the injury done, such sum of money, not exceeding five pounds, as to the Justice shall seem meet ; and upon a subsequent conviction shall be liable to be punished as for simple larceny. Stealing Vegetable Productions. — By Sec. 35» If any person shall steal, or destroy, or damage with intent to steal, any cultivated root or plant used for the food of man, or beast, or for medicine, distil- ling or dyeing, or for or in the course of any manufac- ture, growing in any land open or enclosed, not be- ing a garden, or orchard ; every such offender being convicted thereof before a Justice of the Peace, shall forfeit and pay over and above the value of such ar- ticles so stolen, or the amount of the injury done, such sum of money, not exceeding twenty shillings, as to the Justice shall seem meet, and in default of payment thereof, together with the costs, if ordered, he shall Vtn YOUTH*! GUARD AOAIHST CRIMI. ■'5** / be committed to the House of Correction for any time not exceeding one calendar month, unless pay- ment be sooner made. -' ' m rf ,-''•> ' • • . < I r* \ ? SIMPLE LARCENY. SlecUing glass, wood-work or fixtures of any kind from buildings^ and metal fixtures Jrom grounds, — By Sec. 36, if any person shall steal, rip, cut, or break with intent to steal, any glass or wood-work belonging to any building, or any lead, iron, copper, brass, or other metal, or any utensil or other fixture, whether made of metal or other materials, fixed in or to any building or anything made of metal fixed in any land, being private property, or in any square, street, or other place dedicated to public use or or- nament, every such offender shall be guilty of felony, and liable to be punished as in case of simple Larceny. , Tenants or Lodgers stealing from apartments. — By Sec. 37, if any person shall steal any chattel or fixture, let to be used in or with any house or lodg- ing, he shall be guilty of felony, and punished as for simple larceny, if any clerk or servant shall steal the property of his master, he shall, in cases not capitally punishable, be liable to impris- onment and hard labor at the discretion of the Court. . t..' J I:, ••/ »■ ' i i /, I \ ' « " By Sec. 38, if any clerk or servant shall fraudu- lently embezzle any chattel, money, dsc, he may receive on account of his master, every such offend- er shall be deemed to have feloniously stolen the samefirom his master, and shall be liable to the pun- ishments hereinbefore last mentioned. «j TltS'tdVTn*8 OVAED AOAtifSf CBIMl. 99> for any 3S:i pay- ing kind unds. — , cut, or 3d-woik copper, fixture, fixed in fixed in square, e or or- ■ felony, simple \ents, — attel or )r lodg- ;hed as It shall lall, in impris- of the raudu- le may offend- en the e pun- Mode of proceeding against tuck offenders, — By Sec. 39, distinct Acts of embezzlement may be chargfed in the same indictment which may have been committed within six calendar months from the first to the last of these acts. dsents embezzling money entrusted to themjor special purposes, — By Sec. 40, if any money or se- curity for the payment of money, be entrusted to any banker, merchant, broker, attorney, or other agent, with directions in writing" to apply the same to any particular purpose, and he shall in violation of good faith, convert the same to his own use, every such offender shall be guilty of a misdemeanor, and be liable to imprisonment and hard labor. So also in the case of any power of attorney for the sale or transfer of any share or interest in any public stock or fund, should such banker or merchant convert the same to his own benefit. By Sec. 41, factorc pledging for their own use, any goods entrusted to them for the purpose of sale, or any warrant or orde hv the delivery of any goods, are declared guilty ol ^ misdemeanor, and liable to fine, imprisonment and hard labor at the discretion of the Court, — not to extend to cases where the pledge does not exceed the amount of the lien of such factor. Of obtcuning money under false pretences. — By Sec. 42, if any person shall by any false pretence, obtain from any other person, any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, such offender shall be guil- ty of a misdemeanor, and be liable to imprisomneni and hard labor. . 4 Kir KK) THB TOinm's OUAHD AOAIlItT CRIMB. v- ^ [k Jlceessariii toftlony^ haw and when la he tried. — By Sec. 43, if any person shall receive any chattels, money or other property, the stealing* whereof would amount to felony, such person knowing the same to have been stolen, shall be guilty of ielony, and may be tried and convicted, either as an accessary after the fact, or for a substantial felony, and be liable to imprisonment and hard labor. • Receivers may he tried where the property is found, — By Sec. 44, all persons charged as receivers of stolen property, whether as accessary after the fact, to the felony or with a substantive felony, or with a misdemeanor, may be tried and punished in the Dis- trict or place in which he shall have had such pro- perty in his possession, or wherever the parly guilty of the principal felony or misdenieanor may be tried. By Sec. 45, if the person guilty of stealing, or of receiving stolen property, shall be prosecuted to conviction by or on behalf of the owner, he, or his legal representative shall have restitution of the property by order of the court. Taki?ig rewards Jar helping to recover Stolen Gaods. — By Sec. 50, if any person shall corruptly take any reward under pretence of helping the own- er of such stolen property to recover it, unless he cause the offender to be apprehended and brought to trial, he shall be guilty of felony, and punishable by imprisonment and hard labor. By Sec. 51, if any person shall publicly advertise a reward for die return of any stolen property, and that no question shall be asked, without seizing, or making any enquiry after the person producing mS TOtmi • OITARD AOAIlftT CRnfB. ICH* ried. — lattels, 'would a me to id may y after able to found, vers of le fact, with a 16 Dis- :h pro- ' guilty e tried. ing", or Ued to or his of the Stolen Tuptly own- ess he ght to 3le by if' rertise fi and iizing, ucing: such property, or shall promise or offer to return, to any pawnbroker or other person, who may have bought, or advanced money on the property sto- len, the money so paid or advanced, eveiy such person shall forfeit the sum of twenty pounds to any person who will sue for the same, with full costs. When it eating is punishable^ receivers punished in same manner* — By Sec, 52, when the stealing* of any property is by this Act punisliable on summary conviction, the person receivinpf such property, knowing* the same to be unlawfully come by, shall on conviction thereof before a Justice of the Peace, be liable to the same forfeiture and punishment to which the peisuu guilty of stealing, is by the said Act made liable. Principals in the second degree^ and accessaries before and after the fact, — By Sec. 53, every prin- cipal in the second degree, and every accessary be- fore the fact to any felony punishable under this Act, shall be punishable with death or otherwise in the same manner as the principal in the first degree is by this Act punishable, and every accessary after the fact, (except only a receiver of stolen property) shall on conviction, be liable to imprisonment for any term not exceeding two years, and every person who shall aid, abet, counsel, or procure the commis- sion of any misdemeanor punishable under this Act, shall be liable to be indicted and punished as a prin- cipal offender. •Abettors of offence punishable. — By Sec. 54, if any person shall aid, abet, counsel, or procure the commission of any offence, by this Act punishable m w -m it't*^ •102 mi TOUTBS OUAID AOAllfST ' CBIM ■. 1. 1 u: on summary conviction, every such person, shall on conviction before a Justice of the Peace, be lia- ble to the same forfeiture and punishment to which a person guihy as piincipal oAender is made liable. Persons Jound in the act of committing an offence, — of granting a search warrant ^--^of arresting per- sons offering stolen property for sale, — By Sec. 55, any person found committing any offence, may be immediately apprehended without a warrant, by any Peace Officer, or by the owner of the property on which the offence is committed, or by his servant, or by any person authorised by such owner, and taken forthwith before some neighboring* Justice of llie Peace, to be dealt with according to law, and if any witness shall prove upon oath before a Justice of the Peace, that there is a reasonable cause to sus- pect that any property whatsoever connected with the offence committed, is in any dwelling house, out house, garden, yard, croft or other place, the Justice may grant a warrant to search such dwelling house, &c., for such property as in the case of stolen goods. And any person to whom any property shall be of- fered to be sold, pawned, or delivered, if he shall have reasonable cause to suspect that any such offence has been committed in regard of such property, is hereby authorised, and (if in his power) is required to apprehend, and forthwith to carry before a Justice of the Peace, the party offering the same, together with such property, to be dealt with according to law. "''" ' Limtation as to summary proceedings, — By Sec. 56, the prosecution of every offence punishable on summary conviction, shall be commenced within TUI YOVTH • OVABD AOAINIT CRIIIB. 108 hall on be lia- lent to B made yffence, ng per' ec. 55, nay V)e by any erty on /ant, or [I taken of the [1 if any slice of to sus- d will I ise, out Justice house, goods. be of- e shall offence ity, is quired Justice ^ether jing to y Sec. ^ble on within three calendar months after the commission of the offence and not otherwise — and the evidence of the party aggrieved shall be admitted in proof of the offence. ' /. ,1 ' ; .-.i_— s g; 4 & 5 VICTORIA, CHAP. XXIV. An Act for improving the Administration of Criminal Juetice in this Province. Provisions to apply to all Justices atid Coroners, — Sec. 8, provides tiiat the provisions of this Act re- lating to Justices and Coroners shall apply to the Justices and Coroners, not only of Districts and Counties at large, but also of all other jurisdictions. 9. Persons tried for Felony, — That all persons tried for felonies shall be admitted, after the close of the case for the prosecution to make full answer and defence thereto by counsel learned in the law, or by Attorney in the Courts where Attornies prac- tice as counsel. 10 Same in cases of summary conviction, — That in all cases of summary conviction, persons ac- cused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by Counsel or Attorney. 11. Orders for delivery of prisoners to he tried at Assizes, — That when and so often as the attend- ance of any person confined in any Gaol or Prison in this Province, or upon the limits thereof, shall be required in any Court of Assize and Nisi Prius, or Oyer and Terminer or general Gaol delivery, or other Court, it shall and may belawful for the Court II 104 THE YOUTHS OrARD AOAIVST CUffB. before whom such prisoners shall and may be lawfully required to attend, in its discretion to make order upon the Sheriff, Gaoler or other person having the custody of such prisoner, to deliver such prisoner to the person named in such order to receive him,which person shall thereupon instantly convey such pris- oner to the place where ^^e Court issuing such order shall be sitting, there to receive and obey such further order as to the said Court shall seem meet : provided always, that no prisoner confined for any debt or damages in any civil suit shall be therebv removed out of the District where he shall be confined. ^^: ^::. • 12. Prisoners entitled to copies of depositions against them. — That all persons who, after the passing of this Act shi 11 be held lo bail or commit- ted to prison for any ffence against the law, shall be entitled to require ai \ have on demand (from the person who shall have the lawful custody thereof and who is hereby req ired to deliver the same,) copies of the examinati ns of the witnesses, repect- ively, upon whose depo .tions they have been so held to bail, or committed to prison, on payment of a reasonable sum for the same, not exceeding three pence for each folio of one hundred words : pro- vided always, that if such demand shall not be made before the day appointed for the commence- ment of the Assize or Sessions at which the trial of the person on whose behalf such demand shall be made, is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the Judge or other person to pre- side at such trial, shall be of opinion that such copy may be made and delivered without delay or ram Toombs ouaed against crimb. I0» lawfully e order zing the soner to n,which ih pris- ig such id obey .11 seem onfincd hall be he shall ositions ter the ;ommit- (V, shall •om the thereof same,) repect- so held U of a i three pro- lot be iience- e trial d shall not be ion of ;o pre- t such day or inconvenience to such trial, but it shall nevertl>eles» be competent for such Judge or other person so to preside at such trial, if he shall think fit, to post- pone such trial on account of such copy of the ex* amination of witnesses not having been previously had by the party charged. 13. Persons under trial may inspect all deposi- tions, — That all persons under trial shall be entitled, at the time of their trial, to inspect without fee or reward all depositions (or copies thereof) which have been taken against them, and returned into the Court before which such trial shall be had. 14. .^ plea of not s;mlty without more shall put the prisoner on his trial. — That if any person what- ever, being arraigned upon any indictment for trea- son, felony, or piracy, shall plead thereto a plea of *' not guilty," such person shall, by such plea, with- out any further form, be deemed to have put himself or herself upon the country for trial, and the Court shall, in the usual manner, order a Jury for the trial of such person accordingly. 15. Challenging Jury beyond the legal number, — That if uny person indicted for any treason^ felony or piracy, shall challenge peroiuptorily a greater number of the men returned to be of the Jury, than such person is entitled by law so to challenge in any of the said cases, every peremptory chal- lenge beyond the number allowed by law in any of the said cases, shall be entirely void, and the trial of such shall proceed as if no such challenge had been made. ■;»iu:'M*,i >if.M' J- I ^'j 17. Attainder of crime not pleadable, — That no plea setting forth any attainder shall be pleaded id 106 THE Y0tJTU*8 OVARD AGAINST CRIMB. ;r.i : bar of any indictment, unless the attainder be for the same offence as that charged in the indictment. 18. Jury shall not inquire of Prisoner's Lands, — Where any person shall be indicted for treason or felony, the Jury impannelled to try such person shall not be charged to enquire concerning his lands, tenements or goods, nor whether he fled for «uch treason or felony. 21 . Every punishment for felony after it has been endured shall have the effect of a pardon under the great seal. — And whereas it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have under- gone the punishment to which they were adjudged ; be it therefore enacted, that where any offender had been or shall be convicted of any felony not punishable with death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punish- ment so endured hath and shall have the like effects and consequences as a pardon under the great seal as to the felony whereof the offer der was so con- victed : Provided always, that nothing herein con- tained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other felony. 22. No misdemeanor (except perjury) shall i ender a party an incompetent witness. — And whereas there are certain misdemeanors which render the parties convicted thereof incompetent witnesses, and it is expedient to restore the competency of such par- ties after they have undergone their punishment ; be it hath meai and whic fortl ishm such Com ,'AVi THB youth's GIPARD AO^IKST CBISfS. 107 be for tment. son or person ng his led for is been Icr the revent ersons Linder- idged ; fender ly not ' shall r hath unish- ffects Lt seal ) con- 1 con- shall ;h the id, on ender there arties it is par- lent; be it therefore enacted, that where any offender hath been or shall be oonvicted of any such misde- meanor (except perjury or subornation of perjury) and hath endured or shall endure the puishment to which such offender hath been or shall be adjudged for the same, such offender shall not, after the pun- ishment so endured, be deemed to be by reason of such Misdemeanor, an incompetent witness in any Court or proceeding, Civil or Criminal. 23. Officers of Courts. — That in all cases iu which any person shall be charged with felony, the officers of the Court before which such person shall be tried, or any proceeding had with regard to such charge, and who shall render any official services in the matter of such charge, or in the course of such trial, to the person so charged with felony, shall be paid their lawful fees for all such services out of the public funds, in the same manner as other fees due and payable to them in respect to official services, by them rendered to the Crown, in the conduct of public prosecutions, are now paid, and no such fees shall in any case be demanded of or payable by the person charged with such felony. 24. Felonies not Capital, — Every person convict- ed of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes specially relating to such felony ; and that every person convicted of any felony for which no punishment hath been or hereafter may be spe- cially provided, shall be deemed to be punishable under this Act, and shall be Uable, at the discretion of the Court, to be imprisoned at hard labor in the '• tr 108 THE TOVTIl's GUARD AGAINST CRIME. Provincial Penitentiary for any term not les8 than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. ♦ ^ < . , 25. Persons returning from Transportation. — If any person sentenced or ordered, or hereafter to be sentenced or ordered, to be transported, or who shall have agreed or shall agree to transport or banish himself or herself on certain conditions, either for life or for any number of years, shall bo afterwards at large within any part of this Province, contrary to such sentence, order or agreement, without some lawful cause, before the expiration of his or her term of transportation or banishment, every such offender shall be guilty of felony, and shall be liable to be transported beyond the seas> for his or her natural life, and previously to trans- portation shall be imprisoned for any term not ex- ceeding four years ; and every such offender may be tried either in the District, County, or place where such offender shall be found at large, or in the District, County, or place, in or at which such sentence, or order of tmnsportation or banishment was passed or made. ' 26. Allegation of Sentence, — In any indictment or information against any offender for being at large in this Province contrary to the provisions of this Act, or of any other Act hereafter to be in force in this Province, it shall be sufficient to allege the sentence or order of transportation or banishment of such offender, without alleging any indictment, information,, trial, conviction, judgment or other proceedings or any pardon or intention of mercy> or SI maui THB Y0irnt*8 GUARD AGAINST CRIME. 109 3SS than r prison ceeding ion* — If after to or who port or iditions, ihall be •ovince, 3einent, ation of ^hment, ly, and e seas> trans- not ex- Br may r place ?, or in h such shnient lent or t large )f this force ge the iment ;ment, other iercy> or signification thereof, of or against or in any manner relating to such offender. , ,,, . 1-»i i 27. Certificate of the sentence, — The Clerk of the Court or other Officer having the custody of the records of tl.'e Court where any such sentence or order of transportation or banishment shall have been passed or made, or his deputy, shall, at the request of any person on behalf of Her Majesty, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of any indictment, in- formation, and conviction of such offender, and of the sentence or order for his or her transpor- tation or banishment, (not taking for the same more than the sum of five shillings,) which certifi- cate shall be sufficient evidence of the conviction and sentence or order for the transportation or ban- ishment of such offender ; and every such certificate shall be received in evidence upon proof of the sig- nature of the person signing the same. 28. The Court may order hard labor or solitary con^ finement. — Where any person shall be convicted of any offence punishable under this act, for which impris- onment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor in the common gaol, or house of correction, and also to direct that the offender shall be kept in solitary confinement, for any portion or portions of the term of such impris- onment, or of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding thre^ months in any one year, as to the Court, in its discretion, shall seem meet. ,..r,u M no THS TOUTIl's GUARD A13MN8T CRIMK. 29. A person under sentence* — When sen tence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the Court to award imprisonment for the subse- quent offence^ to commence at the expiration of the imprisonment to which such person shall have been previously sentenced ; and where such person shall b6 already under sentence of imprisonment,the Court may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; although the agg-reg-ate term otimprison- ment may exceed the term for which such punish- ment could be otherwise awarded. 30. Punishment for a subsequent offence, — It is expedient to provide for the more exemplary pun- ishment of offenders who commit felony after a pre- vious conviction for felony, whether such conviction shall have taken place before or after the commence- ment of this Act : Bfe it therefore enacted, that if any person shall be convicted of felony, not pun- ishable with death, committed after a previous con- viction for felony, such person shall on such : sub- sequent conviction be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary, for any term not less than seven years, or to be imprisoned in any other prison or place of confinement, for any term not exceeding" two years; and in any indictment for any such felony committed after a previous convic- tion for felony, it shall be sufficient to state that the offender was at a certain time and place convicted offelony, without otherwise describing the previous felony ; and a certificate containing the substance #♦•>■ Tm TOUTn 8 aUABD AOAIlfST CRIMV. Ill :e shall isoned lawful subse- i of the ^e been n shall 5 Court ifTence, )nment piously prison- >unish- — It is y pun- a pre- dction lence- that if ; pun- s con- 1 sub- ion of n the less other n not It for )nvic- i that ncted ivious itance and effect only, (omitting the formal part) of the in- dictment and conviction for the previous felony, pur- porting to be signed by the Clerk of the Court or other officer having the custody of the recoitls of the Court where the offender wa? first co*^victed, or by the deputy of such Clerk or officer, (for which certificaie a fee of five shillings and no more shall be demanded or taken,) shall upon proof of the identity of the offender be sufficient evidence of the first conviction, without proof of the signature or of- ficial character of the person appearing to have signed the same ; and if any such clerk, officer, or deputy shall utter any false certificate of any indict- ment and conviction for a previous felony, or of any sentence or order of transportation or banishment, or if any person other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer, or deputy,or shall utter any such certificate with a false or counterfeit signature thereto, every such offender shall be guilty of felony, and being lawfully convict- ed thereof, shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Pro- vincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 32. No report to be made to the Governor, — It shall not be necessary that any report should be made to the Governor, Lieutenant Governor or person administering the Government, in the case of any prisoner convicted before any Court and now under sentence of death, or who may be here- after convicted before any Court and sentenced to the like punishment, previously to sentence being -? 113 THE YOUTHS GUARD AGAINST CRIME. m carried into execution ; any Law, usage, or custom to the contrary notwithstanding. .,,, jo- fj tr/ U «►, .■ ,U' *.-. -i .! ' k .i.( t i * »»ii 33. The Court may abstain from pronouncing judgment. — Whenever any offender shall hereafter be convicted before any Court of Criminal Judicature, of any crime for which such offender shall be liable to the punishment of death, and the Court shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject 10 be recommended for the royal mercy, it shall and may be lawful for such Court, if it)shall think fit so to do, to direct the proper officer, then being present in the Court, to require and ask, (whereupon such officer shall require and ask) whether such offender hath or knoweth any thing to say why judgment of death should not be recorded against such offender,and in case such offender shall not allege any matter or thing sufficient in Law to arrest or bar such judg- ment, the Court shall and may, and is hereby au- thorized to abstain from pronouncing judgment of death upon such offender, and instead of pronouncing such judgment to order the same to be entered of record, and thereupon such proper officer as afore- said shall and may and is hereby authorized to enter judgment of death on record against such offender in the usual and accustomed form, and in such and the same manner as is now used, and as if judg- ment of death had actually been pronounced in open Court against such offender by the Court. .,» mm .!. ^.. , T',_. S4. Such record to have the same effect as if pro- nounced, — A. Record of every such judgment so en- tered, as aforesaid, shall have the like effect to all intents, and be followed by all the same consequen* TUB TOOTH** GUARD AGAINST CRIMS. tl'/Hi mm <.j pro- en- aU |uen- ces as if such judgment had actually been pro- nounced in open Court. • r. - 35. Court to direct execution in certain cases. — Whenever uiiy otfeiider shall hereafter be convicted before any Court of ciiminal judicature, of any of- fence for which sucli offender shall be liable to and shall receive sentence of death, and the Court shall be of opinion that, muler the circumstances of the case, the judjij-ment of the Law oug*ht to be carried into effect, it shall be lawful for the said Court, and such Court is hereby required, to order and direct execution to t)e done on such offender in the same manner as any Court is empowered to order and di- rect execution by the Law as it stood before the passing of this Act. 36. Not 10 affect the Royal Prerogative, — ^Provi- ded always, and be it enacted, that nothing* in this Act contained shall affect Her Majesty's Royal Pre- rogative of mercy. 37. .Accessory before the fact, — If any person shall counsel, procure or command any other person to commit any felonyjwhelher the same be a Felony at common Law, or by virtue of any Statute or Statutes made or to be made, the person so counselling, pro- curing, or commanding, shall be deemed guilty of fel- ony, and may be indicted and convicted as an acces- sory before the fact to the principal felony, either together with the principal felon, or after the convic- tion of the principal felon ; or may be indicted for and convicted of a substantive felony, whether the principal felon shall or shall not have been previoue- iy convicted, or shall or shall not be amenablie to Justice, and may be punished in the same manner as 114 THI TOUm'* OVARD AGAINST CRIMB. any accessory before the fact of the same felony, if convicted as an accessory, may be punished ; and the offence of the person so counselliniJf, procuring^, or commanding", howsoever indicted, may be inqui- red of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, ahhough such offence may have been com- mitted either on the hij^'h Seas or at any place on land, whether within Her Majesty's Dominions or without ; and in case the principal felony shall have been committed within the body of any District or County, and the offence of counselling", procurifig", or commanding shall have been committed within the body of any other District or County, the last men- tioned offence may be enquired of, tried, determined, and punished in either of such Districts or Counties : Provided always, that no person who shall be once duly tried for any such offence, whether as an ac- cessory before the fact, or as for a substantive felo- ny, shall be liable to be again indicted or tried for tlie same offence, 38. Accessory after the fact — If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law, or by virtue of any Statute or Statutes made or to be made, the offence of such person may be inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if the act by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although sach Act may have been committed on the 1 tnu Tourn'i ouabd AoiiHfT ceimb. lis ny , if and inqui- Court incipal e had incipal 1 cotn- lacc on ions or ill have trict or rifig", or thin the St men- rmined, )unties : je once s an ac- ve felo- ried lor on shall felony, V, or by e made, )f, tried, ch shall in the lof such id been felony, on the high Seas, or at any place on land, whether within Her Majesty's dominions or without ; and in case the principal felony shall have been committed within the body of any District or County, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other District or County, the offence of such accessory may be inquired of, tried, determined, and punished in either of such Districts or Counties : provided always, that no person who shall be once duly tried for any offence of being* an accessory shall be lia- ble to be ag'ain indicted or tried for the same offence. 39. .Accessory may he prosecuted. — If any princi- pal offender shall be in anywise convicted of any fel- ony, it shall be lawful to proceed against any acces- sory either before or after the fact, in the same man- ner as if such principal felon had been attained there- of, notwithstanding such principal felon shall die, or be pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same pun- ishment, if such accessory be in anywise convicted, as such accessory should have suffered if the princi- pal had been attained. 40. Offences committed an the boundaries ofdif-- f event Districts, — Where any felony or misdemean- or shall be committed on the boundary or boundaries of two or more Districts or Counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one District or County and completed in another,, every such felony or misdemeanor may be dealt with, enquired of, tried, determined, and punished in any of the said Districts or Counties, in the same manner as if it had beeik actually and wholly committed therein. < ^v ^^ 1 1 lU TM TOUTH'i OUABP AOAIHVr CSIMB. 41. Ofenees committed during a Journey. — Where any lelony or misdemeanor shall be commit- ted on any person, or on or in respect of any proper- ty, in or upon any coach, wag^^on, cart, or other carriage, whatever, employed in any journey, or shall bo committed on any person, or on or in respect of any property, on board any vessel, whatever, em- ployed in any voyag^e or journey, upon any naviga- ble river, cunul. or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any District or County through any part whereof such coach, waggon, cart, carriage or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such District or County ; and in all cases where the side, centre, or other part of any highway, or the side, bank, centre, or other part of any sucli river, canal, or navigation, shall constitute the boundary of any two Districts or Coimties, such felony or misde- meanor may be dealt with, inquired of, tried, deter- mined, and punished in either of such Districts orcoun- ties, through or adjoining to or by the boundary of any part whereof such coach, waggon, cart, carriage, or vessel, shall have passed in the course of the journey or voyage, dtiring which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such district or county. y\ h: .^. ; I'lhrK'* A. 42. Indictment for Offences, — In any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or per- gonal, which shall belong to or be in the possession of TIOI neij cttn per.^ p^ff may matj necc any com I mam edto 49 any misd< any c or to correi public erecte pense vision goods expen divisio pairinc such b said, o other I not be place f court-h infirma lock, d or chat TUB rovTn'a ovabd aoaiivst cbimb. IIT mit- prr- iiher r, or peel eni- viga- r»y or tried, aunty , cart, rseof my or I same 1 such B side, ! side, canal, of any isde- deter- coun- ofany ge,or urney eanor as if it ouniy. ■ '*''' jiment leanor, lership \t per- »on of more than one person, whether such persons bc; part- ners in trade, joint-tenants, purceners, or tenants in ci'mmoi), * shall be sufficient to name one of such perrtotm. and lo state such properly to belong to ihe persons so namrd and another or others, as the cawe may be; and, whentvcr, in any indiclinont or infor- mation for any ft'lony or misdcmoanor, it shall be necessary to ineniion for any purpose whatsoev(;r, any partners, joinl-tnLUits, parceners, or tenants in common, it shall he sufticient to describe them in the. manner aforesaid ; and this provision ^hall he constru- ed to extend to all joint-stock companies and trustees. 43. An indictment relatinfr to Churches, ^c. — In any indictment or information for any felony or misdemeanor committed in, upon, or with respect to any church, chapel, or place of Religious Worship, or to any bridfife, court, court-house, Sfaol, house of correction, penitentiary, infirmary, asylum, or other public buildinsr* or any canal, lock, drain, or sewer erected or maintained in whole or in part at the ex- pense of the Province, or of any division or sub-di- vision thereof, or on or with respect to any materials, gfoods, or chattels, whatsoever, provided for or at the expense of the Province, or of any division on «ub- division thereof, to be used for makini^, altering or re- pairing- any bridofe or hig-hway, or any court or other such buildinof, canal, lock, drain, or sewer as afore- said, or to be used in or with any such court or other building-, canal, lock, drain, or sewer, it shall not be necessary to state such church, chapel, or place of Religioui Worship, or such bridg-e, court, court-house, g-aol, house of correction, penitentiary^ infirmary, asylum, or other building, or such canal* lock, drain, or sewer, or any such materials, goodsy or chattels to be the property of any person. m-^ 118 fllB TOIJTB^t OVAWD AOAIITIT CSim. ¥.> 44. Property of Turnpike Trust — ^In any indicl* nent or information for any felony or misdemeanor^ committed on or with respeet to any building', grate, machine, lamp, board, stone, post, fence, or otherlhiii|f erected or provided, in pui-suanceof any Act in force in this Province for making any turnpike road, or of any conveniences 6r appurtenances thereunto re- spectively belonging-, or any materials, tools, or im- plements provided for makincr, alterinof, or repairing- any such road, it siiaU be stiflicient to state any sttch property to belong to the Trustees or Commissioii- ersof such road, and it shall not be necessary to •pecify the names of any such Trustees or Com- iaissioners. , y^,^ ■ i . I 45. Indictments not to abate by dilatory plea. — No indictment or information shall be abated by reason of any dilatoiy plea of misnomer, or of want of ad- dition or of wrong- addition of any party offering- such plea, if the Court shall be satisfied by affidavit or otherwise, of the truth of such plea ; but in such case theCourt shall forthwith causae the indictment on information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded. 46. What defects shall not vitiate an indictment* — No judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed for want of the averment o( any matter unnecessary to be proved, nor for the oinission of the words, "as appears by the record," or of the words " with force and arms," or of the words, ** against the peace," nor for the insertion of the ere? g-rei Cle sha offe ienc the i THB youth's guard AGAINST CRIMB. U9 indiol* neanoTf in force oad» or mto rc- , or kn- epairiog' iny such missioii- ssary to or Com- *.. • - . . i fea.— No )y reason \ui of ad- offering affidavit It in such trnent on truth, and and shall a pleaded. ctmenU — nation for verdict or otherwise, averment lor for the ecord," or the words, ion of the words " ag-ainst the form of the statute," instead of the words, " a^^ainst the form of the statutes," or vice versa, nor for that any person or persons men- tioned in the indictment or information is or are de- sigfnated by a name of office or other descriptive ap- pellation, instead of his, her or their proper name or names, nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating- the offence to have been commited on a day subsequent to the find- ing of the indictment, or exhibiting- the information, or on an impossible day, or on a day that never hap- pened, nor for a want of proper or perfect venue, where the Court shall appear by the indictment or information to have had jurisdiction over the offence. 47. Certain formal defects. — No judgment after verdict upon any Indictment or information for any felony or misdemeanor, shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as; a juror by the sheriff or other officer ; and that where the offence charged shall be an offence theretofore created by any statute, or subjected to a greater de- gree of punishment, or excluded from the benefit of Clergy, by any statute, the indictment or information shall after verdict be held sufficient if it describe the offence in the words of the statute creating the of- fence, or prescribing the punishment, or excludin|f the offender from the benefit of Clergy, ^^ ^j ; , ito THE TOVTh's OiJABD AOAlIfST CRIMB. I ^1 i li • i V, ; I i I i !■ 48. Effect of free or conditional pardon, — And b« it declared and enacted, that where ihe Queen's Majesty, or the Governor, IJeu tenant (Jovernor, or person administerinsr the Government of this Pro- vince for the time being, shall be pleased to extend the royal mercy to any offender convicted of any felony, punishable with death or otherwise, and by warrant under the royal sign Manual, countersigned by one of the principal Secretaries of State, or by warrant under the hand and seal at tTms of such Governor, Lieutenant Governor, or person adminis- tering the Government as aforesaid, sht»ll grant to such offender either a free or a coiiditicnal pardon, the discharge of such offender out of custody, in case of a free pardon, and ihc performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall have been granted : provided always, that no free pardon, or any such dischaige in consequence thereof, nor any conditional pardon, nor the perform- ance of the condition thereof, in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any felony committed after the granting of any such pardon. 49. Recognizances in certain cases. — And where- as the practice of indiscriminately estreating re- cognizances for the appearance of persons to prose- cute or give evidence, or to answer for a common assault, or in the other cases hereinafter specified, has been found in many instances productive oi hardship to persons who have entered into such re- <:^nizances ; be it therefore enacted, that in every JS'iJ turn TOCTH 8 OUA.RD AOAIIIST CRIMV. 131 'f ;ueen*a tior, or ) Pro- extend )f any md by signed , or by f such 3 minis- ant to )ordon, )dy, in of the I, shall ?eal for pardon hat no quence ^rform- 3 cases shment rwfully felony don. f^g where- re- prose- >mmon jcified, ive ol ch re- every case where any person bound by recog^riizance for his or her apearance, (or for whose app arance any other person shall be so bound; to prosecute or give evidence in any case of felony or mi-^denneanor, or to answer for any common ass:iult, or to articles of the peace, shall therein make default, the officer of the Court by whom the estreats are made out, shall, and such officer is hereby required to prepare a list in writinsf, specifying the name of every person so making" default, and the nature of the ollence in re- spect of which every such person, or his or her sure- ty was so bound, to^-ether with the residence, trade, profession, or calling of every such person and surety, and shall in such list distinguish the princi- pals from the sureties, and sliall slate ilie cause, if known, why each such person has not appeared, and whether by reason of the non-appearance of such person, the ends of justice have been defeated or delayed ; and every such officer shall, and such officer is hereby required, before any such recogni- zance shall be estreated, to lay such list, if at a Court of Oyer and Terminer or gaol delivery in any Dis- trict or County, or at any of Her Majesty's superior Courts of Record in this Province, before one of the Justices of those Courts, respectively, or if at a Ses- sion of the Peace, before two of the Justices of the Peace, who shall have attended such Courtr^, who are respectively authorized and requiied to examine such list, and to make such order touching the es- treating or putting in process any «uch recognizance as shall appear to them, respectively, to be just ; and it shall not be lawful for the officer of any Court to es-r treat or put in process any such recognizance without the written order of the Justice,or Justices of the Peace before whom respectively such list shall have been laid« f>^ ;^ 122 ram toutu s guard ▲oainit csimu. n lis 'i I 1 1- 50. Rule for the interpretalion of this and all cri- minalacts. — And be it enacted, that wherever in this Act or \n any other Act relating to any offence, whether punishable upon indictment or sunnmary conviction, in describing* or referring to the, offence or the subject matter on or with respect to which it shall be committed, or the offender or the party af- fected or intended to be affected by the offence, any word or words have been or shall be used or em- ployed importinof the singular number or the mas- culine gender only, every such Act shall be under- stood to include several matters of the same kind, as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something- in the subject or context repugnant to such con- struction ; and wherever any forfeiture or penalty is or shall be made payable to a parly aggrieved, it shall be payable to a body corporate in eveiy case where such a body shall be the party aggrieved. 51. All Acts repugnant to this Act repealed* — All Acts ur parts of Acts or provisions of Law in force in this Province, or any part thereof, immedi- ately before the time when this Act shall come into force, which shall be inconsistent with or contra- dictory to this Act, or which make any provision in any matter provided for by this Act, other than such as is hereby made in such matter, shall from and after the time when this Act shall come into force, be and they are hereby repealed, except in so far as may relate to any offence committed before the commencement of this Act, w hich shall be dealt with and punished AS if this Act had not been passed, .-v^u^iD^'^i^A^vu THB TOIJTB'f OUAKD AOAnriT CKDO. ISS d all cri" fer in this offence, 9UR)niary \ offence which it party af- jnce, any I or em- the mas- e under- ne kind, as well les, and 3SS it be mething* ich con- enalty is eved, it eiy case jved. ?aled, — Law in immedi- •nie into contra- /ision in such as ifter the nd they elate to cement unished 52. From what period the imprisonment is to he reckoned.-^And be it enacted, that the period of im- prisonment in the Provincial Penitentiary, in pursu- ance of any sentence passed under tliis Act, or under any other Act relating- to the punishment of offen- ces by confinement and imprisonment in the Provin- cial Penitentiary, shall be held to commence from the period of passing such sentence, whether the convict upon whom such sentence shall be passed shall be removed to the said Provincial Penitentiary forthwith, or be detuined in custody in any other prison or place of confinement, previously to such removal. 53. And be it enacted, that this Act shall com- mence and take effect from and after the first day of January one thousand eight hundred and forty two. An Act for consolidating and amending the Laws in this Province, relative to Larceny and other oflences connected therewith.* .■- f . i •.**?/ -i i ■ ' -_ 54. Conviction shall not be evidence in action. — Nothing- in this Act contained relating to either of the misdemeanors aforesaid, nor any proceeding, con- viction or judgment, to be had or taken thereupon, shall prevent, lessen or impeach :^ny remedy at law or equity, which any party aggrieved by any such offence might or would have ha J if this Act had not been passed ; but nevertheless the conviction of any such offender shall not be received in evidence in any action at law or suit in equity against him, and no person shall be liable to be convicted of • ^ i&.5 Victoria, Chap. 25. i > !'!' 1)14 t . . THS TOUTb'i OUABD A0A1N8T CRIMB. either of the misdemeanors aforesaid, by any evi- dence whatever, in respect of any Act done by him, if he shall at any time previously to his being indict- ed for such offence, have disclosed such Act on oath in consequence of any compulsory process of any Conn of ]ixw or equity in any action, suit or proceediniprisonment, or both, as the Court shall award, but no such factor or agent shall be liable to any prosecution for depositing or pledging any such goods or merchandize, or any of the said documents, in case the same shall not be 1*BS TOtrm*! GUARD AGAINST CRIMB ■ r ISA made a security for or subject to the payment of any greater sum oi money than the amount which at the time of such deposit or pledge was justly due and owing" to snch factor or ag^ent from his principal, together with the amount of any bill or bills of ex- change drawn by or on account of such principal, and accepted by such factor or agent. 56, Advertising a reward for the return of stolen property, — If any person shall publicly advertise a reward for the return of any properly whatsoever, which shall have been stolen or lost, and shall in such advertisement use any words purportinof that no question will be asked, or shall make use of any words in any public advert ic^ement, purporting that a reward will be given or paid for any property which shall have been stolen or lost, without seizing or making any inquiry (jfter the person producing such property, or shall promise or offer in any such pub- lic advertisement to return to any pawnbroker or other person who may have bought or advanced money by way of a loan upon any property stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such proper- ty, or if any person shall print or publish any such ad- vertisement in any of the above cases, every such per- son shall forfeit the sum of twenty pounds for every such offence, to any person who will sue for the same, by action of debt to be recovered with full costs of suit. ^■', An Act for consolidating and amending the Laws in this Provinet relative to Malicious Injuries to Property. — [Chap. 26.] 57. Destroying Silk, IVoollen, Linen, or Cotton goods^—li any person shall unlawfully and mali- fpTT i» THB TOUTd's ODARD AOAfMST CtflMB. i,i J' I'M 1 1. L* i . ciously cut, break or destroy, or damage with intent to destroy, or to render useless, any g-oods or article of silkyWOoUen, linen or cotton, or of any one or more of those materials, mixed with each other or mixed with any other material, or any frame-work, knitted piece, stocking, hose or lace, respectively, being in the loom or frame, or on any machine or engine, or on the rack or tenders, or in any stage, process, or progress of manufacture ; or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any warp or shute of silk, woollen, linen, or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or sny loom, frame machine, engine, rack, tackle, or implement, whether fixed or*moveable, prepared for or employed in carding, •pinning, throwing, weaving, fulling, shearing or otherwise manufacturing or preparing any such . goods or articles : or shall by force enter info any house, shop, building, or place, wkh intent to com- mit any of the offences aforesaid, every such offend- er shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Courts to be imprisoned at hard labor in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two yearsi 58. Destroying Threshing or other Machines, — If any person shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any threshing machine, or any machine or engine, whether ^yied or moveable, pre- pared for or employed in any manufacture whatso- ever> (except the mauufacture of silk, woollen> linen. THE YOUTU'il GUARD AGAINST CRim. 127 or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any frame- work-knit ted piece, stocking, hose or lace,) every such offender shall be guilty of felony, and being convicted thereof, «hall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Peniten- tiary for any term not less than seven years, or in any other prison or place of confinement for any term not exceeding two years. 59. Riotously demolishing a Church or Chapel^^ If any persons, riotously and tumultuously assem- bled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or des- troy any church chapel, or meeting house, for the exercise of any mode or form of religious worship, or any house, stable, coach-house, out-house, ware- house, ofRce, shop, mill, malt-house, hop-oast, bam« or granary, or any building or erection used in carry- ing on any trade or manufacture, or any branch thereof, or any machineiy, whether fixed or move- able, prepared for or employed in any manufacture,, or in any branch thereof, every such offender shall be guilty of felony, and being convicted thereof^ shall be liable, at the discretion of the Court, to be- impriso^ed at hard labor in the Provincial Peniten- tiary for the term of his natural life, or for any tern* not less than seven years, or to be imprisoned in any other prison or place of confinement for any^ term not exceeding two years. 60. Setting fire to Ships or Vessels. — ^Whosoever shall unlawfully and maliciously set fire to, cast away, or in any wise destroy any shijp^ or vessel -»• 'I 126 THE TOirrB f OVABD AGAnTBT CBIMB. 'I tit :| *< cfther with intent to murder any person, or whereby (he life of any person $ihall be endangered, shall be guilty of felony, and being convicted thereof shall suffer death. 61. Hanging out false lights. — Whosoever shall unlawfully exhibit any false light or signal, with in- tent to bring any ship or vesssel into danger, or shall unlawfully and maliciously do any thing to the innme- diate loss or destruction of any ship or vessel in distress, shall be g«ulfy of felony, and being convict- ed thereof shall suffer death. 62. Setting fire to Ships or Vessels with intent to destroy the same, — VV osoever shall unlawfully and maliciously set fire to, or in any wise destroy any ship or vessel, wheilit r the same be completed or in an unfinished state, or shall uiilawfully and mali- ciously set fire to, cast away, or in any wise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board ihe same, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned at hard labour in the Provincial Peniten- tiary for th3 term of his natural life, or for any other term nbt less than seven years, or to be imprisoned in any other prison or place of confinement for any time not exceeding two years. 63. Impeding any person from endeavouring to save life. — Whosoever shall by force prevent or im- pede any person endeavouring to save his life from TUB YOUTHS GUARD AOAINBT CRIME. 190 whereby f shall be eof shall ver shall , with in- r, or shall he imme- vessel in r convict- ; intent to vfully and ;troy any plated or and mali- se destroy prejudice vessel, or erson that policy of e freight iiie, shall thereof nrt, to be Peniten- any other prisoned t for any mring to mt or im- llife frooi any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, (whether fae shall be on board or shall have quitted the same,) shall be guilty of felony, and bein^ convict- ed thereof shall be liable, at the discretion of the Court to be imprisoned at hard labor in the Pro- Tincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be im- prisoned in any other prison or place of confine- ment for any term not exceeding two years. 64. Destroying wrecks or any articles belonging thereto* — Whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandize, or article of any kind belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 65. Destroying any sea banky fyc. — If any per- son shall unlawfully and maliciously break down or cut down any sea bank or sea wall, or the bank or wall of any river, canal or marsh, whereby any land shall be overflowed or damaged, or shall be in danger of being so, or shall unlawfully and maliciously throw down, level or otherwise destroy any lock, sluice, flood-gate, or other work on any navigable river or canal^ every such oflender shall be guilty of felony, and being convicted thereof, shall be imprisoned for any term not exceeding four years ; * and if any * Se« 6 Tietoria, S^ 5, Chap. 3. I M,K 130 TUB YOUTH 8 GUARD AGAINST CBIMI. I L ii. r person shall unlawfully and maliciously cut off, draw up or remove any piles, chalk, or other materials fixed in the ground and used for securing any sea bank or sea wall, or the bank or wall of any river, canal, or marsh, or shall unlawfully and maliciously open or draw up any iloodgate, or do any other injury or mis- chief t6 any navi<;ablc river or canal witli intent and so as thereby to obstruct or prevent the carrying on, completing, or maintaining tlie navigation thereof, every such olfender shall bo guilty of felony, and being convicted thereof shall be imprisoned for any term not exceeding two years. • - - •". 66. Injury to a public bridge. — If any person shall unlawfully and maliciously pull down, or in any wise destroy any public bridge, or do any injury with in- tent, and so as thereby to rendei< such bridge or any part thereof dangerous or impassable, every such offender shall be guilty of felony, and being convicted thereof, shall be imprisoned for any term not exceeding four years. - . ^ ,> . .^rj ^j..^; ^ r f; . 67. Destroying a turnpike gate, toll house, Sfc* — If any person shall unlawfully and maliciously throw down, level, or otherwise destroy, in whole or in part, any turnpike gate, or any wall, chain, rail, post, bar, or other fence belonging to any turnpike gate, or set up pr erected to prevent passengers pas- sing by without paying any toll directed to be paid by an Act or Acts, Ordinance or Ordinances, rela- ting thereto, in force in this Province, or any house, building or weighing engine erected for the better collection,'ascertainment, or security of any sucktoll, every offender shall be guilty of a misdemeanor, and being convicted thereof, shall be punished ac- cordingly. 'i Sil") \ THE YOUTIl'8 OtTAlID AOMi^flT CtHMB. 131 \ draw Is fixed ank or Liml, or pen or or mis- cntand ing on, hereof, y, and for any )n shall ny wise with in- idge or , every I being ly term , «-c.— ciously hole or [in, rail, irnpike irs pas- >e paid ts, rela- house, better ichtoll, lor, and ac- • \ 68. Breaking down the damof a fishery, — If any person shall unlawfully and maliciously break down or otherwise destroy the dam of any fish pond, or of any water which shall be private property, or in which there shall he any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully and nialiciously put any lime or other nox- ious material in any such pond or water, with intent thereby to de.strov any of the fish therein, or shall unlawfully and maliciously break down or otherwise destroy the diiin of any mill pond, every such of- fender shall bo guilty of a misdemeanor, and being convicted ,thereof, shall be punished accordingly. 09. Killing or maiming cattle, — If any person shall unlawfully and maliciously kill, maim or wound any cattle, every such oil'ender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 70. Setting fire to Agricultural produce, — Whoso- ever shall unlawfully or maliciously set fire to any stack of corn, grain, pulse, peat, coals, charcoal, or wood, or any steer of w^ood, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary for the term of his natural lifojor for any term Aot less tli&n seven yeiax'^, or to be imprisoned in any othet prison Or pla^er^ of €oi]ifio[<^iie|it fopkny term not eiceedifigtwoyeiM;^ I* 19^ THS TOVTR8 OUARO AfSAmST CKIIIS. I ':} .» ■i N-'l ^i ii . 71. Destroying cr damaging treesy shrubs^ ^c— * If anj person shall unlawfuHy and maliciously cut, break, bark, root up, lOr otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any under- wood, respectively growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground adjoining or belonging to an}r dwelling house, every such offender shallbe guilty of a misdemeanor, and being convicted thereof, shall be punished accordingly ; and if any person shall unlawfully and maliciously cut, break, bark, root UD, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any un- derwood respectively, growing elsewhere than in any of the situations hereinbefore mentioned, every such offender ,(in case the amount of the injury done shall exceed the sum of one pound,) shall he guilty of a misdemeanor, and being convicted there* of shall be punished accordingly. 72. Destroying or damaging trees, shrubs^ under' woody fyc. — IT any person shall unlawfully and ma- liciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling or shrub, or any under- wood, wheresoever the same may be respectively growing, the injury done being to the amount of one shilling at the least, every such offender, being convicted thereof before ft Justice of the Peace shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding one pound, as to the Justice jBhall seem meet. f.x -. .., jJ.m- •-,!.* -M< « J I U'- Y'i i:' V ■•;:-*'.*. t'V^ ./' ;rfi*i I vi;: i..=< iJi' 73. Desirayingany fruit or vegetable productian» '^If any person shall unlawfully and maliciously 4o9troy, or damage with) intent to destroy any plant, i;'-.r 1 'fii; THS YOUTH fl O0ARD kQAtMn CBfllB. ISsr isly cut, damage >r shrub, in any avenue, to any )e guilty thereof, ' person ik, bark, le whole ranyun- an in any cl, every le injury I shall he ed there- Sj under- and ma- therwise any tree, )ever the iry done e least, f before ver and 1 sum of Justice Eduction* liciouslj lyplantt root, fruit or vegetablcr production, growing' in any garden, orchard,- nuripry ground, hot-house, green- Souse or conservatory^ every such offender being fonvicted thereof before a Justice of the Peace, shall forfeit and pay^ over and above the amount of the injury done, such sum of money, not exceeding two pounds, as to the Justice shall seem meet. 74. Destroying vegetable productions not growing in gardens, — if any person shall unlawfully and ma- liciously destroy, or damage with intent to destroy any cultivated root or plant used for the food of man or beast, or for medicine, or for diatilling, or for dyeing, or for or in the course of any manufacture, and grow- ing in any land, open or enclosed, not being a garden, orchard or nursery ground, every such offender being convicted thereof, before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding twenty shilhngs, as to the Justice shall seem meet. 75r Destroying any fence, wall, stile, or gate. — If any person shall unlawfully and maliciously cut, break, throw down, or in anywise destroy any fence of any description whatsoever, or any wall, latile, or gate, or any part thereof respectively, every such offender, being convicted before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding one pound, as to the Justice shall seem meet. 7(J. Persons committing damage to property. — *If any person shall wilfully or maliciously commit any damge or injury, or spoil to or upon any real or personal property whatsoever, either of a public or w- it *■ ii ;1P4 TifJP YppTfll's i.OU^jai) . AQi:\|¥4T CHUkf^. f,: ■. I l:! private nature, for which no remedy or punishment is hereinbefore provided, eyery such person being convicted thereof, before a Justice of the Peace, shall forfeit and pay such sum of money as shall appear to the Justice to be a reasonable compen- sation for the damage, injury or spoil so committed, not exceeding the sum ot* five pounds ; which sum of money shall, in case of private property, be paid to the party aggrieved, except where such party shall have been examined in proof of the of- fence; and in such case, or in the case of proper- ty of a pubhc nature, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a Justice of the Peace under this Act is hereinafter directed to be applied : provided always, that nothing here- in contained shall extend to any case where the party trespassing acted under a fair and reasona- ble supposition that he had a right to do the act complained of < • .... ■^■. 77. Malice at the owner not essential to any of- fence, — Every punishment and forfeiture by this Act imposed on any person maliciously committing any offencei whether the same be punishable upon in- dictment, or upon summary conviction, shall equally apply and be enforced, whether the offence bb com- mitted from malice conceived against the owner of the property in respect of which it shall be com- mitted or otherwise. '^"'**'i^"*^;<" ( - / \^'t^iihi^i\p^ . 78. Principals in the second degree and accescries, — In the case of every felo^py pimishable under this Act, every prinpipftl in the secqnd degree, and every ^cce^ory befojre the fact, shall be punishable with THE TOUTr's guard AGAINST CRIME. 135 nishment on being e Peaee, as shall compen- mmitted, iiich sum 3erty, be ere such ►f the of- f proper- c right is in such ustice of directed ing here- here the reasona- [) the act any of- this Act ting any upon in- 1 equally bb com- Dwner of }e com- cesories. ider this [id every )le with death or otherwise, in the same manner as the prin- cipal in th( first degree is by this Act punishable ; and every accessory after the fact to any felony punishable uridier this Act, shall, on conviction, bo liable to be imprisoned for any term not exceeding two years, and every person who shall aid, abet, counsel or procure the commission of any misde- meanor, punishable under this Act, shall be liable to be indicted and punished as a principal offender. 79. The Court may, for all qffe?ices within this acty order hard labor or solitary covfncmcnt. — Where any person shall be convicted of any indictable of- fence punishable under this Act, for which im- prisonment may be awarded, it shall lie lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction ; and also to direct that the offender shall be kept in solitary con- finement for any portion or portions of such impri- sonment or of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year ; as to the Court in its discretion shall seem meet. ■!U^l -» 80. Persons in the act of committing any offence may be apprehended, — And for the more eftectual apprehension of all offenders against this Act ; be it enacted, that any person found committing any of- fence against this Act, whether the same be punish- able upon indictment or upon summary conviction, may be immediately apprehe'nded, without a war- rant, by any peace officer or the ownerof the property injured, or his servant, or any person authorized by hinii,and forthwith taken before some neighboring Jus- tice of the Peace, to be dealt with acborfing to law. i SI 136 THB YOUTH 8 OUARD AGAUCST OIIIMB. |M| 6^ , : 81. Lmitatian as to summary proceedings.^^The prosecution for every offence punishable on summa« ry conviction under this Act^ shall be commenced within three calendar months after the commission of the offence, and not otherwise ; and the evidence of the party aggrieved shall be admitted in proof of the offence, and also the evidence of any inhabitant of \\e District, County or place in which the offence shall have been committed, notwithstanding any for- feiture or penalty incurred by the offence maybe paya- ble toany public fund of such District, County orplace. 8^. Mode of compelling the appearance oj per- sons, — And for the more effectual prosecution of all offences punishable on summary conviction under this Act ; be it enacted, that where any person shall be charged on the oath of a credible wit- ness, before any Justice of the Peace, with any such offence, the Justice may summon the person charged to appear at a time and place to be named in such summons, and if he shall not appear accord- ingly, (then upon proof of the due service of the summons upon such person, by delivering the same to him personally, or by leaving the same at his usual place of abode) the Justice may either pro- ceed to hear and determine the case ex parte^ or is- sue his warrant for apprehending such person, and bringing him before himself or some other Justice of the Peace ; or the Justice before whom the charge shall be made, may, if he shall so think fit, without any previous summons, (unless where otherwise specially directed) issue such warrant; and the Justice before whom the person charged shall appear or be brought^ shall proceed to hear and determine the case. , . ; ;,< i ,^,a ^ ^ ^ v^,* THB YOUTH 8 GUARD AOAIIfST CRDIB. 137 r.— The summa- menced amission evidence proof of babitant I offence any for- )e paya- )r place. of 'per- m of all [1 under person ble wit- ith any person named accord- of the le same at his tr pro- or is- )n, and Justice m the nk fit, where rrant ; larg'ed hear 83. If a person summarily convicted sfMll not pay. — ^In every case of a summary conviction under this Act, where the sum which shall be forfeited for the amount of the injury done, or which shall be imposed as a penalty by the Justice, shall not be paid, either immediately after the conviction, or within such period as the Justice shall, at the time of conviction, appoint, it shall be lawful for the con- victing Justice, (unless where otherwise specially directed,) to commit the offender to the common Gaol or House of Correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, according" to the discretion of the Justice, for any term not exceeding two calendar months, where the amount of the sum forfeited or of the penalty imposed, or of both, (as the case may be,) together with the costs, shall not exceed five pounds ; -^nd for any term not exceeding four calendar moL s,, where the amount with costs shall exceed five pounds,, an^ not exceed ten pounds ; and for any term not exceeding six col«ndar months where the amount with costs shall exceed ten pounds ; the commitment to be determinable in each of the cases aforesaid upon the payment of the amount and costs. . 84. The Justice may discharge the offender in certain cases, — Where any person shall be sum- marily convicted before a Justice of the Peace of any offence against this Act, and it shall be a first conviction, it shall be lawful for the Justice,. if he shall so think fit, to discharge the offender from his conviction, upon his making such satisfaction to. the party aggrieved for damages and costs* or either of them, as shall be ascertained by th& Justice. i'M if! I ^% •»,■ w ' bar to any 1 case any ible npon shall have ther with 2 received ihall have i-payment fi the first from his very such r or other icted, that 1 be con- lay cause ;ving form *lhe same day of caise tnay le of Her d District did (sp6- cify the offence, ttnd 'the tme and place when and toftere the same was committed, as the case may be,) and I the said J. P. adjudg-e the said A, O. for his said offence to be imprisoned in the . . •. * (or to be imprisoned in the and there kept to hard labor,) for tho space of (or) I ad- judge the said A. O. for his said offence to forfeit and pay i I'rjjM' (here state the penalty actually imposed, or state the petialty and also the amount of the injury done, as the case may be,) and also to pay the sum of v.'- < for costs, and in default of im- mediate payment of the said sum?, to be imprisoned in the '^ 'U (or, to be imprisoned in the * and there kept to hard labor) for the space of *'^' I) uiyL. unless the said sums shall be sooner paid ; (or, and I order that the said sums shall be paid by the said A. O. on or before the ^ '' ' day of ' ^ ') and I direct that the said sum of (i. e, the penalty only,) shall be paid to *me, the convictincr Justice, and that the said sum of (i. e* the sum for the amount of the injury done) shall be paid to C. D. (the party aggrieved, uidess he is unknown, or has been examined in proof of the offence, in which case state that fact, and dispose of the whole like the penalty as before i) and I order that the said sum of for costs, shall be paid to (the complainant*) Given under my hand and seal, the day and year first above mentioned. ^ - *. •1 K" '\V 87. Appeal.'—ln all cases where the sum adjudg- ed to be paid on any summary conviction shall ex- ceed five pounds, or the imprisonment adjudged shall exceed one calendar month, or the conviction shall take place before one Justice only, any person who i tf i li Im tto Tm Yoirra'g qvard against csniB. nt iihall think himself ag^grieved by any such conviction^, may appeal to the next Court of General or Quarter* Sessions, which shall be holden not less than twelve days after the dayof such; conviction for the Disitrict, Inferior District,. Countyi or place wherein' the cause of complaint shall have arisen ; provided that such person shall give to- the complainant a notice in wri- ting of such appeal; and of the cause and matter thereof within three days after sucih conviction, and seven clear days at the least before such Sessions, and shall also either remain in custody until the Ses- sions, or enter into a recognizance with- two suffi- cient sureties before a Justice of the Peace, condi- tioned personally to appear at the said Sessions, and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded ;. and upon such notice being given, and such recognizance being entered into, the Justice before whom- the same shall be entered into, shall liberate such person if in custo- dy ; and the Court at such Sessions shall hear and determine the matter of the appeal,. and' shall make mch order therein with or without costs to either party, as to the Court shall seem meet; and in case of the dismissal of the appeal or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction; and to pay such costs as shall be awarded, and shall^ if ne- cessaiy, issue process for enforcing: such judgment. 88:. Cbnvictions to he returned to the Qxtarter Sesssions.-^'Evevy Justice of the Peace, before whom any person shall be convicted of any offence against this Act, shall transmit the conviction to th^ ne^t Court of Gieneral or Quarter Sessions which THB TOUTH fl OVARB AGAINST CRIHS. 141 nvictioDr Quarter* 1 twelve Disitrict, le oause lat such J in wri- l matter ion, and iesstons, theSes- ro suffi- !, Gondi- lessions, rtneni of i as shall ;b notice entered shall be a custo- lear and sill make ;o either I in case ance of offender and to 11* if ne- dgment. Qwxrter before offence n to th^ which •shall be holden for the district or inferior district, coun- tyor place, wherein the offence shall have been com- mitted, there to be kept by the proper ofHcer among ihe records of the Court ; and upon any indictment or information against any person for a subsequent of- fence, a copy of such conviction, certified by the pro- per officer of the Court, or proved to be a true copy, shall be sufficient evidence to prove a conviction for the former offence, and the conviction shall be pre- sumed to have been unappealed against until the contrary be shown, ^ 89. Limitation of time, f^nd venue in proceedings, —-And for the protection of persons acting in the execution of this Act ; be it enacted, that all ac- tions and prosecutions to be commenced against any person for any thing done in pursuance of this Act, shall be laid and tried in the District or inferior District where the fact was committed, and shall be commenced within six calendar months after the fact was committed, and not otherwise ; and notice, in writing, of such action, and of the cause thereof, shall be given to the defendant one calendar month at least before the commenee- ment of the action ; and in any such action the defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon ; and no plaintiff shall re- cover in any such action if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court after such action brought by or on behalf of the defendant ; and if a verdict shall pass for the defendant, or the plaintiff shall be- come non-suited, or discontinue any such action after '» 143 TUB YOUTHS GUARD AGAlBTSTCniMI •m m i^ issue joined, or if, upon demuiTer or otherwise, judg-mcnt sliall be g-iven against the phuntiff, the (Jefendaiit shall recover his full costs as between Attorney and client, and have the hke remedy for the same, as any defendant hath by Law in other cases ; and thoui*-h a verdict shall be given for the plaintiir in any such action, such pluinlifF shall not liave costs a^-ainst the defendant, unless the Judge before whom the trial shall be, shall certify his ap- probation of the action, and of the verdict obtained thereupon. . ,;; • ^ij^ I'^i ^u-inji,/. 90. Fines to he in current money, — All fines, forfeit- ures and penalties imposed by this Act, and all sums expressed as the value of any goods, chattels, or other property herein mentioned, shall be deemed and taken to be current money of this Province. -,,5:; 91. Repealing clause, — And be it enacted, that all Acts or pal'ts of Acts, or provisions of law in force in this Province or any part thereof, immediately be- fore the time when this Act shall come into force, which shall be inconsistent with or contradictory to this Act, or which make any provision in any matter provided for by this Act, other than such as is here- by made in such matter shall, from and after the time when this Act shall come into force, be, and they are hereby repealed, except in so far as they i;nay relate to any offence committed before the said time, which shall be dealt with and punished as if this Act mS TOUTII*S mUARD AOAIN8T CRIMK*iT 143 DPwise, iff, the stween dy for I other or tlie all not Judgfc lis op- 3tained forfeit- 1 sLinis els, or learned |ce. . iK; hat all 1 force ly be- force, :ory to Tiatter here- e time they |y my time, is Act . An Act for consolidating and amending the Statutes in this Pro. * ^ vipce relative to ofiences against tlie person. — [l & 5 Victorin, , e ap. -. .J J J ^.^ .K.^'ii.t -I' ::i.i '• ;: m. t-vi- -f^fvi; f] 1. Preamble, — Whereas it is expedient to amend * and consuhdate the piovit^ions coniuined in various tftatiites now in force in this Piovince, relative to offences nf>ainst the person; be it therefore enacted, by the Queen's Most Excillent Majesty, by and with the advice and consent of the Leg-islative Council and of die Legislative Assembly ot the' \ Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kinijfdom of Great Britain and Ireland, intituled An Act to re-unite the ^ Provinces of Upper and Lower Canada, and for the Government of Canada,, and it is hereby eiiacted by the authority of the same, that this Act shall com- . mence and take effect from and after the first day of : January, one thousand eig-lit hundred and forty two. . 2. Petit treason to he treated in all respects as j murder, — Every offence, which l)efore the com- >. meqcement of this Act would have amounted to ,* petit treason, sliall be deemed to be murder only, ii and no greater offence ; and all persons guilty in * respect thereof, whether as principals or as accesso- ries, shall be dealt with, indicted, tried, and punish- ed as principals and accessories in murder.' '*.*'"'*:* "'^^ 3. Punishment of principals and accessories in \ mwrder.— -Eveiy person convicted of murder, or of ( being" an accessory before the fact to murder, shall -> suffer death as a felon : and every accessory after | the fact to murder, shall be liable, at the discretion ti of^the Courts to ib6 imprisoned at hard labor in the'i III 144 TRK TOVTH*S OUARD AOAfHBT CBIMI. I Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of cod- finennent for any term not exceeding two years. . . 4. Sentence in case of murder. — From and after the passing of this Act, sentence of death may be pro- nounced after convictions for murder, in the same manner, and the Court before which the conviction may be had shall have the same power in ail res- pects as after convictions for other capital offences. 5. Prison regulations as to murderers under sen' tence, — Every person convicted of murder, shall, after judgment, be confined in some safe place with- in the prison, apart from all other prisoners, and shall be fed witli bread and water only, and with no other food or liquor, except in case of receiving the sacrament, or in case of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered ; and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict, without the permission, in writing, of the Court or Judge before whom such convict shall have been tried, or of the Sheriff or his Deputy. ' 6. Provisionfor the trial of murder and manslaugh' ter. — Where uny person being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of this Province, shall die of such stroke, poisoning, or hurt, in this Province, or being feloni- ously stricken, poisoned, or otherwise hurt at any place in this Province, shall die of such stroke, poison- ing, or hurt, upon the sea, or at any place out of this ProTiDce^ every offence committed in respect of any ■., ^ -■ '--.e.-r. natural I, or to )f COD- 'S. id after bepro- i same ivictioD all res- fTences. iersen- ', shall, :e with- ra, and with no v'm^ the ound, in y order person haplain to any ting, of convict )eputy. slough' ricken, at any stroke, feloni- at any poison- of this of any THE Y0VTII8 GUARD AGAINST Cltnil. 143 such case, whether (he same shall amount to the of- fence of murder or of manslaughter, or of being* acces- soiy f)efore the fact to murder, or after the fact to murdf^r, or manslaughter, may be dealt with, inqui- i-ed of, tried, determined, and punished in the Dis- trict, County, or place in this Province, in which such death, stroke, poisoning, or hurt shall happen, in the same manner, in all respects, as if such of- fence had been wholly committed in such District, County or place. . 7. Punishment of manslaughter. — Every person convicted of manslaughter, shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years,* oi to be imprisoned in any other prison or place of conHnement for any term not exceeding two years, or to pay such fine as the Court shall award, i :\ , ■- . .■ .\ 8. As to homicide not felonious » — No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner without felony. 9. Punishment for administering poison, 8fc, — It is enacted, that whosoever shall administer or cause to be taken by any person, any poison or other destructive thing, or shall stab, cut or wound any person, or shall by any means whatsoever cause to any i)erson any bodily injury, dangerous to life, with intent, in any of the cases aforesaid, to commit murder, shall be guilty of felony, and being convict- ed thereof shall suffer death. • But see 6 Victoria, chap. 5. f u.- ,/ »..'* ■Ml 146 THK YOUTH 8 GUARD AGAINST CKIXB I I H ' 10. Pufdshment/or offences with intent to commit murder J though no injury effected. — It is enacted, that whosoever shall attempt to administer to any person any poison or other destructive thing*, or shall shoot at any person, or shall by drawing* a trigger, or in any other manner attempt to discharg-e any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strang-le any person, with intent in any of the cases aforesaid to commit the crime of murder, shall, althoug-h no bodily injury shall be affected, be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Provin- cial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confine- ment for any term not exceeding two years. 11. Punishment for aitting and maiming, with intent to disfigure. — Whosoever unlawfully and ma- liciously shall shoot at any person, or shall, by draw- ing" a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or wound any person, with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some other griev- ous bodily harm to such person, or with intent to re- sist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being con- victed thereof, shall be liable, at the discretion of the Court, to be imprisoned at hard labor in the Pro- vincial Penitentiary for the term of his natural life, or for any term not less than seven years,* or to be * But tee 6 Victoriat chap. 5. THE TOrm^S GUARD AGAINST CRIME. 147 commit enacted, r to any C, or shall rig^^er, or any kind Lenript to ith intent imit the ly injury eing con- ion of the le Provin- tural life, or to be f confine- rs. ning, with yand ma- , by draw- ttempt to y person, vith intent sfi^ure, 01 ler g^riev- tent to re- ietainer of being" con- icretion of in the Pro- itural life, ^* or to be imprisoned in any other prison or place of confine- ment for any term not exceeding two years. 12. Punishment for sending explosive substances. — It is enacted that whosoever snail unlawfully and maliciously send or deliver to or cause to be taken, or received by any person, any explosive substance, or any other dangerous or noxious things, or cast or throw upon or otherwise apply to any person, any corrosive fluid, or destructive matter, with intent in any of the cases aforesaid, to burn, maim, disfigure, or disable any person, or to do some other grievous bodily hunn to ary person, and whereby in any of the cases aforesaid any person shall be burnt, maim- ed, disfigured or disabled, or receive some other grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable, at the dis- cretion of the Court, to be imprisoned at hard labor in the Provincial Penitentiary for the term of his natural life, or for any term riot less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 14. Punishment for trying to procure abortion. — It rs enacted, that whosoever with intent to procure the miscarriage of any woman, shall unlawfully ad- minister to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whataoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to j»h 148 TUB YOUTH 8 GUARD AGAINST CRIME. ■I h./. Ill 'B' be imprisoned in any other prison or place of con- finement for any term not exceeding two years, i ^^ . 15. .^ woman secreting Ike dead body of her child. — If a. y woman shall be delivered of a child, and shall, by secret bmying" or otherwise disposing of the dead body of the said child, endeavour to con- ceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted there- of, shall be liable to be imprisoned foi any terra not exceeding two years ; and it shall not be necessaiy to prove whether the child died before, at, or after its birth : provided always, that if any woman, tried for the murder of her child, shall be acquitted thereof, it shall be lawful for the jury, by whose ver- dict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or other- wise disposing of the dead body of such child, en- deavor to conceal the birth thereof, and thereupon the Court may pass such sentence as if she had been convicted upon an indictment for the concealment of the birth. . . 16. Assaidts with intent to commit felony* — It is enacted, that where any person shall be charged with and convicted of any of the following offences as misdemeanors, that is to say, of any assault with intent to commit felony ; of any assault upon any peace officer or revenue officer in the due execution of his duty, or upon any person acting in aid of such officer; of any assault upon any person w^th intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they m»y be TIIE YOUTH 8 GUARD AGAINST CRIMB. 140 liable by law to be apprehended or detained ; or of any as&ault committed in pursuance of any conspira- cy to raise the rate of wag-es : in any such case, the Court may sentence the offender to be imprisoned for any term not exceeding" two years, and may also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace.* , 17. Assault on any seaman^ Sf^c, — If any person shall, unlawfully anl with force, hinder any seaman from working at or exercising- his lawful trade, bu- siness or occupation, or shall beat, wound, or use any other violence to him, with intent to deter or hinder him from working* at or exercising* the same ; or if any person shall beat, wound, or use any other violence to any person, with intent to deter or hinder him from selling* or buying any wheat or other grain, flour, meal or malt, in any market or other place, or shall beat, wound, or use any other violence to any person having* the care or charg*e of any wheat or other grain, flour, me'>l,ormalt, whilst on its way to or from any city, market-town, or other place, with in- tent to stop the conveyance of, the same, every such offender may be convicted thereof before two Jus- tices of the Peace, and imprisoned and kept to hard labor in the common gaol or house of correction, for any term not exceeding three calendar months : pro- vided always, that no person, who shall be pun- ished for any such offence, by virtue of this provi- sion, shall be punished for the same offence by vir- tue of any other law whatsoever. ;. j\i.\ .■ e\ %i 18. Persons committing any assault or battery may be compelled by a magistrate to pay a fine. — And * But see 6 Victoria, chap. 5, wc. 5, ai to anflault with intent to Rape or Bujrjery. - • - . I; 150 TRE voirnfs ouaud agaiitst crime. 6 M ■■ %} i I- whereas it is expedient that a summary power of punish ingp persons for common assauhs and batteries should be provided under the limitations hereinafter mentioned ; be it therefore enacted, that where any person shall unlawfully assault or beat any other person, it shall be lawful for any Justice of the Peace, upon complaint of the party ao'g-rieved, pray- ing him to proceed summarily under this Act, to hear and determine such offence ;* and the offender, upon conviction thereof before him, shall forfeit and pay such fine as shall appear to him to be meet, not ex- ceeding, together with costs (if ordered) the sum of five pounds, which fine shall be paid to the Treas- urer of the Municipal District, or place in which the offence shall have been committed, and make part of the funds of such District, or if the conviction be had in any place not within any Municipal Dis- trict, then such fine shall be paid over to such offi- cer, and be applicable to such purposes as other fines and penalties by law are ; and the evidence of any inhabitant of the Municipal District shall be admit- teed in proof of the offence, notwithstanding such application of the fintf incurred thereby ; and if such fine as shall be awarded by the said Justice, togeth- er with the costs (if ordered) shall not be paid, either immediately after the conviction, or within such period as the said Justice shall at the time of the conviction appoint, it shall be lawful for him to commit the offender to the common gaol or house of correction, there to be imprisoned for any term not exceeding two calendar months, unless such fine and costs be sooner paid ; but if the Justice, upon the hearing of any such case of assault or battery shall * But ace the Election Act, 6 Victoria, chap. I , as to waaultt within » eer- ain distance of the poll during Election. . , : >'^)^t^> S'' liBi^ ^ 1'' ,|' t be summarily convicted before a Justice of the Peace of any offence against this Act, it shal I be lawful for such Justice, if he shall so think fit, to discharge the offender from his conviction upon his making such satisfaction to the party aggrieved for damages and costs, or either of them, as shall be ascertained by the said Justice. 51. Where felony intended J\^agislrate not to ad* judicate* — In case the Justice shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be ot opinion that the same is, from any other circumstance a fit subject for a prosecution by indictment, he shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same man- ner as he would have done before the pr ssing of this Act : provided also, that nothing herein con- tained shall authorize any Justice of the Peace to hear and determine any case of assault or bat- tery, in which any question shall arise as to the title to any lands, tenements or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any Court of Justice. ■, » 22. Punishment for disturbing divine service. — If any person shall wilfully disturb, interrupt, or dis- quiet any assemblage of persons met for religious worship, by profane discourse, by rude, or indecent behavior, or by makinsf a noise, either within the place of worship, or so near it as to disturb the order or solemnity of the meeting, such person shall, upon conviction thereof before any Justice of the Peace, on the oath of one, or more, credible wil nn Jui ■i "r TUB YOUni S GUARD AOAlIfST CIIIXIE. 158 Peace lawful charge making images rtained to ad' a^sauh panied be of istance e shall I shall ) man- jing" of 1 con- Peace •r bat- o the ts, or as to under —If (lis- fious jcent the the jrson je of lible witness, or witnesses, forfeit and pay such a sum of money, not exceeding five pounds, as the said Justice shall think fit. 23. Finess how levied. — In default of payment of any fine imposed under the authority of (his Act, on a summary conviction before any Justice of the Peace, together with the costs attending the same, within the j.>eriod specified for the payment thereof, at the time of conviction by the Justice before whom such conviction may iiave taken place, it shall and may be lawful for such Justice to issue his warrant directed to any constable to levy the amount of such fine and costs within a certain time to be in the said warrant specified, and in case no distress suffi- cient to satisfy the amount shall be found, it shall and may be lawful for him to commit the offender to the common gaol of the District wherein the offence was committed for any term not exceeding one month, unless the fine and costs be sooner paid. 24. Appeal against convictions to Quarter Ses- sions, — And it is enacted, that any person who shall think himself aprgrieved by any summaiy conviction, or decision, under this Act aforesaid, may appeal to the next Court of General, or Quarter Sessions, which shall be holden not 1 jss than twelve days after the day of such conviction or decision for the District wherein the cause of complaint shall have arisen : provided always, that such person shall give to the other party a notice, in writing, of such appeal, and of the cause and matter thereof, witliin three days after such conviction or decision, and seven days at the least before such Sessions, and shall also, either remain in custody until the Sessions, or enter into a ! I !■ I'l f 154 TUB YOUTH 8 OUABD AGAINST CRIME. < w recogTiizance with two sufficient sureties before a Justice of the Peace, conditioned personally to ap- pear at tiie said Sessions and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded, and upon such notice being* given, and such recogni- zance being entered into, the Justice before whom the same shall be entered into, shall liberate such person, if in custody, and the Court at such Ses- sions, shall hear and determine the matter of the appeal, and shall make such order therein, with or without cost, to either party, as to the Court shall seem meet ; and in case of the dismissal of the ap- peal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judgment. 25. Appeals triable by jury. — Whenever an ap- peal shall be made from the decision of any Justice under this Act as aforesaid, the Court of General or Quarter Sessions shall have power to empannel a Jury to try the matter on which such decision may have been made, and the Court on finding of such Jury, under oath, shall thereAipon give such judg- ment as the circumstances of the case may require : provided always, that such Court shall not in any case adjudge the payiTient of a fine exceeding five poimds in addition to the costs, or to order the im- prisonmnent of the pei-son so convicted, for any peri- od not exceeding one month ; and all fines imposed, and recovered, by the judgment of such Court, shall be applied and disposed of in the same manner as other fines recovered under the provisions of this Act, before a lly to ap- )peal, and ipon, and awarded, 1 recogni- )re whom ate such uch Ses- er of the , with or curt shall )f the ap- ;hall order according" 5 shall be rocess for ver an ap- ny Justice General or npannel a isiun may g* of such ich judg- ^ require : ot in any sding" hsQ T the im- r any peri- i imposed, jh Court, manner as f this Act, THB TOVTHS GUARD AGADrVT CRIMB. 155 26. Ptmishmeni of accessories, — In the case of ■every felony punishable under this Act, every prin- cipal in the second degree, and every accessory be- fore the fact, shall be punishable with death or oth- erwise, in the same manner as the principal in the first degree is by this Act punishable ; and every ac- cessory after the fact to any felony punishable under this Act, shall, on conviction, be liable to be impris- oned for any term not exceeding two years. 27. Offences punishable by imprisonment. — When any person shall be convicted of any offence punish- able under this Act, for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprison- ment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its disci etion shall seem meet, • ■ - ' ■ i 28. /wy may acquit of felony and convict of as^ sault in certain cases. — On the trial of any person of the offences hereinbefore mentioned, or for any felony whatever, where the crime charged shall in- clude an assault against the person, it shall be lavful for the Juiy to acquit of the felony, and to finl a verdict of guilty of assault, against the persor in- dicted, if the evidence shall warrant such findng ; and when such verdict shall be found, the Court shall have power to imprison the person so fnmd guilty of an assault, for any term not exceeding three years. 156 Till TOVTHtf 0U4RD AOAINIT CRIMI. . ti Vi. "i ^^lii 29. Not to affect the laws relating to thejorees, — Nothing' herein contained shall alter or affect any of the laws relating to the Government of Her Majes- ty's Land or Naval Forces. •r» 30. Persons imprisoned may be pardoned, — It shall be lawful for the Queen's Majesty, and for the Governor, Lieutenant Governor or person adminis- torinu: the Government of this Province, to extend the Royal mercy to any person imprisoned by virtue of this Act, although he shall be imprisoned f(»r non-payment of money to some party, other than the Crown. i., > . , /^ > •), ; ■ 31. Provisions for offences against this act. — And for tlie more effectual prosecution of offences puni'hable upon summary conviction by virtue of i\\h Act ; be it enacted, that where tmy person shall be charged on the o^th of a credible wit- ness, before any Justice of the Peace, with any such offence, the Justice may summon the person charsred to appear at a time and place to be named in such summons, and if he shall not appear accord- ingly, then (upon pi oof of the due service of the summons upon such person, by delivering the same lo him) the Justice may either proceed to hear and determine the case ex parte, or may issue his war- ran\ for apprehending such person and bringing him before himself or some other Justice of the Peace, or the Justice before whom the charge shall be mad^ may (if he shall so think fit) issue such war- rant in the first instance, without any previous, ^urai^ions. , , ,5,. 32. Time for summary proceedings, — The pro- decuton for every offence punishable on summary ]> li^P vrces, — ct any of r Mujes- med. — It d for the adminis- o extend by virtue jned for ber than is act. — ' offences virtue of y person ible wit- fvith any person e named accord- of the he same ear and is war- ing" him Peace, hall be h war- revious le pro- immary TUB YOUTH 8 GUARD AGAINST CRIMI. 157 conviction by virtue of this Act, shall be commenced with in three calendar months after the commission of the offence, and not otherwise. ' • " ■' 33 Form of Conviction. — And be it enacted, that the Jufeitice !)efore whom any person shall be sum- marily convicted of any offence aui^ainst this Act, may cause the conviction to be drawn up in the fol- lowing form of words, or in any other form of words to the same effect, as the case shall require, (that is to say) : — i- ■ « •-:.•.;,: i. ; ,' .( ,,•.. ;-riii > '' '\i. ** Be it remembered that on the day of in the year of oin* Lord at in the County of (or ridinof, division, dis- trict, city, Sec. as the case may be,) A. O. is con- victed before me, (naming the Justice,) one of Her Majesty's Justices of the Peace for the said County, (or riding, &c.; for that he the said A. O. did (spe^ cify the offence^ and the time and place when and where the same was committed, as the case may be ;) and 1 the said Justice adjudge (he said A. O. for his said offence to be imprisoned in the 7 {or to be imprisoned in the .. and there kept to hard labor,) for the space of {or I adjudge the said A. O. for his said offence to forfeit and pay the sum of ) (here state the amount of the fine imposed,) and also to pay the sum of for costs ; and in default of immediate payment of the said sums, to be imprisoned in the for the space of - • ? ,. unless the said sums sh^ll be sooner paid ; {or, and I order that the said sums shall be paid by the said A. O. on or before the J*^^ " "'" day of ) and I direct that the said sum of ' t* > o^ mi-> (f, e, the fine,) shall be ' pnid to H 1» 'Jijf ooi>ft.HJ ( aforesaid, in which 158 TSB TOimiS OUARD AGAIlfST CKIMB. ^1 !lf (he said oflfence was committed, to be by him appli- ed according to the directions of the Statute in that case made and provided ; (or as the case may be: ) and I 01 der that the said sum of foi' costs «hali be paid to C. D. (the party aggrieved.) Giver under my hand, the d iy and year first above mentioned.'* -1 . .1 ' ' t' 34. Not to repeal any act relating to high treason or the revenue. — Nothings in this Act coiitained, shall affect or aker any Act, so far as it relates to the crime of High Treason, or to any branch of the Public Revenue. 35. JJll Acts repugnant to this Act repealed. — All Acts, or parts of Acts, or provisioi*s of law in force in this Province, or any part thereof, immediately before the tin)e when this Act shall come into force, which shall be mconsistent with, or contradictory to this Act, or which make any provision in any matter provided for by this Act, other than such as is hereby made in such matter, shall from and after the time when this Act shall come into force, be and they are hereby repealed, except in so far as may relate to any offence committed before the said time, which ahall be be dealt v,ith, and punished, as if this Act had not been passed. ' f 6th victoria, chap. 5. . / : ' o An Act for better proportioning the punishment to the offence, ' in certain cases, and for other purposes therein mentioned. ' : ' " ; .^^ '^' '^' [12lh October, 1842.] I. Whereas it is expedient to enable the Courts l^fore whom offenders may be convicted in certain him applr- ute in that ! may be: ) fcM' COStd • first above igh treason lained, shall ites ta the inch of the I taled. — All law m force mmediately ^e into force, tradictory to- any matter as is hereby 3r the time and they are ly relate to ime, which if this Act TBB TOUTIIl GUARD AGAI.XfT CBIXB. 159 to the offence, n mentioned. )er, 1842.] the Courts 3d in certain cases, better to proportion the punishment of such offenders to the p^uilt of the offence ; be it therefore enacted by the Queen's Most Excellent Majesty, by and with (he advice and consent of (he Le^ns^lative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the aiuhority of an Act passed in the Parliament of the United King-dom of Great Britain and Ireland, intituled, An Act to re-unite the Provinces of Upper and Lower Canada, and for the (jfovernment of Canada, and it is hereby enacted by the authority of the same, that so much of a certain Act passed in the Session held in the fourth and filth years of Her Majesty's Reign, and intiluled An Act for improving the administration of criminal justice in this Province, or of a certain other Act passed in the same Session, and entituled. An Act for consoli- datinu: and amend inof the Laws in (his Province, re- lative to Larceny and other offences connected therewith, or of a certain other Act passed in the same Session, and intituled An Act for consolidating and amending the Laws in this Province, relative to malicious injuries to properly, or of a certain other Act passed in the same Session, and intituled An Act for consolidating and amending the Statutes in this Province, relative to offences against the person, or of any other Act or Law, as shall be repugnant to or inconsistent with the enactments of this Act, shall be and is hereby repealed. 2. Cases in which offenders may he committed. — For each and every ofience for which by any of the Acts hereinbefore cited, the offender is liable on con- viction to be punished by imprisonment h the Pro- vincial Penitentiary, but may instead viior*3cf and in 160 THE YOX7TH8 GUARD AGAINST CRIMK. :;| ;; P : the discretion of the Court, be punished by impris- onment in any other Prison or place of confinement for any term not exceeding two years, the offender may, if convicted after the passing of this Act, be punished in the discretion of the Court, by imprison- ment in the Provincial Penitentiaiy for any term not less than three years 'anJ not exceeding the longest term for which such offender might have been so imprisoned if this Act had not been passed ; or by imprisonment in any other prison or place of confine- ment for any term not exceeding two years, in the manner prescribed by such Act ; provided always, that nothing in this Act shall prevent such offender from being punished by imprisonment in the Provin- cial Penitentiary for life, if he might have b3en so punished if this Act had not been passed. < • -- 3. Other cases in ivhich offenders may be commu- ted, — ^For each and every offence, for which by any of the said Acts, the offender may on conviction Ije punished by imprisonment for such term as the Court shall award, or for any term exceeding two years, such imprisonment if a warded for a longer term than two years, shall be in the Provincial Penitentiary. 4. Instead of being punished by transportation, offenders may be imprisoned for a like term in the Penitentiary. — For each and every offence for which by any of the said Acts or by any other Act or Law, the offender might, if this Act had not been passed, have been punished by transportation be- yond the seas, such offender may, if convicted after the passing of this Act, be punished by imprison- ment in the Provincial Penitentiary for any term for for which he might have been transported beyond the seas if this Act had not been passed, or by impris- THE youth's guard AGAINST CRIMI. 161 ^y impris- nfinement e offender is Act, be imprison- ' term not le longest 3 been so *cl ; or by f confine- rs, in the I always, 1 offender e Provin- baen so ? commit' h by any miction \je as the ding" two iger term itentiary. ortaiion, m in the or which Act or lot been tion be- ted after Dprison- terin for yond the impris- onment for life, if without this Act he might have been punished by transportation for life. < ■<' ^ m«. 5. Assault with interit id commit Rape, — ^It is ne- cessary to deteimine tlie punishment to be inflicted upon certain offenders, not provided for by the said before recited Act, intituled An Act for consolidating and amending the Statutes in this Province relating to offences against the person, be it enacted that where any person shall be charged with and con- victed of any assault, with intent to commit rape, or of any assault with intent to conr.nut the abominable crime of buggery, either with mankind or with any animal, the Court in any such case may sentence tlie offender to be imprisoned at hard labor in the Pro- vincial Penitentiary for any term not exceeding three years, or to be imprisoned in any other prison or place ot confinement for any term not exceeding two years. PUNISHMENT FOR KEEPING A BILLIARD TABLE WITHOUT LICENSE. An Act for granting to Her Majesty a Duty upon Billiard Tables.* 1 . It shall and may be lawful for the inspector of the District in which any such billiard table may be had or kept, or any other person, to give infor- mation of the same before any Justice of the Peace ; and it shall and may be lawful for any two or more Justices of the Peace of such District to hear and determine the same, and to award execution therein according to the provisions of the Act, any law, usage or custom to the contrary notwithstanding. *Se« 3rd Victoria, part of Sec •i 1^ .*^. Jtaf-J*-. ,* ■' 162 THB YOUTHS OnARD AGAINST CRIME. I. 2. In case where after conviction the penalty cannot be recovered, in consequence of the party convicted not having sufficient property to make the amount required, it shall and may be lawful for either of the Justices before whom the information and complaint shall have been made to issue his warrant for the apprehension and committal to the common gaol of the District of such delinquent, for a period hot to exceed one month, unless the fine and costs shall be sooner paid* .1 ■■■J f ... . : . . -U'^^yy .' '.'1 ' • .: \ ivJc.t'* i 'T !■ .. :t ■ .Uj k'X li-ii*- • "^-Sfe e penalty the party to make lawful for formation issue his ttal to the eUnquent» inless the .;:»-y-.^ ;«'■> 'i-''hT-'rf •■«:'<. .» W ■•»;. * fTt'^.;^ ^:-f' »T' ■ >). . .- ;.. V.-.:,-., >>-r^- *i: ?i .-^ TREATY BETWEEN HER MAJESTY AND THE UNITED STATES OF AMERICA. Signed at Washington, August 9, 1842. [ratifications EXeHANGEl> at LONDON, OCTOBER l3, 1842.] A Treaty to settle and define the Boundaries between the Posses- sions of Her Britannic Majesty in North America, and the Territories of the United S' tes :— for the final suppression of the African Slave Trade :- -and for the giving, up Criminals, fugitive from Justice^ in certain cases.* Whereas certain portions of the tine of Boun- dary between the British Dominions in North America and the United States of America, des- cribed in the second Article of the Treaty of Pfeace of 1783, have* not yet been ascertained and deter- mined, notwithstanding the repeated attempts which have been heretofore made for that purpose ; and whereas it is ¥fc©^*thought to be for the interest of both parties that, avoiding further discussion of their respective rights, arising in this respect under the said Treaty, thiey shouM agree on a Convention- al Line in 'said portion of the said Boundary, such as may be convenient tO' both Parties, with such equivalents and compensations as are deemed just and reasonable:-— and whereas, by the Treaty con- cluded at Ghe?t on the 24th day of December, 181 4y between His Britannic Majesty and the* tJnited States, an Article was agreed to and insert- ed, of the foHowing tenor, viz : " Art. X, Whereasr « Set Canada Official Gazette, FVbmkryS, 1844. u .'-i ■l 164 THB TO17TH0 GUARD AOAIlfST CRIIIB. i " the Traffic in Slaves is irreconcileable with the " principles of humanity and Justice ; and whereas '^ both His Majesty and the United States are desi* *' rous of continuing their efforts to promote its en- " tire abolition ; it is hereby agreed, that both the " contracting parties shall use their best endeavors to " accomplish so desirable an object:" — and whereas, notwithstanding the laws which have at various times been passed by the two Governments, and the efforts made to suppress it, that criminal traffic is still prosecuted and carried on ; and whereas, Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the United States of America, are determined that, so far as may be in their power, it shall be effectually abolished : — and whereas it is found expedient for the better adminis- tration of justice, and the prevention of crime within the Territories and jurisdiction of the two Parties, respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be re- ciprocally delivered up : — HerjpM%^Mc Majesty, and the United States of America, haying resolved to treat on these several subjects, have for that pur- pose appointed their respective Plenipotentiaries to negotiate and conclude a Treaty, that is to say : Her Majesty the* Queen of the United Kingdom of Great Britain and IreUind has, on Her part, appoint- ed the Right Honorable^Alexander Lord Ashburton, a Peer of the safd T]?fiited Kingdom, a member of Her Majesty's Most Honorable Privy Council, and JJer Majesty's Minister Plenipotentiary on a Spe- cial Mission to the United States ; and the President of the United States has, on his part, furnished tvith full powers Daniel Webster, Secretary of State of t\- ■ ■ ^■ ■t; , ^ me YOtTH 8 OVARD AGAINST CRfllS. i65 With the whereas are desi* te its en- both the eavors to whereas, various , and the traffic is eas, Her gdoin of States of iay be in id : — and aduiinis- ne within ► Parties, e crimes ves from 3S, be re- Majesty, resolved that pur- entiaries to say : igdom of appoint- ihburton, ember of ncil, and a Spe- resident hed fvith State of the United States ; who, after a reciprocal coih- tnunication of their respective full powers, have agreed to and signed the following Articles : — ARTICLE I. It is hereby agreed and declared, that the Line of Boundary shall be as follows :— Beginning at the monuin3nt at the source of the River St. Croix, as desijjnated and agreed to by the Commissioners under the fifth article of the Treaty of 1794, be- tween the Governments of Great Britain and the United States ; thence north, following the explo* ring line run and marked by the Surveyors of the t\^o Governments in the years 1817 and 1818, under the Fifth Article of the Treaty of Ghent, to its inter- section with the River St John, and to the middle of the channel thereof; thence up the middle of the main channel of the said River St. John to the mouth of the River St. Francis ; thence up the mid- dle of the channel of the said River St. Francis, and of the lakes through which it flows, to the out- let of the Lake Pohenagamook ; thence south-we.«- terly, in a straight line, to a point on the north-west branch of the River St. John, which point shall be ten miles distant from the main breach of the St. John, in a straight line and in the nearest direction ; but if the said point shall be found to be less than seven miles from the nearest point of the summit or crest of the highlands that divide those rivers which empty themselves into the River St. Lawrence from those which fall into the River St. John, then the said point shall be made to recede down the said northwest branch of the River St. John, to a point seven miles in a straight line from the said summit or crest; thence in a straight line, in a course i I I m ' II I 1^ ^ 166 THB youth's guard AGAINST' CRIME. about south, eight degrees west, to the point where the parallel of latitude 46° 25' north, intersects the soutn-west branch of the St. John's; thence south- erly by the said branch, to the source thereof in the highlands at the Metjarmette Portage ; thence down along the said highlands which divide the waters which empty themselves into the River St. Law- rence, from those which fall into the Atlantic Ocean, to the head of Hall's Stream; thence down the middle of said stream, till the line thus run inter- sects the old Line of Boundary Surveyed and mark- ed by Valentine and Collins previously to the year 1774 as the 45th degree of north latitude, and which has been known and understood to be the line of actual division between the States of New York and Vermont on one side, and the British Province of Canada on the other ; and from said point of intersection west along the said dividing line, as heretofore known and understood, to the Iroquois, or St. Lawrence River. ARTIC LE II. It is moreover agreed, that from the place where the joint Commissioners terminated their labors under the Sixth article of the Treaty of Ghent, to wit, at a point in the Neebish Channel, near Muddy Lake, the Line shall run into and along the ship channel between St. Joseph's and St. Tammany Islands, to the division of the channel at or near the head of St. Joseph's Island ; thence turning east- wardly and northwardly around the lower end of St. George's or Sugar Island, and following the mid- dle of the channel which divides St. George's from St. Joseph's Island; thence up the east Neebish channel nearest to St. George's Island, through thip THE'YOrTR'S OVARb AOAtl«B¥ CStlte. 107 int where rsects the ce south- eof in the lice down le waters St. Law- ic Ocean, iown the •un inter- md mark- the year md which he Une of ew York Province point of y Hne, as Iroquois, ce where ir labors jrhent, to ir Muddy the ship ammany near the ing east- r end of I the mid- ge's from Neebish ough the *midd)e of : Lake George ; thence west of Jonas' Island into St. Mary's Kiver, tea point in the mid- dle of that river about one mile above St. George's or Sugar Island, so as to appropriate and assign the said Island to the United Stales ; thence adopt- ing the line traced on the maps by the Commission- ers, through the River St. Mary and Lake Superior, to a point north of He Royale in said lake, one hundred yards to the north and east of He Chapeau, which last mentioned Island lies near the north- eastern point of He Royale, where the line marked by the commissioners terminates ; and from the last mentioned point south-westerly through the middle of the sound between He Royale aud the north-western mainland, to the mouth of Pigeon River, and up the said river to and through the north and south Fowl Lakes, to the Lakes of the height of land between Lake Superior and the Lake of the Woods ; thence along the water-communi- cation to Lake Saisaginaga and through that lake ; thence to and through Cypress Lake, Lac du Bois Blanc, Lac k Croix, Little VermiHion Lake, and Lake Namecan, and through the several smaller Jakes, straits, or streams connecting the lakes here mentioned, to that point in Lac la Fluie, or Rainy Lake, at the Chaudiere Falls, from which the Com- missioners traced the line to the most north-western point of the Lake of the Woods ; thence along the said line to the said most north-western point, being in latitude 49* 23' 55'' north, and in longitude 95® 14' 38" west, from the observatory at Green- wich ; thence, according to existing Treaties, due south to its intersection with the 49th parallel of north latitude, and along that parallel to the Rocky mountains. It being understood that all the I i B' 168 THS Y0irrH*8 «UARD AOAUfST CRIME. i p.! R) V i.^ I U k water communications, and all the usual por« tages along; the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries. iii.l ARTICLE III. .' ! t 1 'Mr .'•; "< In order to promote the interests, and encourage the industry of all the inhabitants of the countries watered by the River St John and its tributaries, whether living within the Province of New Bruns- wick, or the State of Maine, it is agreed, that where by the provisions of the present Treaty, the River St. John is declared to be the Line of Boundary, the navigation of the said river shall be free and open to both parties, and shall in no way be obstructed by either; that all the produce of the forest, in logs, lumber, timber, boards, staves, or shingles, or of agriculture, not being manufactured, grown on any of those parts of the State of Maine watered by the River St. John, or by its tributaries, of which fact reasonable evidence shall, if required, be pro- duced, shall have free access iuto and through the said river and its said tributaries, having their source within the state of Maine, to and from the sea port at the mouth of said River St. John's, and to and round the falls of the said river, either by boats, rafts, or other conveyance ; that when within the Province of New Brunswick, the said produce shall be dealt with as if it were the produce of the said Province; that in like manner the inhabitants of the territory of the upper St. John, determined by this Treaty to belong to Her Britannic Majesty, shall have free access to and through the river for their w w pa te m m: rivi ■ :>'» u i THB TOXTTH S GUARD AGAINST CRIXK. 169 sual por- )r to the tage from on River, »en to the countries. ncourase countries ibutaries, w Bruns- lat where he River idary, the ind open bstructed t, in logs, ps, or of n on any tered by 3f which , be pro- ;;-h the ir source sea port to and 7 boats, liin the ce shall he said s of the by this /, shall or their produce, in those parts where the said river runs wholly througfh the Stale of Maine : — provided al- ways that this agreement shall g-ive no right to either party to interfere with any regulations not inconsis- tent with the terms of this treaty, which the Govern- ments, respectively, of New Brunswick or of Maine may make respecting the navigation of the said river, where both banks thereof shall belong to the same party. , ARTICLE IV. , All grants of land heretofore made by either party within the limits of the territory which by this Treaty falls within the dominions of the other partv, shall be held valid, ratified, and confirmed to the persons in possession under suoli orants. to the siime extent as if such territory had by this Treaty fallen within the dominions of the party by wliom such grants were made ; and all equitable possessory clums, arising from a possession and improvement of any lot or parcel of land by the person actually in pos- session, or by those under whom such person claims, for more than six years before the date of this Treaty, shall in like mannner be deemed valid, and be confirmed and quieted by a release to the person entitled thereto, of the title to sqch lot or parcel of land, so described as best to include the improve- ments made thereon ; an J in all other respects the two Contracting parties agree to deal upon the most Hberal principles of equity with the settlers actually dwelling upon the territory falling to them- respect- ively, which has heretofore been in dispute be- tween them. ARTIC LE v. ' Whereas, in the ourseof the controversy res- pecting the disputed teritory on* ths north-easte n. 170 THE YOUTH 8 GUARD AGAINST CRIMi:. i h ^ Hi ( 1 1 J' Boundaiy, some monies have been received by the authorities of Her Britannic Majesty's ^Province of New Brunswick, with the intention of, preventing depredations on the forests of the said territory, which monies were to be carried to a fund called the "Disputed Territory Fund," the proceeds whereof it was ag-i-eed should be hereafter paid over to the parlies interested, in the proportions to be deter- mined by a final settlement of Boundaries ; it is hereby agreed that a correct account of all receipts and payments on the said fund shnll be delivered to the Government of the United States within six months after the ratification of this Treaty ; and the proportion of ll?e amount due thereon to the States of Maine and Massachusetts, and any bonds or se- curities appertaining" tliereto, shall be paid and de- livered over to the Government of the United States ; and the Government of the United Slates agrees to leceive for the .use of, and pay over to the Stales of Maine and Massachusetts their respective por- tions of said fund; and further, to pay and satisfy said Stales, respectively, for all claims for expenses incurred by them in : protecting the said heretofore disputed. territory, and making a survey thereof in ;1838: the Government of the United States agree- jng with ^the States of Maine and Massachusetts to ipay,.them the further sum of three hundred thousand dollars, in equal unoieties, on. account of their; assent to the ;Line of Boundary described in this Treaty, ,and in consideration of the conditions and equiva- lents ^received therefor from the Government of Her Bmannic Majesty. ..i; * ' ji^.v. ARTICiL/E .VI. it istfurrtiermore understood and agreed, that for 'the purpose of running and tracing those parts of the lii a li i THE YOUTH 8 GUARD v40AlN9T < CRIMI. TTl ed by the rovince 6( Preventing territory, called the 3 wliereof ver to tlie be de ter- ries ; it is II receipts slivered to vithin six ' ; and the ihe States nds or se- id and de- ?d States; agrees to le States ;tive por- id satisfy expenses leretofore hereof in es agree- lusetts to thousand eir; assent Treaty, equiva- ment of that for rts of the line between the source of the St. Croix and the St. Lawrence River, which will require to be run and ascertained, and for marking the residue of said line by proper monuments on the land, two Commis- sioners shall be appointed, one by Her Britannic Majesty, and one by the President of the United States, by and with the advice and consent of the Senate thereof; and the said Commissioners shall meet at Banp:or, in the State of Maine, on the 1st day of May next, or as ?oon thereafter as may be, and shall proceed to mark the line above described from the source of the St. Croix to the River St. John, and shall trace on proper maps the dividing line along said river, and along the River St Fran- cis to the outlet of the Lake Pohenagamook ; and from the outlet of the said lake they shall ascertain, fix, and mark by proper and durable monuments on the land, the line described in the First Article of this Treaty ; and the said Commissioners shall make to each of their respective Governments a joint re- port or declaration, under their hands and seals, designating siich Line of Boundary, and shall ac- company such report or declaration with maps, certified by them to be true maps of the new Boundary. ARTICLE VII. , It is further agreed,that the channels in the River St. Lawrence on both sides of the Long Saull Islands, and of Barnhart Island, the channels in the River Detroit, on both sides of the Island Bois Blanc, and between that Island and both the Canadian and American shores, and all the several channels and passages between the various Islands lying near the junction of the River St. Clair with the lake of that r 1 r ■ V 173 ms YcnrnC* ovakd aoainst crimi. name, shall be equally free and open to the ships^ vessels and boats of both parties, ^y , ^. • "":a ''^ ARTICLE VIII. * '• ;. w The parties mutually stipulate, that each shall prepare, equip and maintain in service on tlie coast of Africa, a suIRcient and adequate squadron, or naval force of vessels, of suitable numbers awl des- criptions, to carry in all not less than eighty guns, to- enforce, separately and respectively, the laws, rights, and oblii,''ations of each of the two countiies for the suppression of the vSlavo Trade; the said squadrons to be independent of each other, but the two Gov- ernments stipulating nevertheless to give such orders to the officers commanding their respective forces,, as shall enable them niost effectually to act in con- cert and co-operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this Article : copies of all such orders to be communicated by each Government to the other respectively. •..,.; • , ARTICLE IX. -' VVhereas, notwithstanding all efforts which may be made on the coast of Africa for suppressing the Slave Trade, the facilities for carrying on that traf- fic, and avoiding the vigilance of cruisers, by the fraudulent use of flags and other means, are so great, and the temptations for pursuing i:, while a market can« be found for Slaves, so strong, as that the desired' result may be bng delayed, unless all markets be shut against the purchase of African ne- groes ; — the parties to this Treaty agree, that they will unite in all becoming representations and re- monstrances with any and all powers within whose dominions such markets are allowed to exist ; and ih F at th; TBI YOUTU0 OCARD AOAIRtT CRIMB. 173 the ships^r ;% n » i ' .. sach shall die coast ladron, or s awl (Jes- y guns, to ^'s, rights, ies for the squadrons two Gov- jch orders ve forces, jct iii con- hation, as f the true orders to the other ilch may ssing the that traf- , by the are so while a , as that nless all lean ne- hat they and re- n whose st ; and that they will urge upon all such powers the pro- pi'iety and duty of closing such murkots cfiectually, at once and for ever. . ,; •/ s • . .r. , ■ .. . t . , . , ;: ARTICLE X. It is agreed that her l^ritannic Majesty an 1 the United Stales shall, upon mutual requisitions by tlieii) or their ministers, oifkers or authorities, res- pectively made, deliver up to justice all persons who, being charged with the crime ot murder, or assault with intent to commit murder, or piracy, or arson, r)r robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within the territories of the other : — provided that this shall only be done upon such evidence of criminality as, according to the laws of the place wheie the fugitive or person so charged shall be found, would justify his apprehen- sion and commitment fur trial, if the crime or offence bad there been committed ; and the respective Judg- es and other Magistrates of ihe two Governujents shall have power, jurisdiction, and authority, upon complaint made undet* oath, to issue a warrant for the apprehension of the fugitive or person so charg- ed, that h3 may be brought before such Judges or other Magistrates, respectively, to the end that the evidence of criminality may be heard and consid- ered ; and if, on sulIi hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining Judge or Magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and deliveiy shall be borne and defrayed by the party who makes the requisition, and receives the ftigitive, ''1 rr ij, -.«. ■ *«■ 174 TffB YdVTU^ OVARD ACIAIK8T Cttli»: '- ARTICLE XI. - * W • f-r The Eighth Article of this Treaty shall be in force for five years from ^ the date of the exchang-e of the Ratifications) and afterwards, until one or the other party shall siofnify a wish to terminate it. The Tenth Article shall continue in force umil one or the other of the parties shall signify its wish to termi- nate it, and no 'longer. •-' ) AR'TtCLE XII. The present Treaty shall be duly ratified; and the mutual exchange of Ratifications shall take place in London within six months from the date hereof, or earlier if possible. In faith whereof we, the respective Plenipoten- tiaries, have signed this Ti-eaty, and have hereunto affixed our seals. Done in duplicate at Washington, the ninth day of August, Anno Domini one thousand eight hun- dred and forty-two. AsHBURTON. Daniel Webster* ■.ij- . > ■ ♦ ■ ■ ... , ! V ■ . ■: t ' 1%. Ac * '•''■' 1 A{ ' I A< f ■ . < ii :T/I 'ill c-:: Bt B< Bi Bi K H O A » \ t '.' • I-^ • all be in exchang-e Dne or the it. The ne or the to termi- , and the 5 place in ^ ereof, or ^nipoten- hereunto inth day ght hun- -. ;-,'jl ■* 1)1 j ; ,* -r.;/! r -v.. . , • ■ . ... :^ . . -, _ __^^___^_ .. . . I • . / Advertiseracnt, -..*.....;.....: .-... Piagd 3- Arson, .^ ».... 76 Accessories before the fact,' ib. Arms, citizens — subjects of a foreign poti'er — taken in 84 Agents embezzling mttney, * , 99' Accessories before and after the fact, , 101 Abettors of ofl[ences punishable, -. „ , , ib. Arresting for offering atolenproperty for sale, ....^ 102 Act for the administration of Criminal Justice, i.,...,.... 103 Assizes — delivery of prisoners to be tried w». ib. Attainder of crime not pleadable, .;i .« 105 Accessory before the fact; ;. * v.. 11.1^ Accessory after the fact, : .i ^ 114 Accessory may be prosecuted 115 AH acts repugnant to this act repealed, -,■. » 122 Agricultural produce — setting fire to « ^^ 131 Accessories, principals in thesecotid degree, 134 Apprdiended, in act, cdmmitting offencd; ^ 135 A summary conviction shall be a bar, 138 Appeal, : .^. 139 Abortion — punishment for ...^ -• 147 Assault or Battery — persons committing 143 A bar, such certificate shall be, • 151 Accessories, punishment of, '. 155 Act — provisions against this l/iG Act repealed — all acts repugnant to this ^58 Burglary, 75 Benefit of clergy abolished, 82 Bank, &c., destroying any sea 129 Bridgo — ^injury to a public 130 Klliatd Table — puniahmeiitfornotlicenang, ~ 161 BiUiard Table—act granting a duty upoOt ^....^ ib. Cora ma ud n xntt, the Ua # , . . » ..• „..,..*. ,r..,.,» II if I r I '4 ■ I 170 INDEIC. CrinK'S — the nature of Page 13 CrimM — persons eapable of committing 17 Chance or misfortune— oflfcnces by 2S Compulsion — offences conuiiitted from 27 Certain forms on arraignment diepensed with, " 80 Church — disturbance of a congregation in 84 Coin and currency, 85 Constable a' peace officer, 88 CJiallenging jury beyond the legal number, 105 Courts— officers of 107 Court, to direct execution in, 113 (Churches — indictment relating to, 117 C-f iminal acts — rule for the interpretation of, 122 Conviction not evidence in action, 123 Cliurch or Chapel — riotously demolishing, 127 C-attle — killing or maiming, , 131 i\)nviction — form of 138 C-onvictions to be returned to Quarter Sessions, 140 Child — secreting dead body of 148 Conviction — form of, i57 Conmiitted — cases in which ofTendersmay be, 159 Committed — other cases in which oftcnders may be, ICO Drunken state — offences by persons in, 25 Dwelling house — what deemed part of, 75 Desert — procuring soldiers or sailors to 83 Districts — offences committed on boundary, H5 Defects — certain formal, il9 Destioying wrecks or any articles, 129 Damage to property — persons committing, 12*2 Divine service — punishment for disturbing 152 Explosive substances — punishment for, , , 147 Food of convicts, 82 Felony — accessories to, lOO Felony — persons tried for, , 103 Felony — punishment for, , 106 Felonies not capital, 1"* Factors pledging for their own use, 124 Fisliery — breaking down the dam of a 131 Fruit or vegetables—destroying any » ,..,... 133 Page 13 17 .... 25 .... 27 .... 80 .... 81 .... a-s .... 88 .... 105 .... 107 .... 11.3 .... 117 .... 122 ... 123 ... 127 ... 131 .... 1.^ ... 140 ... 148 .... 157 .... 1.59 .... ICO .... 25 ... 75 ... 83 ... 115 ... il9 ... 129 .. 122 ... 152 ... 147 ... 82 ... 100 ... 103 ... 106 .. 107 ... 124 ... 131 ... 13JJ iifDlfix. 177 Fence, wall, stile or gate— destroying any Page 133 Felony— assault with intent to commit, 148 Felony intended — Magistrate not to, 152 Fines — how levied 153 Forces — not to affect the laws relating to, 156 God and Religion — offences against, 36 Govemw — no report to be made to, ;. Ill Heresy and non-conformity, 44 Hard labor or confinement^— the Court, 135 Homicide not felonious — as to 145 High Treason— not to repeal any act, 158 Introduction, 5 Infants— offences committed by 20 Ignorance or mistake— offences by 26 Individuals— offences against property of 45 Indictment for offences, Hg Indictments not to abate by dilatory pica, 118 Indictment — what defects shall not ib. Imprisonment — from what period 123 Imprisonment— offences punishable by 155 Imprisoned — persons may be pardoned, 156 Justices — the appointment of 59 Justioeof the Peace— oath of office of a 64 Justice of the Peace — the qualification of a 65 Justices of the Peace — power, office, and duty of 67 Judgment — the Court may abstain irom pronouncing 112 Journey — offences committed during a 116 Jury — appeals triable by 1.54 Jury may acquit of felony, and convict of assault in certain cases, 156 Knowledge — carnal 75 Lunatics — offences committed by 22 Larceny and other offences connected therewith, 90 Larceny — simple 98 Limitation as to summary proceedings, 102 Ijarceny — amending the laws relative to 123 Limitation as to summary proceedings, 136 Limitation of time, and venue in proceedings 141 Murder, 74 Murder^ — persons convicted of— sentence when to be passed — ^respite 81 M % •t I- : ' , M \ f I I 'f I fro mosx; Malicioaikinjunei to property — anact'for ....;<»n.I..<..i....<... 10^ 120 136 :.. 137 the 143 140 15H 160 153 74 75 ib. 76 , 78 95 i;)o ib. IVi ......... 120 INDEX. * no Rcpoaling clause, P»g« 142 Kapo — assault with intent to commit 16t Soyereijjn — of offences by the 35 Statutes of Canada — criminal 73 i^odomy, 75 Statutes of Upper Canada, 79 Stealing from apartments, by tenants or lodgers, 98 Stolen goods — taking rewards for helping to recover 100 Summary conviction — cases of 103 Sentence — Aegationof 108 Sentence — certificate of 109 Solitary confinement — the Court may order ib. Sentence — a person under 110 Subsequent offence — punishment for ib. Stolen property — advertising a reward for 125 Silk, woollen, linen, or cotton — destroying ib. Ships or vessels — setting fire to 127 Ships hanging out false lights, 128 Ships or vessels — setting fire, to destroy ib. Save life — impeding any person from endeavouring to ib. Seaman — assault on any 149 Summary proceedings, time for 156 Theft-— delineation of 46 Theft — the subjects of. ib. Theft — young of wild animals not the subject of 57 Treason — petit 74 Treason mitigated — sentence in certain cases of high 80 Trial — plea of not guilty shall put prisoner on , 105 Transportation — returning from 108 Turnpike trust — property of 118 Tumpikegate, toll house, &c. — destroying a 130 Trees, shrubs, underwood, &c., — destroying or damaging 132 Treaty between Mer Majesty and the United States — signed at Washing- ton, August9, 1842— ratifications at London, Oct., 13, 1842, 163 Vegetable productions — stealing 97 Vegetables not growing — destroying 133 Whipped orset in the pillory — for what 82 Women — abduction of P9 V.itncsB, competent or not , .' 106